TABLE OF CONTENTS 1. AMURR v FRANCE (ECTHR) ....3 2. ASSENOV ET AL. v BULGARIA (ECTHR).14 3. AYDIN v TURKEY (ECTHR).29 4. D.

v UNITED KINGDOM (ECTHR)..50 5. DELCOURT v BELGIUM (ECTHR).61 6. DOMBO BEHEER BV v NETHERLANDS (ECTHR).74 7. FOGARTY v UNITED KINGDOM (ECTHR)..82 8. FOX, CAMPBELL AND HARTLEY v THE UNITED KINGDOM (ECTHR).89 9. GOODWIN v UNITED KINGDOM (ECTHR).97 10. GRANT v SOUTH-WEST TRAINS LTD (ECJ)...111 11. GOLDER v UNITED KINGDOM (ECTHR).119 12. GUZZARDI v ITALY (ECTHR).136 13. HORNSBY v GREECE (ECTHR)...149 14. IRELAND v UNITED KINGDOM (ECTHR)159 15. ITALY v COMMISSION (ECJ)..168 16. KONIG v GERMANY (ECTHR)178 17. KYPRIANOU v CYPRUS (ECTHR)..196 18. KADI AND AL BARAKAAT INTERNATIONAL FOUNDATION v COUNCIL AND COMMISSION (ECJ)...........................................................................................211 19. LAWLESS v IRELAND (NO. 3) (ECTHR)218 20. LORSE v NETHERLANDS (ECTHR)..236 21. MAAOUIA v FRANCE (ECTHR)..252 22. MAMATKULOV AND ABDURASULOVIC v TURKEY (ECTHR).259 23. STEEL AND MORRIS v UNITED KINGDOM (ECTHR)..278 24. NEUMEISTER v AUSTRIA (ECTHR)..298 25. P v S AND CORNWALL COUNTY COUNCIL (ECJ)322
1

26. PATRICK v MINISTRE DES AFFAIRS CULTURELLE..325 27. SCHMIDBERGER v AUSTRIA (ECJ)..328 28. SELMOUNI v FRANCE (ECTHR).343 29. SPAIN v EUROJUST (ECJ)357 30. SOERING v UNITED KINGDOM (ECTHR)363 31. SRAMEK v AUSTRIA (ECTHR)...379 32. TYRER v UNITED KINGDOM (ECTHR)387 33. VAN DER VEN v NETHERLANDS (ECTHR).395

Amurr v France (ECtHR) Amurr v France App No 19776/92 (ECtHR, 25 June 1996)

CONSEIL DE LEUROPE

COUNCIL OF EUROPE

COUR EUROPENNE DES DROITS DE LHOMME EUROPEAN COURT OF HUMAN RIGHTS

COURT (CHAMBER)

CASE OF AMUUR v. FRANCE (Application no. 19776/92)

JUDGMENT

STRASBOURG 25 June 1996

AS TO THE FACTS

I. CIRCUMSTANCES OF THE CASE 6. The applicants, Mahad, Lahima, Abdelkader and Mohammed Amuur, are Somali nationals. They are brothers and sister born respectively in 1970, 1971, 1973 and 1975. A. Refusal of leave to enter French territory and of applications for refugee status 7. The applicants arrived at Paris-Orly Airport on 9 March 1992 on board a Syrian Airlines flight from Damascus (Syria), where they had stayed for two months after travelling there via Kenya. They asserted that they had fled Somalia because, after the overthrow of the regime of President Siyad Barre, their lives were in danger and several members of their family had been murdered. Five of their cousins and thirteen other Somali nationals (including eleven children) also arrived, some on the same flight and others from Cairo on 14 March. However, the airport and border police refused to admit them to French territory, on the ground that their passports had been falsified, and held them at the Htel Arcade, part of which had been let to the Ministry of the Interior and converted for use as a waiting area for Orly Airport. According to the applicants, police officers would drop them off at the airports Espace lounge very early in the morning and take them back to the Htel Arcade in the evening. 8. On 12 March, in accordance with Article 12 of Decree no. 82-442 of 27 May 1982 (see paragraph 16 below), the Minister of the Interior considered an application by the applicants for leave to enter under the right of asylum.

The applicants were granted legal aid as from 24 March, when CIMADE, a humanitarian organisation, which had in the meantime inquired about their situation, put them in contact with a lawyer. 9. On 25 March the applicants asked the French Office for the Protection of Refugees and Stateless Persons ("the OFPRA") to grant them refugee status pursuant to the Geneva Convention of 28 July 1951. On 31 March the OFPRA ruled that it lacked jurisdiction because the applicants had not obtained a temporary residence permit. 10. On 26 March the applicants applied to the urgent applications judge at the Crteil tribunal de grande instance at short notice seeking an order for their release from confinement at the Htel Arcade, which, they asserted, constituted a flagrantly unlawful act (voie de fait). B. The applicants return to Syria 11. On 29 March at 1.30 p.m., after the Minister of the Interior had refused them leave to enter, the applicants were sent back to Syria, which, according to the Government, had agreed to take them. The other eighteen Somali nationals (see paragraph 7 above), who had not been sent back, were recognised as political refugees by the OFPRA in a decision of 25 June 1992. On 10 June the United Nations High Commissioner for Refugees ("the HCR") sent the Ministry of the Interior the following fax: "The four persons were allowed to re-enter Syrian territorywithout difficulty, the French Embassy having obtained guaranteesto that effect from the relevant Syrian authorities. The four Somali nationals were supposed to get in touch with our officelater for their status to be determined, but to date we haveheard nothing from them. We shall keep you informed of anyfurther developments." Before the Commission the applicants alleged that these guarantees had been given after their expulsion from France. The Government stated at the hearing before the Court that on 29 July 1992 they had received from the HCR a further fax, worded as follows: "The Damascus delegation of the United Nations High Commissionerfor Refugees has just informed us that the four members of theAmuur family had recently been recognised as refugees by the HCR,under paragraph 68 of its Statute ... As Syria grants asylum topersons recognised as refugees by the HCR under its Statute,these Somali nationals were not in danger of being refused entryand sent to their country of origin." C. The order of the Crteil tribunal de grande instance 12. On 31 March the Crteil tribunal de grande instance issued an order under expedited procedure in which it ruled that the applicants the

detention was unlawful and directed that they be released. The relevant part of the courts decision reads as follows: "Although the lawfulness of refusals to admit aliens ... cannotbe reviewed by an urgent applications judge, ... the currentdetention by order of the Minister of the Interior on premises which are, moreover, not situated in the international zone, isnot provided for by any legislation, as is indeed implicitlyacknowledged by the Minister of the Interior. Furthermore, under the legislative and constitutional provisionscurrently applicable in France, detention may not be ordered bythe administrative authorities in cases other than those providedfor in Article 35 bis of the 1945 Ordinance, which in any event makes such detention subject to supervision by the ordinary courts. In French law as it stands at present, therefore, and whateverthe factual circumstances surrounding the entry of the aliens concerned, the applicants must be considered to have been arbitrarily deprived of their liberty; it follows that a flagrantly unlawful act is being committed which it is the dutyof the urgent applications judge to bring to an end. The Minister of the Interior is accordingly ordered to release the applicants." No appeal against the above order was lodged by State Counsels Office. D. The appeal to the Refugee Appeals Board 13. In the meantime, on 30 March, the applicants had appealed to the Refugee Appeals Board. They sought a ruling that the Minister of the Interiors decision refusing them leave to enter French territory and the order that they be sent back to Syria were contrary to section 5 (b) of the Law of 25 July 1952 on the suspensive effect of appeals to the Appeals Board, Article 31 para. 1 of the Geneva Convention, which prohibited the imposition of criminal penalties for the unlawful entry or residence of refugees, and Article 33 para. 1 of the same Convention, which prohibited turning away a refugee to a country where his life would be in peril. 14. On 17 April 1992 the Appeals Board found against the applicants. It ruled that the decisions to remove them from French territory were not incompatible with the rule that appeals had a suspensive effect as the appeal had been lodged after the decisions had been carried out, the applicants had not been prosecuted and the French Government had obtained assurances concerning the applicants life and liberty from the Syrian authorities.

AS TO THE LAW II. ALLEGED VIOLATION OF ARTICLE 5 PARA. 1 (art. 5-1) OF THE CONVENTION 37. According to the applicants, holding them in the international zone at Paris-Orly Airport constituted deprivation of liberty contrary to Article 5 para. 1 (f) of the Convention (art. 5-1f), which provides: "1. Everyone has the right to liberty and security of person.No one shall be deprived of his liberty save in the followingcases and in accordance with a procedure prescribed by law: ... (f) the lawful arrest or detention of a person to prevent hiseffecting an unauthorised entry into the country or of a personagainst whom action is being taken with a view to deportation orextradition." A. Existence of a deprivation of liberty 38. The applicants complained of the physical conditions of their "detention" in the transit zone. They maintained that these did not comply with Resolution (73) 5 of the Committee of Ministers of the Council of Europe on Standard Minimum Rules for the Treatment of Prisoners, or the recommendations of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (see paragraph 28 above), or Recommendation No. R (94) 5 of the Committee of Ministers of 21 June 1994 (see paragraph 27 above). In addition, these conditions had been aggravated by the excessive length of their "detention", which was a decisive factor for assessment of the "deprivation of liberty" issue. They also emphasised that under the relevant international conventions and national legislation they should, as asylum-seekers, have enjoyed special protection and more favourable treatment than unlawful immigrants. The detention of asylum-seekers could not be justified unless their application for asylum was considered manifestly ill-founded, which was clearly not so in the applicants case, as the other members of their family were granted refugee status by the French Office for the Protection of Refugees and Stateless Persons (see paragraph 11 above). 39. According to the Government, the applicants stay in the transit zone was not comparable to detention. They had been lodged in part of the Htel Arcade where the "physical conditions" of the accommodation were described as satisfactory even in the CPTs report. Their separation from the hotels other residents had been justified by the concern to prevent them from evading surveillance by the airport and border police and settling unlawfully in France. The original reason why they were held and for the length of time they were held had been their obstinacy in seeking to enter French territory despite being refused leave to enter. They could not therefore "validly complain of a situation which they had largely created", as the Court itself had held in the Kolompar v. Belgium judgment of 24 September 1992 (Series A no. 235-C). 40. While admitting that the applicants stay in the international zone was no different when its length was taken into account - from "detention" in the ordinary meaning of that term, the Commission concluded that Article 5 (art. 5) was not applicable. It considered that the degree of physical constraint required for the measure concerned to be described as "deprivation of liberty" was lacking in this case. 41. The Court notes in the first place that in the fourth paragraph of the
7

Preamble to its Constitution of 27 October 1946 (incorporated into that of 4 October 1958), France enunciated the right to asylum in "the territories of the Republic" for "everyone persecuted on account of his action in the cause of freedom". France is also party to the 1951 Geneva Convention Relating to the Status of Refugees, Article 1 of which defines the term "refugee" as "any person who [has a] well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.

The Court also notes that many member States of the Council of Europe have been confronted for a number of years now with an increasing flow of asylum-seekers. It is aware of the difficulties involved in the reception of asylum-seekers at most large European airports and in the processing of their applications. The report of the Parliamentary Assembly of the Council of Europe, of 12 September 1991, is revealing on this point (see paragraph 26 above). Contracting States have the undeniable sovereign right to control aliens entry into and residence in their territory. The Court emphasises, however, that this right must be exercised in accordance with the provisions of the Convention, including Article 5 (art. 5). 42. In proclaiming the right to liberty, paragraph 1 of Article 5 (art. 5-1) contemplates the physical liberty of the person; its aim is to ensure that no one should be dispossessed of this liberty in an arbitrary fashion. On the other hand, it is not in principle concerned with mere restrictions on the liberty of movement; such restrictions are governed by Article 2 of Protocol No. 4 (P4-2). In order to determine whether someone has been "deprived of his liberty" within the meaning of Article 5 (art. 5), the starting-point must be his concrete situation, and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question. The difference between deprivation of and restriction upon liberty is merely one of degree or intensity, and not one of nature or substance (see the Guzzardi v. Italy judgment of 6 November 1980, Series A no. 39, p. 33, para. 92). 43. Holding aliens in the international zone does indeed involve a restriction upon liberty, but one which is not in every respect comparable to that which obtains in centres for the detention of aliens pending deportation. Such confinement, accompanied by suitable safeguards for the persons concerned, is acceptable only in order to enable States to prevent unlawful immigration while complying with their international obligations, particularly under the 1951 Geneva Convention Relating to the Status of Refugees and the European Convention on Human Rights. States legitimate concern to foil the increasingly frequent attempts to circumvent immigration restrictions must not deprive asylum-seekers of the protection afforded by these conventions. Such holding should not be prolonged excessively, otherwise there would be a risk of it turning a mere restriction on liberty inevitable with a view to organising the practical details of the aliens repatriation or, where he has requested asylum, while his application for leave to enter the territory for that purpose is considered - into a deprivation of liberty. In that connection account should be taken of the fact that the measure is applicable not to those who have committed criminal offences but to aliens who, often fearing for their lives, have fled from their own country.

Although by the force of circumstances the decision to order holding must necessarily be taken by the administrative or police authorities, its prolongation requires speedy review by the courts, the traditional guardians of personal liberties. Above all, such confinement must not deprive the asylum-seeker of the right to gain effective access to the procedure for determining refugee status. 44. The applicants arrived at Paris-Orly Airport from Damascus on 9 March 1992. They stated that they had fled their country of origin, Somalia, because they had been persecuted by the regime in power and their lives were in danger (see paragraph 7 above).As their passports had been falsified, the airport and border police refused them leave to enter French territory. They were then held in the airports transit zone (and its extension, the floor of the Htel Arcade adapted for the purpose) for twenty days, that is to say until 29 March, when the Minister of the Interior refused them leave to enter as asylum-seekers (see paragraph 11 above). They were immediately sent back to Syria without being able to make an effective application to the authority having jurisdiction to rule on their refugee status (see paragraph 9 above). 45. The Court notes that for the greater part of the above period the applicants, who claimed to be refugees, were left to their own devices. They were placed under strict and constant police surveillance and had no legal and social assistance - particularly with a view to completing the formalities relating to an application for political refugee status until 24 March, when a humanitarian association, which had in the meantime been informed of their presence in the international zone, put them in contact with a lawyer. Moreover, until 26 March neither the length nor the necessity of their confinement were reviewed by a court (see paragraph 10 above). The applicants lawyer applied on that date to the Crteil tribunal de grande instance, which, in making an order under the expedited procedure on 31 March (see paragraph 12 above), described the applicants confinement as an "arbitrary deprivation of liberty". In a more general context, namely consideration of the constitutionality of the Law of 6 September 1991, the Constitutional Council had already noted on 25 February 1992 the restriction on personal liberty caused by "the combined effect of the degree of restriction of movement [holding an alien in the transit zone] entails and its duration" (see paragraph 21 above). The period of confinement criticised by the Constitutional Council on that occasion was equivalent to the length of time the applicants were held. 46. In concluding that there was no deprivation of liberty, the Government and the Commission attached particular weight to the fact that the applicants could at any time have removed themselves from the sphere of application of the measure in issue. More particularly, the Government argued that although the transit zone is "closed on the French side", it remains "open to the outside", so that the applicants could have returned of

10

their own accord to Syria, where their safety was guaranteed, in view of the assurances which the Syrian authorities had given the French Government. The Commission added that the applicants had not shown that their lives or physical integrity were in danger in Syria or that the French authorities had prevented them from boarding a plane bound for that country. 47. The applicants maintained that such reasoning would amount to binding the application of Article 5 (art. 5) to that of Article 3 of the Convention (art. 3); this would be to ignore the specific object of Article 5 (art. 5), and its wording, which had to be strictly construed; it would also deprive Article 5 (art. 5) of any useful effect, particularly with regard to asylum applications. 48. The mere fact that it is possible for asylum-seekers to leave voluntarily the country where they wish to take refuge cannot exclude a restriction on liberty, the right to leave any country, including ones own, being guaranteed, moreover, by Protocol No. 4 to the Convention (P4). Furthermore, this possibility becomes theoretical if no other country offering protection comparable to the protection they expect to find in the country where they are seeking asylum is inclined or prepared to take them in. Sending the applicants back to Syria only became possible, apart from the practical problems of the journey, following negotiations between the French and Syrian authorities. The assurances of the latter were dependent on the vagaries of diplomatic relations, in view of the fact that Syria was not bound by the Geneva Convention relating to the Status of Refugees. 49. The Court concludes that holding the applicants in the transit zone of Paris-Orly Airport was equivalent in practice, in view of the restrictions suffered, to a deprivation of liberty. Article 5 para. 1 (art. 5-1) is therefore applicable to the case. B. Compatibility of the deprivation of liberty found established in the case with paragraph 1 of Article 5 (art. 5-1) 50. It remains to be determined whether the deprivation of liberty found to be established in the present case was compatible with paragraph 1 of Article 5 (art. 5-1). Where the "lawfulness" of detention is in issue, including the question whether "a procedure prescribed by law" has been followed, the Convention refers essentially to national law and lays down the obligation to conform to the substantive and procedural rules of national law, but it requires in addition that any deprivation of liberty should be in keeping with the purpose of Article 5 (art. 5), namely to protect the individual from arbitrariness (see, among many other authorities, the Kemmache v. France (no. 3) judgment of 24 November 1994, Series A no. 296-C, pp. 19-20, para. 42).

11

In laying down that any deprivation of liberty must be effected "in accordance with a procedure prescribed by law", Article 5 para. 1 (art. 5-1) primarily requires any arrest or detention to have a legal basis in domestic law. However, these words do not merely refer back to domestic law; like the expressions "in accordance with the law" and "prescribed by law" in the second paragraphs of Articles 8 to 11 (art. 8-2, art. 9-2, art. 10-2, art. 11-2), they also relate to the quality of the law, requiring it to be compatible with the rule of law, a concept inherent in all the Articles of the Convention. In order to ascertain whether a deprivation of liberty has complied with the principle of compatibility with domestic law, it therefore falls to the Court to assess not only the legislation in force in the field under consideration, but also the quality of the other legal rules applicable to the persons concerned. Quality in this sense implies that where a national law authorises deprivation of liberty - especially in respect of a foreign asylumseeker - it must be sufficiently accessible and precise, in order to avoid all risk of arbitrariness. These characteristics are of fundamental importance with regard to asylumseekers at airports, particularly in view of the need to reconcile the protection of fundamental rights with the requirements of States immigration policies. 51. The applicants asserted that their detention had no legal basis, whether under the French legislation in force at the time or under international law. They had found themselves in a legal vacuum in which they had neither access to a lawyer nor information about exactly where they stood at the time. In support of the above argument, they rely on the reasons for the judgment of the Crteil tribunal de grande instance, ruling on their application for an order under the expedited procedure. 52. The Court notes that even though the applicants were not in France within the meaning of the Ordinance of 2 November 1945, holding them in the international zone of Paris-Orly Airport made them subject to French law. Despite its name, the international zone does not have extraterritorial status. In its decision of 25 February 1992 the Constitutional Council did not challenge the legislatures right to lay down rules governing the holding of aliens in that zone. For example, the Law of 6 July 1992 (see paragraph 23 above) provides, inter alia, for the intervention of the ordinary courts to authorise holding for more than four days, the assistance of an interpreter and a doctor and the possibility of communicating with a lawyer. The Decree of 15 December 1992 (see paragraph 24 above) lays down the procedural rules applicable to proceedings brought in accordance with that Law. The Decree of 2 May 1995 (see paragraph 25 above) gives the delegate of the United Nations High Commissioner for Refugees or his representatives and humanitarian associations permanent access to the zone. However, these rules - which postdate the facts of the case - were not applicable at the time to the applicants.

12

53. The Court emphasises that from 9 to 29 March 1992 the applicants were in the situation of asylum-seekers whose application had not yet been considered. In that connection, neither the Decree of 27 May 1982 nor the - unpublished - circular of 26 June 1990 (the only text at the material time which specifically dealt with the practice of holding aliens in the transit zone) constituted a "law" of sufficient "quality" within the meaning of the Courts case-law; there must be adequate legal protection in domestic law against arbitrary interferences by public authorities with the rights safeguarded by the Convention (see the Malone v. the United Kingdom judgment of 2 August 1984, Series A no. 82, p. 32, para. 67). In any event, the Decree of 27 May 1982 did not concern holding aliens in the international zone. The above-mentioned circular consisted, by its very nature, of instructions given by the Minister of the Interior to Prefects and Chief Constables concerning aliens refused leave to enter at the frontiers. It was intended to provide guidelines for immigration control at ports and airports. Moreover, the brief section it devoted to holding in the international zone and aliens rights contains no guarantees comparable to those introduced by the Law of 6 July 1992. At the material time none of these texts allowed the ordinary courts to review the conditions under which aliens were held or, if necessary, to impose a limit on the administrative authorities as regards the length of time for which they were held. They did not provide for legal, humanitarian and social assistance, nor did they lay down procedures and time-limits for access to such assistance so that asylum-seekers like the applicants could take the necessary steps. 54. The French legal rules in force at the time, as applied in the present case, did not sufficiently guarantee the applicants right to liberty. There has accordingly been a breach of Article 5 para. 1 (art. 5-1).

FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Dismisses the Governments preliminary objection; 2. Holds that Article 5 para. 1 of the Convention (art. 5-1) applies in the case and has been breached;

13

Assenov et al. v Bulgaria (ECtHR) Assenov et al. v Bulgaria App No 24760/94 (ECtHR, 28 October 1998)

CASE OF ASSENOV AND OTHERS v. BULGARIA (90/1997/874/1086)

JUDGMENT STRASBOURG 28 October 1998 The present judgment is subject to editorial revision before its reproduction in final form in Reports of Judgments and Decisions 1998. These reports are obtainable from the publisher Carl Heymanns Verlag KG (Luxemburger Strae 449, D-50939 Kln), who will also arrange for their distribution in association with the agents for certain countries as listed overleaf.

14

SUMMARY Judgment delivered by a Chamber Bulgaria alleged ill-treatment by police and pre-trial detention (Code of Civil Procedure, Article 182(d), Code of Criminal Procedure) I. A. 1. EVENTS OF AND FOLLOWING 19 SEPTEMBER 1992 Preliminary objections Alleged non-exhaustion of domestic remedies

Having exhausted all available remedies within criminal justice system without obtaining prosecution of police officers alleged to have ill-treated him, applicant not required to attempt to obtain redress by bringing civil action for damages. Conclusion: objection dismissed (unanimously). 2. Alleged abuse of process

No evidence of abuse of right of petition. Conclusion: objection dismissed (unanimously). B. 1. Merits Article 3 of the Convention

(a) Alleged ill-treatment by police Impossible to establish on basis of available evidence whether or not applicants injuries caused by police as alleged. Conclusion: no violation based on allegation of ill-treatment by police (eight votes to one). (b) Adequacy of investigation Where individual raises arguable claim to have been ill-treated in breach of Article 3, that provision read in conjunction with Article 1 requires by implication that there should be an effective official investigation. Conclusion: violation based on failure to carry out effective official investigation (unanimously). 2. Article 6 1 of the Convention

Applicant alleged that any civil action for damages brought by him in respect of alleged illtreatment by police would have been stayed under Article 182(d) of the Code of Civil Procedure case-law submitted to Court indicated that civil courts not bound by decision of prosecuting authorities to terminate criminal investigation.

15

Conclusion: no violation (unanimously). 3. Article 13 of the Convention

Where individual has arguable claim to have been ill-treated in breach of Article 3, notion of effective remedy entails, in addition to thorough and effective investigation as required also by Article 3, effective access for complainant to investigatory procedure and payment of compensation where appropriate. Conclusion: violation (unanimously). II. A. 1. EVENTS OF AND SUBSEQUENT TO JULY 1995 Preliminary objections Alleged non-exhaustion of domestic remedies

Applicant made numerous requests for his release to prosecuting authorities and Shoumen District Court. Conclusion: objection dismissed (unanimously). 2. Alleged abuse of process

No evidence of abuse of process. Conclusion: objection dismissed (unanimously). B. 1. Merits Article 3 of the Convention

Court can examine under Article 3 complaint about conditions of detention raised under Article 5 1 must assess conditions taken as a whole not established conditions sufficiently severe to reach Article 3 level. Conclusion: no violation (eight votes to one). 2. Article 5 1 of the Convention

Applicant detained on reasonable suspicion of having committed an offence no evidence detention unlawful under Bulgarian law. Conclusion: no violation (unanimously). 3. Article 5 3 of the Convention

(a) Right to be brought promptly before judge or other officer Investigator, whose decisions could be overturned by prosecutor, not sufficiently independent.

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Conclusion: violation (unanimously). (b) Right to trial within reasonable time or release pending trial Applicant detained pre-trial for approximately two years national authorities not unreasonable in fearing he might reoffend during one year virtually no action was taken in connection with investigation authorities did not act with required diligence. Conclusion: violation (unanimously). 4. Article 5 4 of the Convention

Applicant unable to have continuing lawfulness of pre-trial detention determined by a court on more than one occasion no oral hearing held on that occasion. Conclusion: violation (unanimously). 5. Article 25 1 of the Convention

Two of applicants questioned by police or prosecuting authorities about application to Commission leading them to deny having made any application in sworn declaration application included serious allegations of misconduct on part of same authorities at time of questioning, first applicant detained on remand within control of prosecuting authorities in all the circumstances, questioning amounted to improper pressure. Conclusion: violation (unanimously). AS TO THE FACTS I. THE CIRCUMSTANCES OF THE CASE

1. The applicants are a family of Bulgarian nationals, of Roma origin, who live in Shoumen, Bulgaria. Mr Anton Assenov was born in 1978, and his parents, Mrs Fidanka Ivanova and Mr Stefan Ivanov, were born in 1956 and 1952 respectively. A. Events of and following 19 September 1992 1. Arrest and detention

2. On 19 September 1992, while gambling in the market square in Shoumen, Mr Assenov (then aged 14) was arrested by an off-duty policeman and taken to the nearby bus station, where the officer called for back-up. 3. Subsequently Mr Assenovs parents, who were both working at the bus station, came and asked for their sons release. Mr Ivanov, as a way of showing that he would administer any necessary punishment, took a strip of plywood and hit his son. At some point two other policemen arrived. The applicants allege that these officers hit the boy with truncheons. A dispute ensued between the boys parents and the police, although it appears that Mr Assenov himself was unaggressive and compliant. He and his father were handcuffed and forced into a police car. They were taken to the police station, where they were detained for approximately two hours before being released without charge. Mr Assenov alleged to have been beaten
17

with a toy pistol and with truncheons and pummelled in the stomach by officers at the police station. 2. Medical evidence

4. On 21 September 1992, the first working day following the incident, the applicants visited a forensic medical expert. They explained to him that Mr Assenov had been beaten by three policemen with a truncheon and with the handle of a pistol and that his mother had been beaten with a truncheon. The doctor examined the two applicants and issued medical certificates. 5. The certificate concerning the first applicant stated that the boy had a band-like haematoma about 5 cm long and 1 cm wide on the upper outer side of his right arm; three band-like haematomas, each about 6 cm long and 1 cm wide, on the right side of his chest; another bruise about 4 cm long on the left scapula; a haematoma 2 cm in diameter on the back of the head; and five grazes each about 5 cm long on the right chest. The certificate concerning Mrs Ivanova stated that she had a bruise about 5 cm long on her left thigh. The doctor concluded that the bruises could have been inflicted as described by the applicants. 3. Investigation by the District Directorate of Internal Affairs

6. On 2 October 1992, Mrs Ivanova filed a complaint with the District Directorate of Internal Affairs (the DDIA), alleging that her son had been beaten at the bus and police stations, and requesting the prosecution of the officers responsible (see paragraph 58 below). 7. The complaint was dealt with by Colonel P., an inspector with the personnel service of the DDIA. On 15 October 1992, Colonel P. heard each of the applicants and prepared written accounts of their oral testimony. Mr Assenov was heard in the presence of a teacher, Mr G. In their statements, the applicants gave the account of events set out in paragraphs 89 above. 8. Colonel P. also ordered the three police officers present at the bus station and the officer who had been on duty at the police station to submit written explanations. This they did on 21, 22 and 26 October 1992. According to these statements, Sergeant B., who was off-duty and out of uniform, had been passing the central bus station when he saw people gambling. He had arrested Mr Assenov and taken him to the bus station from where he had called the police officer on duty. Thereupon Mr Ivanov had appeared, shouted at the boy, and had hit him two or three times on the back with a plywood strip. He and his wife, who had arrived shortly thereafter, started protesting against their sons arrest and pulling the boy. When Sergeants S. and V. arrived, the father had shouted, swore, and threatened the police officers, who told him to be quiet and asked him to come voluntarily to the police station. A crowd of about fifteen to twenty Roma had gathered; also present were approximately twenty drivers from the bus station. Since Mr Ivanov had continued his violent behaviour, the police officers had subdued him forcibly, handcuffed him and taken him and his son to the police station. There officer S. had filled out a form recording the seizure of 100 levs from Mr Assenov and then released the two applicants. It was not true that they had been beaten at the police station. 9. On 26 October 1992 Colonel P. also obtained a written statement from the traffic manager at the bus station. She stated that a policeman had brought a boy and had asked her to telephone the police for a car. She did not remember any disturbance having occurred.
18

10. Based on this evidence, on 6 November 1992 Colonel P. drew up an internal note in which he made a summary of the facts and concluded that the boy had been beaten by his father. 11. On 13 November 1992 the Director of the DDIA wrote to the applicants stating that the conduct of the police officers had been lawful and that he would not, therefore, open criminal proceedings against them. 4. Investigation by the regional military prosecution office

12. On 12 December 1992 the applicants submitted a request for the criminal prosecution of the alleged offenders to the regional military prosecution office in Varna (the RMPO). 13. On 30 December 1992 the RMPO ordered an inquiry to be carried out by investigator G. at the military investigation office in Shoumen. 14. On 8 February 1993 investigator G. wrote to the Director of Police in Shoumen, instructing him to take evidence from the applicants and the police officers and to report back. Since there had already been an inquiry on the matter, on 15 February 1993 the DDIA sent to the investigator all the material already collected. 15. It is disputed whether investigator G. heard the applicants personally. The Government allege that he did, but there is no record of this on file. 16. On 20 March 1993 investigator G. drew up a one-page internal note summarising the facts and advising that criminal proceedings should not be brought against the officers, on the grounds that the allegations had not been proved and the evidence in the case was contradictory. 17. On 24 March 1993, the RMPO decided, on the basis of the investigators advice, not to instigate criminal proceedings. The decision stated, inter alia, that Mr Ivanov had been hitting his son, shouting and pulling him, in disobedience of police orders, which had led to the applicants arrest (see paragraph 55 below), and that the evidence taken from witnesses did not confirm the use of physical violence by the police against the boy. B. 1. Mr Assenovs arrest on 27 July 1995 and subsequent detention Arrest, detention and investigation

18. In January 1995, Mr Assenov was questioned by the Shoumen prosecuting authorities in connection with an investigation into a series of thefts and robberies. 19. He was arrested on 27 July 1995 and the following day, in the presence of his lawyer and a prosecutor (K.), he was questioned by an investigator and formally charged with ten or more burglaries, allegedly committed between 9 January and 2 May 1995, and six robberies committed between 10 September 1994 and 24 July 1995, all involving attacks on passers-by on the street. Mr Assenov admitted most of the burglaries but denied having committed the robberies. The decision was taken to detain him on remand. This decision was approved the same day by another prosecutor, A. (see paragraph 69 below). 20. On 27 July, 2 August, 7 August and 15 August 1995, the applicant took part in identification parades, at which he was identified by four robbery victims. A lawyer was present on all occasions. On 28 August 1995 an expert appointed by the investigator submitted a report concerning the value of the objects allegedly stolen by the first applicant and his accomplices. On an unspecified date additional charges, concerning other thefts in which Mr Assenov was suspected to have been an accomplice, were joined.
19

It would appear that, in the course of the investigation, approximately sixty witnesses and alleged victims were examined, but that no evidence was collected after September 1995. 2. Pre-trial detention, July 1995July 1997

21. Between 27 July 1995 and 25 March 1996, Mr Assenov was detained at the Shoumen police station. There is a dispute between the parties as regards the conditions of his detention there. The applicant submits that he was held in a cell measuring 3 x 1.80 metres, which he shared at times with two to four other detainees; that the cell was almost entirely below ground level, with very limited light and fresh air; that he could not exercise or engage in any activity in his cell; and that he was let out of his cell only twice a day, to go to the toilet. The Government submit that the cell measured 4.60 x 3.50 metres and that the applicant shared it with only one other detainee. 22. The applicant submitted numerous requests for release to the prosecuting authorities, referring, inter alia, to the facts that no further evidence had to be collected and that he was suffering from health problems exacerbated by the conditions of his detention and had two young children. It appears that some of these applications were assessed individually, and that others were grouped and examined several months after their submission. 23. On 21 August 1995, Mr Assenov was examined by a doctor, who found that he was healthy. He was examined again on 20 September 1995, by a cardiologist from the Regional Hospital of Shoumen, who concluded that he did not suffer from any cardiac disease, either congenital or acquired, and that there were no counter-indications against him remaining in detention, as far as his cardio-vascular status is concerned. 24. On 11 September 1995, Mr Assenov submitted a petition to the Shoumen District Court requesting his release (see paragraphs 7276 below). On 19 September 1995 a judge sitting in camera dismissed the petition, stating, inter alia, that the charges against Mr Assenov concerned serious crimes, and that his criminal activity had been persistent, giving rise to a danger that he would commit further crimes if released. 25. On 13 October 1995, a district prosecutor dismissed two requests for Mr Assenovs release. This refusal was confirmed on 19 October 1995 by a regional prosecutor. 26. The applicants appealed to the Chief Public Prosecutors Office stating, inter alia, that there had been a campaign against them because of their application to the Commission. In its decision of 8 December 1995 the Chief Public Prosecutors Office dismissed the applicants arguments and stated that, although the investigation had been completed by September 1995, it was still necessary to detain Mr Assenov because there was a clear danger that he would resume his criminal activities. However, the view was expressed that prolonged detention in the premises of the Shoumen police would be harmful to the applicants physical and mental development and that he should therefore be moved to the Boychinovzi juvenile penitentiary. The transfer took place three and a half months later, on 25 March 1996. 27. On an unspecified date in 1996, Mr Assenov again challenged his detention on remand before the Shoumen District Court. On 28 March 1996 the court requested the case file from the district prosecutors office. Noting that an application had already been examined on 19 September 1995, it rejected the new petition as inadmissible (see paragraph 75 below). 28. On 21 March 1996 the investigator opened a separate case file to deal with the robbery charges, in connection with which he questioned Mr Assenov and ordered his continued
20

detention on remand. The following day the investigator drew up a report summarising the facts in the robbery case and sent it to the prosecutor proposing that an indictment be prepared. 29. On 3 July 1996, a district prosecutor sent the robbery case back to the investigator with instructions to see one further witness. On 23 August 1996 the investigator returned the case file because the proposed witness had died. On 26 September 1996, the district prosecutor drew up an indictment in the case and, four days later, submitted it to the Shoumen District Court. The court held a hearing on 6 February 1997, where it heard four witnesses and adjourned the hearing to 29 May 1997 because of the non-attendance of two other witnesses. 30. In the meantime, on 20 September 1996, the investigator completed the preliminary inquiry into the burglary case. On 25 October 1996, this case was sent to the regional prosecutors office with a proposal to indict Mr Assenov. It appears that on 31 January 1997 the burglary case was referred back for further investigation. 31. Between 5 July and 24 September 1996, Mr Assenov was again held at Shoumen police station, before being transferred to Belene Prison. 32. Throughout 1996 the applicants continued to submit requests for Mr Assenovs release to the prosecuting authorities. By decisions of 21 February and 17 June 1996 these requests were dismissed by the district prosecutor, on the grounds that the applications raised no new arguments, that there was still a danger of the applicant reoffending if released and that the cases would soon be sent for trial. On 8 October 1996 the regional prosecution office dismissed another request for release. 33. On 4 November 1996, a District Court judge sitting in the robbery case examined in camera Mr Assenovs petition for release. The judge refused to release Mr Assenov, taking into account the seriousness and the number of the crimes with which he had been charged and the fact that the trial would soon commence. 34. In July 1997 Mr Assenov was convicted of four street robberies and sentenced to thirty months imprisonment. According to the information available to the Court, he has not yet been indicted in relation to the burglary charges pending against him. C. Events following the application to the Commission 35. The applicants complaint was lodged with the Commission on 6 September 1993. In March 1995 they signed before a notary a statement of means, prepared in Bulgarian, referring expressly to their application to the Commission, and stating that it was done for purposes of their legal aid request to the Commission. 36. On 15 May, 23 May and 8 September 1995 two daily newspapers published articles about the case. Two of the articles, under headlines stating that a Roma gambler had put Bulgaria on trial in Strasbourg, explained inter alia that, in response to questions from journalists, the applicants had allegedly denied having made an application to the Commission. The articles concluded that perhaps some Roma activists had pushed the case and misled Amnesty International. 37. On an unspecified date the prosecuting authorities or the police approached the applicants and asked them to declare whether they had made an application to the Commission. On 8 September 1995, the second and third applicants visited a notary and signed a declaration in which they denied having made an application to the Commission. They further stated that they remembered having signed, in 1992 and 1993, some documents
21

prepared by human rights associations. However, they had not been given copies of the documents and did not know their contents. One of the documents had been in a foreign language. 38. It would appear that this declaration was then submitted to the prosecuting authorities. On 19 September 1995 the GMPO wrote about it to the Ministry of Foreign Affairs. 39. The transcript of Mr Assenovs questioning after his arrest on 28 July 1995 establishes that he spoke to the investigator about the events of 19 September 1992, saying: In 1992 ... I was beaten by policemen ... [at the bus station]. Thereafter I obtained a medical certificate and my father complained to the police. They did not look at it seriously and he submitted it to the military prosecution office. They did not take it seriously either. Then my father heard that there were some people from an international human rights organisation [in town]. My father brought me there and showed them how I was beaten. In fact, after my release from the police my father brought me first to these people and then wrote to the police and to the prosecution authorities. Since the minutes record only that said by Mr Assenov, it cannot be established whether or not his statement was made in response to questioning.

AS TO THE LAW B. 1. Merits Alleged violation of Article 3 of the Convention

40. Mr Assenov alleged that the events of 19 September 1992 had given rise to violations of Article 3 of the Convention, which states: No one shall be subjected to torture or to inhuman or degrading treatment or punishment. He contended that this Article had been breached on two separate grounds. First, he asked the Court itself to examine the medical evidence and witness statements which, he alleged, demonstrated that he had been severely beaten by police officers. Secondly, joined by the interveners (see paragraph 5 above), he asked the Court to declare that wherever there were reasonable grounds to believe that an act of torture or inhuman or degrading treatment or punishment had been committed, the failure of the competent domestic authorities to carry out a prompt and impartial investigation in itself constituted a violation of Article 3. 41. The Government pointed out that the applicants medical certificate was unreliable because it had been issued two days after the incident in question. In any case, the injuries which it described, and the absence of any certificate relating to Mr Ivanov, were consistent with the witnesses accounts of the father having beaten his son with a thin strip of wood. 42. In assessing the evidence before it, the Commission had regard to the principle that where an individual alleges to have been injured by ill-treatment in custody, the Government are under an obligation to provide a complete and sufficient explanation as to how the injuries were caused (see the Ribitsch v. Austria judgment of 4 December 1995, Series A no. 336, pp. 2526, 34, and the above-mentioned Aksoy judgment, p. 2278, 61). It accepted, inter alia, that a quarrel had erupted at the bus station between the police officers and Mr Ivanov, that the latter had hit his son with a plywood strip in an effort to show that he
22

would punish the boy himself and that both applicants were then detained at the police station for approximately two hours. However, more than four and a half years after these events, and owing to the lack of a sufficiently independent and timely investigation by the domestic authorities, the Commission was not able to establish which version of events was the more credible. It did not, therefore, find any violation of Article 3. 43. Article 3, as the Court has observed on many occasions, enshrines one of the fundamental values of democratic society. Even in the most difficult of circumstances, such as the fight against terrorism or crime, the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment. Unlike most of the substantive clauses of the Convention and of Protocols Nos. 1 and 4, Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15 even in the event of a public emergency threatening the life of the nation (see the above-mentioned Aksoy judgment, p. 2278, 62). 44. The Court recalls that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the duration of the treatment, its physical and/or mental effects and, in some cases, the sex, age and state of health of the victim. In respect of a person deprived of his liberty, recourse to physical force which has not been made strictly necessary by his own conduct diminishes human dignity and is in principle an infringement of the right set forth in Article 3 (see the Tekin v. Turkey judgment of 9 June 1998, Reports 1998-IV, pp. 151718, 52 and 53). 45. The Court considers that the degree of bruising found by the doctor who examined Mr Assenov (see paragraph 11 above) indicates that the latters injuries, whether caused by his father or by the police, were sufficiently serious to amount to ill-treatment within the scope of Article 3 (see, for example, the A. v. the United Kingdom judgment of 23 September 1998, Reports 1998-VI, p. 2699, 21, and the above-mentioned Ribitsch judgment, pp. 9 and 26, 13 and 39). It remains to be considered whether the State should be held responsible under Article 3 in respect of these injuries. (a) Alleged ill-treatment by the police 46. The Court recalls that the Commission was unable, on the basis of the evidence before it, to establish how the applicants injuries were caused (see paragraph 92 above). 47. The Court observes that the doctor who examined Mr Assenov two days after the latter was released from police custody found that the bruises on his body indicated that he had been beaten with a solid object (see paragraph 26 above). The applicant alleged that these injuries had been caused by police officers who beat him with truncheons. 48. The Court considers that, since it is not disputed that the applicant was the victim of violence from some source on 19 September 1992, and since there is no suggestion of anything untoward having occurred between that date and his medical examination, it is fair to assume that he sustained the above bruising on 19 September 1992 in connection with his arrest. 49. The Court further notes that the arresting officer testified in his witness statement that he had seen Mr Ivanov hit his son on the back two or three times with a narrow wooden stick (see paragraph 14 above). It was not denied by the applicants that Mr Ivanov hit Mr Assenov in this way, although it was denied that he did so with the force or frequency required to cause the bruising described in the medical report. Following Mrs Ivanovas complaint on 2 October 1992, an agent of the DDIA interviewed the applicants and took the above written statement from the arresting officer and statements from the other two officers involved, neither of whom had been present when Mr Ivanov hit Mr Assenov (ibid.). The only
23

independent witness contacted by the DDIA investigator at that time could not remember any disturbance at the bus station (see paragraph 15 above). In July 1993, unknown to the applicants, witness statements were taken from two other bystanders at the bus station. One of these had only a vague recollection of the events in question. The other, a bus driver, recalled seeing Mr Ivanov hit his son with a lath, although he did not specify how prolonged or violent a beating this had been (see paragraph 28 above). None of the witnesses, except the applicants, said that they had seen police officers hitting Mr Assenov. 50. The Court, like the Commission (see paragraph 92 above), finds it impossible to establish on the basis of the evidence before it whether or not the applicants injuries were caused by the police as he alleged. 2. Alleged violation of Article 6 1 of the Convention

51. Mr Assenov claimed to have been denied effective access to a court, in breach of Article 6 1 of the Convention, which provides, inter alia: In the determination of his civil rights and obligations , everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law 52. The applicant submitted that the decision of the prosecuting authorities not to bring criminal proceedings against the police officers who allegedly ill-treated him had, in effect, operated to deny him access to a court in respect of his civil claim for damages arising out of the same incident. Thus, since no criminal proceedings had been instigated, it had not been open to him to join such proceedings as a civil party in order to claim compensation (see paragraph 59 above). Moreover, although he accepted that it would in theory have been possible for him to bring an action for damages in the civil courts, he maintained that, since the damage in question arose out of an alleged criminal act, a civil court would have been obliged, under Article 182(d) of the Code of Civil Procedure (see paragraphs 6162 above), to stay any such action until the issue of criminal liability had been decided. Given the likelihood of delay inherent in Bulgarian criminal procedure, this suspension might, in practice, have been indefinite. 53. The Commission, joined by the Government (see also paragraph 82 above), noted that the Law on Obligations and Contracts and the Law on State Responsibility for Damage provided for an action for damages to the civil courts in relation to alleged acts of police brutality. Had the applicant brought such an action, a civil court could have examined it on the basis of the evidence before it, without having first to establish criminal responsibility. According to Bulgarian case-law, the civil court would only have had to suspend the proceedings under Article 182(d) of the Code of Civil Procedure if it had discovered new criminal elements, for example, facts of which the prosecuting authorities had not previously been aware. The Commission did not consider that this procedure would have operated to impair the very essence of the right of access to a court in the applicants case. 54. The Court notes that none of those appearing before it disputed that any claim for damages brought by the applicant and based on alleged ill-treatment by the police would have involved the determination of his civil rights. It agrees that Article 6 1 is, for that reason, applicable. 55. The Court further notes that the applicant did not deny that both the Law on Obligations and Contracts and the Law on State Responsibility for Damage provided him with causes of action which would have enabled him to commence proceedings in the civil courts. He did,
24

however, contend that any such action would have been stayed, perhaps indefinitely, under Article 182(d) of the Code of Civil Procedure. 56. Having regard to the Bulgarian case-law which has been submitted to it by the parties (see paragraph 62 above), the Court notes that the Supreme Court has held, in a case involving a car accident, that a civil court is not bound by the decision of the prosecuting authorities terminating a criminal investigation. The applicant has argued that this rule would not have been applied in his own case, based as it was on allegations of criminal acts much more serious than careless driving. This is, however, a matter of pure speculation, since Mr Assenov did not attempt to bring civil proceedings. In these circumstances, it cannot be said that he was denied access to a court or deprived of a fair hearing in the determination of his civil rights. 57. It follows that there has been no violation of Article 6 1 of the Convention. B. Merits (a) Right to be brought promptly before a judge or other officer 58. The Government submitted that the various prosecutors who considered Mr Assenovs applications for release were officer[s] authorised by law to exercise judicial power within the meaning of Article 5 3, since under Bulgarian law a prosecutor was fully independent, under a duty to protect the public interest and authorised to decide on a number of questions arising in criminal proceedings, including whether or not to detain an accused on remand. 59. The Commission, with whom the applicant agreed, noted that although under Bulgarian law investigators were institutionally independent, in practice they were subject to the control of prosecutors with regard to every question concerning the conduct of an investigation, including whether or not to detain a suspect on remand. There was, therefore, a strong objective appearance that the investigator who dealt with Mr Assenov lacked independence from the prosecuting authorities, which were subsequently to act as the opposing party in criminal proceedings. 60. The Court reiterates that judicial control of interferences by the executive with the individuals right to liberty is an essential feature of the guarantee embodied in Article 5 3 (see the above-mentioned Aksoy judgment, p. 2282, 76). Before an officer can be said to exercise judicial power within the meaning of this provision, he or she must satisfy certain conditions providing a guarantee to the person detained against any arbitrary or unjustified deprivation of liberty (see the Schiesser v. Switzerland judgment of 4 December 1979, Series A no. 34, p. 13, 31). Thus, the officer must be independent of the executive and the parties (ibid.). In this respect, objective appearances at the time of the decision on detention are material: if it appears at that time that the officer may later intervene in subsequent criminal proceedings on behalf of the prosecuting authority, his independence and impartiality may be open to doubt (see the Huber v. Switzerland judgment of 23 October 1990, Series A no. 188, p. 18, 43, and the Brincat v. Italy judgment of 26 November 1992, Series A no. 249-A, p. 12, 21). The officer must hear the individual brought before him in person and review, by reference to legal criteria, whether or not the detention is justified. If it is not so justified, the officer must have the power to make a binding order for the detainees release (see the above-mentioned Schiesser judgment, pp. 1314, 31, and the Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, p. 76, 199). 61. The Court notes at the outset that Mr Assenovs application for release was not considered by a judge until 19 September 1995 (see paragraph 38 above), three months into his detention. This was clearly insufficiently prompt for the purposes of Article 5 3 (see,
25

for example, the Brogan and Others v. the United Kingdom judgment of 29 November 1988, Series A no. 145-B, p. 33, 62), and indeed it has not been argued that this procedure was adequate to satisfy the requirements of this provision. 62. The Court recalls that on 28 July 1995 Mr Assenov was brought before an investigator who questioned him, formally charged him, and took the decision to detain him on remand (see paragraph 33 above). It notes that, under Bulgarian law, investigators do not have the power to make legally binding decisions as to the detention or release of a suspect. Instead, any decision made by an investigator is capable of being overturned by the prosecutor, who may also withdraw a case from an investigator if dissatisfied with the latters approach (see paragraphs 6669 above). It follows that the investigator was not sufficiently independent properly to be described as an officer authorised by law to exercise judicial power within the meaning of Article 5 3. 63. Mr Assenov was not heard in person by prosecutor A., who approved the investigators decision (see paragraph 33 above), or by any of the other prosecutors who later decided that he should continue to be detained. In any case, since any one of these prosecutors could subsequently have acted against the applicant in criminal proceedings (see paragraph 66 above), they were not sufficiently independent or impartial for the purposes of Article 5 3. 64. The Court considers, therefore, that there has been a violation of Article 5 3 on the ground that the applicant was not brought before an officer authorised by law to exercise judicial power. (b) Right to trial within a reasonable time or release pending trial 65. The Government submitted that the preliminary investigation had been complex and time-consuming, involving the questioning of a number of alleged accomplices and witnesses and the consideration of expert evidence. On 31 January 1997 it had been necessary for the prosecuting authorities to refer the case for further investigation and re-examination of witnesses when a conflict of interest between Mr Assenov and his alleged accomplices became apparent. Throughout the investigatory process the applicant and his parents had continually filed applications for his release, each of which had led to the investigation being suspended while the application was being considered. In these circumstances it could not be said that Mr Assenov had been denied a trial within a reasonable time. 66. The Commission, attaching particular importance to the fact that between September 1995 and September 1996 the preliminary investigation had been practically dormant, found that Mr Assenov, who had then been detained on remand for over twenty-three months, had been denied a trial within a reasonable time. The applicant agreed with this conclusion. 67. The Court observes that the period to be taken into consideration commenced on 27 July 1995, when Mr Assenov was arrested, and continued until an unspecified day in July 1997, when he was convicted and sentenced in respect of four robberies (see paragraphs 33 and 48 above). His pre-trial detention therefore lasted approximately two years. 68. The Court reiterates that it falls in the first place to the national judicial authorities to ensure that the pre-trial detention of an accused person does not exceed a reasonable time. To this end, they must examine all the circumstances arguing for and against the existence of a genuine requirement of public interest justifying, with due regard to the principle of the presumption of innocence, a departure from the rule of respect for individual liberty and set these out in their decisions on the applications for release. It is essentially on the basis of the reasons given in these decisions and of the true facts mentioned by the detainee in his applications for release and his appeals that the Court is called upon to decide whether or not there has been a violation of Article 5 3.
26

The persistence of reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the validity of the continued detention, but, after a certain lapse of time, it no longer suffices: the Court must then establish whether the other grounds cited by the judicial authorities continued to justify the deprivation of liberty. Where such grounds were relevant and sufficient, the Court must also ascertain whether the competent national authorities displayed special diligence in the conduct of the proceedings (see the Toth v. Austria judgment of 12 December 1991, Series A no. 224, p. 18, 67). 69. The Court recalls that on the two occasions when the legality of Mr Assenovs detention was reviewed by a court, his release was refused on the grounds that he was charged with a number of serious crimes and that his criminal activity had been persistent, giving rise to a danger that he would reoffend if released (see paragraphs 38 and 47 above). 70. The Court notes that on 28 July 1995 Mr Assenov was charged with sixteen or more burglaries and robberies, the latter involving some violence (see paragraph 33 above). Although he had first been questioned in connection with the investigation into this series of thefts in January 1995 (see paragraph 32 above), a number of the offences with which he was charged were committed subsequently; the last robbery having taken place on 24 July, three days before his arrest. In these circumstances, the Court considers that the national authorities were not unreasonable in fearing that the applicant might reoffend if released. 71. However, the Court recalls that the applicant was a minor and thus, according to Bulgarian law, should have been detained on remand only in exceptional circumstances (see paragraph 69 above). It was, therefore, more than usually important that the authorities displayed special diligence in ensuring that he was brought to trial within a reasonable time. The Government have submitted that it took two years for the case to come to trial because it was particularly complex, requiring a lengthy investigation. However, it would appear from the information available to the Court that during one of those years, September 1995 to September 1996, virtually no action was taken in connection with the investigation: no new evidence was collected and Mr Assenov was questioned only once, on 21 March 1996 (see paragraphs 34 and 42 above). Moreover, given the importance of the right to liberty, and the possibility, for example, of copying the relevant documents rather than sending the original file to the authority concerned on each occasion, the applicants many appeals for release should not have been allowed to have the effect of suspending the investigation and thus delaying his trial (see the above-mentioned Toth judgment, p. 21, 77). 72. Against this background, the Court finds that Mr Assenov was denied a trial within a reasonable time, in violation of Article 5 3. for these reasons the court 1. Dismisses unanimously the Governments preliminary objections; 2. Holds by eight votes to one that there has been no violation of Article 3 based on Mr Assenovs allegations of ill-treatment by the police; 3. Holds unanimously that there has been a violation of Article 3 of the Convention based on the failure to carry out an effective official investigation into Mr Assenovs allegations of illtreatment by the police; 4. Holds unanimously that there has been no violation of Article 6 1 of the Convention; 5. Holds unanimously that there has been a violation of Article 13 of the Convention;
27

6. Holds by eight votes to one that there has been no violation of Article 3 of the Convention in respect of the conditions of Mr Assenovs detention from July 1995 onwards; 7. Holds unanimously that there has been no violation of Article 5 1 of the Convention; 8. Holds unanimously that there has been a violation of Article 5 3 of the Convention in that Mr Assenov was not brought promptly before a judge or other officer authorised by law to exercise judicial power; 9. Holds unanimously that there has been a violation of Article 5 3 of the Convention in that Mr Assenov was not given a trial within a reasonable time or released pending trial; 10. Holds unanimously that there has been a violation of Article 5 4 of the Convention; 11. Holds unanimously that there has been a violation of Article 25 1 of the Convention in respect of all three applicants; 12. Holds unanimously that the respondent State is to pay, within three months: (a) to the first applicant, in respect of non-pecuniary damage, 6,000,000 (six million) Bulgarian levs; (b) to all three applicants, in respect of costs and expenses, 14,860 (fourteen thousand eight hundred and sixty) pounds sterling to be converted into Bulgarian levs at the rate applicable on the date of settlement, together with 7,600 (seven thousand six hundred) pounds sterling, less 38,087 (thirty-eight thousand and eighty-seven) French francs to be converted into pounds sterling at the rate applicable on the date of settlement, together with any value-added tax which may be payable; and (c) that simple interest at an annual rate of 5.08% shall be payable on the above sums awarded in Bulgarian levs, and of 7.5% in respect of the above sums awarded in pounds sterling from the expiry of the above-mentioned three months until settlement; 13. Dismisses unanimously the remainder of the claim for just satisfaction.

28

Aydin v Turkey (ECtHR) Aydin v Turkey App No 25660/94 (ECtHR, 25 September 1997)

CASE OF SHEYLA AYDIN v. TURKEY

(Application no. 25660/94)

JUDGMENT STRASBOURG 24 May 2005

FINAL

24/08/2005

29

THE FACTS I. THE CIRCUMSTANCES OF THE CASE 73. The applicant, a Turkish citizen of Kurdish origin, was born in 1966 and lives in Switzerland where she has been granted political asylum. She was the wife of Necati Aydn, whose body was found on 9 April 1994 in a location outside Diyarbakr, with his hands tied at the back. He had been shot in the head with a single bullet. A. Introduction 74. The facts of the case, particularly those events which occurred between 18 March 1994 and 9 April 1994, are disputed by the parties. 75. The facts as presented by the applicant are set out in Section B below (paragraphs 1430). The Governments submissions concerning the facts are summarised in Section C below (paragraphs 31-37). The documentary evidence submitted by the applicant and the Government is summarised in Section D (paragraphs 38-73). 76. The Commission, in order to establish the facts disputed by the parties, conducted an investigation with the assistance of the parties, pursuant to former Article 28 1 (a) of the Convention. It appointed three delegates (Mr Jean-Claude Geus, Mr Marek Nowicki and Mr Marc Vila Amig) who took evidence in Strasbourg on 17 September 1999 and in Ankara from 22 September 1999 to 24 September 1999. They interviewed the applicant as well as the following 11 witnesses: Ms Yasemin Aydn, Mr emsettin Aydn, Mr Sezgin Tanrkulu, Mr Arif Altnkalem, Mr Bekir Seluk, Mr Rdvan Yldrm, Mr Sami Gngr, Mr Ramazan Src, Mr Yusuf Ercan, Mr Ali Uslu and finally Mr Cemil elik. A summary of the oral evidence given by these witnesses is found in Section E below (paragraphs 74-129). 77. Three other witnesses, Mr Osman Yetkin, Mr Raif Kalkc and Mr Tahir Babolu, were also summoned but did not appear before the Commissions delegates. 78. Following the questioning of the above mentioned witnesses, the Commission considered it important to hear two police officers who had accompanied Necati Aydn and Mehmet Ay to the Diyarbakr State Security Court (see paragraph 116 below). The Commission informed the parties on 27 September 1999 that the delegates wanted to interview the police officers in Strasbourg on 28 October 1999. The Government were requested to identify the two police officers and summon them for the hearing in Strasbourg. The Government asked the Commission to explain why a need was felt to hear the police officers in person as opposed to questions being put to them in writing, and further asked the Commission to reconsider its decision. Despite the Commissions repeated explanations, the Government failed to identify the witnesses and informed the Commission on 26 October 1999 that they did not have time to identify the two police officers and therefore they would not be able to ensure their attendance at the proposed hearing. The Commission was therefore obliged to cancel the proposed hearing.

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B. The applicants submissions on the facts 79. In 1994 the applicant was working as an anaesthetics nurse, and her husband, Necati Aydn, as an environmental technician. They were civil servants. Necati was also the president of the Health Workers Trade Union (Tm Salk Sen). Previously, the applicant and her husband had been subjected to harassment and arrest by the security forces. Their activities on behalf of the trade union had drawn the unwelcome attention of the security forces and the police to them. 80. In March 1994 the applicant and her husband did not have a permanent residence as they had been subjected to several transfer orders and had been moving around Turkey to various places of work. The applicant was six months pregnant at the time. 81. On 18 March 1994 the applicant and her husband were at the house of Necatis relative, Mehmet Hafif Ay, in Diyarbakr. At that time, a large number of relatives were also in the house. At approximately 8.30 p.m. police arrived at the house with Mr Mehmet Ay, whom they had arrested earlier at a coffee shop. The police officers entered the apartment. They asked for the identity cards of all those present, and questioned various members of the family. The police then took into detention all the family members present, including a five year old child. 82. The detainees were placed in vehicles. The applicant was placed in a car by herself and was accompanied by at least two police officers. In the vehicles the detainees were blindfolded and they were then brought to the rapid response force building (evik Kuvvet) for interrogation. The applicant was not feeling well due to her pregnancy. 83. When they arrived at the rapid response force building, the applicant was made to sit in a corridor waiting to be brought in for interrogation. As she sat in the corridor she could hear the screams of her husband as he was being tortured. 84. The applicant was taken in for interrogation at least three times. The first time, the applicant was questioned about where her husband had been during certain periods. The second time she was taken in, her husband was also present. Her blindfold was removed momentarily so that she could see her husband. She saw him naked and blindfolded in the middle of the room. His body was wet and he was crouched over, shivering. The applicant was made to listen while he was interrogated. During this time Necati gave a response to the police which contradicted an answer provided by the applicant. When this happened, Necati was removed from the room and the applicant was grabbed by the hair and slapped in the face. 85. On the third occasion the applicant was taken in for interrogation, the police ordered her to strip naked. Her husband was also in the room. The police threatened him that they would harm her if he did not answer their questions. The applicant was frightened and her condition deteriorated. She was removed from the room. Outside the room, the applicant was told by the police officers, Do you know Yusuf Ekinci? His body was found in an empty lot. I do not think you want your husband to end up the same way. On each occasion that she was removed from the room, she could hear the screams of her husband as he was being tortured. 86. The applicant was taken from the rapid response force building to the Diyarbakr police station. She was put in a cell with Ms Hsniye Ay and the latters children, where they were kept for four nights. The applicant was released on 22 March 1994, without having been brought before a judge. During her time in detention, she had not been given the right of access to a lawyer, prosecutor or judge.

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87. Ms Yasemin Aydn, a relative of the applicants husband who, as president of the Patriotic Womens Association, was politically active on behalf of Kurdish women, was also detained and was tortured during her detention. This torture included hanging, beatings, electric shocks, insults and threats of rape. During her detention she was asked questions about the activities of Necati Aydn and Mehmet Ay. She was released on 29 April 1994, having been brought before Prosecutor Osman Yetkin. 88. On 4 April 1994 the applicants husband and his cousin Mehmet Ay were finally brought before the Diyarbakr State Security Court (hereinafter the Diyarbakr Court). At 12.45 a.m. the two were taken for a medical examination. At 9 a.m. the two men signed for their possessions. At approximately 2 p.m. Mr Sezgin Tanrkulu, a lawyer who had come to the Diyarbakr Court that day, saw Necati Aydn being brought into the court building. After that, there were only a few persons who witnessed what happened to the two men. 89. The records from the proceedings show that the Prosecutor demanded that they remain in custody, but the duty judge ordered their release that day. The Prosecutor lodged an objection to Mehmet Ays release with the Third Chamber of the Diyarbakr Court, but the appeal was rejected on 5 April. 90. At the time of their appearance before the judge, no lawyer was allowed to be present. 91. Despite the order of release from the Diyarbakr Court, the two men never emerged from the front door of the court building where family members and friends of the two men were waiting. When Sezgin Tanrkulu came out of the building at approximately 2 or 2.30 p.m., he informed Hafif Ay that he had seen the two men. Mr emsettin Aydn, Necatis father, was also waiting. He had, in fact, been waiting for his son outside the court building for several days. The only times he was not outside the court building was when he had gone to the coffee house to pray, which would have taken him 15 minutes at some stage between 11.30 a.m. and 1.30 p.m. and again about 15 minutes between 4 and 4.30 p.m. According to emsettin, if Necati had been released during those 15-minute periods, he would have been told about this by other people who were waiting there. The only other exit which the men could have used to leave the court building was a door located in the basement of the Diyarbakr Court, adjacent to the registry of the court. That exit could only be used by police vehicles. Persons in the registry informed lawyers that they had seen Necati exit from that door. 92. The following day, 5 April 1994, the families of the two men applied to the Prosecutor in order to obtain information. The Prosecutor told them that Necati Aydn and Mehmet Ay had been released and that they had not been re-arrested. When Sezgin Tanrkulu spoke with Mr Bekir Seluk, the Chief Public Prosecutor at the Diyarbakr Court, the latter told Mr Tanrkulu that Necati had probably gone to join the PKK (the Kurdistan Workers Party). He said similar things to another lawyer, Mr Arif Altnkalem, when he made enquiries. 93. On 8 April 1994 Yasemin Aydn was telephoned and asked to meet with Osman Yetkin, the Prosecutor who had released her. Apart from Mr Yetkin, the President of the Third Chamber of the Diyarbakr Court and another prosecutor and judge were also present at this meeting, held at the Diyarbakr Court. Mr Seluk joined the meeting later. The discussion at this meeting concerned the question how Necati Aydn and Mehmet Ay could have gone missing from inside the court building. The judge at the meeting noted that, apart from the front entrance, there was only one other entrance which was on the ground floor at the back of the building, which was used only by the police to transport prisoners to and from the Diyarbakr Court. The judge wondered whether the ones with the radio... could have taken the two men away, but did not finish his sentence. The men also discussed the dirty games
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which were being played in Diyarbakr at the time. At the end of the meeting, Mr Yetkin exchanged telephone numbers with Yasemin Aydn. 94. On the evening of 9 April 1994 villagers working in a field in the Silvan district near the Pamuklu river, about 40 kilometres outside Diyarbakr, discovered three bodies. The bodies were in a shallow grave approximately 100 metres from the main Diyarbakr-Silvan road. The bodies had their hands tied behind their back and a bullet in the back of the head had killed each of them. They had been buried side by side at a depth of about one metre. The name Sheyla was engraved in a wedding ring which was found in the pocket of one of the dead men. The families identified the bodies of Necati Aydn and Mehmet Ay that evening. 95. The families retrieved the bodies the following day from the morgue at Diyarbakr State Hospital. Many people who wanted to visit the morgue were turned away. Three teachers, members of the teachers union, were taken into custody. While in custody, they were threatened and told that Necati Aydn and Mehmet Ay had been killed in a clash. C. The Governments submissions on the facts 96. Having been arrested on 18 November 1993, the applicant was examined by a doctor on 22 November 1993. According to a medical report drawn up at the time of her release, there were no signs of ill-treatment or torture on her body. 97. On 4 April 1994 the Anti-terrorist Department in Diyarbakr requested that Necati Aydin and Mehmet Ay be examined by a doctor. As a result of this request, on 4 April 1994 at 12.45 a.m., the applicants husband and Mehmet Ay were examined by a doctor, who concluded that there were no signs of ill-treatment or torture on their bodies. 98. At 9 a.m. they were taken to the chief of the security forces, who drew up a record to the effect that their personal belongings had been returned to them. The applicants husband signed this document. Later that day, the applicants husband and Mehmet Ay were brought before a judge, who ordered their release. Necati Aydn and Mehmet Ay had then left the court building. 99. On 9 April 1994, the bodies of the applicants husband, Mehmet Ay, and an unidentified person were found buried at a distance of 40 kilometres from Diyarbakr. 100. The autopsies performed concluded that they had been summarily executed, as the bodies were found with the hands tied behind their backs. As rigor mortis had not yet completely set in, the autopsy report stated that Necati Aydn had been dead for about 24 hours. This meant that the killing must have taken place some four or five days after the release of the applicants husband. 101. An ex officio investigation was opened under file no. 1994/2233 in order to identify the PKK terrorists who were the perpetrators of the murders. The investigation progressed very slowly, as the terrorists who had executed the applicants husband were very mobile and often hid in neighbouring countries. They did not tend to return to the scene of the crime and witness statements were difficult to come by, since potential witnesses preferred to keep silent for fear of repercussions and intimidation. 102. Following the lodging of the application to the Commission, another ex officio investigation was opened in relation to the allegations of ill-treatment and torture during detention. However, on 6 October 1995, the Chief Public Prosecutor of Diyarbakr decided not to prosecute anyone as there was no evidence supporting the applicants allegations.

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D. Documentary evidence submitted by the parties 103. The following information appears from the documents submitted by the parties. 104. According to a report of the arrest and house search, drawn up on 18 March 1994, Necati Aydn, Sheyla Aydn, Mehmet Ay and nine other persons were arrested in a house in Diyarbakr that day at 10 p.m. 105. A single sentence in a document dated 22 March 1994 relating to nine of the detainees, including the applicant, states that the detainees bore no marks of ill-treatment. 106. Also on 22 March 1994, the applicant and two other detainees were released by police officers from the Diyarbakr Police upon the oral instructions of the Prosecutor at the Diyarbakr Court. 107. On 23 March 1994 Kerime Aydn, the sister of Necati Aydn, submitted a petition to the Public Prosecutors Office at the Diyarbakr Court in which she expressed her concerns about her brother and asked to be provided with information about him. 108. On 25 March 1994 the Prosecutor at the Diyarbakr Court informed Kerime Aydn that her brother was being detained at the anti-terrorist branch of the Diyarbakr Police. 109. On 28 March 1994 a statement was taken from Mehmet Ay while he was in police custody. He stated that both he and Necati Aydn had been members of the PKK. 110. A statement was taken from Necati Aydn on 30 March 1994. He rejected the allegation that he had been an active member of the PKK. He also rejected the allegation that he and a number of his friends had been trying to set up a private hospital, which would be funded by the PKK and where wounded PKK members would be treated. He admitted that he had been a PKK sympathiser and that he had been arrested in 1992, but the charges against him had later been dropped. 111. According to a medical report drawn up at the Diyarbakr State Hospital at 12.45 a.m. on 4 April 1994, neither Necati Aydn nor Mehmet Ay bore any marks of ill-treatment. 112. At 9 a.m. on 4 April 1994, the belongings of Necati Aydn and Mehmet Ay, which had been taken away from them following their arrest on 18 March 1994, were returned to them. 113. It appears from a letter signed by Ramazan Src, the chief of the anti-terrorism branch of the Diyarbakr Police, that on 4 April 1994 Necati Aydn, Mehmet Ay and a certain Ramazan Keskin were referred to the Diyarbakr Court. It further appears from this letter that Ramazan Keskin had also been detained at the anti-terrorism branch. 114. On 4 April 1994 the Public Prosecutor at the Diyarbakr Court questioned Necati Aydn and Mehmet Ay. Necati Aydn repeated that he had not been a member of the PKK, whereas Mehmet Ay stated that he had wanted to join the PKK in the past but had not been admitted. 115. Finally, on 4 April 1994, Judge Raif Kalkc of the Diyarbakr Court questioned Mehmet Ay and Necati Aydn. Both Necati and Mehmet confirmed the statements they had made to the Prosecutor earlier the same day. The Judge then ordered their release. 116. On 5 April 1994 the Third Chamber of the Diyarbakr Court rejected the objection, which had been lodged by the Public Prosecutor at that court, against the decision ordering the release of Necati Aydn and Mehmet Ay. 117. On 9 April 1994 a report was drawn up by two gendarme officers, Ali Uslu and Cemil elik (see paragraphs 120-25 and 126-29 below), and signed by two gendarme privates. The report stated that a certain Mr Mehmet Korucu had come to their gendarmerie station and had informed them that he had found a body, buried in the Pamukay area. The soldiers had visited the area at 1.30 p.m. and found the partially buried bodies of three men;
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their hands were tied at the back and each one had been shot in the head by a single bullet. There were no documents on the bodies to help establish their identities. However, the name Sheyla was engraved in one of two golden rings found in the pocket of the trousers of one of the bodies. The gendarmes had then informed the judicial authorities of their discovery. 118. On the same day Rdvan Yldrm, the Public Prosecutor of the Bismil district in whose jurisdiction the bodies had been found, visited the area together with Feyzi Kaymak, a doctor. The Prosecutor and the doctor drew up a report in which they recorded that each of the three men had been killed by a single gun shot to the head and that the bullets had exited the bodies. Rigor mortis had not yet set in at the time of the examination, and therefore it was estimated that the victims had been dead for about 24 hours. The doctor concluded on the spot that the cause of death was the destruction of the brain and that there was no need, therefore, for full autopsies to be carried out. After having been photographed in situ, the bodies were transferred to the morgue in Diyarbakr. 119. According to this report, drawn up by the Prosecutor and the doctor, the body which had been found with the rings, bore a number of ecchymoses. There was a mark on the left shoulder, measuring 3x3 cm, that had been caused by a blow; two ecchymosed areas on the scapular region on the back of the left shoulder, measuring 5x5 cm and 3x3 cm, had been caused by blows; an ecchymosed area on the right scapular region of the shoulder, measuring 4x4 cm, had been caused by a blow; and finally an ecchymosed area on the chondral rib, measuring 6x6 cm, was noted. 120. On 10 April 1994 the bodies of Necati Aydn and Mehmet Ay were identified by their respective brothers. The third body remained unidentified. The bodies were photographed once more. The Prosecutor at the Diyarbakr Court issued a burial licence for Necati Aydn. 121. On 18 April 1994 the Bismil Prosecutor questioned Mehmet Naili Aydn, the brother of Necati Aydn. Mr Aydn confirmed that his brothers release had been ordered by the Diyarbakr Court on 4 April 1994, but his family had not heard anything from Necati until they had been contacted by hospital workers and were told that Necatis body was in the morgue. 122. On 26 April 1994 the Bismil Prosecutor questioned Mehmet Nuri Ay, the brother of Mehmet Ay. Mr Ay similarly confirmed that the Diyarbakr Court had ordered the release of his brother and Necati Aydn. He stated that he did not know how they had been killed and that he did not suspect anyone in particular. Mr Ay further stated that the third body, which had been found next to his brother and Necati Aydn, was that of Ramazan Keskin, a university student in Diyarbakr. 123. Also on 26 April 1994 the Bismil Prosecutor asked the commander of the Bismil gendarmerie to investigate whether the killings had any political aspects. 124. On 30 May 1994 the Bismil Prosecutor decided that the killing of the three persons had political aspects and therefore his office lacked jurisdiction to continue the investigation. The Prosecutor then sent the investigation file to the Diyarbakr Court which had jurisdiction to investigate the killings. 125. On 3 May 1995 Bekir Seluk, the Chief Public Prosecutor at the Diyarbakr Court, sent a reply to a letter which had apparently been sent to him by the Ministry of Justices International Law and Foreign Relations Directorate (hereinafter the Directorate) on 4 April 1995 and which concerned the application made to the Commission by the applicant. Mr Seluk stated in this letter that his office was overseeing the investigation into the killings. Mr Seluk was of the opinion that Mehmet Ay and Necati Aydn, both of whom had stopped working for the PKK, had been killed by members of the PKK with the aim of attributing
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their killings to the State and then making an application to the European Commission of Human Rights. The investigation into the killings was being conducted in the light of this information, but it had not yet been possible to apprehend the members of the PKK who had perpetrated the killings. Mr Seluk finally stated that an indictment had been filed with the Diyarbakr Court on 30 November 1993 in which the applicant was charged with aiding and abetting a terrorist organisation. 126. On 6 October 1995 the Public Prosecutors Office in Diyarbakr decided not to prosecute six police officers for allegedly having ill-treated Sheyla Aydn during police custody in 1991, 1992 and in 1994. It was noted in this decision that there was no evidence suggesting that her allegations of ill-treatment, detailed in her statement which had been taken from her by a letter rogatory on 4 July 1995, were true. The medical reports drawn up at the time of her releases did not mention any marks of ill-treatment. 127. On 27 November 1997 Prosecutor Sami Gngr at the Diyarbakr Court asked the Diyarbakr Police and the Diyarbakr Gendarmerie to search for the perpetrators of the killings of Necati Aydn, Mehmet Ay and Ramazan Keskin. According to this Prosecutor, the killings had been perpetrated by a group of PKK members. 128. On 27 March 1998 a Prosecutor at the Diyarbakr Court sent a letter to the antiterrorism department of the Diyarbakr Police, requesting that the two police officers, who had questioned Necati Aydn and Mehmet Ay while they were in police custody and had then accompanied them to the Diyarbakr Court on 4 April 1994, be identified. 129. In his reply of 15 April 1998, the Diyarbakr Police Headquarters informed the Prosecutor at the Diyarbakr Court that Necati Aydn, Mehmet Ay and Ramazan Keskin had been questioned while they were in police custody by police commissioner Taner entrk and by a police officer named Hseyin Karaca. The three detainees had then been referred to the Diyarbakr Court by the Police Commissioner, Ertan Uzunda, on behalf of Ramazan Src. The letter further states that, as at that time it was not the practice to draw up release reports, the authorities were unable to determine the identities of the police officers who had actually accompanied the three men to the Diyarbakr Court. 130. On 12 May 1998 a statement was taken from Hseyin Karaca. He said that on 2 April 1994 he had questioned Ramazan Keskin, the third person whose body had been recovered together with the bodies of Necati Aydn and Mehmet Ay. Mr Karaca stated that he had not questioned Necati Aydn or Mehmet Ay and that he had not accompanied them to the Diyarbakr Court. He assumed that they had been taken there by officers working at the registry of the interrogation department. 131. On 22 May 1998 the Prosecutor Gngr at the Diyarbakr Court decided that he lacked jurisdiction to investigate the killings as there was no evidence suggesting that the killings had been carried out by members of the PKK and hence it was a case of homicide as opposed to a political killing. The Prosecutor added that the decision of non-jurisdiction of 30 May 1994 (see paragraph 59 above) had been based on presumptions. The file was sent back to the Prosecutors Office in Bismil in order for the investigation to continue. 132. On 28 May 1998 the Prosecutor in the town of dil contacted his colleague in the nearby town of Bismil and informed him that a number of killings in the area, the majority of which had taken place between 1993 and 1996, had possibly been carried out by the same person or persons. The similarities lay in the way these killings had been carried out and in the weapons used. He asked the Bismil Prosecutor to forward to him details of the killings carried out in the jurisdiction of Bismil so that he could verify whether they were connected in any way.

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133. On 9 September 1998 the Bismil Prosecutor sent a reply to his colleague in dil, stating that seven persons had been killed in his jurisdiction between 1993 and 1996; three on 9 April 1994, and the remaining four on 14 September 1996. The bullets recovered after the killing of the four persons in 1996 had already been forwarded to the forensic department of the gendarmerie. No bullets or bullet cases had been recovered in relation to the killing of the three persons in 1994. 134. On 5 May 1999 the Directorate sent a letter to the Prosecutors Office in Diyarbakr and asked whether any empty bullet cases, bullets or other similar evidence had been found at the site where the bodies were found and whether any forensic reports had been drawn up. 135. On 6 May 1999 the Prosecutors Office in Diyarbakr forwarded to the Prosecutors Office in the district of Bismil the Directorates letter of 5 May 1999. 136. On 7 May 1999 the Bismil Prosecutor replied that no bullets or bullets cases had been found in the area. 137. According to a number of documents drawn up by public prosecutors and soldiers between 1996 and 1999, each of which is one paragraph long and most of which are identical pro-forma documents, it had not been possible to find the perpetrators of the killings despite the investigations carried out and the visits made to the area where the bodies had been found. These documents contained no information indicating what specific steps had been taken. 138. On 23 June 1999 the Bismil Prosecutor informed the Directorate, in an apparent response to a request from the latter of 18 June 1999, that the investigation into the killings was still ongoing and that his office was being informed every three months about the investigation by the soldiers. No personal belongings, other than the clothes which the deceased had been wearing, had been found at the site where the bodies were discovered.

II. THE COURTS ASSESSMENT OF THE EVIDENCE AND ESTABLISHMENT OF THE FACTS A. Arguments of the parties 1. The applicant 139. The applicant submitted that her husband Necati had last been seen alive when he was accompanied by police officers in the Diyarbakr Court building. She pointed out that there was no record of his actual release after the judge had ordered it. At this point, her husband was still in the hands of the police officers. Had her husband been released, he would have been escorted to the exit of the building. As pointed out by the Chief Public Prosecutor of the Diyarbakr Court, for security reasons, detainees would not be allowed simply to move around the court building unescorted (see paragraph 102 above). In any event, if her husband had been released, the family members waiting outside the court building would have seen him. In the opinion of the applicant, her husband had been taken away from the court building by police officers through the back door of the building reserved for police officers. She submitted that the respondent Government had provided no evidence to refute the conclusions to which all the facts pointed. In particular, they had failed to identify the police officers who had accompanied her husband to the court building on 4

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April 1994. These police officers would have been the only persons in a position to provide further testimony on the matter. 140. The applicant further submitted that it would have been impossible for anyone other than agents of the State to kill her husband. It was difficult to see how the three men still alive or already dead could have been transported to the spot where their bodies were found, unless they had been taken there by persons who were acting with the permission of the authorities and who were allowed to pass through the checkpoints. The applicant also drew attention to the fact that, according to the autopsy report of 9 April 1994, rigor mortis had not yet set in. This indicated that the three men had been killed less than 24 hours before; the men had thus been in the hands of their captors for four days before they had been killed. The authorities had taken no action during those days to trace the mens whereabouts. According to the applicant, this inaction reflected the fact that the authorities had known at that time that her husband had been taken somewhere with the acquiescence of the State. 141. As regards the context of the killing of her husband, the applicant submitted that he fell into a category of persons who were targeted by the State. Necati, like Vedat Aydn a relative who was the president of the Peoples Labour Party and who had also been killed in similar circumstances was a high profile political activist in so far as he was president of the health workers union. Finally, the applicant referred to the Susurluk report (see lk Ekinci, cited above, 92-110) in which a reference was made to an incident in which bodies, which had been handed over from one State official to another, had been found under a bridge. This was widely understood to have been a reference to the killing of Necati Aydn and the other two men. 2. The Government 142. In their post-admissibility observations submitted on 5 May 1998, i.e. before the Commission heard the witnesses in Strasbourg and Ankara, the Government maintained that the applicants allegations had no basis in fact. There was no evidence to suggest that either the applicant or her husband had been ill-treated in detention. Her husband had been released on 4 April 1994, and his death four days later responsibility for which could not be attributed to agents of the State continued to be investigated. B. Article 38 1 (a) and consequent inferences drawn by the Court 143. Before proceeding to assess the evidence, the Court would stress, as it has done previously, that it is of the utmost importance for the effective operation of the system of individual petition, instituted under Article 34 of the Convention, that States should furnish all necessary facilities to make possible a proper and effective examination of applications (see Tanrkulu v. Turkey [GC], no. 23763/94, 70, ECHR 1999-IV). It is inherent in proceedings relating to cases of this nature, where an individual applicant accuses State agents of violating his rights under the Convention, that in certain instances solely the respondent Government have access to information capable of corroborating or refuting these allegations. A failure on a Governments part to submit such information which is in their hands without a satisfactory explanation may not only give rise to the drawing of inferences as to the well-foundedness of the applicants allegations, but may also reflect negatively on the level of compliance by a respondent State with its obligations under Article 38 1 (a) of the Convention (see Timurta v. Turkey, no. 23531/94, 66 and 70, ECHR 2000-VI). The same applies to delays by the State in submitting information which prejudices the establishment of the facts in a case.
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144. In this context, the Court has noted with concern a number of matters regarding the Governments response to the Commissions requests for documents and information. Apart from individual requests for specific documents, the Government were also requested on a number of occasions to submit to the Commission all the documents pertaining to the investigation into the killing of the applicants husband. 145. As regards these documents, the Court observes that the existence of a number of them only came to light during the examination of witnesses by the Commissions delegates in Ankara in September 1999. Some of them were produced at that time by the representatives of the Government, whereas others were not made available until after the fact-finding mission. These documents included the following: (a) a document of 4 April 1994, ordering the transfer of Necati Aydn, Mehmet Ay and Ramazan Keskin to the Diyarbakr Court (see paragraph 48 above); (b) a statement taken from Mehmet Naili Aydn on 18 April 1994 (see paragraph 56 above); (c) a statement taken from Mehmet Nuri Ay on 26 April 1994 (see paragraph 57 above); (d) a letter of 26 April 1994 from the Bismil Public Prosecutor (see paragraph 58 above); (e) the decision of non-jurisdiction taken on 30 May 1994 (see paragraph 59 above); (f) a letter of 3 May 1995 from the Chief Public Prosecutor Bekir Seluk (see paragraph 60 above); (g) a letter of 27 March 1998 from the Public Prosecutor at the Diyarbakr Court (see paragraph 63 above); (h) a letter of 15 April 1998 from the Diyarbakr Police Headquarters (see paragraph 64 above); (i) a statement taken from Hseyin Karaca on 12 May 1998 (see paragraph 65 above); and finally (j) the decision of non-jurisdiction taken on 22 May 1998 (see paragraph 66 above). 146. Had these important documents been made available prior to the taking of evidence from witnesses in Ankara as had been requested this would have allowed the Commission to identify and summon other relevant witnesses. 147. Furthermore, the Court notes with concern that neither Prosecutor Osman Yetkin, who had contacted Yasemin Aydn on two occasions (see paragraphs 85-86 above), nor Judge Raif Kalkc, who had ordered the release of Necati Aydn (see paragraph 50 above), appeared before the Commissions delegates to give evidence. As regards the failure of Osman Yetkin to appear, the Government explained that they had been unable to contact him as he had resigned his post and had left for an unknown destination. No explanation has been given by the Government as to what actual steps were taken by them to locate Mr Yetkin. As regards the failure of Raif Kalkc to appear before the Commission delegates, the Court observes that the lawyer who represented the Government during the hearings in Ankara submitted that an official explanation, in writing, would be forthcoming for this witness absence. However, no such explanation has been received from the Government. Given that Mr Kalkc was the judge who ordered the release of Necati Aydn and he was, therefore, one of the last persons to have seen Necati alive, the Court particularly regrets the Governments failure to summon Mr Kalkc. 148. Finally, and more importantly, the Court observes the Governments failure to identify and summon the police officers who accompanied Necati Aydn to the Diyarbakr Court on 4 April 1994 (see paragraph 13 above). As regards the Governments questioning of the Commissions decision to hear these police officers in person (see paragraph 13 above), the Court would reiterate that it was for the Commission, as it is now for this Court, to decide
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whether and to what extent a witness is relevant for its assessment of the facts (see Orhan v. Turkey, no. 25656/94, 271, 18 June 2002) and in what manner evidence should be obtained from such witnesses. 149. The Court concludes that the Government have not advanced any, or any convincing, explanation for their delays and omissions in response to the Commissions requests for relevant documents, information and witnesses. Accordingly, it finds that it can draw inferences from the Governments conduct in this respect. Furthermore, the Court, referring to the importance of a respondent Governments co-operation in Convention proceedings (see paragraph 137 above) and mindful of the difficulties inevitably arising from an evidencetaking exercise of this nature (see Timurta, cited above, 70), finds that the Government fell short of their obligations under Article 38 1 (a) of the Convention to furnish all necessary facilities to the Commission and the Court in their task of establishing the facts. C. The Courts evaluation of the facts 150. According to the applicant, her husband Necati Aydn was never physically released after the judges order on 4 April 1994. He was later shot and killed by agents of the State. The Government deny this. 151. The Court reiterates at the outset that persons in custody are in a vulnerable position and the authorities are under a duty to protect them. It has previously held that, where an individual is taken into police custody in good health and is found to be injured on release, it is incumbent on the State to provide a plausible explanation of how those injuries were caused (see, among other authorities, Selmouni v. France [GC], no. 25803/94, 87, ECHR 1999-V). The obligation on the authorities to account for the treatment of an individual in custody is particularly stringent where that individual dies (see Salman v. Turkey [GC], no. 21986/93, 99, ECHR 2000-VII). It follows from this that the authorities are responsible for the well-being of detainees until their release and it is for the respondent State to prove that a detainee has been released. 152. The Court notes that it is not in dispute between the parties that the applicants husband was detained by the police on 18 March 1994 and was subsequently brought before the judge at the Diyarbakr Court on 4 April 1994 who ordered his release. What is disputed is whether Necati Aydn was physically released on this latter date, as maintained by the Government. 153. In assessing evidence, the Court has generally applied the standard of proof beyond reasonable doubt (see Ireland v. the United Kingdom, judgment of 18 January 1978, Series A no. 25, pp. 64-65, 161). Such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in custody, strong presumptions of fact will arise in respect of injuries and death occurring during such detention. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Salman, cited above, 100). 154. It is appropriate, therefore, that in cases such as the present where it is the nondisclosure by the Government of crucial documents in their exclusive possession until the advanced stages of the examination of the application, coupled with their failure to identify the two police officers (see paragraph 13 above), as well as their failure to summon other crucial witnesses (see paragraph 12 above), which is putting obstacles in the way of the Courts establishment of the facts , it is for the Government to argue conclusively why the
40

documents and the witnesses in question cannot serve to corroborate the allegation made by the applicant (see Akkum and Others v. Turkey, no. 21894/93, 211, 24 March 2005). 155. The Government have failed to adduce any argument from which it could be deduced that the witnesses whom they failed to identify and to summon had no relevant testimonies to offer which might have had a bearing on the applicants claims. 156. More crucially, the Court observes that at the time of the events giving rise to the present application it was not the practice, at least not at the Diyarbakr Court, to draw up release documents when a detainee was released by order of a prosecutor or judge (see paragraphs 93 and 102 above). Detainees would simply be escorted to the door of the court building (see paragraph 93 above) or to a safe location outside the court building (see paragraph 102 above) and released there. 157. The Court further observes that, at the time of the events, a suspect who was detained in police custody on suspicion of having committed an offence falling within the jurisdiction of the State Security Courts, was prevented from benefiting from a number of essential safeguards. In particular, such detainees did not have access to their lawyers until they were charged. Moreover, they could be detained up to a period of 30 days before they had to be brought before a judge. Family members or legal representatives would not be informed of the date and time when suspects were brought before a judge. 158. The importance of effective safeguards which should be afforded to detainees cannot be overemphasised. When examining complaints under Article 5 of the Convention, the Court has stressed in a number of cases the fundamental importance of the guarantees contained in that provision for securing the rights of individuals in a democracy to be free from arbitrary detention at the hands of the authorities (see, amongst others, Timurta, cited above, 103, and the cases cited there). It held that what was at stake was both the protection of the physical liberty of individuals as well as their personal security in a context which, in the absence of safeguards, could result in a subversion of the rule of law and place detainees beyond the reach of the most rudimentary forms of legal protection (see Kurt v. Turkey, judgment of 25 May 1998, Reports of Judgments and Decisions 1998-III, 123). 159. Regard may also be had to Article 11 of the Declaration on the Protection of all Persons from Enforced Disappearance (United Nations General Assembly resolution 47/133 of 18 December 1992). This Article provides that [a]ll persons deprived of liberty must be released in a manner permitting reliable verification that they have actually been released and, further, have been released in conditions in which their physical integrity and ability fully to exercise their rights are assured. 160. In the light of the above mentioned failure of the Government to identify and summon the police officers who accompanied Necati Aydn to the Diyarbakr Court on 4 April 1994, coupled with the absence of a release document, the Court concludes that the Government have failed to discharge their burden of proving that Necati Aydn was indeed released from the Diyarbakr Court building on 4 April 1994. The Court finds it established that Necati Aydn remained in the custody of the State. It follows that the Governments obligation is engaged to explain how Necati Aydn was killed while still in the hands of State agents. Given that no such explanation has been put forward by the Government, the Court concludes that the Government have failed to account for the killing of Necati Aydn. III. ALLEGED VIOLATIONS OF ARTICLE 2 OF THE CONVENTION 161. Article 2 of the Convention provides as follows:

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1. Everyones right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. 2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection. A. The killing of Necati Aydn 1. Submissions of the parties 162. The applicant submitted that her husband had been killed by agents of the State, in violation of Article 2 of the Convention. 163. The Government denied that the applicants husband was so killed. They contended that the applicants husband had left the court building immediately after the judge had ordered his release and his personal belongings had been returned to him. The lapse of time of four to five days between Necati Aydns release and his killing was too long to be capable of implicating the authorities in his death. The Government contended that no evidence was submitted by the applicant in support of her allegations. 2. The Courts assessment 164. Article 2, which safeguards the right to life and sets out the circumstances when deprivation of life may be justified, ranks as one of the most fundamental provisions in the Convention, to which no derogation is permitted. Together with Article 3, it also enshrines one of the basic values of the democratic societies making up the Council of Europe. The circumstances in which deprivation of life may be justified must therefore be strictly construed. The object and purpose of the Convention as an instrument for the protection of individual human beings also requires that Article 2 be interpreted and applied so as to make its safeguards practical and effective (see McCann and Others v. the United Kingdom, judgment of 27 September 1995, Series A no. 324, pp. 45-46, 146-47). 165. The text of Article 2, read as a whole, demonstrates that it covers not only intentional killing but also situations where it is permitted to use force which may result, as an unintended outcome, in the deprivation of life. The deliberate or intended use of lethal force is only one factor, however, to be taken into account in assessing its necessity. Any use of force must be no more than absolutely necessary for the achievement of one or more of the purposes set out in sub-paragraphs (a) to (c). This term indicates that a stricter and more compelling test of necessity must be employed from that normally applicable when determining whether State action is necessary in a democratic society under paragraph 2 of Articles 8 to 11 of the Convention. Consequently, the force used must be strictly proportionate to the achievement of the permitted aims (ibid., p. 46, 148-49). 166. In the light of the importance of the protection afforded by Article 2, the Court must subject deprivations of life to the most careful scrutiny, taking into consideration not only the actions of State agents but also all the surrounding circumstances. Use of force by State agents in pursuit of one of the aims specified in paragraph 2 of Article 2 may be justified
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where it is based on an honest belief which is perceived for good reasons to be valid at the time but which subsequently turns out to be mistaken (ibid., pp.58-59, 200). 167. The Court has already established that the Government have failed to account for the death of Necati Aydn (see paragraph 154 above) who was last seen alive in the hands of State agents and subsequently met with a violent death. It follows that there has been a violation of Article 2 of the Convention in respect of the killing of Necati Aydn. B. Alleged inadequacy of the investigation 1. Submissions of the parties (a) The applicant 168. The applicant asked the Court to find a violation of Article 2 of the Convention on the ground that the investigation into the disappearance and the subsequent killing of her husband had been so fundamentally flawed as to amount to a failure to comply with the procedural requirements of that provision. The applicant identified, in particular, the following shortcomings in the investigation into the killing of her husband: (a) during the five crucial days of his unacknowledged detention, i.e. between 4 April 1994 and 9 April 1994, the authorities took no action to try and find Necati Aydn; in particular, the police officers who accompanied Necati Aydn to the court building were not questioned; (b) no forensic examinations whatsoever were carried out at the place where the bodies were found; (c) no full autopsy was carried out on the body of Necati Aydn; (d) no attempts were made to establish the type of weapon that had been used, or to find out whether the deceased had been killed on the spot; (e) the rope used to tie her husbands hands behind his back was simply left at the site and not taken for any forensic testing. (f) no photographs were taken for forensic purposes; (g) the authorities failed to take statements about the killing of Necati Aydn from any of his relatives who might have been able to provide some information; (h) each of the prosecutors and investigating officers involved in the investigation made the assumption that the men had been killed by terrorists; (i) the investigation file consisted mainly of three-monthly replies from the gendarmes to the effect that there was no information on the perpetrators. However, there was no evidence whatsoever of any pro-active steps having been taken in order to find the perpetrators. (b) The Government 169. The Government submitted that, despite the fact that the conditions of the fight against terrorism made it difficult to identify the perpetrators, the investigation into the killing of the applicants husband had not suffered any interruptions and was still continuing. They emphasised that the present case did not concern deliberate action undertaken by State agents against a person, but a criminal investigation into events that had occurred between individuals. The Convention contained no specific rights as to the duration and modalities of such an inquiry.

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2. The Courts assessment 170. The Court reiterates that the obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the States general duty under Article 1 of the Convention to secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention, requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force (see, mutatis mutandis, McCann and Others, cited above, p. 49, 161, Kaya v. Turkey, judgment of 19 February 1998, Reports 1998-I, p. 329, 105). In that connection, the Court points out that, contrary to what was suggested by the Government, this obligation is not confined to cases where it is apparent that the killing was caused by an agent of the State (see Salman, cited above, 105). 171. As to the question whether the investigating authorities were informed of the disappearance of Necati Aydn, the Court observes in the first place that the lawyers Sezgin Tanrkulu and Arif Altnkalem went to the Diyarbakr Court building on 5 April 1994 in order to obtain information about him (see paragraphs 96 and 100 above). There they met with the Chief Public Prosecutor Bekir Seluk who told them that Necati might have gone to join the PKK. Having regard to the credible and consistent testimonies given by these two lawyers to the Commissions delegates (see paragraphs 91-97 and 98-100 above), the Court sees no reason to doubt the veracity of their statements. The Court notes, however, that Mr Seluk told the delegates that he did not remember meeting with the lawyers (see paragraph 106 above). The Court has serious doubts as to the reliability of this witness, whose statement to the delegates was evasive. The Court is, moreover, disconcerted by the nature of some of the opinions expressed by him. In this context the Court would in particular point to his comments concerning acquittals by a court of law merely reflecting the personal opinion of judges (see paragraph 105 above) and his remark that civil servants who were suspected of having links with the PKK, but against whom there was no evidence, would be relocated (see paragraph 107 above). The Court finds that these disturbing comments from a senior public prosecutor reflect an abject disregard for the principle of the rule of law. 172. Furthermore, after the disappearance of Necati Aydn but prior to his body having been found, Yasemin Aydn met with Prosecutor Osman Yetkin at the latters request. Yasemin told the delegates that Mr Seluk and a number of other judges and prosecutors were also present in the room. According to Mr Seluk, this meeting did not take place. The Government, however, have not explicitly denied that the meeting was held, and, by failing to summon Mr Yetkin and the two judges (see paragraph 12 above), not only frustrated the possibility of the Convention bodies to establish the facts, but also forfeited the opportunity to refute Yasemin Aydns statement. 173. The Court finds it established, therefore, that the competent judicial authorities had been promptly and adequately informed of the disappearance of Necati Aydn. It follows that, from that moment onwards, these authorities had a duty to carry out an effective investigation into the disappearance of Necati Aydn. 174. No documents have been submitted by the Government indicating that any steps were taken by these authorities in the crucial days following the disappearance. In particular, and as the applicant pointed out, there are no documents indicating that the police officers who accompanied Necati Aydn to the court building were identified and questioned. It is possible that the reason for this failure was, as Mr Seluk put it, that questioning them was not regarded as important by the authorities (see paragraph 103 above). In any event, even if these police officers had been identified and questioned by the Mr Seluk, their testimonies
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would not have been recorded, as Mr Seluk made it clear that he would not keep records of the names or statements of such officers (see paragraph 103 above). 175. Furthermore, the Court observes that Ramazan Src, as the Chief of Police responsible for the anti-terrorist branch who detained Necati Aydn, and also as the officer who ordered Necati Aydns transfer to the Diyarbakr Court (see paragraph 48 above), was never questioned by the authorities despite the fact that obtaining information from him would have been an obvious step to take at that time. Similarly, no information or documents have been submitted by the respondent Government to indicate that Ertan Uzunda, the police commissioner who oversaw Necati Aydns transfer to the Diyarbakr Court (see paragraph 64 above), was ever questioned. 176. The Court concludes that the prosecutors have remained inactive during these crucial days at a time when many people were being killed in the south-east region. 177. As regards the investigation into the killing of the applicants husband, the Court finds that the discovery of Necati Aydns body gave rise ipso facto to an obligation under Article 2 to carry out an effective investigation into the circumstances surrounding the death (see, mutatis mutandis, Ergi v. Turkey, judgment of 28 July 1998, Reports 1998-IV, p. 1778, 82, and Yaa v. Turkey, judgment of 2 September 1998, Reports 1998-VI, p. 2438, 100). Furthermore, pursuant to Article 153 of the Turkish Code of Criminal Procedure, a public prosecutor, who has been informed of a crime that has been committed within his or her jurisdiction, is under an obligation to carry out the necessary investigations into the incident. 178. The obligation to carry out effective investigations involves, where appropriate, an autopsy which provides a complete and accurate record of possible signs of ill-treatment and injury and an objective analysis of clinical findings, including the cause of death (see Salman, cited above, 105). 179. It appears from the report drawn up by the gendarmes on 9 April 1994 (see paragraph 52 above) and also from the evidence given by these gendarme officers to the Commissions delegates (see paragraphs 120-25 and 126-29 above), that there was no meaningful examination of the scene where the body was found. In this regard, the Court would refer to the defects set out by the applicant (see paragraph 162 above) and it would further highlight the importance of a full autopsy. 180. The Court notes that the report drawn up on 9 April 1994 by Prosecutor Rdvan Yldrm and Dr. Feyzi Kaymak merely consists of a record of the number of bullet entry and exit holes found on the three bodies. Dr Kaymak, who performed the examination, apparently did not consider the possibility that traces of bullet or other evidence might still be lodged in the body. No attempts were made to establish either the distance from which the bullet had been fired or the type of weapon that had been used. The finding that the death had been caused by a gunshot wound was sufficient for Dr Kaymak and the Public Prosecutor Rdvan Yldrm to conclude that a full autopsy was not necessary (see paragraph 53 above). 181. Finally, although a number of ecchymoses were observed on the body of Necati Aydn, no details were given and no attempts were made to establish how they had been caused. This report, therefore, was not capable of disclosing any leads that could have assisted in the establishment of the author(s) of the killing or indeed the cause of death. 182. The Court cannot but remark critically on the investigation carried out by the Bismil Public Prosecutor, Rdvan Yldrm. For example, Mr Yldrm concluded at the very beginning of his investigation that Necati Aydn and the two other deceased men had been killed by terrorists and that he therefore lacked jurisdiction to investigate the killing and sent the file to the Prosecutor at the Diyarbakr Court (see paragraph 59 above).

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183. No documents have been submitted by the Government indicating that any serious steps were taken by Mr Yldrm prior to his conclusion that the deceased men were indeed killed by members of the PKK. 184. Although Mr Yldrm must have been informed as early as 10 April 1994 of the identity of Necati Aydn and the fact that he had been missing since his release was ordered by the Diyarbakr Court on 4 April 1994, he took no steps to ascertain the identities of the police officers who had escorted Necati Aydn to the Diyarbakr Court on 4 April 1994. Nor did he question personnel at the court building who might have heard or seen Necati Aydn. In addition, the fact that every vehicle travelling from Diyarbakr in the direction of the place where the bodies were found would have been searched at least twice (see paragraphs 124 and 129 above) ought to have made Mr Yldrm realise that the three men could not have been taken to the place of their burial unnoticed by one or both of the two check points. Nevertheless, no documents were submitted to either the Commission or the Court to suggest that Mr Yldrm questioned the personnel at these checkpoints. 185. It appears, therefore, that no meaningful preliminary investigation was undertaken by Mr Yldrm, notwithstanding his obligation to that effect under Turkish criminal law, before he concluded on 30 April 1994 that the three men had been killed by terrorists and that, consequently, he lacked jurisdiction and had to send the file to the Diyarbakr Court (see paragraph 59 above). 186. The Court observes that the attribution of responsibility for incidents to the PKK had particular significance as regards the investigation and judicial procedures which ensued, since jurisdiction for terrorist crimes has been given to the State Security Courts (see Akko, cited above, 90). 187. The Court agrees with the conclusion reached by the Prosecutor at the Diyarbakr Court on 22 May 1998, namely that the decision of non-jurisdiction of 30 May 1994 taken by Mr Yldrm (see paragraph 66 above) was based on presumptions. However, it regrets the fact that it took the prosecutors four years to come to this obvious conclusion. 188. The Court observes that no meaningful steps were taken during these four years (see paragraphs 59 to 66 above), and that any steps that were taken followed the receipt by the investigating authorities of the letters sent to them by the Directorate, in which they were informed of the progress of the Convention institutions examination of the application. 189. One of the steps taken during this four-year period was the letter sent to the Directorate on 5 May 1995 by Mr Seluk (see paragraph 60 above), who was of the opinion that the killings had been perpetrated by the PKK in order to be able to lodge an application with the Convention organs. In the view of the Court, Mr Seluks opinion sums up the approach taken by prosecutors in their investigations of similar killings in the area at the time. As was explicitly said by Prosecutor Gngr, In an investigation into a killing incident which had taken place in that area at that time, the starting point would be that the perpetrators were members of the PKK. Other possibilities would also be investigated if any evidence came to light which suggested that the perpetrators were not PKK members (see paragraph 113 above). However, although no such evidence so far as the Court is aware has come to light in the present case, the Prosecutor at the Diyarbakr Court decided at the end of the four years that there was no evidence of any PKK involvement in the killing (see paragraph 66 above) and sent the file back to the Bismil Prosecutors Office in 1998. 190. As regards the investigation carried out by the Bismil Prosecutor after he re-acquired the investigation file in 1998, the Court observes once more that no meaningful steps were taken in so far as can be ascertained from the documents submitted. The only action taken by the Bismil Prosecutor was the sending of the letters of 7 May 1999 and 23 June 1999 (see
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paragraphs 71 and 73 above) to the Directorate, in which he stated that there were no bullets in the area where the bodies had been found, that the investigation was continuing and that his office was being kept informed about the progress of the investigation every three months. As regards these three-monthly, pro-forma reports drawn up by the gendarmes, the Court finds that they cannot be taken as proof of any investigation. The Court cannot see how, after many years have passed, repeated visits to the site where the bodies were found are capable of revealing any clues as to the identity of the perpetrators (see paragraph 72 above). 191. In the light of the very serious shortcomings identified in its above-mentioned examination, the Court concludes that the domestic authorities failed to carry out any meaningful investigation, let alone an adequate and effective one, into the killing of the applicants husband as required by Article 2 of the Convention. 192. The Court finds, therefore, that there has been a violation of Article 2 of the Convention under its procedural limb. IV. ALLEGED VIOLATIONS OF ARTICLE 3 OF THE CONVENTION 193. The applicant submitted that she was blindfolded whilst in detention. She argued that the use of blindfolds deliberately disorientates the detainee and places the detainee in a vulnerable position vis vis those detaining and questioning her. The applicant also submitted that she was made to listen to the screams of her husband as he was being tortured. She was slapped; police officers threatened to strip her naked in order to put pressure on her husband, and told her that her husband could end up being killed like Yusuf Ekinci (see paragraph 78 above). Furthermore, while all that was being done to her, she was six months pregnant. 194. As regards the treatment to which her husband was subjected whilst in the custody of police officers, the applicant submitted that she witnessed him being interrogated naked and wet, and that she heard his screams while he was being tortured. She also drew the Courts attention to the autopsy report of 9 April 1994 which showed that Necatis body had been covered in bruises. 195. The applicant argued that the medical reports drawn up on her release, as well as that of her husbands, according to which neither of their bodies bore any bruises, were of little value since those reports had not been drawn up pursuant to a proper medical examination; the doctor had merely asked her, in the presence of police officers, whether she had any complaints. 196. Article 3 of the Convention provides as follows: No one shall be subjected to torture or to inhuman or degrading treatment or punishment. 197. The Government denied that either the applicant or her husband had been subjected to ill-treatment or torture during their detention. They argued that these allegations had no basis in fact. 198. The Court reiterates that where an individual is taken into police custody in good health and is found to be injured on release, it is incumbent on the State to provide a plausible explanation of how those injuries were caused (see, among other authorities, Selmouni, cited above, 87). 199. The Court has already found that the applicants husband was in the hands of State agents until his death (see paragraph 154 above). It observes that the respondent Government have not argued that the marks on the body of the applicants husband predated his detention.
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In any event, according to the medical report of 4 April 1994, the applicants husband bore no marks of ill-treatment on his body (see paragraph 46 above). It follows, therefore, that these injuries must have been inflicted on the applicants husband between 4 and 9 April 1994. No explanation, let alone a plausible one, for the marks and injuries found on Necati Aydns body have been provided by the Government. 200. As regards the nature of these injuries, the Court observes that they were extensive and, according to the medical report of 9 April 1994, had been caused by blows (see paragraph 54 above). They are not likely, therefore, to have been caused accidentally. These injuries, unaccounted for by the Government, must therefore be considered attributable to a form of ill-treatment for which the authorities were responsible. 201. In determining whether a particular form of ill-treatment should be qualified as torture, consideration must be given to the distinction, embodied in Article 3, between this notion and that of inhuman or degrading treatment. As noted in previous cases, it was the intention that the Convention should, by means of this distinction, attach a special stigma to deliberate inhuman treatment causing very serious and cruel suffering (see Ireland v. the United Kingdom, cited above, pp. 66-67, 167). In addition to the severity of the treatment, there is a purposive element, as recognised in the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which came into force on 26 June 1987, which defines torture in terms of the intentional infliction of severe pain or suffering with the aim, inter alia, of obtaining information, inflicting punishment or intimidating (Article 1 of the United Nations Convention; see Salman, cited above, 114). 202. Although it cannot be excluded that Necati Aydn was subjected to such treatment in order to extract information from him or to punish him for his trade union activities, the Court considers that there is insufficient evidence to reach that conclusion. 203. However, having regard to the nature and degree of the ill-treatment, the Court finds that it amounted to at least inhuman treatment within the meaning of Article 3 of the Convention. 204. The Court concludes, therefore, that there has been a breach of Article 3 of the Convention on account of the treatment to which the applicants husband was subjected prior to his death. 205. As regards the treatment to which the applicant alleged she was subjected during her detention, the Court observes that, other than her own allegations, there is no evidence to support her complaint. The Court is unable, therefore, to reach to a conclusion in this respect. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Dismisses the Governments preliminary objection; 2. Holds that the respondent State has failed to fulfil its obligation under Article 38 of the Convention to furnish all necessary facilities to the Commission and Court in their task of establishing the facts; 3. Holds that the Government are liable for the death of the applicants husband in violation of Article 2 of the Convention; 4. Holds that there has been a violation of Article 2 of the Convention on account of the failure of the authorities of the respondent State to conduct an effective investigation into the circumstances of the killing of the applicants husband;

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5. Holds that there has been a violation of Article 3 of the Convention in respect of the treatment to which the applicants husband was subjected prior to his death; 6. Holds that there has been no violation of Article 3 of the Convention in respect of the treatment to which the applicant was allegedly subjected while in detention; 7. Holds that it is unnecessary to determine whether there has been a violation of Article 11 of the Convention; 8. Holds that there has been a violation of Article 13 of the Convention; 9. Holds that it is unnecessary to determine whether there has been a practice by the authorities of infringing Articles 2, 3 and 13 of the Convention; 10. Holds that it is unnecessary to determine whether there has been a violation of Article 14 of the Convention in conjunction with Articles 2 and 13 of the Convention; 11. Holds (a) that the respondent State is to pay the applicant for pecuniary damage, within three months from the date on which the judgment becomes final according to Article 44 2 of the Convention, the sum of EUR 30,000 (thirty thousand euros) and any tax that may be chargeable on this amount, to be converted into Swiss francs at the rate applicable at the date of settlement; (b) that the respondent State is to pay the applicant in respect of non-pecuniary damage, within the same three-month period, the following sums, to be converted into Swiss francs at the rate applicable at the date of settlement: (i) EUR 21,000 (twenty one thousand euros) to be held for the heirs of her deceased husband; (ii) EUR 3,500 (three thousand five hundred euros) in her personal capacity; and (iii) any tax that may be chargeable on the above amounts; (c) that the respondent State is to pay the applicant, within the same three-month period, into the bank account identified by her in the United Kingdom, EUR 20,000 (twenty thousand euros) in respect of costs and expenses, together with any value-added tax that may be chargeable, to be converted into pounds sterling at the rate applicable at the date of settlement; (d) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 12. Dismisses the remainder of the applicants claim for just satisfaction. Done in English, and notified in writing on 24 May 2005, pursuant to Rule 77 2 and 3 of the Rules of Court. S. DOLL Registrar

J.-P. COSTA President

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D. v United Kingdom (ECtHR) D. v United Kingdom App No 146/1996/767/964 (ECtHR, 2 May 1997)

CONSEIL DE LEUROPE

COUNCIL OF EUROPE

COUR EUROPENNE DES DROITS DE LHOMME EUROPEAN COURT OF HUMAN RIGHTS

COURT (CHAMBER)

CASE OF D. v. THE UNITED KINGDOM (Application no. 30240/96)

JUDGMENT

STRASBOURG 2 May 1997

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AS TO THE FACTS

I. PARTICULAR CIRCUMSTANCES OF THE CASE

A. The applicant 6. The applicant was born in St Kitts and appears to have lived there most of his life. He is one of seven children. One sister and one brother moved to the United States in the 1970s and the rest of the family appears to have followed at unspecified dates. The applicant visited the United States in 1989 to try to join his family. During his stay there he was arrested on 5 September 1991 for possession of cocaine and subsequently sentenced to a threeyear term of imprisonment. After one year, he was paroled for good behaviour and deported on 8 January 1993 to St Kitts. B. The applicants arrival in the United Kingdom and subsequent imprisonment 7. The applicant arrived at Gatwick Airport, London, on 21 January 1993 and sought leave to enter the United Kingdom for two weeks as a visitor. He was found at the airport terminal to be in possession of a substantial quantity of cocaine with a street value of about 120,000 pounds sterling (GBP). The immigration officer refused him leave to enter on the ground that his exclusion was conducive to the public good and gave him notice that he would be removed to St Kitts within a matter of days. However, after being arrested and charged, the applicant was remanded in custody and subsequently prosecuted for being knowingly involved in the fraudulent evasion of the prohibition on the importation of controlled drugs of class A. He pleaded guilty at Croydon Crown Court on 19 April 1993 and was sentenced on 10 May 1993 to six years imprisonment. He apparently behaved well while in H.M. Prison Wayland and was released on licence on 24 January 1996. He was placed in immigration detention pending his

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removal to St Kitts. Bail was granted by an adjudicator on 31 October 1996 after the Commissions report had been made public. C. Diagnosis of AIDS 8. In August 1994, while serving his prison sentence, the applicant suffered an attack of pneumocystis carinii pneumonia ("PCP") and was diagnosed as HIV (human immunodeficiency virus)-positive and as suffering from acquired immunodeficiency syndrome (AIDS). The infection appears to have occurred some time before his arrival in the United Kingdom. 9. On 3 March 1995, the applicant was granted a period of compassionate leave to be with his mother whose air fare to the United Kingdom to visit him had been covered by charitable donations. 10. On 20 January 1996, immediately prior to his release on licence, the immigration authorities gave directions for the applicants removal to St Kitts. D. The applicants request to remain in the United Kingdom 11. By letter dated 23 January 1996, the applicants solicitors requested that the Secretary of State grant the applicant leave to remain on compassionate grounds since his removal to St Kitts would entail the loss of the medical treatment which he was currently receiving, thereby shortening his life expectancy (see paragraphs 13 and 14 below). This request was refused on 25 January 1996 by the Chief Immigration Officer. In his letter of refusal addressed to the applicants solicitors the Chief Immigration Officer stated: "In reaching this decision full account was taken of paragraph 4 of the Immigration and Nationality Department B Division Instructions regarding AIDS and HIV-positive cases. You will be aware that paragraph 4 of this instruction which relates to persons whose applications are for leave to enter the United Kingdom states [see paragraph 27 of the judgment below]... While we are saddened to learn of Mr D[...]s medical circumstances we do not accept, in line with Departmental Policy, that it is right generally or in the individual circumstances of this case, to allow an AIDS sufferer to remain here exceptionally when, as here, treatment in this country is carried out at public expense, under the National Health Service. Nor would it be fair to treat AIDS sufferers any differently from others suffering medical conditions ..." E. Judicial review proceedings 12. On 2 February 1996, the applicant applied unsuccessfully to the High Court for leave to apply for judicial review of the decision to refuse him leave to enter. On 15 February 1996, the Court of Appeal dismissed his

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renewed application. It found that section 3 of the Immigration Act 1971 drew a distinction between leave to enter and leave to remain. It held that the Chief Immigration Officer had correctly treated Mr D.s application as an application for leave to enter and was not required to take into account paragraph 5 of the Home Office guidelines which applied to applications for leave to remain (see paragraphs 27 and 28 below). As to the applicants argument that the Home Office acted unreasonably or irrationally in not acceding to the compassionate circumstances of his plea, Sir Iain Glidewell stated in his judgment: "Nobody can but have great sympathy for this applicant in the plight in which he finds himself. If he is to return to St Kitts it seems that he will be unable to work because of his illness. His expectation of life, if the medical evidence is correct, may well be shorter than it would be if he remained under the treatment that he is receiving in the United Kingdom, and in many ways his plight will be great. On the other hand he would not be here if he had not come on a cocaine smuggling expedition in 1993; and if he had not been imprisoned he would have gone back to St Kitts, if he had ever come here at all, long before his AIDS was diagnosed. Taking account of the fact that the Court must give most anxious scrutiny to a decision which involves questions particularly of life expectancy, as this one apparently does, nevertheless I cannot find that an argument in this case that the decision of the Chief Immigration Officer was irrational is one that has any hope of success at all. Putting it the opposite way, it seems to me to be one which was well within the bounds of his discretion, and thus is not one with which the Court can properly interfere." F. Reports on the applicants medical condition, treatment and prognosis 13. Since August 1995, the applicants "CD4" cell count has been below 10. He has been in the advanced stages of the illness, suffering from recurrent anaemia, bacterial chest infections, malaise, skin rashes, weight loss and periods of extreme fatigue. 14. By letter dated 15 January 1996, Dr Evans, a consultant doctor, stated: "His current treatment is AZT 250 mgs. b.d. and monthly nebulised pentamidine, he occasionally takes mystatin pastilles and skin emollients. In view of the fact that [the applicant] has now had AIDS for over 18 months and because this is a relentlessly progressive disease his prognosis is extremely poor. In my professional opinion [the applicants] life expectancy would be substantially shortened if he were to return to St Kitts where there is no medication; it is important that he receives pentamidine treatment against PCP and that he receives prompt anti-microbial therapy for any further infections which he is likely to develop ..." 15. In a medical report provided on 13 June 1996, Professor Pinching, a professor of immunology at a London hospital, stated that the applicant had suffered severe and irreparable damage to his immune system and was extremely vulnerable to a wide range of specific infections and to the development of tumours. The applicant was reaching the end of the averag

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durability of effectiveness of the drug therapy which he was receiving. It was stated that the applicants prognosis was very poor and limited to eight to twelve months on present therapy. It was estimated that withdrawal of the proven effective therapies and of proper medical care would reduce that prognosis to less than half of what would be otherwise expected. G. Medical facilities in St Kitts 16. By letter dated 20 April 1995, the High Commission for the Eastern Caribbean States informed the doctor treating the applicant in prison that the medical facilities in St Kitts did not have the capacity to provide the medical treatment that he would require. This was in response to a faxed enquiry of the same date by Dr Hewitt, the managing medical officer at H.M. Prison Wayland. By letter of 24 October 1995, Dr Hewitt informed the Home Office of the contents of the letter from the High Commission, which had also been sent to the Parole Unit on 1 May 1995. He stated that the necessary treatment was not available in St Kitts but was widely and freely available in the United Kingdom and requested that due consideration be given to lifting the deportation order in respect of the applicant. By letter dated 1 August 1996, the High Commission for the Eastern Caribbean States confirmed that the position in St Kitts had not changed. 17. By letter dated 5 February 1996, the Antigua and Barbuda Red Cross informed the applicants representatives that they had consulted their officer on St Kitts who stated that there was no health care providing for drugs treatment of AIDS. Results of enquiries made by the Government of the authorities in St Kitts suggest that there are two hospitals in St Kitts which care for AIDS patients by treating them for opportunistic infections until they are well enough to be discharged, and that an increasing number of AIDS sufferers there live with relatives. H. The applicants family situation in St Kitts 18. The applicant has no family home or close family in St Kitts other than, according to information provided by the Government, a cousin. His mother, who currently lives in the United States, has declared that her age, bad health and lack of resources prevent her from returning to St Kitts to look after her son if he were to be returned there. She has also stated that she knew of no relatives who would be able to care for him in St Kitts.

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I. The applicants situation since the adoption of the Commissions report 19. When granted bail on 31 October 1996 (see paragraph 7 above) the applicant was released to reside in special sheltered accommodation for AIDS patients provided by a charitable organisation working with homeless persons. Accommodation, food and services are provided free of charge to the applicant. He also has the emotional support and assistance of a trained volunteer provided by the Terrence Higgins Trust, the leading charity in the United Kingdom providing practical support, help, counselling and legal and other advice for persons concerned about or having AIDS or HIV infection. 20. In a medical report dated 9 December 1996 Dr J.M. Parkin, a consultant in clinical immunology treating the applicant at a London hospital, noted that he was at an advanced stage of HIV infection and was severely immunosuppressed. His prognosis was poor. The applicant was being given antiretroviral therapy with "D4T" and "3TC" to reduce the risk of opportunistic infection and was continuing to be prescribed pentamidine nebulisers to prevent a recurrence of PCP. Preventative treatment for other opportunistic infections was also foreseen. Dr Parkin noted that the lack of treatment with anti-HIV therapy and preventative measures for opportunistic disease would hasten his death if he were to be returned to St Kitts. 21. The applicant was transferred to an AIDS hospice around the middle of January 1997 for a period of respite care. At the beginning of February there was a sudden deterioration in his condition and he had to be admitted to a hospital on 7 February for examination. At the hearing before the Court on 20 February 1997, it was stated that the applicants condition was causing concern and that the prognosis was uncertain. According to his counsel, it would appear that the applicants life was drawing to a close much as the experts had predicted (see paragraph 15 above). AS TO THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION (art. 3) 39. The applicant maintained that his removal to St Kitts would expose him to inhuman and degrading treatment in breach of Article 3 of the Convention (art. 3), which provides: "No one shall be subjected to torture or to inhuman or degrading treatment or punishment." A. Arguments of those appearing before the Court 1. The applicant 40. The applicant maintained that his removal to St Kitts would condemn him to spend his remaining days in pain and suffering in conditions of isolation, squalor and destitution. He had no close relatives or friends in St Kitts to attend to
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him as he approached death. He had no accommodation, no financial resources and no access to any means of social support. It was an established fact that the withdrawal of his current medical treatment would hasten his death on account of the unavailability of similar treatment in St Kitts. His already weakened immune system would not be able to resist the many opportunistic infections to which he would be exposed on account of his homelessness, lack of proper diet and the poor sanitation on the island. The hospital facilities were extremely limited and certainly not capable of arresting the development of infections provoked by the harsh physical environment in which he would be obliged to fend for

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himself. His death would thus not only be further accelerated, it would also come about in conditions which would be inhuman and degrading. 41. In June 1996, his life expectancy was stated to be in the region of eight to twelve months even if he continued to receive treatment in the United Kingdom. His health had declined since then. As he was now clearly weak and close to death, his removal by the respondent State at this late stage would certainly exacerbate his fate. 2. The Government 42. The Government requested the Court to find that the applicant had no valid claim under Article 3 (art. 3) in the circumstances of the case since he would not be exposed in the receiving country to any form of treatment which breached the standards of Article 3 (art. 3). His hardship and reduced life expectancy would stem from his terminal and incurable illness coupled with the deficiencies in the health and socialwelfare system of a poor, developing country. He would find himself in the same situation as other AIDS victims in St Kitts. In fact he would have been returned in January 1993 to St Kitts, where he had spent most of his life, had it not been for his prosecution and conviction. 43. The Government also disputed the applicants claim that he would be left alone and without access to treatment for his condition. They maintained that he had at least one cousin living in St Kitts and that there were hospitals caring for AIDS patients, including those suffering from opportunistic infections (see paragraph 17 above). Even if the treatment and medication fell short of that currently administered to the applicant in the United Kingdom, this in itself did not amount to a breach of Article 3 standards (art. 3). 44. Before the Court the Government observed that it was their policy not to remove a person who was unfit to travel. They gave an undertaking to the Court not to remove the applicant unless, in the light of an assessment of his medical condition after the Court gives judgment, he is fit to travel. 3. The Commission 45. The Commission concluded that the removal of the applicant to St Kitts would engage the responsibility of the respondent State under Article 3 (art. 3) even though the risk of being subjected to inhuman and degrading treatment stemmed from factors for which the authorities in that country could not be held responsible. The risk was substantiated and real. If returned, he would be deprived of his current medical treatment and his already weakened immune system would be exposed to untreatable opportunistic infections which would reduce further his limited life expectancy and cause him severe pain and mental suffering. He would be

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homeless and without any form of moral, social or family support in the final stages of his deadly illness. B. The Courts assessment 46. The Court recalls at the outset that Contracting States have the right, as a matter of well-established international law and subject to their treaty obligations including the Convention, to control the entry, residence and expulsion of aliens. It also notes the gravity of the offence which was committed by the applicant and is acutely aware of the problems confronting Contracting States in their efforts to combat the harm caused to their societies through the supply of drugs from abroad. The administration of severe sanctions to persons involved in drug trafficking, including expulsion of alien drug couriers like the applicant, is a justified response to this scourge. 47. However, in exercising their right to expel such aliens Contracting States must have regard to Article 3 of the Convention (art. 3), which enshrines one of the fundamental values of democratic societies. It is precisely for this reason that the Court has repeatedly stressed in its line of authorities involving extradition, expulsion or deportation of individuals to third countries that Article 3 (art. 3) prohibits in absolute terms torture or inhuman or degrading treatment or punishment and that its guarantees apply irrespective of the reprehensible nature of the conduct of the person in question (see, most recently, the Ahmed v. Austria judgment of 17 December 1996, Reports of Judgments and Decisions 1996-VI, p. 2206, para. 38; and the Chahal v. the United Kingdom judgment of 15 November 1996, Reports 1996-V, p. 1853, paras. 73-74). 48. The Court observes that the above principle is applicable to the applicants removal under the Immigration Act 1971. Regardless of whether or not he ever entered the United Kingdom in the technical sense (see paragraph 25 above) it is to be noted that he has been physically present there and thus within the jurisdiction of the respondent State within the meaning of Article 1 of the Convention (art. 1) since 21 January 1993. It is for the respondent State therefore to secure to the applicant the rights guaranteed under Article 3 (art. 3) irrespective of the gravity of the offence which he committed. 49. It is true that this principle has so far been applied by the Court in contexts in which the risk to the individual of being subjected to any of the proscribed forms of treatment emanates from intentionally inflicted acts of the public authorities in the receiving country or from those of non-State bodies in that country when the authorities there are unable to afford him appropriate protection (see, for example, the Ahmed judgment, loc. cit., p. 2207, para. 44).

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Aside from these situations and given the fundamental importance of Article 3 (art. 3) in the Convention system, the Court must reserve to itself sufficient flexibility to address the application of that Article (art. 3) in other contexts which might arise. It is not therefore prevented from scrutinising an applicants claim under Article 3 (art. 3) where the source of the risk of proscribed treatment in the receiving country stems from factors which cannot engage either directly or indirectly the responsibility of the public authorities of that country, or which, taken alone, do not in themselves infringe the standards of that Article (art. 3). To limit the application of Article 3 (art. 3) in this manner would be to undermine the absolute character of its protection. In any such contexts, however, the Court must subject all the circumstances surrounding the case to a rigorous scrutiny, especially the applicants personal situation in the expelling State. 50. Against this background the Court will determine whether there is a real risk that the applicants removal would be contrary to the standards of Article 3 (art. 3) in view of his present medical condition. In so doing the Court will assess the risk in the light of the material before it at the time of its consideration of the case, including the most recent information on his state of health (see the Ahmed judgment, loc. cit., p. 2207, para. 43). 51. The Court notes that the applicant is in the advanced stages of a terminal and incurable illness. At the date of the hearing, it was observed that there had been a marked decline in his condition and he had to be transferred to a hospital. His condition was giving rise to concern (see paragraph 21 above). The limited quality of life he now enjoys results from the availability of sophisticated treatment and medication in the United Kingdom and the care and kindness administered by a charitable organisation. He has been counselled on how to approach death and has formed bonds with his carers (see paragraph 19 above). 52. The abrupt withdrawal of these facilities will entail the most dramatic consequences for him. It is not disputed that his removal will hasten his death. There is a serious danger that the conditions of adversity which await him in St Kitts will further reduce his already limited life expectancy and subject him to acute mental and physical suffering. Any medical treatment which he might hope to receive there could not contend with the infections which he may possibly contract on account of his lack of shelter and of a proper diet as well as exposure to the health and sanitation problems which beset the population of St Kitts (see paragraph 32 above). While he may have a cousin in St Kitts (see paragraph 18 above), no evidence has been adduced to show whether this person would be willing or in a position to attend to the needs of a terminally ill man. There is no evidence of any other form of moral or social support. Nor has it been shown whether the applicant would be guaranteed a bed in either of the hospitals on the island which, according to the Government, care for AIDS patients (see paragraph 17 above).

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53. In view of these exceptional circumstances and bearing in mind the critical stage now reached in the applicants fatal illness, the implementation of the decision to remove him to St Kitts would amount to inhuman treatment by the respondent State in violation of Article 3 (art. 3). The Court also notes in this respect that the respondent State has assumed responsibility for treating the applicants condition since August 1994. He has become reliant on the medical and palliative care which he is at present receiving and is no doubt psychologically prepared for death in an environment which is both familiar and compassionate. Although it cannot be said that the conditions which would confront him in the receiving country are themselves a breach of the standards of Article 3 (art. 3), his removal would expose him to a real risk of dying under most distressing circumstances and would thus amount to inhuman treatment. Without calling into question the good faith of the undertaking given to the Court by the Government (see paragraph 44 above), it is to be noted that the above considerations must be seen as wider in scope than the question whether or not the applicant is fit to travel back to St Kitts. 54. Against this background the Court emphasises that aliens who have served their prison sentences and are subject to expulsion cannot in principle claim any entitlement to remain in the territory of a Contracting State in order to continue to benefit from medical, social or other forms of assistance provided by the expelling State during their stay in prison. However, in the very exceptional circumstances of this case and given the compelling humanitarian considerations at stake, it must be concluded that the implementation of the decision to remove the applicant would be a violation of Article 3 (art. 3).

FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Holds that the implementation of the decision to remove the applicant to St Kitts would violate Article 3 of the Convention (art. 3); 2. Holds that having regard to its conclusion under Article 3 (art. 3) it is not necessary to examine the applicants complaint under Article 2 of the Convention (art. 2); 3. Holds that the applicants complaint under Article 8 of the Convention (art. 8) gives rise to no separate issue; 4. Holds that there has been no violation of Article 13 of the Convention (art. 13);

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Delcourt v Belgium (ECtHR) Delcourt v Belgium App No 2689/65 (ECtHR, 17 January 1970)

CASE OF DELCOURT v. BELGIUM

(Application no. 2689/65)

JUDGMENT

STRASBOURG 17 January 197

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AS TO THE FACTS 9. The purpose of the Commissions request is to obtain a decision from the Court as to whether the facts of the case do or do not disclose a violation by the Kingdom of Belgium of the obligations binding on it under Article 6 para. 1 (art. 6-1) of the Convention. 10. The relevant facts of the case as they appear from the Commissions Report and memorial, the Governments memorial, the documents produced and the addresses of the representatives appearing before the Court may be summarised as follows: 11. Emile Delcourt, a Belgian citizen, born on 28th December 1924, and a company director, has his residence at Waterloo. At the time of lodging his Application with the Commission (20th December 1965), he was imprisoned in the central gaol at Louvain. 12. Proceedings having been instituted against him by the Procureur du Roi at Bruges for obtaining money by menaces, fraud and fraudulent conversion, the Applicant was arrested on 23rd November 1963 and subsequently charged with a number of offences of fraud, fraudulent conversion, forgery and uttering forged documents, issuing uncovered cheques and fraudulent bills as well as obtaining credit by false pretences. On 21st September 1964, he was found guilty by the Bruges Court of Summary Jurisdiction on thirty-six out of forty-one counts and sentenced to a years imprisonment and a fine of two thousand Belgian francs. On 17th March 1965, the Court of Appeal in Ghent modified this judgment against which both Delcourt and the prosecution had appealed on 25th and 26th September 1964. It found all the charges to be established including those on which Delcourt had been acquitted at first instance, stressed the seriousness of the offences and referred to his previous convictions. It accordingly increased his principal sentence to five years imprisonment and further decided that on serving his sentence he should be "placed at the disposal of the Government" for ten years thus granting an application by the prosecution which had been rejected by the Bruges Court. On 17th and 23rd March 1965, the Applicant appealed to the Court of Cassation against the judgment of the Court of Appeal and against that of the Court at Bruges. He lodged a memorial on 20th May 1965. The Procureur gnrals department (parquet) at the Court of Appeal did not avail itself of its right to file a counter-memorial. A public hearing took place before the second chamber of the Court of Cassation on 21st June 1965; the Applicant himself was present at that hearing but not his counsel. The Court of Cassation heard the report of Judge De Bersaques, its rapporteur, and then the submissions of the Avocat gnral, Mr. Dumon, to the effect that the two appeals should be dismissed. In its judgment delivered the same day, after deliberations held in private the Court dismissed the two appeals. 13. In the Application which he lodged with the Commission on 20th December 1965 (No. 2689/65), Delcourt complained of the judgment of 21st September 1964 and the judgments on appeal of 17th March and 21st June 1965. Protesting his innocence and alleging the violation of Articles 5, 6, 7 and 14 (art. 5, art. 6, art. 7, art. 14) of the Convention, he presented numerous complaints almost all of which were declared inadmissible by the Commission on 7th February and 6th April 1967. On this last date, however, the Commission accepted one complaint which related to the question whether the presence of a member of the Procureur gnrals department at the deliberations of the Court of Cassation was
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compatible with the principle of "equality of arms" and hence with Article 6 para. 1 (art. 6-1) of the Convention. In fact, the Advocat gnral, Mr. Dumon, was present at the Courts deliberations in accordance with Article 39 of the Prince Sovereigns Decree of 15th March 1815 which provides "... in cassation proceedings the Procureur gnral has the right to be present, without voting, when the Court retires to consider its decision". It may be observed that this Decree has recently been replaced by certain provisions of the new Judicial Code (Act of 10th October 1967) which was not yet in force when the Belgian Court of Cassation dismissed Delcourts appeals. The above-mentioned provision of the 1815 Decree has been re-enacted, in substance, in Article 1109 of this Code. 14. Following the decision of 6th April 1967 declaring this complaint admissible, a SubCommission ascertained the facts of the case. 15. Before the Commission and the Sub-Commission, the Applicant maintained that the presence of a member of the Procureur gnrals department at the Court of Cassation at the deliberations of 21st June 1965 had violated Article 6 para. 1 (art. 6-1) of the Convention. Without disputing that there is a considerable difference between the respective functions of the Procureur gnrals department at the Court of Cassation and the Procureur gnrals department at the courts below, he stressed that in accordance with the law the former does sometimes appear as a party even though this did not happen in this case. Furthermore, the Procureur gnrals department at the Court of Cassation does, in the view of the Applicant, exercise supervision over the Procureurs gnraux at the Court of Appeal (section 154 of the Act of 18th June 1869); a very strong statutory tie, therefore, links him with them, his subordinates, even if in practice the supervision in question is nowadays rather discreet. Again, the Procureur gnrals department at the Court of Cassation was, in the great majority of cases, the opponent - at any rate potential - of the convicted persons who appealed to the highest court in Belgium: the Procureur gnral usually submitted that their appeals should be dismissed and his opinion was nearly always adopted - as in this case - by the judges. Then the Applicant stressed that the Procureur gnral, after having developed his submissions at the end of the hearing in open court, also participated in its private deliberations from which the parties are excluded. This caused a violation of the rights of the defence and, particularly, of the principle of "equality of arms", as it was defined in the opinions given by the Commission in the Ofner, Hopfinger, Pataki and Dunshirn cases (Applications Nos. 524/59, 617/59, 596/59 and 789/60, Yearbook of the Convention, Vol. 6, pp. 696 to 706 and 730 to 732). The Applicant specified that he did not mean, however, to raise the slightest doubt as to the absolute conscientiousness with which the Court of Cassation fulfils its function or to suggest that the Procureur gnrals department might attempt unduly to influence the court in any direction other than that of strict justice. In other words, Delcourt was not criticising persons but rather the institution which gave an advantage to the Procureur gnrals department. Admittedly, the legislation in issue dated back for more than a century and a half and the Belgian Parliament had decided on two occasions that it did not need to amend it. The legislation, however, dated from a time of absolute monarchy and carried that stamp; furthermore, the incorporation of the Convention into the domestic law of a Contracting State necessarily "kept bringing to light new controversial points which had not been noticed by the national legislature". In his observations of 8th December 1967, almost two years after the lodging of the Application, Delcourt further complained that he had not been able to reply to the submissions of the Procureur gnrals department at the Court of Cassation: he had not been

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informed of this submission before the hearing of 21st June 1965 nor did he have the right to the last word at that hearing. The Applicant applied for the repeal of the legislation under attack and claimed pecuniary damages. 16. On the failure of the attempt made by the Sub-Commission to arrange a friendly settlement, the plenary Commission drew up a Report as required under Article 31 (art. 31) of the Convention. This Report was adopted on 1st October 1968 and transmitted to the Committee of Ministers of the Council of Europe on 5th December 1968. The Commission expressed therein, by seven votes against six, the opinion that Article 6 para. 1 (art. 6-1) of the Convention was not violated in the present case. Two members of the majority expressed a joint concurring opinion and the six members forming the minority expressed their dissent in a joint opinion. 17. After the case was referred to the Court, the Applicant returned to and developed some of his earlier arguments in a document which the Commission appended to its memorial. As regards his main complaint, the Applicant stated that he associated himself with the opinion of the minority of the Commission. Arguments of the Commission and the Government 18. Unlike the Government, the Commission considers unanimously that Article 6 para. 1 (art. 6-1) of the Convention is applicable in the present case to the proceedings in cassation. In the view of the majority of the Commission, however, the presence of a member of the Procureur gnrals department attached to the Court of Cassation at the deliberations of 21st June 1965 was not incompatible with this text. In actual fact, this highest court in Belgium does not deal with the merits (fond) of cases (Article 95 of the Constitution and Section 17 of the Act of 4th August 1832); save in certain exceptional matters, irrelevant to this case, the Court of Cassations sole function is to decide questions of law. The Procureur gnrals department is confined to assisting the Court in the exercise of its functions. That department does not, ordinarily, conduct prosecutions and it has not the character of a party (Article 37 of the Prince Sovereigns Decree of 15th March 1815). In almost all cases it is completely independent of the Minister of Justice and has no right of direction over the Procureur gnrals department which is attached to the courts of first instance and appeal and which is the prosecuting authority in normal cases. The participation of the Procureur gnrals department at the deliberations of the Court of Cassation does not, therefore, conflict with the principle of "equality of arms", even when it is examined in the light of the precedents set by the Commission (Ofner, Hopfinger, Pataki and Dunshirn cases). The Delegates of the Commission brought to the attention of the Court the joint dissenting opinion of six members of the Commission: these members of the Commission were of the opinion that the participation of the Procureur gnrals department at the deliberations of the Court of Cassation did not comply with the requirements of Article 6 para. 1 (art. 6-1). The Commission did not deem it necessary to express an opinion on the "new" complaints which appeared in Delcourts above-mentioned observations of 8th December 1967 (paragraph 15 above); in the Commissions view, the Applicant presented them only as special aspects of the principle of "equality of arms" which the majority of the Commission did not consider to be violated. In its memorial of 22nd May 1969 and at the hearing held on 29th September 1969, the Commission requested the Court: "to decide whether or not, in the course of the proceedings before the Belgian Court of Cassation in the Delcourt case on 21st June 1965, there was a violation of Article 6 para.
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1 (art. 6-1) of the Convention, insofar as this provision requires a fair trial, by reason of the participation of the representative of the Procureur gnrals department in the deliberations of the Court of Cassation". 19. The Government does not dispute that a member of the Procureur gnrals department at the Court of Cassation, after submitting in open court that the Applicants appeals should be refused, was present in a consultative capacity at the deliberations of 21st June 1965, but maintains that this did not involve any violation of the right guaranteed by Article 6 para. 1 (art. 6-1) of the Convention. That highest court in Belgium does not deal with the merits of cases (Article 95 of the Constitution and Section 17 of the Act of 4th August 1832). In spite of its judicial nature, which has been developed through a long evolution, the Court of Cassation fulfils a function which has never ceased to have some relation with the work of the legislature. Established in the interests of the law itself, the Court of Cassation judges judgments and not persons, save in certain exceptional matters which are irrelevant to the present case. It is not therefore the function of that Court to decide disputes concerning civil rights and obligations or to determine criminal charges (dcider, soit des contestations sur ses droits et obligations de caractre civil, soit du bien-fond de toute accusation en matire pnale) within the meaning of Article 6 para. 1 (art. 6-1), as that provision has been interpreted in a series of decisions by the bodies set up to ensure the observance of the Convention. As regards the Procureur gnrals department at the Court of Cassation, it must be distinguished fundamentally from the Procureur gnrals department attached to the courts below. As a general rule, it has not the character of a party (Article 37 of the Decree of 15th March 1815); in the very rare cases where under the relevant law the department assumes the position of a party and institutes prosecutions the Procureur gnral is not present at the deliberations (Article 39 of the Decree of 15th March 1815). As the Procureur gnral is not concerned with the question of the guilt of the accused, he is neither their adversary nor the tool of the prosecution. For example, there is nothing to prevent him from submitting to the Court that an appeal in cassation brought by the Procureur gnrals department at the Court of Appeal should be dismissed or from putting forward on his own initiative grounds for setting aside a conviction; and there are statistics to show that this is often the case. The Procureur gnrals department attached to the Court of Cassation is not, therefore, in alliance with the Procureur gnrals department attached to the courts below; besides, the Procureur gnral at the Court of Cassation exercises, in practice, over that department supervision of a purely doctrinal and scientific nature without the least power of direction (Section 154 of the Act of 18th June 1869). Furthermore, the Procureur gnral at the Court of Cassation is entirely independent in his relations with the Minister of Justice. In short, the role of the Procureur gnral is of the same kind as the functions of the Court of Cassation itself: it consists, ordinarily, in no more than giving technical and objective assistance to the Court in order to ensure the observance of the law, consistency in judicial precedent and good drafting of the judgments. To sum up, the Procureur gnral attached to the Court of Cassation "forms part of, and is identified with", the Court like the judges. In these circumstances, the presence of one of the members of the Procureur gnrals department at the deliberations did not upset the "equality of arms" to the detriment of the Applicant. There was some inequality in this case but it worked to the advantage of Delcourt; unlike him, the Procureur gnrals departments attached to the lower courts whose decisions were challenged in cassation did not have an opportunity to put forward their arguments in open court on 21st June 1965 (Article 34 of the Decree of 15th March 1815); those departments did not even avail themselves of their right to reply in writing to the memorial
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filed by the appellant on 20th May 1965. In the Governments view, the Delcourt case cannot be compared with the Pataki and Dunshirn cases; the present case is closer to the Ofner and Hopfinger cases in which the Commission and the Committee of Ministers did not find any violation of Article 6 (art. 6). For the rest, the legislation in dispute is more than a century and a half old, in which time it has never been subjected to criticism in Belgium by writers or the Bar who are, however, most attentive to everything which relates to the rights of the defence. On two occasions, Parliament decided explicitly to maintain this legislation, the first time without any change (at the time of the passing of the Act of 19th April 1949), the second time in substance and after examination of the question from the point of view of the Convention (Article 1109 of the 1967 Judicial Code). These circumstances raise something like a presumption in favour of the compatibility of the legislation in question with Article 6 para. 1 (art. 6-1); they also show that the participation of the Procureur gnrals department at the deliberations of the Court of Cassation does not open the door to abuse. As to Delcourts "new" complaints, they are inadmissible because they were not included in the original Application. The Government considers that they are in any event unsustainable; in its view, it is just because the Procureur gnrals department is not a party that its submissions are made at the end of the oral proceedings without being communicated in advance to the parties. In its memorial of 17th July 1969 and at the oral hearing held on 30th September 1969, the Government asked the Court: "to hold that, having regard to the role which Belgian law confers on the Procureur gnral attached to the Court of Cassation and to his special position in Belgian judicial procedure, his presence in a non-voting capacity at the Courts deliberations as expressly provided for in that legislation is not of such a nature as to violate the principle of equality of arms where, as in the present case, the Procureur gnral is not himself a party to the proceedings as applicant; to decide in consequence that, in the proceedings which took place in the Delcourt case before the Court of Cassation of Belgium on 21st June 1965, there was no violation of Article 6 para. 1 (art. 6-1) of the Convention by reason of the presence of the representative of the Procureur gnrals department, Mr. Dumon, Avocat gnral, at the deliberations of the judges".

AS TO THE LAW 20. In its decision of 6th April 1967, the Commission declared the Application of Delcourt to be admissible on one point only, that is, whether the participation of a member of the Procureur gnrals department at the deliberations of the Court of Cassation in Belgium, on 21st June 1965, violated the rights and freedoms guaranteed by the Convention. In the course of the examination of the merits of the case by the Commission, the Applicant has further complained that he had not been made aware, before the hearing, of the submissions of the Procureur gnrals department at the Court of Cassation and that he did not have the right to the last word at the hearing. The Court will rule first on the Applicants original complaint. It will then see if there is occasion to consider the two "new" complaints made by Delcourt and, if so, whether they should be upheld or dismissed.
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21. Only one provision of the Convention requires examination for the purpose of deciding the present case. This is Article 6 para. 1 (art. 6-1) which provides that "in the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law". I. AS TO THE APPLICABILITY OF ARTICLE 6 PARA. 1 (Art. 6-1) OF THE CONVENTION 22. At the oral hearings held on 29th and 30th September 1969, the representatives of the Belgian Government maintained, in substance, that, where the Court of Cassation gives judgment, as in the present case, on an appeal in cassation by one of the parties to the case challenging a judicial decision it does not make a determination either of civil rights or obligations or of a criminal charge against him within the meaning of the text quoted above. The Commission, on the contrary, was unanimously of the opinion that Article 6 para. 1 (art. 6-1) is applicable for reasons explained to the Court by its Principal Delegate. 23. The Court recognises that it may be difficult to define exactly the field of application of paragraph 1 of Article 6 (art. 6-1). The Commission has delivered on this point a number of decisions in various particular cases - decisions which the Government invoked in its arguments but on which it is not incumbent on the Court to express an opinion in the present case. The Court, too, has had occasion to advert to certain aspects of the problem. It has ruled that Article 6 para. 1 (art. 6-1) does not apply to the procedure which regulates in Austria the examination of applications for provisional release (Neumeister judgment of 27th June 1968, "As to the Law" paragraphs 22 and 23; Matznetter judgment of 10th November 1969, "As to the Law" paragraph 13). In another case the Court considered, but did not find it necessary to decide, the question whether cassation proceedings ought to be taken into account in appreciating the duration of a hearing for the purpose of applying the provision in Article 6 para. 1 (art. 6-1) requiring a hearing within a "reasonable time" (Wemhoff judgment of 27th June 1968, "As to the Law" paragraphs 18 and 20; see also Neumeister judgment, "As to the Law" paragraph 19). Now, however, the Court is called on to rule on the applicability of Article 6 (art. 6) to proceedings in cassation, though in a different context. 24. The Governments arguments are based, essentially on the words "bien-fond de toute accusation" ("in the determination of any criminal charge against him") which delimit the scope of the application of Article 6 para. 1 (art. 6-1) in criminal cases. Article 95 of the Belgian Constitution provides that the Court of Cassation "does not deal with the merits of the cases submitted to it". Accordingly, in the Governments view there is not, strictly speaking, a prosecution or a defence before that Court: prosecution and defence cease to exist the moment that the judges dealing with the merits give judgment in final instance, subject to the possibility of their being reborn in the event of the Court of Cassation referring a case back to a lower court after quashing the decision attacked. For the rest, the Court of Cassation does not go into the substance of the offences alleged against accused persons and judges not persons but judgments in regard to which it confines itself to supervising their validity. That Court does not therefore determine criminal charges ("bien-fond de toute accusation"). This is always the position save only in certain exceptional matters which are irrelevant to the present case. 25. The Court cannot accept this view. Judicial decisions always affect persons. In criminal matters, especially, accused persons do not disappear from the scene when the decision of the judges at first instance or appeal gives rise to an appeal in cassation. Although
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the judgment of the Court of Cassation can only confirm or quash such decision - and not reverse it or replace it - that judgment may rebound in different degrees on the position of the person concerned. He loses his status of a convicted person or, as the case may be, the benefit of his acquittal, at any rate provisionally, when a decision is set aside and the case is referred back to a trial court. A judgment in cassation sometimes has even more direct repercussions on the fate of an accused. If the highest court dismisses the appeal in cassation, the acquittal or conviction becomes final. If the Court of Cassation allows the appeal without ordering the case to be sent back, because, for example, the facts which led to the conviction do not constitute an offence known to the law (see Article 429 of the Code of Criminal Procedure and the judicial decisions given thereon), then by its own sole decision it puts an end to the prosecution. Furthermore, the term "bien-fond", which is found in the French text of Article 6 para. 1 (art. 6-1), refers not only to the accusation being well-founded in fact but also to its being well-founded in law. Thus, the supervision of validity which the Court of Cassation undertakes may lead it to hold that the lower courts, when examining the facts on which the charge was grounded, have acted in breach either of criminal law or of forms of procedure which are of an essential nature of are laid down on pain of nullity of the decision (see, for example, Section 17 of the Act of 4th August 1832); at least in the first of these cases the prosecution proves to be undoubtedly unfounded. Even the literal interpretation put forward by the Government cannot, therefore, produce the result that proceedings in cassation lie completely outside the scope of Article 6 para. 1 (art. 6-1). Besides, the Court notes that, in fact, the English text of Article 6 (art. 6) does not contain any term equivalent to "bien-fond"; it uses the much wider expression "determination of ... any criminal charge" (dcision sur toute accusation en matire pnale). Thus, a criminal charge is not really "determined" as long as the verdict of acquittal or conviction has not become final. Criminal proceedings form an entity and must, in the ordinary way terminate in an enforceable decision. Proceedings in cassation are one special stage of the criminal proceedings and their consequences may prove decisive for the accused. It would therefore be hard to imagine that proceedings in cassation fall outside the scope of Article 6 para. 1 (art. 61). Article 6 para. 1 (art. 6-1) of the Convention does not, it is true, compel the Contracting States to set up courts of appeal or of cassation. Nevertheless, a State which does institute such courts is required to ensure that persons amenable to the law shall enjoy before these courts the fundamental guarantees contained in Article 6 (art. 6) (see, mutatis mutandis, the judgment of 23rd July 1968 on the merits of the case "relating to certain aspects of the laws on the use of languages in education in Belgium", page 33, in fine). There would be a danger that serious consequences might ensue if the opposite view were adopted; the Principal Delegate of the Commission rightly pointed to those consequences and the Court cannot overlook them. In a democratic society within the meaning of the Convention, the right to a fair administration of justice holds such a prominent place that a restrictive interpretation of Article 6 para. 1 (art. 6-1) would not correspond to the aim and the purpose of that provision (see, mutatis mutandis, the Wemhoff judgment of 27th June 1968, "As to the Law" paragraph 8). 26. Therefore, Article 6 para. 1 (art. 6-1) is indeed applicable to proceedings in cassation. The way in which it applies must, however, clearly depend on the special features of such proceedings. Thus, in order to determine whether Delcourt has been a victim of a violation of Article 6 (art. 6), it is necessary to examine what are, both in law and in practice, the

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functions exercised in a case of this kind by the Belgian Court of Cassation and by the Procureur gnrals department attached to that Court. II. AS TO THE PRINCIPAL COMPLAINT OF THE APPLICANT 27. The Applicant complains in the first place of the fact that a member of the Procureur gnrals department attached to the Court of Cassation, having made his submissions in open court, took part in its deliberations on 21st June 1965. It is beyond doubt that this participation was in conformity with the legislation in force in Belgium at that time; for under Article 39 of the Prince Sovereigns Decree of 15th March 1815 "in proceedings in cassation, the Procureur gnral (had) the right to be present, but without voting, when the Court (retired) to consider its decision". The Court is therefore called upon to judge, in the first place, the compatibility of Article 39 of the Decree of 15th March 1815 with Article 6 para. 1 (art. 6-1) of the Convention. 28. In the course of their respective submissions, the Commission and the Government referred mainly to the principle known as "equality of arms". The Court, however, will examine the problem by reference to the whole of paragraph 1 of Article 6 (art. 6-1). The principle of equality of arms does not exhaust the contents of this paragraph; it is only one feature of the wider concept of fair trial by an independent and impartial tribunal (see Neumeister judgment of 27th June 1968, "As to the Law" paragraph 22). 29. In the present case, the two appeals to the Court of Cassation were both instituted by Delcourt; under Belgian law, the respondent party was not the Procureur gnrals department at the Court of Cassation but the Procureur gnrals departments at whose behest the lower courts had pronounced the decisions under appeal, that is, the Procureur du Roi at Bruges and the Procureur gnral attached to the Court of Appeal at Ghent. The Applicant could thus claim, under Article 6 para. 1 (art. 6-1) of the Convention, full equality of treatment as against the Procureur gnrals departments at those courts. In fact the undisputed information given to this Court shows that the Applicant did not suffer from any discrimination in this respect. Indeed, the Procureur gnrals departments at the Court of First Instance and the Court of Appeal did not even avail themselves of their right to reply in writing to Delcourts memorial - and the relevant legislation did not even permit them to appear at the hearing before the Court of Cassation - still less be present at the deliberations. In contrast to the Procureur gnrals department at the courts below, the Procureur gnrals department at the Belgian Court of Cassation does not ordinarily conduct public prosecutions, nor does it bring cases before that court, nor does it either have the character of respondent and it "cannot", therefore, "be considered as a party" (Article 37 of the Decree of 15th March 1815). This situation only changes in certain exceptional matters which are irrelevant to the present case, and in those instances the Procureur gnrals department at the Court of Cassation is not present at the deliberations of the judges of the court. Yet it does not, however, necessarily follow from what precedes that Delcourts complaints are unfounded. The Court must therefore make a careful examination of the real position and functions of the Procureur gnrals department attached to the Court of Cassation. 30. A series of elements allows one to understand the point of view of the Applicant and the opinion of the minority of the Commission. First, the clear distinction which must be drawn, according to the Belgian Government, between the Procureur gnrals department at the Court of Cassation and the Procureur gnrals department at the lower courts, does not always appear very evident from the
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legislative texts. The same names, such as Procureur gnrals department (ministre public), are used to designate different institutions - which easily causes confusion. Moreover, the departments attached to the courts of first instance, of appeal and of cassation seem to constitute, in certain aspects, one single corps. Thus, Section 154 of the Act of 18th June 1869 (replaced recently by Article 400 of the 1967 Judicial Code) provides that the Procureur gnral at the Court of Cassation "shall exercise supervision over the Procureurs gnraux attached to the courts of appeal", and it is only an examination of the practice which reveals that this supervision does not involve any power to intervene in the conduct of given cases but merely to give general opinions on matters of doctrine. On a superficial glance at the situation, one might go so far as to wonder if the abovementioned distinction really reflects the true position. The Procureur gnrals department at the Court of Cassation sometimes acts as the moving party: the task, for example, falls to it sometimes to institute a prosecution or disciplinary proceedings against judges (see also Article 90 of the Constitution concerning the indictment of ministers on impeachment). Furthermore, its members are sometimes recruited from among the members of the Procureur gnrals department at the courts below. Therefore, some litigants may quite naturally be inclined to view as an adversary a Procureur gnral or an Avocat gnral who submits that their appeals in cassation should be dismissed. They may be all the more inclined to do so when they find themselves deprived of any real debate before the highest court because the Procureur gnrals department at the Court of Appeal only very rarely makes use of the right of reply in any event restricted - which the law confers on it in proceedings in cassation. And one may imagine that such litigants can have a feeling of inequality if, after hearing a member of the Procureur gnrals department at the Court of Cassation make, in open court, final submissions unfavourable to their pleas, they see him withdraw with the judges to attend the deliberations held in the privacy of chambers. On this last point, Belgian legislation may well appear at first sight to be "unusual" - to recall a term used by one of the representatives of the respondent Government - and it does not seem to have any equivalent to-day in the other member States of the Council of Europe, at least in criminal cases. It may be noted, moreover, that the Avocat gnral at the Court of Justice of the European Communities, even though there are analogies between his functions and those of the Procureur gnral at the Belgian Court of Cassation, does not take part in the deliberations. 31. The preceding considerations are of a certain importance which must not be underestimated. If one refers to the dictum "justice must not only be done; it must also be seen to be done" these considerations may allow doubts to arise about the satisfactory nature of the system in dispute. They do not, however, amount to proof of a violation of the right to a fair hearing. Looking behind appearances, the Court does not find the realities of the situation to be in any way in conflict with this right. 32. First, it is established that the Procureur gnrals department at the Court of Cassation functions wholly independently of the Minister of Justice, save in the exceptional matters which are irrelevant to this case. Thus, the Minister has no power to compel the Procureur gnral to make his submissions one way or the other, while he has the power to direct the institution of prosecutions by the Procureur gnrals departments attached to the courts of first instance and appeal. Furthermore, as has already been observed, the Procureur gnral at the Court of Cassation exercises supervision over the officers of the Procureur gnrals departments at the courts of first instance and appeal only in regard to matters of doctrine and does not give them injunctions or instructions. Thus, he is not entitled to instigate, or prevent the institution of, a
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prosecution before the lower courts or to intervene at any stage in the conduct of a case already brought before them, or to order the Procureur gnrals department at a court of appeal to lodge or withdraw an appeal in cassation. 33. Nor is the Procureur gnral at the Court of Cassation the virtual adversary of the accused whose conviction or acquittal may lead to an appeal in cassation; nor does he become their actual adversary when he submits in open court that their arguments should not be accepted. No doubt it is equally true that the officers of the Procureur gnrals department at the courts of first instance and appeal do not have the character of public accusers; indeed, Article 4 of Section VIII of the Decree of 16th-24th August 1790 so states expressis verbis. They also are bound to serve the public interest in all objectivity and, in particular, to ensure the observance of the laws concerned with public order; and they are to be considered parties only within the formal procedural meaning of the term. Their task, however, is in no way to be confused in criminal matters with that of the Procureur gnrals department at the Court of Cassation. Their task, in effect, is, before all else, to investigate and prosecute criminal offences in order to protect the safety of society (see, for example, Articles 22 and 271 of the Code of Criminal Procedure). The Procureur gnrals department at the Court of Cassation, on the other hand, upholds a different interest, that which is concerned with the observance by the judges of the law and not with the establishment of the guilt or innocence of the accused. Incidentally, the Procureur gnral attached to the Court of Cassation exercises in civil matters functions close to those which he exercises in criminal matters. Yet no one could ever seriously suggest that he becomes the opponent of a litigant with whose case his submissions do not agree. 34. Admittedly, even in the absence of a prosecuting party, a trial would not be fair if it took place in such conditions as to put the accused unfairly at a disadvantage. A close examination of the legislation in issue as it is applied in practice does not, however, disclose any such result. The Procureur gnrals department at the Court of Cassation is, in a word, an adjunct and an adviser of the Court; it discharges a function of a quasi-judicial nature. By the opinions which it gives according to its legal conscience, it assists the Court to supervise the lawfulness of the decisions attacked and to ensure the uniformity of judicial precedent. Examination of the facts shows that these considerations are not abstract or theoretical but are indeed real and actual. The statistics cited at the hearing on 30th September 1969 are very striking on this point; they show that the Procureur gnrals department at the Court of Cassation frequently either submits that appeals in cassation against a decision of acquittal brought by the Procureur gnrals department at the courts of first instance or appeal should be dismissed or an appeal by a convicted person should be allowed, or even raises, ex officio, grounds which a convicted person has not relied on, has put forward out of time or has not formulated with sufficient clarity. 35. Nor could the independence and impartiality of the Court of Cassation itself be adversely affected by the presence of a member of the Procureur gnrals department at its deliberations once it has been shown that the Procureur gnral himself is independent and impartial. 36. One last point is that the system now challenged dates back for more than a century and a half. While it is true that the long standing of a national legal rule cannot justify a failure to comply with the present requirements of international law, it may under certain conditions provide supporting evidence that there has been no such failure. The Court is of the opinion that this is the case here. In this connection, the Court notes that on two occasions a parliament chosen in free elections has deliberately decided to maintain the system, the first
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time unchanged (preparatory work to the Act of 19th April 1949), the second time in substance and after studying the question in the context of the Convention (preparation of the new Judicial Code). Furthermore, the propriety and fairness of the rule laid down in Article 39 of the Decree of 15th March 1815 and then in Article 1109 of the 1967 Judicial Code - as it operates in practice - appears never to have been put in question by the legal profession or public opinion in Belgium. This wide measure of agreement would be impossible to explain if the independence and impartiality of the men on whose shoulders fell the administration of this institution at the Court of Cassation were doubted in Belgium, if the worth of their contribution to the body of decisions of the highest court were disputed or if their participation at the deliberations of the judges had been thought in any single case to open the door to unfairness or abuse. 37. The Court therefore arrives at the conclusion that the system provided for in Article 39 of the Decree of 15th March 1815 as applied in practice was not incompatible with Article 6 para. 1 (art. 6-1) of the Convention. 38. So far as concerns the application of that system in the present case, the Court finds that there are no grounds for holding that the Procureur gnrals department at the Court of Cassation failed to observe, to the detriment of Delcourt, at the hearing or at the deliberations, the duty to be impartial and independent which is inherent in its functions. III. AS TO THE "NEW COMPLAINTS" OF THE APPLICANT 39. The Applicant does not confine himself to attacking the participation of an avocat gnral at the deliberations of the Court of Cassation; he further complains that he had no opportunity to reply to the final submissions of the Procureur gnrals representative because they were not communicated to him before the hearing of 21st June 1965 at which, moreover, he did not have the right to say the last word. 40. The Belgian Government contests the admissibility of these "new complaints" stressing that Delcourt failed to raise them before the examination of the merits of the case by the Commission. This objection must be set aside. While these grounds were doubtless not mentioned explicitly in the Application or the first memorials of the Applicant, they had an evident connection with those contained therein. From the very beginning, Delcourt claimed that the presence of a member of the Procureur gnrals department at the deliberations of 21st June 1965 had violated Article 6 para. 1 (art. 6-1) of the Convention. His "new complaints", which were formulated later, concerned the submissions of that same member immediately prior to his participation in the deliberations. These complaints thus also related to the role of the Procureur gnrals department attached to the Court of Cassation and are intimately linked with the matters which formed the subject of Delcourts original complaint accepted by the Commission in its decision of 6th April 1967; indeed, they were adduced by him essentially in support of that complaint. Moreover, the Commission itself so interpreted the "new complaints" in its Report. Accordingly, the Court considers that it would be unduly formalistic and therefore unjustified not to take account of these elements in the case. 41. The Applicants "new complaints" must, on the other hand, be rejected as ill-founded. The fact that the Procureur gnrals department at the Court of Cassation expresses its opinion at the end of the hearing, without having communicated it in advance to the parties, is explained by the very nature of its task as already described by the Court in pronouncing upon Delcourts principal complaint. Article 6 (art. 6) of the Convention does not require, even by implication, that an accused should have the possibility of replying to the purely
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legal submissions of an independent official attached to the highest court in Belgium as its assistant and adviser. 42. Having regard, therefore, to the nature of the proceedings before the Belgian Court of Cassation, it has not been established that the Applicant did not receive a fair hearing before that court.

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Dombo Beheer BV v Netherlands (ECtHR) Dombo Beheer BV v Netherlands App No 14448/88 (ECtHR, 27 October 1993)
CASE OF DOMBO BEHEER B.V. v. THE NETHERLANDS

(Application no. 14448/88)

JUDGMENT

STRASBOURG 27 October 1993

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AS TO THE FACTS I. THE PARTICULAR CIRCUMSTANCES OF THE CASE 7. The applicant (hereinafter "Dombo") is a limited liability company under Netherlands law; it is the continuation of a public limited company (naamloze vennootschap) originally founded in 1958. It has its registered office in Nijmegen. At the material time, its business included holding shares in several other companies, for which it provided management; these subsidiary companies engaged in commercial activities. The shares in Dombo were held by a foundation (stichting) which issued certificates of shares; these were apparently all held by a Mr H.C. van Reijendam. The companys management also included Mr van Reijendam; he was the sole managing director from 1963 until his dismissal (see paragraph 15 below), except for a short period between 4 February 1981 and 23 March 1981 during which he was suspended as managing director and temporarily replaced by a Mr C.U. and a Mrs van L. 8. At the material time, Dombo banked with the Nederlandsche Middenstandsbank N.V. (hereinafter "the Bank") through its branch office in Nijmegen. The manager of that office was a Mr van W.; under the Banks company statutes his position was not that of managing director of the Bank itself and his powers to represent the Bank, which included allowing credit up to a certain maximum, were strictly circumscribed. An agreement existed between Dombo and the Bank under which Dombo and its subsidiaries enjoyed credit in current account, i.e. the possibility of overdrawing on accounts held with the Bank. In August 1980 this credit facility amounted to 500,000 Netherlands guilders (NLG), with an additional temporary overdraft facility of up to NLG 250,000. This agreement had been formalised in a written confirmation of an oral agreement to that effect and in a contract dated 11 August 1980 under which the Bank opened a joint account (compte-jointovereenkomst) in the name of Dombo and its subsidiaries, who assumed responsibility jointly and severally for meeting their obligations to the Bank. 9. A dispute arose between Dombo and the Bank concerning the development of their financial relationship during the period between December 1980 and February 1981. In the ensuing civil proceedings both parties gave renderings of the facts which differed materially on significant points. 10. Dombos account may be summarised as follows. (a) In early December 1980 the Bank, through the manager of its Nijmegen branch, Mr van W., agreed orally to raise the maximum of the credit available to Dombo by NLG 1,600,000 to a total of NLG 2,100,000. As Mr van Reijendam had explained to Mr van W., Dombo required this extension to take over the commercial operations of a certain limited liability company, O., which had gone bankrupt; action was needed urgently. This oral agreement was to be formalised later; at this point, however, Mr van Reijendam did agree in writing to stand surety himself for Dombo and its subsidiaries to the amount of NLG 350,000. Following this alteration of the agreement of 11 August 1980 Dombo opened an account with the Bank earmarked for its activities in connection with the O. takeover and the Bank provided letters of credit on a number of occasions. (b) In early January 1981 Dombo was offered the opportunity to take over two other limited liability companies, T. and D., which had run into financial difficulties. To finance these takeovers Dombo required another extension of the credit limit; this was discussed between Mr van Reijendam and Mr van W. Following these discussions the Bank made Dombo an offer in writing dated 22 January 1981 to raise the maximum credit to NLG 5,000,000. In anticipation of this extension, the Bank paid out NLG 350,000 in connection
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with the takeover of T. and D. and subsequently agreed to a withdrawal by Mr van Reijendam of another NLG 100,000 for the same purpose. Mr van W. required security for these sums in the form of a mortgage and made Mr van Reijendam sign a blank power of attorney. The Bank made use of that document to have a deed drawn up by a notary mortgaging all immovable property belonging to Dombo, its subsidiaries and Mr van Reijendam personally. This mortgage was surety for a credit of NLG 1,600,000, i.e. it further secured the extension of the credit referred to in sub-paragraph (a) above. (c) On 28 January 1981 the Bank, through Mr van W., unexpectedly and inexplicably withdrew its confidence in Mr van Reijendam, called on him to resign and froze all Dombos accounts without warning, this in spite of the fact that its total debit balance was then NLG 783,436.06 and therefore well within the agreed limit of NLG 2,100,000. 11. The Banks rendering of the facts may be summarised as follows. (a) The Bank acknowledged that Dombo had asked for a higher credit limit in connection with the takeover of the commercial activities of the company O. It had agreed in principle but had required certain additional information to be provided by Dombo, including its annual statement for the previous year (1979); these had never been received and an agreement to raise the existing credit facilities as claimed by Dombo had therefore never been reached. However, in connection with the takeover of the activities of the O. company (which it approved of in principle) and the urgent need for funds, the Bank had been prepared to enable Dombo to act in anticipation of the extension of the credit facilities by providing letters of credit on a number of occasions. Mr van Reijendam had been asked to stand surety for these himself to the amount of NLG 350,000. By the end of January 1981 the sum for which the Bank had bound itself amounted to NLG 848,000. The Bank pointed out that there was a difference between a letter of credit and a credit under a current account agreement; the former implied only occasional and short-term risk, whereas the latter involved more permanent, long-term risk. (b) The Bank acknowledged also the second request for an extension of the credit facilities for the takeover of the companies T. and D. In this connection, Mr van Reijendam had indicated that others would stand surety for at least NLG 2,000,000. Relying on that statement, the Bank had written to Dombo on 22 January 1981 that it agreed in principle to an extension of the credit facilities to NLG 5,000,000, subject however to certain conditions regarding annual statements and securities. No annual statements had been forthcoming, nor any securities either, and so the Bank had written to Dombo on 19 March 1981 withdrawing the offer. The Bank acknowledged the transfer of NLG 350,000 but denied having been aware of the purpose for which that sum was intended. It claimed that Mr van Reijendam had misled it in this regard. This also applied to the withdrawal of the NLG 100,000. The Bank had referred to this deception in its letter of 19 March 1981 and stated that in consequence it would annul the credit agreement (which it had nevertheless continued to honour) if Mr van Reijendam were to take up his position as manager of Dombo again (see sub-paragraph (c) below). The Bank claimed that it had required the mortgages as surety for the letters of credit referred to in sub-paragraph (a) above and the withdrawal of the above-mentioned sums of NLG 350,000 and 100,000. The mortgages had been established under a power of attorney drawn up by a notary who - as the document itself showed - had read it aloud before Mr van Reijendam signed it. The Bank denied that there had been a blank power of attorney. (c) The Bank denied categorically that it had frozen Dombos accounts on 28 January 1981. In any case, withdrawals from these accounts had by then exceeded the agreed maximum of NLG 750,000, the balance being NLG 784,657.75 in debit. It had, however, made it clear that it no
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longer had confidence in Mr van Reijendam after the above-mentioned deception had come to light. The Banks doubts concerning his suitability to continue managing Dombo were later confirmed when Mr van Reijendam was suspended as managing director with effect from 4 February 1981 and shortly afterwards committed to a mental institution under a court order. During the period from 4 February 1981 until 23 March 1981 the Bank continued its dealings with Dombo under different management, consisting of Mr C.U. and Mrs van L. It continued to allow credit to finance the activities taken over from the O. company. After Mr van Reijendams return the Bank had allowed Dombo every opportunity to reduce its debt; when it became clear that Mr van Reijendam was not prepared to do so, it had annulled the credit agreement with effect from 30 October 1981. Only then had it frozen the accounts. II. PROCEEDINGS IN DOMESTIC COURTS 12. On 11 March 1983, pursuant to a court order which it had obtained for that purpose, Dombo seized certain moneys which it still owed to the Bank and summoned the Bank before the Arnhem Regional Court (arrondissementsrechtbank), claiming financial compensation for the damage caused by the Banks alleged failure to honour its commitments. 13. After extensive argument in writing - in which each party presented written pleadings three times and produced a considerable number of documents and Dombo offered to produce witnesses (in particular the managing directors, Mr C.U. and Mrs van L., who had temporarily replaced Mr van Reijendam, to prove that there had been negotiations at that time to raise the credit limit from NLG 2,100,000 to NLG 2,600,000) - the Regional Court delivered an interlocutory judgment on 2 February 1984 allowing Dombo to call witnesses to prove, firstly, that the Bank had frozen Dombos accounts on 28 January 1981 and, secondly, that the existing credit arrangements had been extended by NLG 1,600,000 in December 1980. In addition, it ordered the appearance in person (comparitie) before one of its judges of representatives of Dombo and the Bank able to give information and empowered to agree to a friendly settlement. 14. The Bank appealed against this interlocutory judgment to the Arnhem Court of Appeal (gerechtshof), arguing that Dombos claim should have been dismissed out of hand. According to the Bank, Dombo had abandoned the original basis of its claim, and the basis which it had in the meanwhile adopted for it obviously could not support it. Besides, Dombo had no interest in the claim and the Regional Courts requirement of evidence was in any case too vague and one-sided. After both parties had submitted a written statement and produced new documents and, through their lawyers, pleaded their cases orally (Dombo repeating its offer to provide evidence), the Court of Appeal, in a judgment of 8 January 1985, refused to accept the Banks arguments and confirmed the judgment of the Regional Court. At the request of both parties, the Court of Appeal did not refer the case back to the Regional Court but proceeded to deal with the case itself. Accordingly, it ordered the hearing of witnesses to go ahead on 13 February 1985 before one of its own judges, Mr van E., but reserved the decision on the date of the personal appearance of the parties representatives until the witnesses had been heard. 15. Dombo called a number of witnesses, including Mr van Reijendam. Producing the minutes of a shareholders meeting dated 29 June 1984, it claimed that Mr van Reijendam had been dismissed as managing director for reason of "lack of funds". It further produced a document from which it appeared that Mr van Reijendam had been registered as an unemployed person seeking employment on 27 November 1984 and an extract from the
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commercial register from which it appeared that another person had been appointed managing director of Dombo on 10 December 1984. 16. The Bank objected to Mr van Reijendam being heard. It based this objection on the rule that a party to the proceedings could not himself be heard as a witness (see paragraphs 23 and 25-26 below). It claimed that Mr van Reijendams dismissal did not reflect the true state of affairs but had been effected only to enable him to testify. In a judgment of 12 February 1985 Judge Van E. upheld this objection and refused to hear Mr van Reijendam. He had become convinced that both Mr van Reijendams dismissal as managing director of Dombo and the appointment in his place of another person were shams (schijnhandelingen) which served no other purpose than to enable Mr van Reijendam to testify in the instant proceedings. He pointed out that Mr van Reijendam had been present at the oral pleadings before the Court of Appeal on 30 October 1984 and had not protested when Dombos lawyer referred to him as Dombos managing director. He added that in his view the motives alleged for the dismissal were implausible. The other six witnesses produced by Dombo were heard on 13 and 20 February 1985. One of them, Mr C.U., was heard on both dates. This witness had been Dombos financial affairs manager from the middle of 1977 until May 1980 and had since retained links with Dombo as an external adviser. During November and December 1980 he had "been very closely involved" with the running of Dombo and this had led to his appointment as statutory managing director after the suspension of Mr van Reijendam on 4 February 1981 (see paragraph 11, sub-paragraph (c), above). On 13 February Mr C.U. stated, inter alia, that he had been present at several meetings of the parties between November 1980 and 28 January 1981 and that, although he could not recall the exact words used, he had heard Mr van W. say something like, "Then for the time being we will take a credit of NLG 1,600,000 as a starting-point". When examined for the second time at Dombos request, he corrected his statement to the extent that besides the original credit facility of NLG 500,000 a new facility had been agreed to the amount of NLG 1,600,000 in connection with takeovers (mainly of the activities of the O. company, a small part being intended for the takeover of the T. company). There had been several discussions, in which this witness had taken part, about the amount to which the credit was to be extended. 17. In the exercise of its right to have its own witnesses heard in reply (contra-enqute), the Bank called two of its employees, one of whom was the manager of its Nijmegen branch office, Mr van W. Dombo objected to the hearing of Mr van W., stating the view that at all stages of the credit relationship, and also in the instant proceedings, he had been and remained the formal representative of the Bank; to hear him as a witness at this point, when Mr van Reijendam had not been so heard, would upset the fair balance that should exist between parties in civil proceedings. 18. By a decision delivered orally on 13 March 1985 Judge Van E. dismissed Dombos objection. He considered first and foremost that Mr van W. was a competent witness in the instant case since he was not a party to the proceedings either formally or in fact and went on to state that it could not follow from the fact that Dombo was put at a disadvantage because Mr van Reijendam was not heard as a witness while Mr van W. was so heard that Mr van W. was no longer a competent witness. The Court of Appeal judge proceeded to hear the Banks witnesses immediately. After the witnesses had been examined, both parties submitted extensive written pleadings in which they analysed the witnesses statements. Dombo submitted a large number of additional documents, including written statements by persons not heard as witnesses; the
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Bank also submitted further documents. Dombo then submitted pleadings in response to those of the Bank. 19. The Court of Appeal delivered its final judgment on 11 March 1986. It first examined the witnesses statements in detail. As far as the statements of the witness Mr C.U. were concerned (see paragraph 16 above), it observed that these contradicted each other on a significant point, namely the figure to which it had been agreed to extend the credit facility, and added that this discrepancy, for which no explanation had been given, adversely affected the convincingness of the statements of this witness. The Court of Appeal then examined a number of written depositions submitted by Dombo. Two of these were rejected because they were not signed. With regard to a deposition signed by Mr van Reijendam, the Court attributed the same value to it as to a statement made by Dombo itself. The Court of Appeal went on to hold: "The Court of Appeal is of the opinion that the evidence required from Dombo has not been provided. The statements of the witnesses [D., H. and O.] are not definite enough for this purpose and the statement of [C.U.] and the notarial statement made by [S.] whose experience, as considered, dates only from after 12 May 1981 - are contradicted by those of the witnesses [Van W. and K.]. The fact that no written evidence is available of such an important agreement as that referred to by Dombo, as would normally be expected, compels the Court of Appeal to take a strict view of the evidence, and this should also be taken into account. It was established during the proceedings that between December 1980 and January 1981 the [Bank] in effect consented to extend the credit facilities to Dombo in various forms in larger amounts than Dombo was entitled to by virtue of any written agreement, but this does not necessarily mean that Dombo was entitled to the credit facilities for that reason alone, in the sense that the [Bank] would not be justified in applying a kind of temporary embargo on the facilities for reasons of its own. Although the ease with which the [Bank] allowed [Dombo] to exceed considerably the credit limit officially in force provides food for thought, it can be explained by the negotiations between the parties, which came to light during the proceedings, concerning the establishment of a substantially higher credit limit, in which - as was also common ground between the parties - the sum of NLG 2,600,000 was mentioned. It is clear from the statement of the witness [Van W.] - and Dombo did not contest this again after the examination of that witness - that at the end of January 1981 the then managing director of Dombo, by misleading the witness, twice succeeded in drawing considerable sums over and above what was already to be regarded as officially a substantial overdraft on Dombos consolidated accounts. This amount could reasonably provide the [Bank] with grounds for temporarily shutting off the flow of credit to Dombo." The Court of Appeal further held that since the agreement had not been proved, it was not necessary to examine the question whether the Bank had in fact frozen Dombos accounts in breach of it and it went on to dismiss Dombos claim. 20. In June 1986 Dombo filed an appeal on points of law (cassatie) to the Supreme Court (Hoge Raad). Paragraph 2 of its (quite extensive) statement of grounds of appeal (middel van cassatie) was particularly directed against Judge Van E.s decisions to uphold the objections to hearing Mr van Reijendam as a witness for Dombo and reject those against hearing Mr van W. as a witness for the Bank. This paragraph argued, inter alia: "Furthermore, the decisions of the Court of Appeal, (also) if considered in relation to one another, are incorrect in view of Article 6 (art. 6) of the [Convention], which guarantees everyone a fair hearing of his case in the determination of his civil rights and
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obligations. After all, this provision implies (inter alia) that the parties should be able to fight each other with equal means (equality of arms) and that every party to civil proceedings should have the opportunity to present his case to the court in circumstances which do not place him at a substantial disadvantage vis--vis the opposing party." 21. The Advocate-General (advocaat-generaal), in her advisory opinion (conclusie) of 8 January 1988, formulated the opinion that Dombo was right to argue that "according to current legal opinion" a person who "could be identified with a party" should be allowed to testify. In support of this view she referred to the new law of evidence in civil procedure, which had by then been accepted by Parliament (see paragraph 27 below). As an additional argument in favour of this proposition she pointed to Article 6 para. 1 (art. 6-1) of the Convention, on which Dombo could in her view properly rely. In this connection she argued, inter alia: "In the present case the point was that [Mr van W.] was able to present his view of what was (or was not, as the case may be) agreed or discussed between himself and Mr van Reijendam in December 1980 to the court extensively (his statement comprises four pages in the official record and two pages in the judgment of the Court of Appeal), while Mr van Reijendam was not allowed to give his version of the events himself. Yet the success of Dombos action depended on that." She went on to advise allowing Dombos appeal. 22. The Supreme Court dismissed the appeal on 19 February 1988. It rejected Dombos arguments based on "current legal opinion", considering that the law of evidence in force was based on the exclusion of parties as witnesses in their own case so that it was not possible to anticipate the entry into force of the new law, which had an entirely different structure. It likewise rejected the complaint based on Article 6 para. 1 (art. 6-1) of the Convention; this was based, according to the Supreme Court, on the argument that the Court of Appeal had violated the principle that "the procedural rights of both parties should be equivalent". This line of argument, in the opinion of the Supreme Court, "... fails to recognise that in assessing the convincingness of the content of witnesses statements, the judge with competence to determine questions of fact is free to consider the nature and degree of involvement of a witness with a party in proceedings and that he must also judge a witnesss statement in the light of what the opposing party has put forward in its written pleadings or when appearing before the court in person". AS TO THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1) 30. The applicant company complained about the refusal by the national courts to allow its former managing director, Mr van Reijendam, to give evidence, whereas the branch manager of the Bank, Mr van W., who had been the only other person present when the oral agreement was entered into, had been able to testify. In its contention, the national courts had thereby failed to observe the principle of "equality of arms", in breach of its right to a "fair hearing" as guaranteed by Article 6 para. 1 (art. 6-1), which reads: "In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ..." This view was subscribed to by the Commission but contested by the Government.
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31. The Court notes at the outset that it is not called upon to rule in general whether it is permissible to exclude the evidence of a person in civil proceedings to which he is a party. Nor is it called upon to examine the Netherlands law of evidence in civil procedure in abstracto. The applicant company does not claim that the law itself was in violation of the Convention; besides, the law under which the decisions complained of were given has since been replaced. In any event, the competence of witnesses is primarily governed by national law (see, as recent authorities and mutatis mutandis, the Ldi v. Switzerland judgment of 15 June 1992, Series A no. 238, p. 20, para. 43, and the Schuler-Zgraggen v. Switzerland judgment of 24 June 1993, Series A no. 263, p. 21, para. 66). It is not within the province of the Court to substitute its own assessment of the facts for that of the national courts. The Courts task is to ascertain whether the proceedings in their entirety, including the way in which evidence was permitted, were "fair" within the meaning of Article 6 para. 1 (art. 6-1) (see, inter alia and mutatis mutandis, the judgments referred to above, loc. cit.). 32. The requirements inherent in the concept of "fair hearing" are not necessarily the same in cases concerning the determination of civil rights and obligations as they are in cases concerning the determination of a criminal charge. This is borne out by the absence of detailed provisions such as paragraphs 2 and 3 of Article 6 (art. 6-2, art. 6-3) applying to cases of the former category. Thus, although these provisions have a certain relevance outside the strict confines of criminal law (see, mutatis mutandis, the Albert and Le Compte v. Belgium judgment of 10 February 1983, Series A no. 58, p. 20, para. 39), the Contracting States have greater latitude when dealing with civil cases concerning civil rights and obligations than they have when dealing with criminal cases. 33. Nevertheless, certain principles concerning the notion of a "fair hearing" in cases concerning civil rights and obligations emerge from the Courts case-law. Most significantly for the present case, it is clear that the requirement of "equality of arms", in the sense of a "fair balance" between the parties, applies in principle to such cases as well as to criminal cases (see the Feldbrugge v. the Netherlands judgment of 26 May 1986, Series A no. 99, p. 17, para. 44). The Court agrees with the Commission that as regards litigation involving opposing private interests, "equality of arms" implies that each party must be afforded a reasonable opportunity to present his case - including his evidence - under conditions that do not place him at a substantial disadvantage vis--vis his opponent. It is left to the national authorities to ensure in each individual case that the requirements of a "fair hearing" are met. 34. In the instant case, it was incumbent upon the applicant company to prove that there was an oral agreement between it and the Bank to extend certain credit facilities. Only two persons had been present at the meeting at which this agreement had allegedly been reached, namely Mr van Reijendam representing the applicant company and Mr van W. representing the Bank. Yet only one of these two key persons was permitted to be heard, namely the person who had represented the Bank. The applicant company was denied the possibility of calling the person who had represented it, because the Court of Appeal identified him with the applicant company itself. 35. During the relevant negotiations Mr van Reijendam and Mr van W. acted on an equal footing, both being empowered to negotiate on behalf of their respective parties. It is therefore difficult to see why they should not both have been allowed to give evidence. The applicant company was thus placed at a substantial disadvantage vis--vis the Bank and there has accordingly been a violation of Article 6 para. 1 (art. 6-1).
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Fogarty v United Kingdom (ECtHR) Fogarty v United Kingdom App No 37112/97 (ECtHR, 21 November 2001)
CASE OF FOGARTY v. THE UNITED KINGDOM

(Application no. 37112/97)

JUDGMENT

STRASBOURG

21 November 2001

This judgment may be subject to editorial revision.

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THE FACTS I. THE CIRCUMSTANCES OF THE CASE 206. On 8 November 1993 the applicant commenced employment as an administrative assistant at the United States Embassy in London, in the Foreign Broadcasting Information Service, which is a subsidiary of the Central Intelligence Agency. She was dismissed from her employment in February 1995. Following her dismissal the applicant issued proceedings against the United States Government in the North London Industrial Tribunal, claiming that her dismissal had been the result of sex discrimination contrary to sections 1(1)(a), 4(1)(d) and 6(2)(b) of the Sex Discrimination Act 1975 (see paragraph 15 below). In particular she alleged that she had been the victim of persistent sexual harassment from her supervisor and that working relationships had broken down in consequence. The United States Government defended the claim and did not, at any stage in these proceedings, claim State immunity. On 13 May 1996 the Tribunal upheld the applicants complaint. A compensation figure of GBP 12,000 was agreed between the parties. 207. In June 1995, whilst her first claim in the Industrial Tribunal was still pending, the applicant applied for and obtained a fixed term 12 month contract as an administrative assistant within the Foreign Building Operations section of the Embassy. The contract was due to expire in June 1996. In June 1996 and August 1996 (after the finding in her favour by the Industrial Tribunal), the applicant applied for at least two of the following posts at the Embassy of the United States: secretary with the Office of Foreign Litigation of the United States Department of Justice, temporary secretary with the above office and temporary secretary with the International Marketing Centre, which is operated by the United States Foreign Commercial Service. On each occasion her application was unsuccessful. 208. On 15 September 1996 the applicant issued a second application before the Industrial Tribunal. She claimed that the refusal of the Embassy to re-employ her in two of the above posts was a consequence of her previous successful sex discrimination claim, and accordingly constituted victimisation and discrimination within the meaning of sections 4 and 6 of the Sex Discrimination Act 1975. 209. By a letter of 10 January 1997, solicitors acting for the United States notified the Regional Secretary to the Industrial Tribunal that the United States Government intended to claim immunity from the jurisdiction of the Tribunal under sections 1 and 16(1)(a) of the State Immunity Act 1978 (the 1978 Act: see paragraph 16 below). The letter enclosed an affidavit sworn by the First Secretary at the Embassy, deposing to the fact that each of the posts for which the applicant had applied were part of the administrative and technical staff of the Embassy, and accordingly fell within the ambit of the immunity imposed by section 16(1)(a) of the 1978 Act. 210. On 6 February 1997 the applicant received the advice of counsel, to the effect that the United States Government were entitled to claim immunity under the 1978 Act, and that once immunity was properly asserted there was no means by which a court or tribunal in the United Kingdom could accept jurisdiction to entertain the application. Accordingly, the applicant was advised that she had no remedy in domestic law.

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THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 1 OF THE CONVENTION 211. The applicant complained that, as a result of the doctrine of State immunity, she had been denied access to court, contrary to Article 6 1 of the Convention, which provides: In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal... A. Applicability of Article 6 1 of the Convention 1. The submissions of the parties 212. The Government contended that Article 6 1 of the Convention did not apply, because the applicant had no actionable domestic claim. The principle of sovereign immunity removed the dispute from the competence of the national courts, which could not assert jurisdiction over the internal affairs of foreign diplomatic missions. Secondly, with reference to Pellegrin v. France, [GC], no. 28541, 64-67, ECHR 1999, they submitted that there was no civil right involved, because questions of employment of members of diplomatic missions fall within the core of sovereign power and thus form part of public law. 213. The applicant argued that there was a right under domestic law to be free from sex discrimination, as evidenced by her first successful claim against the Embassy. Sovereign immunity did not extinguish the right but simply prevented the courts from examining disputes thereon. Moreover, the right was civil. The posts for which she had applied did not fall within the scope of the Pellegrin exception. They were of a strictly administrative or secretarial character and they would neither have required nor enabled her to wield a portion of the States sovereign power. 2. The Courts assessment 214. The Court recalls its constant case-law to the effect that Article 6 1 does not itself guarantee any particular content for civil rights and obligations in the substantive law of the Contracting States. It extends only to contestations (disputes) over civil rights and obligations which can be said, at least on arguable grounds, to be recognised under domestic law (see Z. and Others v. the United Kingdom, [GC], no. 29392/95, 87, ECHR 2001, and the authorities cited therein). 215. Whether a person has an actionable domestic claim may depend not only on the content, properly speaking, of the relevant civil right as defined under national law but also on the existence of procedural bars preventing or limiting the possibilities of bringing potential claims to court. In the latter kind of case Article 6 1 may be applicable. Certainly the Convention enforcement bodies may not create by way of interpretation of Article 6 1 a substantive civil right which has no legal basis in the State concerned. However, it would not be consistent with the rule of law in a democratic society or with the basic principle underlying Article 6 1 - namely that civil claims must be capable of being submitted to a judge for adjudication - if, for example, a State could, without restraint or control by the Convention enforcement bodies, remove from the jurisdiction of the courts a whole range of civil claims or confer immunities from civil liability on large groups or categories of persons (see the Fayed v. the United Kingdom judgment of 21 September 1994, Series A no. 294-B, 65).
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216. Section 6 of the Sex Discrimination Act 1975 (the 1975 Act: see paragraph 15 above) creates a statutory right which arises, inter alia, when an employer refuses to employ a woman on grounds of sex discrimination or by reason of the fact that she has already taken proceedings under the 1975 Act. Thus, the proceedings which the applicant intended to pursue were for damages for a cause of action well known to English law. The Court does not accept the Governments plea that because of the operation of State immunity she did not have a substantive right under domestic law. It notes that an action against a State is not barred in limine: if the defendant State does not choose to claim immunity, the action will proceed to a hearing and judgment, as occurred with the first discrimination action brought by the applicant (see paragraph 10 above). The Court is, therefore, satisfied that the grant of immunity is to be seen not as qualifying a substantive right but as a procedural bar, preventing the applicant from bringing her claim before the Industrial Tribunal (see, mutatis mutandis, Tinnelly and Sons Ltd and McElduff v. the United Kingdom, nos. 20390/92 and 21322/93, 62, ECHR 1998-IV). 217. The Government have also submitted that because the applicants claim related to recruitment to the United States Embassy, it did not concern a civil right. 218. The Court recalls that in the above mentioned Pellegrin judgment, it adopted a functional test for the purposes of determining the applicability of Article 6 1 to employment disputes involving public servants, based on the nature of the employees duties and responsibilities. An employment dispute is excluded from the scope of Article 6 1 if it concerns a public servant whose duties typify the specific activities of the public service in so far as he or she acts as the depository of public authority responsible for protecting the general interests of the State. The question therefore arises whether or not the applicants case falls within this category. However, for the reasons set out in the following paragraphs, the Court does not find it necessary to determine this issue, and will proceed on the assumption that Article 6 is applicable. B. Compliance with Article 6 1 of the Convention 1. The submissions of the parties 219. The Government argued that if there was any restriction to the right of access to court, it pursued a legitimate aim, namely promoting respect for the independence and equality of other sovereign States in accordance with public international law. The restriction was, moreover, proportionate, since section 16(1)(a) of the 1978 Act was a justifiable reflection of the principles of public international law that were its source. In this connection, the Government referred to an article by Richard Garnett (State Immunity in Employment Matters in International and Comparative Law Quarterly, [vol. 46, January 1997], pp. 81 - 124) in which the author noted a variety of approaches by States with regard to according immunity to other States in employment matters. He concluded that the variety of approaches suggested that States had difficulty in agreeing where the line should be drawn. On the specific question of the application of State immunity to claims by employees of embassies and consulates, he noted a division between States which based their policy on the context or place of employment (including the United Kingdom and Germany), and those which advocated a relaxation of the strict exclusion of local jurisdiction in the case of employment at a diplomatic mission (including the United States and most European civil law countries). 220. For the Government, selection of embassy staff was a sovereign act jure imperii. Even the service staff of an embassy might be involved in sovereign activities and have
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access to confidential information. Any adjudication upon the fairness of the dismissal of an embassy employee or a decision whether or not to employ her would involve an investigation into the internal organisation of the embassy which would be an interference with the sovereign functions of the State. Given the difficulty in distinguishing between acts jure imperii and acts jure gestionis, it was appropriate to allow States a considerable margin of appreciation and the United Kingdom legislation fell within that margin. Article 5 of the Basle Convention, read in the light of its Article 32 (see paragraph 18 above), showed that the drafters of that Convention wanted to exclude from its scope matters in the exercise of the functions of diplomatic missions, including recruitment for employment in embassies. The practice of other Contracting States did not support the applicants claims and the practice of the United Kingdom vis--vis its own embassy personnel was irrelevant. 221. The applicant accepted that section 16(1)(a) of the 1978 Act pursued a legitimate aim. However, she considered that it introduced a disproportionate limitation to the right of access to court for four reasons. First, she contended that since her claim concerned sex discrimination, freedom from which is one of the core values of a democratic society, it was disproportionate to block her access to court in respect of it. Secondly, she pointed out that there was no alternative means available to her that could have provided a remedy for this complaint, since the United States was clearly not prepared to exercise jurisdiction. Thirdly, in the applicants submission, the United Kingdom was not obliged under international law to grant immunity in respect of her claim. The tendency towards restricting the scope of State immunity was reflected in Articles 5 and 7 of the Basle Convention (see paragraph 18 above) and the Governments understanding of Article 5 of that Convention was not supported by the general practice of the other members of the Council of Europe or by academic commentators. The appointment of a member of a mission was not covered by Article 32 of the 1972 Convention. In practice, the United Kingdom did not itself claim absolute immunity in respect of disputes between foreign employees and British embassies and the United States did not consider itself obliged under international law to confer an immunity in respect of all embassy employment disputes. It followed that absolute sovereign immunity was not required by considerations of international comity. Moreover, the International Law Commission was of the view that disputes concerning habitual residents of the forum State involving functions not closely connected with sovereign acts of government were not the appropriate subject of a claim to State immunity where the subject matter of the dispute did not involve a court ordering another State to take on an employee. Fourthly, the United States had not claimed immunity in relation to the applicants first Industrial Tribunal claim. If immunity was not considered necessary in respect of the first claim, it was difficult to see how it could genuinely be necessary to meet the requirements of international co-operation in relation to the second claim. 2. The Courts assessment 222. In the Golder case the Court held that the procedural guarantees laid down in Article 6 concerning fairness, publicity and promptness would be meaningless in the absence of any protection for the pre-condition for the enjoyment of those guarantees, namely, access to court. It established this as an inherent aspect of the safeguards enshrined in Article 6, referring to the principles of the rule of law and the avoidance of arbitrary power which underlie much of the Convention. Thus, Article 6 1 secures to everyone the right to have any claim relating to his civil rights and obligations brought before a court (see the Golder v. the United Kingdom judgment of 21 February 1975, Series A no. 18, pp. 13-18, 28-36).
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223. The right of access to court is not, however, absolute, but may be subject to limitations; these are permitted by implication since the right of access by its very nature calls for regulation by the State. In this respect, the Contracting States enjoy a certain margin of appreciation, although the final decision as to the observance of the Conventions requirements rests with the Court. It must be satisfied that the limitations applied do not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible with Article 6 1 if it does not pursue a legitimate aim and if there is no reasonable relationship of proportionality between the means employed and the aim sought to be achieved (see Waite and Kennedy v. Germany [GC], no. 26083/94, ECHR 1999-I, 59). 224. The Court must first examine whether the limitation pursued a legitimate aim. It notes in this connection that sovereign immunity is a concept of international law, developed out of the principle par in parem non habet imperium, by virtue of which one State shall not be subject to the jurisdiction of another State. The Court considers that the grant of sovereign immunity to a State in civil proceedings pursues the legitimate aim of complying with international law to promote comity and good relations between States through the respect of another States sovereignty. 225. The Court must next assess whether the restriction was proportionate to the aim pursued. It recalls that the Convention has to be interpreted in the light of the rules set out in the Vienna Convention of 23 May 1969 on the Law of Treaties, and that Article 31 3 (c) of that treaty indicates that account is to be taken of any relevant rules of international law applicable in the relations between the parties. The Convention, including Article 6, cannot be interpreted in a vacuum. The Court must be mindful of the Conventions special character as a human rights treaty, and it must also take the relevant rules of international law into account (see, mutatis mutandis, the Loizidou v. Turkey judgment of 18 December 1996, Reports of Judgments and Decisions 1996-VI, 43). The Convention should so far as possible be interpreted in harmony with other rules of international law of which it forms part, including those relating to the grant of State immunity. 226. It follows that measures taken by a High Contracting Party which reflect generally recognised rules of public international law on State immunity cannot in principle be regarded as imposing a disproportionate restriction on the right of access to court as embodied in Article 6 1. Just as the right of access to court is an inherent part of the fair trial guarantee in that Article, so some restrictions on access must likewise be regarded as inherent, an example being those limitations generally accepted by the community of nations as part of the doctrine of State immunity. 227. The Court observes that, on the material before it (see paragraphs 16-20, 29 and 31 above), there appears to be a trend in international and comparative law towards limiting State immunity in respect of employment-related disputes. However, where the proceedings relate to employment in a foreign mission or embassy, international practice is divided on the question whether State immunity continues to apply and, if it does so apply, whether it covers disputes relating to the contracts of all staff or only more senior members of the mission. Certainly, it cannot be said that the United Kingdom is alone in holding that immunity attaches to suits by employees at diplomatic missions or that, in affording such immunity, the United Kingdom falls outside any currently accepted international standards. 228. The Court further observes that the proceedings which the applicant wished to bring did not concern the contractual rights of a current embassy employee, but instead related to alleged discrimination in the recruitment process. Questions relating to the recruitment of staff to missions and embassies may by their very nature involve sensitive and confidential
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issues, related, inter alia, to the diplomatic and organisational policy of a foreign State. The Court is not aware of any trend in international law towards a relaxation of the rule of State immunity as regards issues of recruitment to foreign missions. In this respect, the Court notes that it appears clearly from the materials referred to above (see paragraph 19) that the International Law Commission did not intend to exclude the application of State immunity where the subject of proceedings was recruitment, including recruitment to a diplomatic mission. 229. In these circumstances, the Court considers that, in conferring immunity on the United States in the present case by virtue of the provisions of the 1978 Act, the United Kingdom cannot be said to have exceeded the margin of appreciation allowed to States in limiting an individuals access to court. It follows that there has been no violation of Article 6 1 in this case. FOR THESE REASONS, THE COURT 1. Holds by sixteen votes to one that there has been no violation of Article 6 1 of the Convention; 2. Holds unanimously that there has been no violation of Article 14 taken in conjunction with Article 6 1 of the Convention. Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 21 November 2001. Luzius WILDHABER President Paul MAHONEY Registrar In accordance with Article 45 2 of the Convention and Rule 74 2 of the Rules of Court, the following separate opinions are annexed to this judgment: (a) concurring opinion of Mr Caflisch, Mr Costa and Mrs Vaji; (b) dissenting opinion of Mr Loucaides.

L. W.

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Fox, Campbell and Hartley v The United Kingdom (EctHR)

Fox, Campbell and Hartley v The United Kingdom App No 12244/86; 12245/86; 12383/86 (ECtHR, 30 August 1990)

COURT (CHAMBER)

CASE OF FOX, CAMPBELL AND HARTLEY v. THE UNITED KINGDOM

(Application no. 12244/86; 12245/86; 12383/86)

JUDGMENT

STRASBOURG 30 August 1990

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AS TO THE FACTS I. PARTICULAR CIRCUMSTANCES OF THE CASE A. As regards Mr Fox and Mrs Campbell 8. The first and second applicants, Mr Bernard Fox and Ms Maire Campbell, are husband and wife but separated. Both reside in Belfast, Northern Ireland. 9. On 5 February 1986 they were stopped by the police in Belfast and brought to Woodbourne Royal Ulster Constabulary ("RUC") station, where a full search of the vehicle in which they were travelling was carried out. Twenty-five minutes after their arrival at the police station, at 3.40 p.m., they were formally arrested under section 11 (1) of the Northern Ireland (Emergency Provisions) Act 1978 ("the 1978 Act"; see paragraph 16 below). They were informed that they were being arrested under this section and that this was because the arresting officer suspected them of being terrorists. They were also told that they could be detained for up to 72 hours. They were taken to Castlereagh Police Office, where they were separately interviewed by the police on the same day between 8.15 p.m. and 10.00 p.m. 10. During their detention Mr Fox and Ms Campbell were asked about their suspected involvement that day in intelligence gathering and courier work for the Provisional Irish Republican Army ("Provisional IRA"). They were also questioned about their suspected membership of this organisation. According to the Government, the information underlying the suspicion against them was already known to the police when they stopped their car. No charges were brought against either applicant. The first applicant was released at 11.40 a.m. on 7 February 1986 and the second applicant five minutes later. Excluding the time taken to bring them to the police station, the first applicant had thus been detained 44 hours and the second applicant 44 hours and 5 minutes. 11. On being arrested both Mr Fox and Ms Campbell were shown the notice drawn up for persons held in police custody which explained their rights. They were not brought before a judge or given any opportunity to apply for release on bail. On 6 February they both initiated proceedings for habeas corpus but were released before the applications came on for hearing before a judge. 12. Mr Fox had been convicted in 1979 of several explosives offences, for which he received concurrent sentences of 12 years imprisonment, and of belonging to the IRA, for which he received a concurrent sentence of 5 years. Ms Campbell received an 18 months suspended sentence in 1979 after being convicted of involvement in explosives offences. B. As regards Mr Hartley 13. The third applicant, Mr Samuel Hartley, resides in Waterfoot, County Antrim, Northern Ireland. On 18 August 1986 he was arrested at his home, in his parents presence, at 7.55 a.m. He was informed at the time of his arrest that he was being arrested under section 11 (1) of the 1978 Act as he was suspected of being a terrorist. He was taken to Antrim police station where, on arrival, he was shown a copy of the notice for persons held in police custody. He was interviewed there by the police between 11.05 a.m. and 12.15 p.m. 14. Mr Hartley was suspected of involvement in a kidnapping incident which had taken place earlier that month in Ballymena when a young man and woman were forcibly taken away by masked armed men. Those involved in the kidnapping were thought to have
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connections with the Provisional IRA. The motive behind the kidnapping was believed to have been an attempt to force the young woman to retract an allegation of rape made the previous year as a result of which a person had been convicted and sentenced to 3 years imprisonment. The Government said at the Commission hearing that their record of the first interview with Mr Hartley showed that he was questioned about terrorist activities in a specific small, geographical area, and about his involvement with the Provisional IRA. The record is not more detailed than that, but the area in question was where the kidnapping took place. The applicant Hartley denied any involvement in the kidnapping incident but he has not contradicted the Governments assertion that he was asked about it. No charges were brought against him. He was released on 19 August 1986 at 2.10 p.m. after 30 hours and 15 minutes in detention. He brought no proceedings in connection with his arrest or detention.

AS TO THE LAW I. GENERAL APPROACH 28. The applicants complaints are directed against their arrest and detention under criminal legislation enacted to deal with acts of terrorism connected with the affairs of Northern Ireland. Over the last twenty years, the campaign of terrorism waged in Northern Ireland has taken a heavy toll, especially in terms of human life and suffering (see paragraph 15 above). The Court has already recognised the need, inherent in the Convention system, for a proper balance between the defence of the institutions of democracy in the common interest and the protection of individual rights (see the Brogan and Others judgment of 29 November 1988, Series A no. 145-B, p. 27, 48). Accordingly, when examining these complaints the Court will, as it did in the Brogan and Others judgment, take into account the special nature of terrorist crime and the exigencies of dealing with it, as far as is compatible with the applicable provisions of the Convention in the light of their particular wording and its overall object and purpose. II. ALLEGED BREACH OF ARTICLE 5 1 (art. 5-1) 29. The applicants alleged a breach of Article 5 1 (art. 5-1) of the Convention, which, in so far as relevant, provides: "Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence ...; ..."

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They did not dispute that their arrest was "lawful" under Northern Ireland law for the purposes of this provision and, in particular, "in accordance with a procedure prescribed by law". 30. They did, however, argue that they had not been arrested and detained on "reasonable" suspicion of having committed an offence. Section 11 (1) of the 1978 Act, provided that "any constable may arrest without warrant any person whom he suspects of being a terrorist" (see paragraphs 9, 13 and 16 above). In their submission, this section was itself in direct conflict with Article 5 1 (c) (art. 5-1-c) in that it did not contain any requirement of reasonableness. They further agreed with the Commissions opinion that their arrests had not been shown on the facts to have been based on reasonable suspicion. In addition, they maintained that the purpose of their arrest was not to bring them before the "competent legal authority" but rather to gather information without necessarily intending to charge them with a criminal offence. Both the respondent Government and the Commission rejected this contention. 31. For an arrest to be lawful under section 11 (1) of the 1978 Act, as construed by the House of Lords in the case of McKee v. Chief Constable for Northern Ireland, the suspicion needed only to be honestly held (see paragraph 20 above). In his report to Parliament in 1984, the Right Honourable Sir George Baker highlighted the fact that the test for section 11 was a "subjective one". On the other hand, where the requirement was "reasonable suspicion" he considered that the test was "objective" and that it was "for the court to judge the reasonableness of the suspicion" (see paragraph 19 above). Article 5 1 (c) (art. 5-1-c) speaks of a "reasonable suspicion" rather than a genuine and bona fide suspicion. The Courts task, however, is not to review the impugned legislation in abstracto but to examine its application in these particular cases. 32. The "reasonableness" of the suspicion on which an arrest must be based forms an essential part of the safeguard against arbitrary arrest and detention which is laid down in Article 5 1 (c) (art. 5-1-c). The Court agrees with the Commission and the Government that having a "reasonable suspicion" presupposes the existence of facts or information which would satisfy an objective observer that the person concerned may have committed the offence. What may be regarded as "reasonable" will however depend upon all the circumstances. In this respect, terrorist crime falls into a special category. Because of the attendant risk of loss of life and human suffering, the police are obliged to act with utmost urgency in following up all information, including information from secret sources. Further, the police may frequently have to arrest a suspected terrorist on the basis of information which is reliable but which cannot, without putting in jeopardy the source of the information, be revealed to the suspect or produced in court to support a charge. As the Government pointed out, in view of the difficulties inherent in the investigation and prosecution of terrorist-type offences in Northern Ireland, the "reasonableness" of the suspicion justifying such arrests cannot always be judged according to the same standards as are applied in dealing with conventional crime. Nevertheless, the exigencies of dealing with terrorist crime cannot justify stretching the notion of "reasonableness" to the point where the essence of the safeguard secured by Article 5 1 (c) (art. 5-1-c) is impaired (see, mutatis mutandis, the Brogan and Others judgment previously cited, Series A no. 145-B, pp. 32-33, 59). 33. The majority of the Commission, with whom the applicants agreed, were of the opinion that "the Government [had] not provided any information which would allow the Commission to conclude that the suspicions against the applicants at the time of their arrest
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were reasonable within the meaning of Article 5 1 (c) (art. 5-1-c) of the Convention or that their arrest was based on anything more than the honestly held suspicion which was required under Northern Ireland law" (see paragraph 61 of the Commissions report). The Government argued that they were unable to disclose the acutely sensitive material on which the suspicion against the three applicants was based because of the risk of disclosing the source of the material and thereby placing in danger the lives and safety of others. In support of their contention that there was nevertheless reasonable suspicion, they pointed to the facts that the first two applicants had previous convictions for serious acts of terrorism connected with the Provisional IRA (see paragraph 12 above) and that all three applicants were questioned during their detention about specific terrorist acts of which they were suspected (see paragraphs 10 and 14 above). In the Governments submission these facts were sufficient to confirm that the arresting officer had a bona fide or genuine suspicion and they maintained that there was no difference in substance between a bona fide or genuine suspicion and a reasonable suspicion. The Government observed moreover that the applicants themselves did not contest that they were arrested and detained in connection with acts of terrorism (see paragraph 55 of the Commissions report). The Government also stated that, although they could not disclose the information or identify the source of the information which led to the arrest of the applicants, there did exist in the case of the first and second applicants strong grounds for suggesting that at the time of their arrest the applicants were engaged in intelligence gathering and courier work for the Provisional IRA and that in the case of the third applicant there was available to the police material connecting him with the kidnapping attempt about which he was questioned. 34. Certainly Article 5 1 (c) (art. 5-1-c) of the Convention should not be applied in such a manner as to put disproportionate difficulties in the way of the police authorities of the Contracting States in taking effective measures to counter organised terrorism (see, mutatis mutandis, the Klass and Others judgment of 6 September 1978, Series A no. 28, pp. 27 and 30-31, 58 and 68). It follows that the Contracting States cannot be asked to establish the reasonableness of the suspicion grounding the arrest of a suspected terrorist by disclosing the confidential sources of supporting information or even facts which would be susceptible of indicating such sources or their identity. Nevertheless the Court must be enabled to ascertain whether the essence of the safeguard afforded by Article 5 1 (c) (art. 5-1-c) has been secured. Consequently the respondent Government have to furnish at least some facts or information capable of satisfying the Court that the arrested person was reasonably suspected of having committed the alleged offence. This is all the more necessary where, as in the present case, the domestic law does not require reasonable suspicion, but sets a lower threshold by merely requiring honest suspicion. 35. The Court accepts that the arrest and detention of each of the present applicants was based on a bona fide suspicion that he or she was a terrorist, and that each of them, including Mr Hartley, was questioned during his or her detention about specific terrorist acts of which he or she was suspected. The fact that Mr Fox and Ms Campbell both have previous convictions for acts of terrorism connected with the IRA (see paragraph 12 above), although it could reinforce a suspicion linking them to the commission of terrorist-type offences, cannot form the sole basis of a suspicion justifying their arrest in 1986, some seven years later. The fact that all the applicants, during their detention, were questioned about specific terrorist acts, does no more than confirm that the arresting officers had a genuine suspicion that they had been involved in those acts, but it cannot satisfy an objective observer that the applicants may have committed these acts.
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The aforementioned elements on their own are insufficient to support the conclusion that there was "reasonable suspicion". The Government have not provided any further material on which the suspicion against the applicants was based. Their explanations therefore do not meet the minimum standard set by Article 5 1 (c) (art. 5-1-c) for judging the reasonableness of a suspicion for the arrest of an individual. 36. The Court accordingly holds that there has been a breach of Article 5 1 (art. 5-1). This being so, it is not considered necessary to go into the question of the purpose of the applicants arrests (see paragraph 30 above). III. ALLEGED BREACH OF ARTICLE 5 2 (art. 5-2) 37. The applicants alleged a violation of Article 5 2 (art. 5-2), which reads: "Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him." The Commission upheld this claim which was rejected by the Government. 38. In the applicants submission, Article 5 1 (c) (art. 5-1-c) refers to the grounds justifying the arrest and these are what should be communicated to detainees. They argued that suspected terrorism in itself is not necessarily an offence justifying an arrest under section 11. Accordingly, in breach of Article 5 2 (art. 5-2) they were not given at the time of their arrest adequate and understandable information of the substantive grounds for their arrest. In particular, they maintained that the national authorities duty to "inform" the person is not complied with where, as in their cases, the person is left to deduce from the subsequent police interrogation the reasons for his or her arrest. 39. The Government submitted that the purpose of Article 5 2 (art. 5-2) is to enable an arrested person to judge the lawfulness of the arrest and take steps to challenge it if he sees fit. They argued that the information given need not be detailed and that it was enough that the arrested person should be informed promptly of the legal basis of his detention and of the "essential facts relevant under (domestic law) for the determination of the lawfulness of his detention". Applying these principles to the facts of the present case they contended that the requirements of Article 5 2 (art. 5-2) were clearly met. 40. Paragraph 2 of Article 5 (art. 5-2) contains the elementary safeguard that any person arrested should know why he is being deprived of his liberty. This provision is an integral part of the scheme of protection afforded by Article 5 (art. 5): by virtue of paragraph 2 (art. 52) any person arrested must be told, in simple, non-technical language that he can understand, the essential legal and factual grounds for his arrest, so as to be able, if he sees fit, to apply to a court to challenge its lawfulness in accordance with paragraph 4 (art. 5-4) (see the van der Leer judgment of 21 February 1990, Series A no. 170, p. 13, 28). Whilst this information must be conveyed "promptly" (in French: "dans le plus court dlai"), it need not be related in its entirety by the arresting officer at the very moment of the arrest. Whether the content and promptness of the information conveyed were sufficient is to be assessed in each case according to its special features. 41. On being taken into custody, Mr Fox, Ms Campbell and Mr Hartley were simply told by the arresting officer that they were being arrested under section 11 (1) of the 1978 Act on suspicion of being terrorists (see paragraphs 9 and 13 above). This bare indication of the legal basis for the arrest, taken on its own, is insufficient for the purposes of Article 5 2 (art. 5-2), as the Government conceded.

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However, following their arrest all of the applicants were interrogated by the police about their suspected involvement in specific criminal acts and their suspected membership of proscribed organisations (see paragraphs 9, 10, and 14 above). There is no ground to suppose that these interrogations were not such as to enable the applicants to understand why they had been arrested. The reasons why they were suspected of being terrorists were thereby brought to their attention during their interrogation. 42. Mr Fox and Ms Campbell were arrested at 3.40 p.m. on 5 February 1986 at Woodbourne RUC station and then separately questioned the same day between 8.15 p.m. and 10.00 p.m. at Castlereagh Police Office (see paragraph 9 above). Mr Hartley, for his part, was arrested at his home at 7.55 a.m. on 18 August 1986 and taken to Antrim Police Station where he was questioned between 11.05 a.m. and 12.15 p.m. (see paragraph 13 above). In the context of the present case these intervals of a few hours cannot be regarded as falling outside the constraints of time imposed by the notion of promptness in Article 5 2 (art. 5-2). 43. In conclusion there was therefore no breach of Article 5 2 (art. 5-2) in relation to any of the applicants. IV. ALLEGED BREACH OF ARTICLE 5 4 (art. 5-4) 44. The applicants contended that, as the Convention had not been incorporated into United Kingdom law, they had been unable to challenge the lawfulness of their detention before the domestic courts in accordance with Article 5 4 (art. 5-4), which provides: "Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful." The majority of the Commission concluded that there had been no such violation. They were of the opinion that the important safeguard contained in Article 5 4 (art. 5-4) became devoid of purpose where, as in the present case, the detainees were released before a speedy determination of the lawfulness of the detention could take place. The Government submitted that the courts, in an action for habeas corpus, can examine both the procedural legality of the detention and whether the person was genuinely suspected of being a terrorist. In the alternative, they followed the Commissions view. In reply, the applicants adopted the reasoning of Mr Danelius in his dissenting opinion in the Commissions report. He took the view that the entitlement set out in Article 5 4 (art. 54) was also valid for short periods of detention; and that neither an application for habeas corpus nor a claim for damages for false imprisonment could ever secure this entitlement as interpreted by the Court in its Brogan and Others judgment (loc. cit., pp. 34-35, 65), since the existence of a reasonable suspicion was not a condition for the lawfulness of an arrest effected under section 11 (1) of the 1978 Act. 45. Mr Fox and Ms Campbell were detained for approximately 44 hours, Mr Hartley for approximately 30 hours (see paragraphs 10 and 14 above). Mr Hartley brought no proceedings in connection with his arrest or detention (see paragraph 14 above). On the other hand, on the day following their arrest both Mr Fox and Ms Campbell instituted proceedings for habeas corpus, but they were released before the applications came on for hearing before a judge (see paragraph 11 above). All three applicants were released speedily before any judicial control of their detention had taken place. It is not for the Court to rule in abstracto as to whether, had this not been so,

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the scope of the remedies available would or would not have satisfied the requirements of Article 5 4 (art. 5-4). Accordingly, the Court does not find it necessary to examine the merits of the applicants complaint under Article 5 4 (art. 5-4). V. ALLEGED BREACH OF ARTICLE 5 5 (art. 5-5) 46. The applicants further alleged a breach of Article 5 5 (art. 5-5), which reads: "Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article (art. 5) shall have an enforceable right to compensation." Their arrest and detention have been held to be in breach of paragraph 1 of Article 5 (art. 5-1) (see paragraph 36 above). This violation could not give rise, either before or after the findings made by this Court in the present judgment, to an enforceable claim for compensation by the victims before the Northern Ireland courts (see the above-mentioned Brogan and Others judgment, Series A no. 145-B, p. 35, 67). There has therefore been a violation of paragraph 5 of Article 5 (art. 5-5) in respect of all three applicants.

FOR THESE REASONS, THE COURT 1. Holds by four votes to three that there has been a breach of Article 5 1 (art. 5-1); 2. Holds unanimously that there has been no breach of Article 5 2 (art. 5-2); 3. Holds by four votes to three that there has been a breach of Article 5 5 (art. 5-5); 4. Holds unanimously that it is unnecessary to examine the complaints under Article 5 4 and Article 13 (art. 5-4, art. 13); 5. Holds unanimously that the question of the application of Article 50 (art. 50) is not ready for decision; accordingly, (a) reserves the whole of the said question; (b) invites the Government and the applicants to submit, within the coming three months, their written comments thereon and, in particular, to notify the Court of any agreement reached between them; (c) reserves the further procedure and delegates to the President of the Court power to fix the same if need be. Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 30 August 1990.

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Goodwin v United Kingdom (ECtHR) Christine Goodwin v United Kingdom App No 28957/95 (ECtHR, 11 July 2002)

CASE OF CHRISTINE GOODWIN v. THE UNITED KINGDOM

(Application no. 28957/95)

JUDGMENT

STRASBOURG

11 July 2002
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THE FACTS I. THE CIRCUMSTANCES OF THE CASE 230. The applicant is a United Kingdom citizen born in 1937 and is a post-operative male to female transsexual. 231. The applicant had a tendency to dress as a woman from early childhood and underwent aversion therapy in 1963-64. In the mid-1960s, she was diagnosed as a transsexual. Though she married a woman and they had four children, her conviction was that her brain sex did not fit her body. From that time until 1984 she dressed as a man for work but as a woman in her free time. In January 1985, the applicant began treatment in earnest, attending appointments once every three months at the Gender Identity Clinic at the Charing Cross Hospital, which included regular consultations with a psychiatrist as well as on occasion a psychologist. She was prescribed hormone therapy, began attending grooming classes and voice training. Since this time, she has lived fully as a woman. In October 1986, she underwent surgery to shorten her vocal chords. In August 1987, she was accepted on the waiting list for gender re-assignment surgery. In 1990, she underwent gender re-assignment surgery at a National Health Service hospital. Her treatment and surgery was provided for and paid for by the National Health Service. 232. The applicant divorced from her former wife on a date unspecified but continued to enjoy the love and support of her children. 233. The applicant claims that between 1990 and 1992 she was sexually harassed by colleagues at work. She attempted to pursue a case of sexual harassment in the Industrial Tribunal but claimed that she was unsuccessful because she was considered in law to be a man. She did not challenge this decision by appealing to the Employment Appeal Tribunal. The applicant was subsequently dismissed from her employment for reasons connected with her health, but alleges that the real reason was that she was a transsexual. 234. In 1996, the applicant started work with a new employer and was required to provide her National Insurance (NI) number. She was concerned that the new employer would be in a position to trace her details as once in the possession of the number it would have been possible to find out about her previous employers and obtain information from them. Although she requested the allocation of a new NI number from the Department of Social Security (DSS), this was rejected and she eventually gave the new employer her NI number. The applicant claims that the new employer has now traced back her identity as she began experiencing problems at work. Colleagues stopped speaking to her and she was told that everyone was talking about her behind her back. 235. The DSS Contributions Agency informed the applicant that she would be ineligible for a State pension at the age of 60, the age of entitlement for women in the United Kingdom. In April 1997, the DSS informed the applicant that her pension contributions would have to be continued until the date at which she reached the age of 65, being the age of entitlement for men, namely April 2002. On 23 April 1997, she therefore entered into an undertaking with the DSS to pay direct the NI contributions which would otherwise be deducted by her employer as for all male employees. In the light of this undertaking, on 2 May 1997, the DSS Contributions Agency
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issued the applicant with a Form CF 384 Age Exemption Certificate (see Relevant domestic law and practice below). 236. The applicant's files at the DSS were marked sensitive to ensure that only an employee of a particular grade had access to her files. This meant in practice that the applicant had to make special appointments for even the most trivial matters and could not deal directly with the local office or deal with queries over the telephone. Her record continues to state her sex as male and despite the special procedures she has received letters from the DSS addressed to the male name which she was given at birth. 237. In a number of instances, the applicant stated that she has had to choose between revealing her birth certificate and foregoing certain advantages which were conditional upon her producing her birth certificate. In particular, she has not followed through a loan conditional upon life insurance, a re-mortgage offer and an entitlement to winter fuel allowance from the DSS. Similarly, the applicant remains obliged to pay the higher motor insurance premiums applicable to men. Nor did she feel able to report a theft of 200 pounds sterling to the police, for fear that the investigation would require her to reveal her identity. THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 238. The applicant claims a violation of Article 8 of the Convention, the relevant part of which provides as follows: 1. Everyone has the right to respect for his private ... life... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. A. Arguments of the parties 1. The applicant 239. The applicant submitted that despite warnings from the Court as to the importance for keeping under review the need for legal reform the Government had still not taken any constructive steps to address the suffering and distress experienced by the applicant and other post-operative transsexuals. The lack of legal recognition of her changed gender had been the cause of numerous discriminatory and humiliating experiences in her everyday life. In the past, in particular from 1990 to 1992, she was abused at work and did not receive proper protection against discrimination. She claimed that all the special procedures through which she had to go in respect of her NI contributions and State retirement pension constituted in themselves an unjustified difference in treatment, as they would have been unnecessary had she been recognised as a woman for legal purposes. In particular, the very fact that the DSS operated a policy of marking the records of transsexuals as sensitive was a difference in treatment. As a result, for example, the applicant cannot attend the DSS without having to make a special appointment.
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240. The applicant further submitted that the danger of her employer learning about her past identity was real. It was possible for the employer to trace back her employment history on the basis of her NI number and this had in fact happened. She claimed that her recent failure to obtain a promotion was the result of the employer realising her status. 241. As regarded pensionable age, the applicant submitted that she had worked for 44 years and that the refusal of her entitlement to a State retirement pension at the age of 60 on the basis of the pure biological test for determining sex was contrary to Article 8 of the Convention. She was similarly unable to apply for a free London bus pass at the age of 60 as other women were but had to wait until the age of 65. She was also required to declare her birth sex or disclose her birth certificate when applying for life insurance, mortgages, private pensions or car insurance, which led her not to pursue these possibilities to her advantage. 242. The applicant argued that rapid changes, in respect of the scientific understanding of, and the social attitude towards, transsexualism were taking place not only across Europe but elsewhere. She referred, inter alia, to Article 29 of the Netherlands Civil Code, Article 6 of Law No. 164 of 14 April 1982 of Italy, and Article 29 of the Civil Code of Turkey as amended by Law No. 3444 of 4 May 1988, which allowed the amendment of civil status. Also, under a 1995 New Zealand statute, Part V, Section 28, a court could order the legal recognition of the changed gender of a transsexual after examination of medical and other evidence. The applicant saw no convincing reason why a similar approach should not be adopted in the United Kingdom. The applicant also pointed to increasing social acceptance of transsexuals and interest in issues of concern to them reflected by coverage in the press, radio and television, including sympathetic dramatisation of transsexual characters in mainstream programming. 2. The Government 243. Referring to the Court's case-law, the Government maintained that there was no generally accepted approach among the Contracting States in respect of transsexuality and that, in view of the margin of appreciation left to States under the Convention, the lack of recognition in the United Kingdom of the applicant's new gender identity for legal purposes did not entail a violation of Article 8 of the Convention. They disputed the applicant's assertion that scientific research and massive societal changes had led to wide acceptance, or consensus on issues, of transsexualism. 244. The Government accepted that there may be specific instances where the refusal to grant legal recognition of a transsexual's new sexual identity may amount to a breach of Article 8, in particular where the transsexual as a result suffered practical and actual detriment and humiliation on a daily basis (see the B. v. France judgment of 25 March 1992, Series A no. 232C, pp. 52-54, 59-63). However, they denied that the applicant faced any comparable practical disadvantages, as she had been able inter alia to obtain important identification documents showing her chosen names and sexual identity (e.g. new passport and driving licence). 245. As regards the specific difficulties claimed by the applicant, the Government submitted that an employer was unable to establish the sex of the applicant from the NI number itself since it did not contain any encoded reference to her sex. The applicant had been issued with a new NI card with her changed name and style of address. Furthermore, the DSS had a policy of confidentiality of the personal details of a NI number holder and, in particular, a policy and procedure for the special protection of transsexuals. As a result, an employer had no means of lawfully obtaining information from the DSS about the previous sexual identity of an employee.
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It was also in their view highly unlikely that the applicant's employer would discover her change of gender through her NI number in any other way. The refusal to issue a new NI number was justified, the uniqueness of the NI number being of critical importance in the administration of the national insurance system, and for the prevention of the fraudulent use of old NI numbers. 246. The Government argued that the applicant's fear that her previous sexual identity would be revealed upon reaching the age of 60, when her employer would no longer be required to make NI contribution deductions from her pay, was entirely without foundation, the applicant having already been issued with a suitable Age Exemption Certificate on Form CF384. 247. Concerning the impossibility for the applicant to obtain a State retirement pension at the age of 60, the Government submitted that the distinction between men and women as regarded pension age had been held to be compatible with European Community law (Article 7(1)(a) of Directive 79/7/EEC; European Court of Justice, R. v. Secretary of State for Social Security ex parte Equal Opportunities Commission Case C-9/91 [1992] ECR I-4927). Also, since the preserving of the applicant's legal status as a man was not contrary as such to Article 8 of the Convention, it would constitute favourable treatment unfair to the general public to allow the applicant's pension entitlement at the age of 60. 248. Finally, as regards allegations of assault and abuse at work, the Government submitted that the applicant could have pressed charges under the criminal law against harassment and assault. Harassment in the workplace on the grounds of transsexuality would also give rise to a claim under the Sex Discrimination Act 1975 where the employers knew of the harassment and took no steps to prevent it. Adequate protection was therefore available under domestic law. 249. The Government submitted that a fair balance had therefore been struck between the rights of the individual and the general interest of the community. To the extent that there were situations where a transsexual may face limited disclosure of their change of sex, these situations were unavoidable and necessary e.g. in the context of contracts of insurance where medical history and gender affected the calculation of premiums. B. The Court's assessment 1. Preliminary considerations 250. This case raises the issue whether or not the respondent State has failed to comply with a positive obligation to ensure the right of the applicant, a post-operative male to female transsexual, to respect for her private life, in particular through the lack of legal recognition given to her gender re-assignment. 251. The Court recalls that the notion of respect as understood in Article 8 is not clear cut, especially as far as the positive obligations inherent in that concept are concerned: having regard to the diversity of practices followed and the situations obtaining in the Contracting States, the notion's requirements will vary considerably from case to case and the margin of appreciation to be accorded to the authorities may be wider than that applied in other areas under the Convention. In determining whether or not a positive obligation exists, regard must also be had to the fair balance that has to be struck between the general interest of the community and the interests of the individual, the search for which balance is inherent in the whole of the Convention (Cossey v. the United Kingdom judgment of 27 September 1990, Series A no. 184, p. 15, 37). 252. The Court recalls that it has already examined complaints about the position of transsexuals in the United Kingdom (see the Rees v. the United Kingdom judgment of 17
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October 1986, Series A no. 106, the Cossey v. the United Kingdom judgment, cited above; the X., Y. and Z. v. the United Kingdom judgment of 22 April 1997, Reports of Judgments and Decisions 1997-II, and the Sheffield and Horsham v. the United Kingdom judgment of 30 July 1998, Reports 1998-V, p. 2011). In those cases, it held that the refusal of the United Kingdom Government to alter the register of births or to issue birth certificates whose contents and nature differed from those of the original entries concerning the recorded gender of the individual could not be considered as an interference with the right to respect for private life (the abovementioned Rees judgment, p. 14, 35, and Cossey judgment, p. 15, 36). It also held that there was no positive obligation on the Government to alter their existing system for the registration of births by establishing a new system or type of documentation to provide proof of current civil status. Similarly, there was no duty on the Government to permit annotations to the existing register of births, or to keep any such annotation secret from third parties (the above-mentioned Rees judgment, p. 17, 42, and Cossey judgment, p. 15, 38-39). It was found in those cases that the authorities had taken steps to minimise intrusive enquiries (for example, by allowing transsexuals to be issued with driving licences, passports and other types of documents in their new name and gender). Nor had it been shown that the failure to accord general legal recognition of the change of gender had given rise in the applicants' own case histories to detriment of sufficient seriousness to override the respondent State's margin of appreciation in this area (the Sheffield and Horsham judgment cited above, p. 2028-29, 59). 253. While the Court is not formally bound to follow its previous judgments, it is in the interests of legal certainty, foreseeability and equality before the law that it should not depart, without good reason, from precedents laid down in previous cases (see, for example, Chapman v. the United Kingdom [GC], no. 27238/95, ECHR 2001-I, 70). However, since the Convention is first and foremost a system for the protection of human rights, the Court must have regard to the changing conditions within the respondent State and within Contracting States generally and respond, for example, to any evolving convergence as to the standards to be achieved (see, amongst other authorities, the Cossey judgment, p. 14, 35, and Stafford v. the United Kingdom [GC], no. 46295/99, judgment of 28 May 2002, to be published in ECHR 2002-, 67-68). It is of crucial importance that the Convention is interpreted and applied in a manner which renders its rights practical and effective, not theoretical and illusory. A failure by the Court to maintain a dynamic and evolutive approach would indeed risk rendering it a bar to reform or improvement (see the above-cited Stafford v. the United Kingdom judgment, 68). In the present context the Court has, on several occasions since 1986, signalled its consciousness of the serious problems facing transsexuals and stressed the importance of keeping the need for appropriate legal measures in this area under review (see the Rees judgment, 47; the Cossey judgment, 42; the Sheffield and Horsham judgment, 60). 254. The Court proposes therefore to look at the situation within and outside the Contracting State to assess in the light of present-day conditions what is now the appropriate interpretation and application of the Convention (see the Tyrer v. the United Kingdom judgment of 25 April 1978, Series A no. 26, 31, and subsequent case-law). 2. The applicant's situation as a transsexual 255. The Court observes that the applicant, registered at birth as male, has undergone gender re-assignment surgery and lives in society as a female. Nonetheless, the applicant remains, for legal purposes, a male. This has had, and continues to have, effects on the applicant's life where sex is of legal relevance and distinctions are made between men and women, as, inter alia, in the
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area of pensions and retirement age. For example, the applicant must continue to pay national insurance contributions until the age of 65 due to her legal status as male. However as she is employed in her gender identity as a female, she has had to obtain an exemption certificate which allows the payments from her employer to stop while she continues to make such payments herself. Though the Government submitted that this made due allowance for the difficulties of her position, the Court would note that she nonetheless has to make use of a special procedure that might in itself call attention to her status. 256. It must also be recognised that serious interference with private life can arise where the state of domestic law conflicts with an important aspect of personal identity (see, mutatis mutandis, Dudgeon v. the United Kingdom judgment of 22 October 1981, Series A no. 45, 41). The stress and alienation arising from a discordance between the position in society assumed by a post-operative transsexual and the status imposed by law which refuses to recognise the change of gender cannot, in the Court's view, be regarded as a minor inconvenience arising from a formality. A conflict between social reality and law arises which places the transsexual in an anomalous position, in which he or she may experience feelings of vulnerability, humiliation and anxiety. 257. In this case, as in many others, the applicant's gender re-assignment was carried out by the national health service, which recognises the condition of gender dysphoria and provides, inter alia, re-assignment by surgery, with a view to achieving as one of its principal purposes as close an assimilation as possible to the gender in which the transsexual perceives that he or she properly belongs. The Court is struck by the fact that nonetheless the gender re-assignment which is lawfully provided is not met with full recognition in law, which might be regarded as the final and culminating step in the long and difficult process of transformation which the transsexual has undergone. The coherence of the administrative and legal practices within the domestic system must be regarded as an important factor in the assessment carried out under Article 8 of the Convention. Where a State has authorised the treatment and surgery alleviating the condition of a transsexual, financed or assisted in financing the operations and indeed permits the artificial insemination of a woman living with a female-to-male transsexual (as demonstrated in the case of X., Y. and Z. v. the United Kingdom, cited above), it appears illogical to refuse to recognise the legal implications of the result to which the treatment leads. 258. The Court notes that the unsatisfactory nature of the current position and plight of transsexuals in the United Kingdom has been acknowledged in the domestic courts (see Bellinger v. Bellinger, cited above, paragraph 52) and by the Interdepartmental Working Group which surveyed the situation in the United Kingdom and concluded that, notwithstanding the accommodations reached in practice, transsexual people were conscious of certain problems which did not have to be faced by the majority of the population (paragraph 50 above). 259. Against these considerations, the Court has examined the countervailing arguments of a public interest nature put forward as justifying the continuation of the present situation. It observes that in the previous United Kingdom cases weight was given to medical and scientific considerations, the state of any European and international consensus and the impact of any changes to the current birth register system. 3. Medical and scientific considerations 260. It remains the case that there are no conclusive findings as to the cause of transsexualism and, in particular, whether it is wholly psychological or associated with physical differentiation in the brain. The expert evidence in the domestic case of Bellinger v. Bellinger
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was found to indicate a growing acceptance of findings of sexual differences in the brain that are determined pre-natally, though scientific proof for the theory was far from complete. The Court considers it more significant however that transsexualism has wide international recognition as a medical condition for which treatment is provided in order to afford relief (for example, the Diagnostic and Statistical Manual fourth edition (DSM-IV) replaced the diagnosis of transsexualism with gender identity disorder; see also the International Classification of Diseases, tenth edition (ICD-10)). The United Kingdom national health service, in common with the vast majority of Contracting States, acknowledges the existence of the condition and provides or permits treatment, including irreversible surgery. The medical and surgical acts which in this case rendered the gender re-assignment possible were indeed carried out under the supervision of the national health authorities. Nor, given the numerous and painful interventions involved in such surgery and the level of commitment and conviction required to achieve a change in social gender role, can it be suggested that there is anything arbitrary or capricious in the decision taken by a person to undergo gender re-assignment. In those circumstances, the ongoing scientific and medical debate as to the exact causes of the condition is of diminished relevance. 261. While it also remains the case that a transsexual cannot acquire all the biological characteristics of the assigned sex (Sheffield and Horsham, cited above, p. 2028, 56), the Court notes that with increasingly sophisticated surgery and types of hormonal treatments, the principal unchanging biological aspect of gender identity is the chromosomal element. It is known however that chromosomal anomalies may arise naturally (for example, in cases of intersex conditions where the biological criteria at birth are not congruent) and in those cases, some persons have to be assigned to one sex or the other as seems most appropriate in the circumstances of the individual case. It is not apparent to the Court that the chromosomal element, amongst all the others, must inevitably take on decisive significance for the purposes of legal attribution of gender identity for transsexuals (see the dissenting opinion of Thorpe LJ in Bellinger v. Bellinger cited in paragraph 52 above; and the judgment of Chisholm J in the Australian case, Re Kevin, cited in paragraph 55 above). 262. The Court is not persuaded therefore that the state of medical science or scientific knowledge provides any determining argument as regards the legal recognition of transsexuals. 4. The state of any European and international consensus 263. Already at the time of the Sheffield and Horsham case, there was an emerging consensus within Contracting States in the Council of Europe on providing legal recognition following gender re-assignment (see 35 of that judgment). The latest survey submitted by Liberty in the present case shows a continuing international trend towards legal recognition (see paragraphs 55-56 above). In Australia and New Zealand, it appears that the courts are moving away from the biological birth view of sex (as set out in the United Kingdom case of Corbett v. Corbett) and taking the view that sex, in the context of a transsexual wishing to marry, should depend on a multitude of factors to be assessed at the time of the marriage. 264. The Court observes that in the case of Rees in 1986 it had noted that little common ground existed between States, some of which did permit change of gender and some of which did not and that generally speaking the law seemed to be in a state of transition (see 37). In the later case of Sheffield and Horsham, the Court's judgment laid emphasis on the lack of a common European approach as to how to address the repercussions which the legal recognition of a change of sex may entail for other areas of law such as marriage, filiation, privacy or data protection. While this would appear to remain the case, the lack of such a common approach
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among forty-three Contracting States with widely diverse legal systems and traditions is hardly surprising. In accordance with the principle of subsidiarity, it is indeed primarily for the Contracting States to decide on the measures necessary to secure Convention rights within their jurisdiction and, in resolving within their domestic legal systems the practical problems created by the legal recognition of post-operative gender status, the Contracting States must enjoy a wide margin of appreciation. The Court accordingly attaches less importance to the lack of evidence of a common European approach to the resolution of the legal and practical problems posed, than to the clear and uncontested evidence of a continuing international trend in favour not only of increased social acceptance of transsexuals but of legal recognition of the new sexual identity of post-operative transsexuals. 5. Impact on the birth register system 265. In the Rees case, the Court allowed that great importance could be placed by the Government on the historical nature of the birth record system. The argument that allowing exceptions to this system would undermine its function weighed heavily in the assessment. 266. It may be noted however that exceptions are already made to the historic basis of the birth register system, namely, in the case of legitimisation or adoptions, where there is a possibility of issuing updated certificates to reflect a change in status after birth. To make a further exception in the case of transsexuals (a category estimated as including some 2,000-5,000 persons in the United Kingdom according to the Interdepartmental Working Group Report, p. 26) would not, in the Court's view, pose the threat of overturning the entire system. Though previous reference has been made to detriment suffered by third parties who might be unable to obtain access to the original entries and to complications occurring in the field of family and succession law (see the Rees judgment, p. 18, 43), these assertions are framed in general terms and the Court does not find, on the basis of the material before it at this time, that any real prospect of prejudice has been identified as likely to arise if changes were made to the current system. 267. Furthermore, the Court notes that the Government have recently issued proposals for reform which would allow ongoing amendment to civil status data (see paragraph 54). It is not convinced therefore that the need to uphold rigidly the integrity of the historic basis of the birth registration system takes on the same importance in the current climate as it did in 1986. 6. Striking a balance in the present case 268. The Court has noted above (paragraphs 76-79) the difficulties and anomalies of the applicant's situation as a post-operative transsexual. It must be acknowledged that the level of daily interference suffered by the applicant in B. v. France (judgment of 25 March 1992, Series A no. 232) has not been attained in this case and that on certain points the risk of difficulties or embarrassment faced by the present applicant may be avoided or minimised by the practices adopted by the authorities. 269. Nonetheless, the very essence of the Convention is respect for human dignity and human freedom. Under Article 8 of the Convention in particular, where the notion of personal autonomy is an important principle underlying the interpretation of its guarantees, protection is given to the personal sphere of each individual, including the right to establish details of their identity as individual human beings (see, inter alia, Pretty v. the United Kingdom, no. 2346/02, judgment of 29 April 2002, 62, and Mikuli v. Croatia, no. 53176/99, judgment of 7 February 2002, 53, both to be published in ECHR 2002-...). In the twenty first century the right of transsexuals to
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personal development and to physical and moral security in the full sense enjoyed by others in society cannot be regarded as a matter of controversy requiring the lapse of time to cast clearer light on the issues involved. In short, the unsatisfactory situation in which post-operative transsexuals live in an intermediate zone as not quite one gender or the other is no longer sustainable. Domestic recognition of this evaluation may be found in the report of the Interdepartmental Working Group and the Court of Appeal's judgment of Bellinger v. Bellinger (see paragraphs 50, 52-53). 270. The Court does not underestimate the difficulties posed or the important repercussions which any major change in the system will inevitably have, not only in the field of birth registration, but also in the areas of access to records, family law, affiliation, inheritance, criminal justice, employment, social security and insurance. However, as is made clear by the report of the Interdepartmental Working Group, these problems are far from insuperable, to the extent that the Working Group felt able to propose as one of the options full legal recognition of the new gender, subject to certain criteria and procedures. As Lord Justice Thorpe observed in the Bellinger case, any spectral difficulties, particularly in the field of family law, are both manageable and acceptable if confined to the case of fully achieved and post-operative transsexuals. Nor is the Court convinced by arguments that allowing the applicant to fall under the rules applicable to women, which would also change the date of eligibility for her state pension, would cause any injustice to others in the national insurance and state pension systems as alleged by the Government. No concrete or substantial hardship or detriment to the public interest has indeed been demonstrated as likely to flow from any change to the status of transsexuals and, as regards other possible consequences, the Court considers that society may reasonably be expected to tolerate a certain inconvenience to enable individuals to live in dignity and worth in accordance with the sexual identity chosen by them at great personal cost. 271. In the previous cases from the United Kingdom, this Court has since 1986 emphasised the importance of keeping the need for appropriate legal measures under review having regard to scientific and societal developments (see references at paragraph 73). Most recently in the Sheffield and Horsham case in 1998, it observed that the respondent State had not yet taken any steps to do so despite an increase in the social acceptance of the phenomenon of transsexualism and a growing recognition of the problems with which transsexuals are confronted (cited above, paragraph 60). Even though it found no violation in that case, the need to keep this area under review was expressly re-iterated. Since then, a report has been issued in April 2000 by the Interdepartmental Working Group which set out a survey of the current position of transsexuals in inter alia criminal law, family and employment matters and identified various options for reform. Nothing has effectively been done to further these proposals and in July 2001 the Court of Appeal noted that there were no plans to do so (see paragraphs 52-53). It may be observed that the only legislative reform of note, applying certain non-discrimination provisions to transsexuals, flowed from a decision of the European Court of Justice of 30 April 1996 which held that discrimination based on a change of gender was equivalent to discrimination on grounds of sex (see paragraphs 43-45 above). 272. Having regard to the above considerations, the Court finds that the respondent Government can no longer claim that the matter falls within their margin of appreciation, save as regards the appropriate means of achieving recognition of the right protected under the Convention. Since there are no significant factors of public interest to weigh against the interest
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of this individual applicant in obtaining legal recognition of her gender re-assignment, it reaches the conclusion that the fair balance that is inherent in the Convention now tilts decisively in favour of the applicant. There has, accordingly, been a failure to respect her right to private life in breach of Article 8 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 12 OF THE CONVENTION 273. The applicant also claimed a violation of Article 12 of the Convention, which provides as follows: Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right. A. Arguments of the parties 1. The applicant 274. The applicant complained that although she currently enjoyed a full physical relationship with a man, she and her partner could not marry because the law treated her as a man. She argued that the Corbett v. Corbett definition of a person's sex for the purpose of marriage had been shown no longer to be sufficient in the recent case of Bellinger v. Bellinger and that even if a reliance on biological criteria remained acceptable, it was a breach of Article 12 to use only some of those criteria for determining a person's sex and excluding those who failed to fulfil those elements. 2. The Government 275. The Government referred to the Court's previous case-law (the above-cited Rees, Cossey and Sheffield and Horsham judgments) and maintained that neither Article 12 nor Article 8 of the Convention required a State to permit a transsexual to marry a person of his or her original sex. They also pointed out that the domestic law approach had been recently reviewed and upheld by the Court of Appeal in Bellinger v. Bellinger, the matter now pending before the House of Lords. In their view, if any change in this important or sensitive area were to be made, it should come from the United Kingdom's own courts acting within the margin of appreciation which this Court has always afforded. They also referred to the fact that any change brought the possibility of unwanted consequences, submitting that legal recognition would potentially invalidate existing marriages and leave transsexuals and their partners in same-sex marriages. They emphasised the importance of proper and careful review of any changes in this area and the need for transitional provisions. B. The Court's assessment 276. The Court recalls that in the cases of Rees, Cossey and Sheffield and Horsham the inability of the transsexuals in those cases to marry a person of the sex opposite to their reassigned gender was not found in breach of Article 12 of the Convention. These findings were based variously on the reasoning that the right to marry referred to traditional marriage between persons of opposite biological sex (the Rees judgment, p. 19, 49), the view that continued adoption of biological criteria in domestic law for determining a person's sex for the purpose of
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marriage was encompassed within the power of Contracting States to regulate by national law the exercise of the right to marry and the conclusion that national laws in that respect could not be regarded as restricting or reducing the right of a transsexual to marry in such a way or to such an extent that the very essence of the right was impaired (the Cossey judgment, p. 18, 44-46, the Sheffield and Horsham judgment, p. 2030, 66-67). Reference was also made to the wording of Article 12 as protecting marriage as the basis of the family (Rees, loc. cit.). 277. Reviewing the situation in 2002, the Court observes that Article 12 secures the fundamental right of a man and woman to marry and to found a family. The second aspect is not however a condition of the first and the inability of any couple to conceive or parent a child cannot be regarded as per se removing their right to enjoy the first limb of this provision. 278. The exercise of the right to marry gives rise to social, personal and legal consequences. It is subject to the national laws of the Contracting States but the limitations thereby introduced must not restrict or reduce the right in such a way or to such an extent that the very essence of the right is impaired (see the Rees judgment, p. 19, 50; the F. v. Switzerland judgment of 18 December 1987, Series A no. 128, 32). 279. It is true that the first sentence refers in express terms to the right of a man and woman to marry. The Court is not persuaded that at the date of this case it can still be assumed that these terms must refer to a determination of gender by purely biological criteria (as held by Ormrod J. in the case of Corbett v. Corbett, paragraph 21 above). There have been major social changes in the institution of marriage since the adoption of the Convention as well as dramatic changes brought about by developments in medicine and science in the field of transsexuality. The Court has found above, under Article 8 of the Convention, that a test of congruent biological factors can no longer be decisive in denying legal recognition to the change of gender of a postoperative transsexual. There are other important factors the acceptance of the condition of gender identity disorder by the medical professions and health authorities within Contracting States, the provision of treatment including surgery to assimilate the individual as closely as possible to the gender in which they perceive that they properly belong and the assumption by the transsexual of the social role of the assigned gender. The Court would also note that Article 9 of the recently adopted Charter of Fundamental Rights of the European Union departs, no doubt deliberately, from the wording of Article 12 of the Convention in removing the reference to men and women (see paragraph 58 above). 280. The right under Article 8 to respect for private life does not however subsume all the issues under Article 12, where conditions imposed by national laws are accorded a specific mention. The Court has therefore considered whether the allocation of sex in national law to that registered at birth is a limitation impairing the very essence of the right to marry in this case. In that regard, it finds that it is artificial to assert that post-operative transsexuals have not been deprived of the right to marry as, according to law, they remain able to marry a person of their former opposite sex. The applicant in this case lives as a woman, is in a relationship with a man and would only wish to marry a man. She has no possibility of doing so. In the Court's view, she may therefore claim that the very essence of her right to marry has been infringed. 281. The Court has not identified any other reason which would prevent it from reaching this conclusion. The Government have argued that in this sensitive area eligibility for marriage under national law should be left to the domestic courts within the State's margin of appreciation, adverting to the potential impact on already existing marriages in which a transsexual is a partner. It appears however from the opinions of the majority of the Court of Appeal judgment in Bellinger v. Bellinger that the domestic courts tend to the view that the matter is best handled by
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the legislature, while the Government have no present intention to introduce legislation (see paragraphs 52-53). 282. It may be noted from the materials submitted by Liberty that though there is widespread acceptance of the marriage of transsexuals, fewer countries permit the marriage of transsexuals in their assigned gender than recognise the change of gender itself. The Court is not persuaded however that this supports an argument for leaving the matter entirely to the Contracting States as being within their margin of appreciation. This would be tantamount to finding that the range of options open to a Contracting State included an effective bar on any exercise of the right to marry. The margin of appreciation cannot extend so far. While it is for the Contracting State to determine inter alia the conditions under which a person claiming legal recognition as a transsexual establishes that gender re-assignment has been properly effected or under which past marriages cease to be valid and the formalities applicable to future marriages (including, for example, the information to be furnished to intended spouses), the Court finds no justification for barring the transsexual from enjoying the right to marry under any circumstances. 283. The Court concludes that there has been a breach of Article 12 of the Convention in the present case. III. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION 284. The applicant also claimed a violation of Article 14 of the Convention, which provides as follows: The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. 285. The applicant complained that the lack of legal recognition of her changed gender was the cause of numerous discriminatory experiences and prejudices. She referred in particular to the fact that she could not claim her State pension until she was 65 and to the fact that she could not claim a freedom pass to give her free travel in London, a privilege which women were allowed to enjoy from the age 60 and men from the age of 65. 286. The Government submitted that no issues arose which were different from those addressed under Article 8 of the Convention and that the complaints failed to disclose any discrimination contrary to the above provision. 287. The Court considers that the lack of legal recognition of the change of gender of a postoperative transsexual lies at the heart of the applicant's complaints under Article 14 of the Convention. These issues have been examined under Article 8 and resulted in the finding of a violation of that provision. In the circumstances, the Court considers that no separate issue arises under Article 14 of the Convention and makes no separate finding. FOR THESE REASONS, THE COURT 1. Holds unanimously that there has been a violation of Article 8 of the Convention; 2. Holds unanimously that there has been a violation of Article 12 of the Convention; 3. Holds unanimously that no separate issue arises under Article 14 the Convention;
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4. Holds unanimously that there has been no violation of Article 13 of the Convention; 5. Holds unanimously that the finding of violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant; 6. Holds unanimously that the respondent State is to pay the applicant, within three months, EUR 39,000 (thirty nine thousand euros) in respect of costs and expenses, together with any value-added tax that may be chargeable, to be converted into pounds sterling at the date of settlement; 7. Holds by fifteen votes to two that simple interest at a rate equal to the marginal lending rate of the European Central Bank plus three percentage points shall be payable from the expiry of the above-mentioned three months until settlement; 8. Dismisses unanimously the remainder of the applicant's claim for just satisfaction. Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 11 July 2002. Luzius WILDHABER President Paul MAHONEY Registrar

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Grant v South-West Trains Ltd (ECJ) Case C-249/96 Lisa Jacqueline Grant v South-West Trains Ltd [1998] ECR I621
Summary 3 The refusal by an employer to allow travel concessions to the person of the same sex with whom a worker has a stable relationship, where such concessions are allowed to a worker's spouse or to the person of the opposite sex with whom a worker has a stable relationship outside marriage, does not constitute discrimination prohibited by Article 119 of the Treaty or Directive 75/117 on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women. First, the condition for the grant of those concessions cannot be regarded as constituting discrimination directly based on sex, since it applies in the same way to female and male workers, as the concessions are refused to a male worker if he is living with a person of the same sex, just as they are to a female worker if she is living with a person of the same sex. Second, in the present state of the law within the Community, stable relationships between two persons of the same sex are not regarded as equivalent to marriages or stable relationships outside marriage between persons of opposite sex, and an employer is not therefore required by Community law to treat the situation of a person who has a stable relationship with a partner of the same sex as equivalent to that of a person who is married to or has a stable relationship outside marriage with a partner of the opposite sex. It is for the legislature alone to adopt, if appropriate, measures which may affect that position. 4 Although respect for the fundamental rights which form an integral part of the general principles of Community law is a condition of the legality of Community acts, those rights cannot in themselves have the effect of extending the scope of the Treaty provisions beyond the competences of the Community. With regard to the International Covenant on Civil and Political Rights, which is one of the international instruments relating to the protection of human rights of which the Court takes account in applying the fundamental principles of Community law, an observation, with no binding force in law and for which no specific reasons were given, of the Human Rights Committee established under Article 28 of the Covenant, noting that the reference to `sex' in Articles 2(1) and 26 is to be taken as including sexual orientation, cannot in any case constitute a basis for the Court to extend the scope of Article 119 of the Treaty. The scope of that article, as of any provision of Community law, is to be determined only by having regard to its wording and purpose, its place in the scheme of the Treaty and its legal context.

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Parties In Case C-249/96, REFERENCE to the Court under Article 177 of the EC Treaty by the Industrial Tribunal, Southampton, for a preliminary ruling in the proceedings pending before that tribunal between Lisa Jacqueline Grant and South-West Trains Ltd on the interpretation of Article 119 of the EC Treaty, Council Directive 75/117/EEC of 10 February 1975 on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women (OJ 1975 L 45, p. 19), and Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions (OJ 1976 L 39, p. 40), THE COURT, composed of: G.C. Rodrguez Iglesias, President, C. Gulmann, H. Ragnemalm, M. Wathelet (Presidents of Chambers), G.F. Mancini, J.C. Moitinho de Almeida, P.J.G. Kapteyn, J.L. Murray, D.A.O. Edward, J.-P. Puissochet (Rapporteur), G. Hirsch, P. Jann and L. Sevn, Judges, Advocate General: M.B. Elmer, Registrar: L. Hewlett, Administrator, after considering the written observations submitted on behalf of: - Ms Grant, by Cherie Booth QC, and by Peter Duffy and Marie Demetriou, Barristers, - South-West Trains Ltd, by Nicholas Underhill QC and Murray Shanks, Barrister, - the United Kingdom Government, by John E. Collins, of the Treasury Solicitor's Department, acting as Agent, and Stephen Richards and David Anderson, Barristers, - the French Government, by Catherine de Salins, Deputy Director in the Legal Affairs Department of the Ministry of Foreign Affairs, and Anne de Bourgoing, Charg de Mission in that department, acting as Agents, - the Commission of the European Communities, by Christopher Docksey, Marie Wolfcarius and Carmel O'Reilly, of its Legal Service, acting as Agents, having regard to the Report for the Hearing, after hearing the oral observations of Ms Grant, represented by Cherie Booth QC, Peter Duffy QC and Marie Demetriou; South-West Trains Ltd, represented by Nicholas Underhill QC and Murray Shanks; the United Kingdom Government, represented by John E. Collins, David Anderson and Patrick Elias QC; and the Commission, represented by Carmel O'Reilly and Marie Wolfcarius, at the hearing on 9 July 1997, after hearing the Opinion of the Advocate General at the sitting on 30 September 1997, gives the following Judgment Grounds 1 By decision of 19 July 1996, received at the Court on 22 July 1996, the Industrial Tribunal, Southampton, referred to the Court for a preliminary ruling under Article 177 of the EC Treaty six questions on the interpretation of Article 119 of that Treaty, Council Directive 75/117/EEC of 10 February 1975 on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women (OJ 1975 L 45, p. 19), and Council
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Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions (OJ 1976 L 39, p. 40). 2 Those questions were raised in proceedings between Ms Grant and her employer South-West Trains Ltd (hereinafter `SWT') concerning the refusal by SWT of travel concessions for Ms Grant's female partner. 3 Ms Grant is employed by SWT, a company which operates railways in the Southampton region. 4 Clause 18 of her contract of employment, entitled `Travel facilities', states: `You will be granted such free and reduced rate travel concessions as are applicable to a member of your grade. Your spouse and depend[a]nts will also be granted travel concessions. Travel concessions are granted at the discretion of [the employer] and will be withdrawn in the event of their misuse.' 5 At the material time, the regulations adopted by the employer for the application of those provisions, the Staff Travel Facilities Privilege Ticket Regulations, provided in Clause 8 (`Spouses') that: `Privilege tickets are granted to a married member of staff ... for one legal spouse but not for a spouse legally separated from the employee ... ... Privilege tickets are granted for one common law opposite sex spouse of staff ... subject to a statutory declaration being made that a meaningful relationship has existed for a period of two years or more ...'. 6 The regulations also defined the conditions under which travel concessions could be granted to current employees (Clauses 1 to 4), employees having provisionally or definitively ceased working (Clauses 5 to 7), surviving spouses of employees (Clause 9), children of employees (Clauses 10 and 11) and dependent members of employees' families (Clause 12). 7 On the basis of those provisions Ms Grant applied on 9 January 1995 for travel concessions for her female partner, with whom she declared she had had a `meaningful relationship' for over two years. 8 SWT refused to allow the benefit sought, on the ground that for unmarried persons travel concessions could be granted only for a partner of the opposite sex. 9 Ms Grant thereupon made an application against SWT to the Industrial Tribunal, Southampton, arguing that that refusal constituted discrimination based on sex, contrary to the Equal Pay Act 1970, Article 119 of the Treaty and/or Directive 76/207. She submitted in particular that her predecessor in the post, a man who had declared that he had had a meaningful relationship with a woman for over two years, had enjoyed the benefit which had been refused her. 10 The Industrial Tribunal considered that the problem facing it was whether refusal of the benefit at issue on the ground of the employee's sexual orientation was `discrimination based on sex' within the meaning of Article 119 of the Treaty and the directives on equal treatment of men and women. It observed that while some United Kingdom courts had held that that was not the case, the judgment of the Court of Justice in Case C-13/94 P v S and Cornwall County Council [1996] ECR I-2143 was, on the other hand, `persuasive authority for the proposition that discrimination on the ground of sexual orientation [was] unlawful'. 11 For those reasons the Industrial Tribunal referred the following questions to the Court for a preliminary ruling:

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`1. Is it (subject to (6) below) contrary to the principle of equal pay for men and women established by Article 119 of the Treaty establishing the European Community and by Article 1 of Council Directive 75/117 for an employee to be refused travel concessions for an unmarried cohabiting same-sex partner where such concessions are available for spouses or unmarried opposite-sex cohabiting partners of such an employee? 2. For the purposes of Article 119 does "discrimination based on sex" include discrimination based on the employee's sexual orientation? 3. For the purposes of Article 119, does "discrimination based on sex" include discrimination based on the sex of that employee's partner? 4. If the answer to Question (1) is yes, does an employee, to whom such concessions are refused, enjoy a directly enforceable Community right against his employer? 5. Is such a refusal contrary to the provisions of Council Directive 76/207? 6. Is it open to an employer to justify such refusal if he can show (a) that the purpose of the concessions in question is to confer benefits on married partners or partners in an equivalent position to married partners and (b) that relationships between same-sex cohabiting partners have not traditionally been, and are not generally, regarded by society as equivalent to marriage; rather than on the basis of an economic or organisational reason relating to the employment in question?' 12 In view of the close links between the questions, they should be considered together. 13 As a preliminary point, it should be observed that the Court has already held that travel concessions granted by an employer to former employees, their spouses or dependants, in respect of their employment are pay within the meaning of Article 119 of the Treaty (see to that effect Case 12/81 Garland v British Rail Engineering [1982] ECR 359, paragraph 9). 14 In the present case it is common ground that a travel concession granted by an employer, on the basis of the contract of employment, to the employee's spouse or the person of the opposite sex with whom the employee has a stable relationship outside marriage falls within Article 119 of the Treaty. Such a benefit is therefore not covered by Directive 76/207, referred to in the national tribunal's Question 5 (see Case C-342/93 Gillespie and Others v Northern Health and Social Services Board and Others [1996] ECR I-475, paragraph 24). 15 In view of the wording of the other questions and the grounds of the decision making the reference, the essential point raised by the national tribunal is whether an employer's refusal to grant travel concessions to the person of the same sex with whom an employee has a stable relationship constitutes discrimination prohibited by Article 119 of the Treaty and Directive 75/117, where such concessions are granted to an employee's spouse or the person of the opposite sex with whom an employee has a stable relationship outside marriage. 16 Ms Grant submits, first, that such a refusal constitutes discrimination directly based on sex. She submits that her employer's decision would have been different if the benefits in issue in the main proceedings had been claimed by a man living with a woman, and not by a woman living with a woman. 17 Ms Grant argues that the mere fact that the male worker who previously occupied her post had obtained travel concessions for his female partner, without being married to her, is enough to identify direct discrimination based on sex. In her submission, if a female worker does not receive the same benefits as a male worker, all other things being equal, she is the victim of discrimination based on sex (the `but for' test). 18 Ms Grant contends, next, that such a refusal constitutes discrimination based on sexual orientation, which is included in the concept of `discrimination based on sex' in Article 119 of
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the Treaty. In her opinion, differences in treatment based on sexual orientation originate in prejudices regarding the sexual and emotional behaviour of persons of a particular sex, and are in fact based on those persons' sex. She submits that such an interpretation follows from the judgment in P v S and corresponds both to the resolutions and recommendations adopted by the Community institutions and to the development of international human rights standards and national rules on equal treatment. 19 Ms Grant claims, finally, that the refusal to allow her the benefit is not objectively justified. 20 SWT and the United Kingdom and French Governments consider that the refusal of a benefit such as that in issue in the main proceedings is not contrary to Article 119 of the Treaty. They submit, first, that the judgment in P v S, which is limited to cases of gender reassignment, does no more than treat discrimination based on a person's change of sex as equivalent to discrimination based on a person's belonging to a particular sex. 21 They submit, next, that the difference in treatment of which Ms Grant complains is based not on her sexual orientation or preference but on the fact that she does not satisfy the conditions laid down in the undertaking's regulations. 22 Finally, in their opinion, discrimination based on sexual orientation is not `discrimination based on sex' within the meaning of Article 119 of the Treaty or Directive 75/117. They refer on this point in particular to the wording and objectives of Article 119, the lack of consensus among Member States as to whether stable relationships between persons of the same sex may be regarded as equivalent to stable relationships between persons of opposite sex, the fact that those relationships are not protected by Articles 8 or 12 of the Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 (hereinafter `the Convention'), and the consequent absence of discrimination within the meaning of Article 14 of the Convention. 23 The Commission likewise considers that the refusal of the benefits to Ms Grant is not contrary to Article 119 of the Treaty or Directive 75/117. In its opinion, discrimination based on the sexual orientation of workers may be regarded as `discrimination based on sex' for the purposes of Article 119. It submits, however, that the discrimination of which Ms Grant complains is based not on her sexual orientation but on the fact that she is not living as a `couple' or with a `spouse', as those terms are understood in the laws of most of the Member States, in Community law and in the law of the Convention. It considers that in those circumstances the difference of treatment applied by the regulations in force in the undertaking in which Ms Grant works is not contrary to Article 119. 24 In the light of all the material in the case, the first question to answer is whether a condition in the regulations of an undertaking such as that in issue in the main proceedings constitutes discrimination based directly on the sex of the worker. If it does not, the next point to examine will be whether Community law requires that stable relationships between two persons of the same sex should be regarded by all employers as equivalent to marriages or stable relationships outside marriage between two persons of opposite sex. Finally, it will have to be considered whether discrimination based on sexual orientation constitutes discrimination based on the sex of the worker. 25 First, it should be observed that the regulations of the undertaking in which Ms Grant works provide for travel concessions for the worker, for the worker's `spouse', that is, the person to whom he or she is married and from whom he or she is not legally separated, or the person of the opposite sex with whom he or she has had a `meaningful' relationship for at least two years, and for the children, dependent members of the family, and surviving spouse of the worker.

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26 The refusal to allow Ms Grant the concessions is based on the fact that she does not satisfy the conditions prescribed in those regulations, more particularly on the fact that she does not live with a `spouse' or a person of the opposite sex with whom she has had a `meaningful' relationship for at least two years. 27 That condition, the effect of which is that the worker must live in a stable relationship with a person of the opposite sex in order to benefit from the travel concessions, is, like the other alternative conditions prescribed in the undertaking's regulations, applied regardless of the sex of the worker concerned. Thus travel concessions are refused to a male worker if he is living with a person of the same sex, just as they are to a female worker if she is living with a person of the same sex. 28 Since the condition imposed by the undertaking's regulations applies in the same way to female and male workers, it cannot be regarded as constituting discrimination directly based on sex. 29 Second, the Court must consider whether, with respect to the application of a condition such as that in issue in the main proceedings, persons who have a stable relationship with a partner of the same sex are in the same situation as those who are married or have a stable relationship outside marriage with a partner of the opposite sex. 30 Ms Grant submits in particular that the laws of the Member States, as well as those of the Community and other international organisations, increasingly treat the two situations as equivalent. 31 While the European Parliament, as Ms Grant observes, has indeed declared that it deplores all forms of discrimination based on an individual's sexual orientation, it is nevertheless the case that the Community has not as yet adopted rules providing for such equivalence. 32 As for the laws of the Member States, while in some of them cohabitation by two persons of the same sex is treated as equivalent to marriage, although not completely, in most of them it is treated as equivalent to a stable heterosexual relationship outside marriage only with respect to a limited number of rights, or else is not recognised in any particular way. 33 The European Commission of Human Rights for its part considers that despite the modern evolution of attitudes towards homosexuality, stable homosexual relationships do not fall within the scope of the right to respect for family life under Article 8 of the Convention (see in particular the decisions in application No 9369/81, X. and Y. v the United Kingdom, 3 May 1983, Decisions and Reports 32, p. 220; application No 11716/85, S. v the United Kingdom, 14 May 1986, D.R. 47, p. 274, paragraph 2; and application No 15666/89, Kerkhoven and Hinke v the Netherlands, 19 May 1992, unpublished, paragraph 1), and that national provisions which, for the purpose of protecting the family, accord more favourable treatment to married persons and persons of opposite sex living together as man and wife than to persons of the same sex in a stable relationship are not contrary to Article 14 of the Convention, which prohibits inter alia discrimination on the ground of sex (see the decisions in S. v the United Kingdom, paragraph 7; application No 14753/89, C. and L.M. v the United Kingdom, 9 October 1989, unpublished, paragraph 2; and application No 16106/90, B. v the United Kingdom, 10 February 1990, D.R. 64, p. 278, paragraph 2). 34 In another context, the European Court of Human Rights has interpreted Article 12 of the Convention as applying only to the traditional marriage between two persons of opposite biological sex (see the Rees judgment of 17 October 1986, Series A no. 106, p. 19, 49, and the Cossey judgment of 27 September 1990, Series A no. 184, p. 17, 43).

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35 It follows that, in the present state of the law within the Community, stable relationships between two persons of the same sex are not regarded as equivalent to marriages or stable relationships outside marriage between persons of opposite sex. Consequently, an employer is not required by Community law to treat the situation of a person who has a stable relationship with a partner of the same sex as equivalent to that of a person who is married to or has a stable relationship outside marriage with a partner of the opposite sex. 36 In those circumstances, it is for the legislature alone to adopt, if appropriate, measures which may affect that position. 37 Finally, Ms Grant submits that it follows from P v S that differences of treatment based on sexual orientation are included in the `discrimination based on sex' prohibited by Article 119 of the Treaty. 38 In P v S the Court was asked whether a dismissal based on the change of sex of the worker concerned was to be regarded as `discrimination on grounds of sex' within the meaning of Directive 76/207. 39 The national court was uncertain whether the scope of that directive was wider than that of the Sex Discrimination Act 1975, which it had to apply and which in its view applied only to discrimination based on the worker's belonging to one or other of the sexes. 40 In their observations to the Court the United Kingdom Government and the Commission submitted that the directive prohibited only discrimination based on the fact that the worker concerned belonged to one sex or the other, not discrimination based on the worker's gender reassignment. 41 In reply to that argument, the Court stated that the provisions of the directive prohibiting discrimination between men and women were simply the expression, in their limited field of application, of the principle of equality, which is one of the fundamental principles of Community law. It considered that that circumstance argued against a restrictive interpretation of the scope of those provisions and in favour of applying them to discrimination based on the worker's gender reassignment. 42 The Court considered that such discrimination was in fact based, essentially if not exclusively, on the sex of the person concerned. That reasoning, which leads to the conclusion that such discrimination is to be prohibited just as is discrimination based on the fact that a person belongs to a particular sex, is limited to the case of a worker's gender reassignment and does not therefore apply to differences of treatment based on a person's sexual orientation. 43 Ms Grant submits, however, that, like certain provisions of national law or of international conventions, the Community provisions on equal treatment of men and women should be interpreted as covering discrimination based on sexual orientation. She refers in particular to the International Covenant on Civil and Political Rights of 19 December 1966 (United Nations Treaty Series, Vol. 999, p. 171), in which, in the view of the Human Rights Committee established under Article 28 of the Covenant, the term `sex' is to be taken as including sexual orientation (communication No 488/1992, Toonen v Australia, views adopted on 31 March 1994, 50th session, point 8.7). 44 The Covenant is one of the international instruments relating to the protection of human rights of which the Court takes account in applying the fundamental principles of Community law (see, for example, Case 374/87 Orkem v Commission [1989] ECR 3283, paragraph 31, and Joined Cases C-297/88 and C-197/89 Dzodzi v Belgian State [1990] ECR I-3763, paragraph 68). 45 However, although respect for the fundamental rights which form an integral part of those general principles of law is a condition of the legality of Community acts, those rights cannot in
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themselves have the effect of extending the scope of the Treaty provisions beyond the competences of the Community (see, inter alia, on the scope of Article 235 of the EC Treaty as regards respect for human rights, Opinion 2/94 [1996] ECR I-1759, paragraphs 34 and 35). 46 Furthermore, in the communication referred to by Ms Grant, the Human Rights Committee, which is not a judicial institution and whose findings have no binding force in law, confined itself, as it stated itself without giving specific reasons, to `noting ... that in its view the reference to "sex" in Articles 2, paragraph 1, and 26 is to be taken as including sexual orientation'. 47 Such an observation, which does not in any event appear to reflect the interpretation so far generally accepted of the concept of discrimination based on sex which appears in various international instruments concerning the protection of fundamental rights, cannot in any case constitute a basis for the Court to extend the scope of Article 119 of the Treaty. That being so, the scope of that article, as of any provision of Community law, is to be determined only by having regard to its wording and purpose, its place in the scheme of the Treaty and its legal context. It follows from the considerations set out above that Community law as it stands at present does not cover discrimination based on sexual orientation, such as that in issue in the main proceedings. 48 It should be observed, however, that the Treaty of Amsterdam amending the Treaty on European Union, the Treaties establishing the European Communities and certain related acts, signed on 2 October 1997, provides for the insertion in the EC Treaty of an Article 6a which, once the Treaty of Amsterdam has entered into force, will allow the Council under certain conditions (a unanimous vote on a proposal from the Commission after consulting the European Parliament) to take appropriate action to eliminate various forms of discrimination, including discrimination based on sexual orientation. 49 Finally, in the light of the foregoing, there is no need to consider Ms Grant's argument that a refusal such as that which she encountered is not objectively justified. 50 Accordingly, the answer to the national tribunal must be that the refusal by an employer to allow travel concessions to the person of the same sex with whom a worker has a stable relationship, where such concessions are allowed to a worker's spouse or to the person of the opposite sex with whom a worker has a stable relationship outside marriage, does not constitute discrimination prohibited by Article 119 of the Treaty or Directive 75/117. On those grounds, THE COURT, in answer to the questions referred to it by the Industrial Tribunal, Southampton, by decision of 19 July 1996, hereby rules: The refusal by an employer to allow travel concessions to the person of the same sex with whom a worker has a stable relationship, where such concessions are allowed to a worker's spouse or to the person of the opposite sex with whom a worker has a stable relationship outside marriage, does not constitute discrimination prohibited by Article 119 of the EC Treaty or Council Directive 75/117/EEC of 10 February 1975 on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women.

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Golder v United Kingdom (ECtHR) Golder v United Kingdom App No 4451/70 (ECtHR, 21 February 1975)

COURT (PLENARY)

CASE OF GOLDER v. THE UNITED KINGDOM

(Application no. 4451/70)

JUDGMENT

STRASBOURG 21 February 1975

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AS TO THE FACTS 9. The facts of the case may be summarised as follows. 10. In 1965, Mr. Sidney Elmer Golder, a United Kingdom citizen born in 1923, was convicted in the United Kingdom of robbery with violence and was sentenced to fifteen years imprisonment. In 1969, Golder was serving his sentence in Parkhurst Prison on the Isle of Wight. 11. On the evening of 24 October 1969, a serious disturbance occurred in a recreation area of the prison where Golder happened to be. On 25 October, a prison officer, Mr. Laird, who had taken part and been injured in quelling the disturbance, made a statement identifying his assailants, in the course of which he declared: "Frazer was screaming ... and Frape, Noonan and another prisoner whom I know by sight, I think his name is Golder ... were swinging vicious blows at me." 12. On 26 October Golder, together with other prisoners suspected of having participated in the disturbance, was segregated from the main body of prisoners. On 28 and 30 October, Golder was interviewed by police officers. At the second of these interviews he was informed that it had been alleged that he had assaulted a prison officer; he was warned that "the facts would be reported in order that consideration could be given whether or not he would be prosecuted for assaulting a prison officer causing bodily harm". 13. Golder wrote to his Member of Parliament on 25 October and 1 November, and to a Chief Constable on 4 November 1969, about the disturbance of 24 October and the ensuing hardships it had entailed for him; the prison governor stopped these letters since Golder had failed to raise the subject-matter thereof through the authorised channels beforehand. 14. In a second statement, made on 5 November 1969, Laird qualified as follows what he had said earlier: "When I mentioned the prisoner Golder, I said I think it was Golder, who was present with Frazer, Frape and Noonan, when the three latter were attacking me. "If it was Golder and I certainly remember seeing him in the immediate group who were screaming abuse and generally making a nuisance of themselves, I am not certain that he made an attack on me. "Later when Noonan and Frape grabbed me, Frazer was also present but I cannot remember who the other inmate was, but there were several there one of whom stood out in particular but I cannot put a name to him." On 7 November, another prison officer reported that: "... during the riot of that night I spent the majority of the time in the T.V. room with the prisoners who were not participating in the disturbance. 740007, Golder was in this room with me and to the best of my knowledge took no part in the riot. His presence with me can be borne out by officer ... who observed us both from the outside." Golder was returned to his ordinary cell the same day. l5. Meanwhile, the prison authorities had been considering the various statements, and on 10 November prepared a list of charges which might be preferred against prisoners, including Golder, for offences against prison discipline. Entries relating thereto were made in Golders
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prison record. No such charge was eventually preferred against him and the entries in his prison record were marked "charges not proceeded with". Those entries were expunged from the prison record in 1971 during the examination of the applicants case by the Commission. 16. On 20 March 1970, Golder addressed a petition to the Secretary of State for the Home Department, that is, the Home Secretary. He requested a transfer to some other prison and added: "I understand that a statement wrongly accusing me of participation in the events of 24th October last, made by Officer Laird, is lodged in my prison record. I suspect that it is this wrong statement that has recently prevented my being recommended by the local parole board for parole. "I would respectfully request permission to consult a solicitor with a view to taking civil action for libel in respect of this statement .... Alternatively, I would request that an independent examination of my record be allowed by Mrs. G.M. Bishop who is magistrate. I would accept her assurance that this statement is not part of my record and be willing to accept then that the libel against me has not materially harmed me except for the two weeks I spent in the separate cells and so civil action would not be then necessary, providing that an apology was given to me for the libel ...." 17. In England the matter of contacts of convicted prisoners with persons outside their place of detention is governed by the Prison Act 1952, as amended and subordinate legislation made under that Act. Section 47, sub-section I, of the Prison Act provides that "the Secretary of State may make rules for the regulation and management of prisoners ... and for the ... treatment ... discipline and control of persons required to be detained ...." The rules made by the Home Secretary in the exercise of this power are the Prison Rules 1964, which were laid before Parliament and have the status of a Statutory Instrument. The relevant provisions concerning communications between prisoners and persons outside prison are contained in Rules 33, 34 and 37 as follows: "Letters and visits generally Rule 33 (1) The Secretary of State may, with a view to securing discipline and good order or the prevention of crime in the interests of any persons, impose restrictions, either generally or in a particular case, upon the communications to be permitted between a prisoner and other persons. (2) Except as provided by statute or these Rules, a prisoner shall not be permitted to communicate with any outside person, or that person with him, without the leave of the Secretary of State. ... Personal letters and visits Rule 34 ... (8) A prisoner shall not be entitled under this Rule to communicate with any person in connection with any legal or other business, or with any person other than a relative or friend, except with the leave of the Secretary of State.
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... Legal advisers Rule 37 (1) The legal adviser of a prisoner in any legal proceedings, civil or criminal, to which the prisoner is a party shall be afforded reasonable facilities for interviewing him in connection with those proceedings, and may do so out of hearing but in the sight of an officer. (2) A prisoners legal adviser may, with the leave of the Secretary of State, interview the prisoner in connection with any other legal business in the sight and hearing of an officer." 18. On 6 April 1970, the Home Office directed the prison governor to notify Golder of the reply to his petition of 20 March as follows: "The Secretary of State has fully considered your petition but is not prepared to grant your request for transfer, nor can he find grounds for taking any action in regard to the other matters raised in your petition." 19. Before the Commission, Golder submitted two complaints relating respectively to the stopping of his letters (as mentioned above at paragraph 13) and to the refusal of the Home Secretary to permit him to consult a solicitor. On 30 March 1971, the Commission declared the first complaint inadmissible, as all domestic remedies had not been exhausted, but accepted the second for consideration of the merits under Articles 6 para. 1 and 8 (art. 6-1, art. 8) of the Convention. 20. Golder was released from prison on parole on 12 July 1972. 21. In their report, the Commission expressed the opinion: - unanimously, that Article 6 para. 1 (art. 6-1) guarantees a right of access to the courts; - unanimously, that in Article 6 para. 1 (art. 6-1), whether read alone or together with other Articles of the Convention, there are no inherent limitations on the right of a convicted prisoner to institute proceedings and for this purpose to have unrestricted access to a lawyer; and that consequently the restrictions imposed by the present practice of the United Kingdom authorities are inconsistent with Article 6 para. 1 (art. 6-1); - by seven votes to two, that Article 8 para. 1 (art. 8-1) is applicable to the facts of the present case; - that the same facts which constitute a violation of Article 6 para. 1 (art. 6-1) constitute also a violation of Article 8 (art. 8) (by eight votes to one, as explained to the Court by the Principal Delegate on 12 October 1974). The Commission furthermore expressed the opinion that the right of access to the courts guaranteed by Article 6 para. 1 (art. 6-1) is not qualified by the requirement "within a reasonable time". In the application bringing the case before the Court, the Government made objection to this opinion of the Commission but stated in their memorial that they no longer wished to argue the issue. 22. The following final submissions were made to the Court at the oral hearing on 12 October 1974 in the afternoon. - for the Government: "The United Kingdom Government respectfully submit to the Court that Article 6 para. 1 (art. 6-1) of the Convention does not confer on the applicant a right of access to the courts, but confers only a right in any proceedings he may institute to a hearing that is
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fair and in accordance with the other requirements of the paragraph. The Government submit that in consequence the refusal of the United Kingdom Government to allow the applicant in this case to consult a lawyer was not a violation of Article 6 (art. 6). In the alternative, if the Court finds that the rights conferred by Article 6 (art. 6) include in general a right of access to courts, then the United Kingdom Government submit that the right of access to the courts is not unlimited in the case of persons under detention, and that accordingly the imposing of a reasonable restraint on recourse to the courts by the applicant was permissible in the interest of prison order and discipline, and that the refusal of the United Kingdom Government to allow the applicant to consult a lawyer was within the degree of restraint permitted, and therefore did not constitute a violation of Article 6 (art. 6) of the Convention. The United Kingdom Government further submit that control over the applicants correspondence while he was in prison was a necessary consequence of the deprivation of his liberty, and that the action of the United Kingdom Government was therefore not a violation of Article 8 para. 1 (art. 8-1), and that the action of the United Kingdom Government in any event fell within the exceptions provided by Article 8 para. 2 (art. 82), since the restriction imposed was in accordance with law, and it was within the power of appreciation of the Government to judge that the restriction was necessary in a democratic society for the prevention of disorder or crime. In the light of these submissions, Mr. President, I respectfully ask this honourable Court, on behalf of the United Kingdom Government, to hold that the United Kingdom Government have not in this case committed a breach of Article 6 (art. 6) or Article 8 (art. 8) of the European Convention on Human Rights and Fundamental Freedoms." - for the Commission: "The questions to which the Court is requested to reply are the following: (1) Does Article 6 para. 1 (art. 6-1) of the European Convention on Human Rights secure to persons desiring to institute civil proceedings a right of access to the courts? (2) If Article 6 para. 1 (art. 6-1) secures such a right of access, are there inherent limitations relating to this right, or its exercise, which apply to the facts of the present case? (3) Can a convicted prisoner who wishes to write to his lawyer in order to institute civil proceedings rely on the protection given in Article 8 (art. 8) of the Convention to respect for correspondence? (4) According to the answers given to the foregoing questions, do the facts of the present case disclose the existence of a violation of Article 6 and of Article 8 (art. 6, art. 8) of the European Convention on Human Rights?"

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AS TO THE LAW I. ON THE ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1) 23. Paragraphs 73, 99 and 110 of the Commissions report indicate that the Commission consider unanimously that there was a violation of Article 6 para. 1 (art. 6-1). The Government disagree with this opinion. 24. Article 6 para. 1 (art. 6-1) provides: "In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice." 25. In the present case the Court is called upon to decide two distinct questions arising on the text cited above: (i) Is Article 6 para. 1 (art. 6-1) limited to guaranteeing in substance the right to a fair trial in legal proceedings which are already pending, or does it in addition secure a right of access to the courts for every person wishing to commence an action in order to have his civil rights and obligations determined? (ii) In the latter eventuality, are there any implied limitations on the right of access or on the exercise of that right which are applicable in the present case? A. On the "right of access" 26. The Court recalls that on 20 March 1970 Golder petitioned the Home Secretary for permission to consult a solicitor with a view to bringing a civil action for libel against prison officer Laird and that his petition was refused on 6 April (paragraphs 16 and 18 above). While the refusal of the Home Secretary had the immediate effect of preventing Golder from contacting a solicitor, it does not at all follow from this that the only issue which can arise in the present case relates to correspondence, to the exclusion of all matters of access to the courts. Clearly, no one knows whether Golder would have persisted in carrying out his intention to sue Laird if he had been permitted to consult a solicitor. Furthermore, the information supplied to the Court by the Government gives reason to think that a court in England would not dismiss an action brought by a convicted prisoner on the sole ground that he had managed to cause the writ to be issued - through an attorney for instance - without obtaining leave from the Home Secretary under Rules 33 para. 2 and 34 para. 8 of the Prison Rules 1964, which in any event did not happen in the present case. The fact nonetheless remains that Golder had made it most clear that he intended "taking civil action for libel"; it was for this purpose that he wished to contact a solicitor, which was a normal preliminary step in itself and in Golders case probably essential on account of his imprisonment. By forbidding Golder to make such contact, the Home Secretary actually impeded the launching of the contemplated action. Without formally denying Golder his right to institute proceedings before a court, the Home Secretary did in fact prevent him from
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commencing an action at that time, 1970. Hindrance in fact can contravene the Convention just like a legal impediment. It is true that - as the Government have emphasised - on obtaining his release Golder would have been in a position to have recourse to the courts at will, but in March and April 1970 this was still rather remote and hindering the effective exercise of a right may amount to a breach of that right, even if the hindrance is of a temporary character. The Court accordingly has to examine whether the hindrance thus established violated a right guaranteed by the Convention and more particularly by Article 6 (art. 6), on which Golder relied in this respect. 27. One point has not been put in issue and the Court takes it for granted: the "right" which Golder wished, rightly or wrongly, to invoke against Laird before an English court was a "civil right" within the meaning of Article 6 para. 1 (art. 6-1). 28. Again, Article 6 para. 1 (art. 6-1) does not state a right of access to the courts or tribunals in express terms. It enunciates rights which are distinct but stem from the same basic idea and which, taken together, make up a single right not specifically defined in the narrower sense of the term. It is the duty of the Court to ascertain, by means of interpretation, whether access to the courts constitutes one factor or aspect of this right. 29. The submissions made to the Court were in the first place directed to the manner in which the Convention, and particularly Article 6 para. 1 (art. 6-1), should be interpreted. The Court is prepared to consider, as do the Government and the Commission, that it should be guided by Articles 31 to 33 of the Vienna Convention of 23 May 1969 on the Law of Treaties. That Convention has not yet entered into force and it specifies, at Article 4, that it will not be retroactive, but its Articles 31 to 33 enunciate in essence generally accepted principles of international law to which the Court has already referred on occasion. In this respect, for the interpretation of the European Convention account is to be taken of those Articles subject, where appropriate, to "any relevant rules of the organization" - the Council of Europe - within which it has been adopted (Article 5 of the Vienna Convention). 30. In the way in which it is presented in the "general rule" in Article 3l of the Vienna Convention, the process of interpretation of a treaty is a unity, a single combined operation; this rule, closely integrated, places on the same footing the various elements enumerated in the four paragraphs of the Article. 31. The terms of Article 6 para. 1 (art. 6-1) of the European Convention, taken in their context, provide reason to think that this right is included among the guarantees set forth. 32. The clearest indications are to be found in the French text, first sentence. In the field of "contestations civiles" (civil claims) everyone has a right to proceedings instituted by or against him being conducted in a certain way - "quitablement" (fairly), "publiquement" (publicly), "dans un dlai raisonnable" (within a reasonable time), etc. - but also and primarily " ce que sa cause soit entendue" (that his case be heard) not by any authority whatever but "par un tribunal" (by a court or tribunal) within the meaning of Article 6 para. 1 (art. 6-1) (Ringeisen judgment of 16 July 1971, Series A no. 13, p. 39, para. 95). The Government have emphasised rightly that in French "cause" may mean "procs qui se plaide" (Littr, Dictionnaire de la langue franaise, tome I, p. 509, 5o). This, however, is not the sole ordinary sense of this noun; it serves also to indicate by extension "lensemble des intrts soutenir, faire prvaloir" (Paul Robert, Dictionnaire alphabtique et analogique de la langue franaise, tome I, p. 666, II-2o). Similarly, the "contestation" (claim) generally exists prior to the legal proceedings and is a concept independent of them. As regards the phrase "tribunal indpendant et impartial tabli par la loi" (independent and impartial tribunal established by

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law), it conjures up the idea of organisation rather than that of functioning, of institutions rather than of procedure. The English text, for its part, speaks of an "independent and impartial tribunal established by law". Moreover, the phrase "in the determination of his civil rights and obligations", on which the Government have relied in support of their contention, does not necessarily refer only to judicial proceedings already pending; as the Commission have observed, it may be taken as synonymous with "wherever his civil rights and obligations are being determined" (paragraph 52 of the report). It too would then imply the right to have the determination of disputes relating to civil rights and obligations made by a court or "tribunal". The Government have submitted that the expressions "fair and public hearing" and "within a reasonable time", the second sentence in paragraph 1 ("judgment", "trial"), and paragraph 3 of Article 6 (art. 6-1, art. 6-3) clearly presuppose proceedings pending before a court. While the right to a fair, public and expeditious judicial procedure can assuredly apply only to proceedings in being, it does not, however, necessarily follow that a right to the very institution of such proceedings is thereby excluded; the Delegates of the Commission rightly underlined this at paragraph 21 of their memorial. Besides, in criminal matters, the "reasonable time" may start to run from a date prior to the seisin of the trial court, of the "tribunal" competent for the "determination ... of (the) criminal charge" (Wemhoff judgment of 27 June 1968, Series A no. 7, pp. 26-27, para. 19; Neumeister judgment of 27 June l968, Series A no. 8, p. 41, para. 18; Ringeisen judgment of 16 July 1971, Series A no. 13, p. 45, para. 110). It is conceivable also that in civil matters the reasonable time may begin to run, in certain circumstances, even before the issue of the writ commencing proceedings before the court to which the plaintiff submits the dispute. 33. The Government have furthermore argued the necessity of relating Article 6 para. 1 (art. 6-1) to Articles 5 para. 4 and 13 (art. 5-4, art. 13). They have observed that the latter provide expressly or a right of access to the courts; the omission of any corresponding clause in Article 6 para. 1 (art. 6-1) seems to them to be only the more striking. The Government have also submitted that if Article 6 para. 1 (art. 6-1) were interpreted as providing such a right of access, Articles 5 para. 4 and 13 (art. 5-4, art. 13) would become superfluous. The Commissions Delegates replied in substance that Articles 5 para. 4 and 13 (art. 5-4, art. 13), as opposed to Article 6 para. 1 (art. 6-1), are "accessory" to other provisions. Those Articles, they say, do not state a specific right but are designed to afford procedural guarantees, "based on recourse", the former for the "right to liberty", as stated in Article 5 para. 1 (art. 5-1), the second for the whole of the "rights and freedoms as set forth in this Convention". Article 6 para. 1 (art. 6-1), they continue, is intended to protect "in itself" the "right to a good administration of justice", of which "the right that justice should be administered" constitutes "an essential and inherent element". This would serve to explain the contrast between the wording of Article 6 para. 1 (art. 6-1) and that of Articles 5 para. 4 and 13 (art. 5-4, art. 13). This reasoning is not without force even though the expression "right to a fair (or good) administration of justice", which sometimes is used on account of its conciseness and convenience (for example, in the Delcourt judgment of 17 January 1970, Series A no. 11, p. 15, para. 25), does not appear in the text of Article 6 para. 1 (art. 6-1), and can also be understood as referring only to the working and not to the organisation of justice. The Court finds in particular that the interpretation which the Government have contested does not lead to confounding Article 6 para. 1 (art. 6-1) with Articles 5 para. 4 and 13 (art. 54, art. 13), nor making these latter provisions superfluous. Article 13 (art. 13) speaks of an effective remedy before a "national authority" ("instance nationale") which may not be a
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"tribunal" or "court" within the meaning of Articles 6 para. 1 and 5 para. 4 (art. 6-1, art. 5-4). Furthermore, the effective remedy deals with the violation of a right guaranteed by the Convention, while Articles 6 para. 1 and 5 para. 4 (art. 6-1, art. 5-4) cover claims relating in the first case to the existence or scope of civil rights and in the second to the lawfulness of arrest or detention. What is more, the three provisions do not operate in the same field. The concept of "civil rights and obligations" (Article 6 para. 1) (art. 6-1) is not co-extensive with that of "rights and freedoms as set forth in this Convention" (Article 13) (art. 13), even if there may be some overlapping. As to the "right to liberty" (Article 5) (art. 5), its "civil" character is at any rate open to argument (Neumeister judgment of 27 June 1968, Series A no. 8, p. 43, para. 23; Matznetter judgment of 10 November 1969, Series A no. 10, p. 35, para. 13; De Wilde, Ooms and Versyp judgment of 18 June 1971, Series A no. 12, p. 44, para. 86). Besides, the requirements of Article 5 para. 4 (art. 5-4) in certain respects appear stricter than those of Article 6 para. 1 (art. 6-1), particularly as regards the element of "time". 34. As stated in Article 31 para. 2 of the Vienna Convention, the preamble to a treaty forms an integral part of the context. Furthermore, the preamble is generally very useful for the determination of the "object" and "purpose" of the instrument to be construed. In the present case, the most significant passage in the Preamble to the European Convention is the signatory Governments declaring that they are "resolved, as the Governments of European countries which are like-minded and have a common heritage of political traditions, ideals, freedom and the rule of law, to take the first steps for the collective enforcement of certain of the Rights stated in the Universal Declaration" of 10 December 1948. In the Governments view, that recital illustrates the "selective process" adopted by the draftsmen: that the Convention does not seek to protect Human Rights in general but merely "certain of the Rights stated in the Universal Declaration". Articles 1 and 19 (art. 1, art. 19) are, in their submission, directed to the same end. The Commission, for their part, attach great importance to the expression "rule of law" which, in their view, elucidates Article 6 para. 1 (art. 6-1). The "selective" nature of the Convention cannot be put in question. It may also be accepted, as the Government have submitted, that the Preamble does not include the rule of law in the object and purpose of the Convention, but points to it as being one of the features of the common spiritual heritage of the member States of the Council of Europe. The Court however considers, like the Commission, that it would be a mistake to see in this reference a merely "more or less rhetorical reference", devoid of relevance for those interpreting the Convention. One reason why the signatory Governments decided to "take the first steps for the collective enforcement of certain of the Rights stated in the Universal Declaration" was their profound belief in the rule of law. It seems both natural and in conformity with the principle of good faith (Article 31 para. 1 of the Vienna Convention) to bear in mind this widely proclaimed consideration when interpreting the terms of Article 6 para. 1 (art. 6-1) according to their context and in the light of the object and purpose of the Convention. This is all the more so since the Statute of the Council of Europe, an organisation of which each of the States Parties to the Convention is a Member (Article 66 of the Convention) (art. 66), refers in two places to the rule of law: first in the Preamble, where the signatory Governments affirm their devotion to this principle, and secondly in Article 3 (art. 3) which provides that "every Member of the Council of Europe must accept the principle of the rule of law ..." And in civil matters one can scarcely conceive of the rule of law without there being a possibility of having access to the courts.
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35. Article 31 para. 3 (c) of the Vienna Convention indicates that account is to be taken, together with the context, of "any relevant rules of international law applicable in the relations between the parties". Among those rules are general principles of law and especially "general principles of law recognized by civilized nations" (Article 38 para. 1 (c) of the Statute of the International Court of Justice). Incidentally, the Legal Committee of the Consultative Assembly of the Council of Europe foresaw in August 1950 that "the Commission and the Court must necessarily apply such principles" in the execution of their duties and thus considered it to be "unnecessary" to insert a specific clause to this effect in the Convention (Documents of the Consultative Assembly, working papers of the 1950 session, Vol. III, no. 93, p. 982, para. 5). The principle whereby a civil claim must be capable of being submitted to a judge ranks as one of the universally "recognised" fundamental principles of law; the same is true of the principle of international law which forbids the denial of justice. Article 6 para. 1 (art. 6-1) must be read in the light of these principles. Were Article 6 para. 1 (art. 6-1) to be understood as concerning exclusively the conduct of an action which had already been initiated before a court, a Contracting State could, without acting in breach of that text, do away with its courts, or take away their jurisdiction to determine certain classes of civil actions and entrust it to organs dependent on the Government. Such assumptions, indissociable from a danger of arbitrary power, would have serious consequences which are repugnant to the aforementioned principles and which the Court cannot overlook (Lawless judgment of 1 July 1961, Series A no. 3, p. 52, and Delcourt judgment of 17 January 1970, Series A no. 11, pp. 14-15). It would be inconceivable, in the opinion of the Court, that Article 6 para. 1 (art. 6-1) should describe in detail the procedural guarantees afforded to parties in a pending lawsuit and should not first protect that which alone makes it in fact possible to benefit from such guarantees, that is, access to a court. The fair, public and expeditious characteristics of judicial proceedings are of no value at all if there are no judicial proceedings. 36. Taking all the preceding considerations together, it follows that the right of access constitutes an element which is inherent in the right stated by Article 6 para. 1 (art. 6-1). This is not an extensive interpretation forcing new obligations on the Contracting States: it is based on the very terms of the first sentence of Article 6 para. 1 (art. 6-1) read in its context and having regard to the object and purpose of the Convention, a lawmaking treaty (see the Wemhoff judgment of 27 June 1968, Series A no. 7, p. 23, para. 8), and to general principles of law. The Court thus reaches the conclusion, without needing to resort to "supplementary means of interpretation" as envisaged at Article 32 of the Vienna Convention, that Article 6 para. 1 (art. 6-1) secures to everyone the right to have any claim relating to his civil rights and obligations brought before a court or tribunal. In this way the Article embodies the "right to a court", of which the right of access, that is the right to institute proceedings before courts in civil matters, constitutes one aspect only. To this are added the guarantees laid down by Article 6 para. 1 (art. 6-1) as regards both the organisation and composition of the court, and the conduct of the proceedings. In sum, the whole makes up the right to a fair hearing. The Court has no need to ascertain in the present case whether and to what extent Article 6 para. 1 (art. 6-1) further requires a decision on the very substance of the dispute (English "determination", French "dcidera").

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FOR THESE REASONS, THE COURT, 1. Holds by nine votes to three that there has been a breach of Article 6 para. 1 (art. 6-1); 2. Holds unanimously that there has been a breach of Article 8 (art. 8); 3. Holds unanimously that the preceding findings amount in themselves to adequate just satisfaction under Article 50 (art. 50). Done in French and English, the French text being authentic, at the Human Rights Building, Strasbourg, this twenty-first day of February one thousand nine hundred and seventy five. Giorgio BALLADORE PALLIERI President Marc-Andr EISSEN Registrar Judges Verdross, Zekia and Sir Gerald Fitzmaurice have annexed their separate opinions to the present judgment, in accordance with Article 51 para. 2 (art. 51-2) of the Convention and Rule 50 para. 2 of the Rules of Court.

G.B.P.

M.-A.E.

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SEPARATE OPINION OF JUDGE VERDROSS (Translation) I have voted in favour of the parts of the judgment which relate to the violation of Article 8 (art. 8) and the application of Article 50 (art. 50) of the Convention, but much to my regret I am unable to join the majority in their interpretation of Article 6 para. 1 (art. 6-1) for the following reasons. The Convention makes a clear distinction between the rights and freedoms it secures itself (Article 1) (art. 1) and those which have their basis in the internal law of the Contracting States (Article 60) (art. 60). In the last recital in the Preamble, the Contracting States resolved to take steps for the collective enforcement of "certain of the Rights stated in the Universal Declaration" (certains des droits noncs dans la Dclaration Universelle) and, according to Article 1 (art. 1), the category of rights guaranteed comprises only "the rights and freedoms defined in Section I" of the Convention. It thus seems that the words "stated" and "defined" are synonymous. As "to define" means to state precisely, it results, in my view, from Article 1 (art. 1) that among such rights and freedoms can only be numbered those which the Convention states in express terms or which are included in one or other of them. But in neither of these cases does one find the alleged "right of access to the courts". It is true that the majority of the Court go to great lengths to trace that right in an assortment of clues detected in Article 6 para. 1 (art. 6-1) and other provisions of the Convention. However, such an interpretation runs counter, in my opinion, to the fact that the provisions of the Convention relating to the rights and freedoms guaranteed by that instrument constitute also limits on the jurisdiction of the Court. This is a special jurisdiction, for it confers on the Court power to decide disputes arising in the course of the internal life of the Contracting States. The norms delimiting the bounds of that jurisdiction must therefore be interpreted strictly. In consequence, I do not consider it permissible to extend, by means of an interpretation depending on clues, the framework of the clearly stated rights and freedoms. Considerations of legal certainty too make this conclusion mandatory: the States which have submitted to supervision by the Commission and Court in respect of "certain" rights and freedoms "defined" (dfinis) in the Convention ought to be sure that those bounds will be strictly observed. The above conclusion is not upset by the argument, sound in itself, whereby the right to a fair hearing before an independent and impartial tribunal, secured to everyone by Article 6 para. 1 (art. 6-1), assumes the existence of a right of access to the courts. The Convention in fact appears to set out from the idea that such a right has, with some exceptions, been so well implanted for a long time in the national legal order of the civilised States that there is absolutely no need to guarantee it further by the procedures which the Convention has instituted. There can be no other reason to explain why the Convention has refrained from writing in this right formally. In my opinion, therefore, a distinction must be drawn between the legal institutions whose existence the Convention presupposes and the rights guaranteed by the Convention. Just as the Convention presupposes the existence of courts, as well as legislative and administrative bodies, so does it also presupposes, in principle, the existence of the right of access to the courts in civil matters; for without such a right no civil court could begin to operate. Nor is my reasoning refuted by contending that, if the right of access had its basis solely in their national legal order, the member States of the Council of Europe could, by abolishing the right, reduce to nothing all the Conventions provisions relating to judicial protection in
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civil matters. For if these States were really determined on destroying one of the foundations of Human Rights, they would be committing an act contrary to their own will to create a system based on "a common understanding and observance of the Human Rights upon which they depend" (fourth recital in the Preamble).

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SEPARATE OPINION OF JUDGE ZEKIA I adopt, with respect, the introductory part of the judgment dealing with procedure and facts and also the concluding part dealing with the application of Article 50 (art. 50) of the Convention to the present case. I agree also with the conclusion reached regarding the violation of Article 8 (art. 8) of the Convention subject to some variation in the reasoning. I have felt unable, however, to agree with my eminent colleagues in the way Article 6 para. 1 (art. 6-1) of the Convention has been interpreted by them and with their conclusion that a right of access to the courts ought to be read into Article 6 para. 1 (art. 6-1) and that such right is to be considered as being embodied therein. The outcome of their interpretation is that the United Kingdom has committed a contravention of Article 6 para. 1 (art. 6-1) of the Convention by disallowing prisoner Golder to exercise his right of access to the courts. I proceed to give hereunder, as briefly as I can, the main reasons for my dissenting opinion on this part of the judgment. There is no doubt that the answer to the question whether right of access to courts is provided in Article 6 para. 1 (art. 6-1), depends on the construction of the said Article. We have been assisted immensely by the representatives of both sides in the fulfilment of our duties in this respect. There appears to be a virtual consensus of opinion that Articles 31, 32 and 33 of the Vienna Convention on the Law of Treaties, although with no retroactive effect, contain the guiding principles of interpretation of a treaty. There remains the application of the rules of interpretation formulated in the aforesaid Convention to Article 6 para. 1 (art. 6-1) of the European Convention. Article 31 para. 1 of the Vienna Convention reads "A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose". No question arises as to good faith, therefore what remains for consideration is (a) text, (b) context, (c) object and purpose. The last two elements might very well overlap on one another. A. Text Article 6 para. 1 (art. 6-1) of the European Convention on Human Rights reads: "In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice." The above Article (art. 6-1), read in its plain and ordinary meaning, refers to criminal charges brought against a person and to the civil rights and obligations of a person when such rights and obligations are sub judice in a court of law. The very fact that the words immediately following the opening words of the paragraph, that is, the words following the phrase "In the determination of his civil rights and obligations or of any criminal charge against him" deal exclusively with the conduct of proceedings, i.e., public hearings within a reasonable time before an impartial court and pronouncement of judgment in public, plus the
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further fact that exceptions and/or limitations given in detail in the same paragraph again exclusively relate to the publicity of the court proceedings and to nothing else, strongly indicate that Article 6 para. 1 (art. 6-1) deals only with court proceedings already instituted before a court and not with a right of access to the courts. In other words Article 6 para. 1 (art. 6-1) is directed to the incidents and attributes of a just and fair trial only. Reference was made to the French version of Article 6 para. 1 (art. 6-1) and specifically to the words "contestations sur ses droits" in the said Article (art. 6-1). It has been maintained that the above quoted words convey a wider meaning than the corresponding English words in the English text. The words in the French text embrace, it is argued, claims which have not reached the stage of trial. The English and French text are both equally authentic. If the words used in one text are capable only of a narrower meaning, the result is that both texts are reconcilable by attaching to them the less extensive meaning. Even if we apply Article 33 of the Vienna Convention in order to find which of the two texts is to prevail, we have to look to the preceding Articles 31 and 32 of the same Convention for guidance. Having done this I did not find sufficient reason to alter the view just expressed. So much for the reading of the text which no doubt constitutes "the primary source of its own interpretation". B. Context I pass now to the contextual aspect of Article 6 para. 1 (art. 6-1). As I said earlier, the examination of this aspect is bound to overlap with considerations appertaining to the object and purpose of a treaty. There is no doubt, however, that interpretation is a single combined operation which takes into account all relevant facts as a whole. Article 6 para. 1 (art. 6-1) occurs in Section I of the European Convention on Human Rights and Fundamental Freedoms which section comprises Articles 2-18 (art. 2, art. 3, art. 4, art. 5, art. 6, art. 7, art. 8, art. 9, art. 10, art. 11, art. 12, art. 13, art. 14, art. 15, art. 16, art. 17, art. 18) defining rights and freedoms conferred on people within the jurisdiction of the Contracting States. Article 1 (art. 1) requires the Contracting Parties to "secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention". The obligations undertaken under this Convention by Contracting States relate to the rights and freedoms defined. It seems almost impossible for anyone to contend that Article 6 para. 1 (art. 6-1) defines a right of access to courts. A study of Section I discloses: Article 5, paras. 4 and 5 (art. 5-4, art. 5-5), deals with proceedings to be taken before a court for deciding the lawfulness or otherwise of detention and gives to the victim of unlawful detention an enforceable right to compensation. Articles 9, 10 and 11 (art. 9, art. 10, art. 11) deal with rights or freedoms in respect of thought, expression, religion, peaceful assembly and association, etc. What is significant about these Articles (art. 9, art. 10, art. 11) is the fact that each Article prescribes in detail the restrictions and limitations attached to such right. Article 13 (art. 13) reads: "Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity." This Article (art. 13) indicates a right of access to the courts in respect of violations of rights and freedoms set forth in the Convention. In my view courts come within the ambit of "national authority" mentioned in the Article (art. 13).
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Article 17 (art. 17) provides, inter alia, that no limitation to a greater extent than is provided for in the Convention is allowed to the rights and freedoms set forth therein. The relevance of this Article (art. 17) lies in the fact that, if right of access is to be read into Article 6 para. 1 (art. 6-1), such right of access will have to be an absolute one because no restrictions or limitations are mentioned in regard to this right. No one can seriously argue that the Convention contemplates an absolute and unfettered right of access to courts. It is common knowledge and it may be taken for granted that right of access to the national courts, as a rule, does exist in all civilised democratic societies. Such right, and its exercise, usually is regulated by constitution, legislation, custom and by subsidiary laws such as orders and court rules. Article 60 (art. 60) of the Convention keeps intact such human rights as are provided by national legislation. Right of access being a human right is no doubt included in the human rights referred to in Article 60 (art. 60). This in a way fills up the gap for claims in respect of which no specific provision for right of access is made in the Convention. The competence of the courts, as well as the right of the persons entitled to initiate proceedings before a court, are regulated by laws and rules as above indicated. One commences proceedings by filing an action, petition or application in the registry of the court of first instance or of the superior court. One has to pay the prescribed fees (unless entitled to legal aid) and cause the issue of writs of summons or other notices. Persons might be debarred unconditionally or conditionally from instituting proceedings on account of age, mental condition, bankruptcy, frivolous and vexatious litigation. One may have to make provision for security of costs and so on. After the institution of proceedings and before a case comes up for hearing there are many intervening procedural steps. A master, or a judge in chambers and not in open court, is empowered in a certain category of cases to deal summarily and finally with a claim in an action, petition or application. Such is the case for instance when claim as endorsed on a writ, or as stated in the pleadings, does not disclose any cause of action or, in the case of a defendant or respondent, his reply or points of defence do not disclose a valid defence in law. All this, digression, is simply to emphasise the fact that if in the Convention it was intended to make the right of access an integral part of Article 6 para. 1 (art. 6-1), those responsible for drafting the Convention would, no doubt, have followed their invariable practice, after defining a human right and freedom, to prescribe therein the restrictions and limitations attached to such right and freedom. Surely if a right of access, independently of those expressly referred to in the Convention, was to be recognised to everybody within the jurisdictions of the High Contracting Parties, unrestricted by laws and regulations imposed by national legislation, one would expect such right to be expressly provided in the Convention. The care and pains taken in defining human rights and freedoms in the Convention and minutely prescribing the restrictions, indicate strongly that right of access is neither expressly nor by necessary implication or intendment embodied in Article 6 para. 1 (art. 6-1). One might also remark: if there is no right of access to courts, what is the use of making copious provisions for the conduct of proceedings before a court? If, indeed, provisions relating to the right of access were altogether lacking in the Convention - although this is not the case - I would concede that by necessary implication and intendment such a right is to be read as being incorporated in the Convention, though not necessarily in the Article in question. I would have acted on the assumption that the Contracting Parties took the existence of such right of access for granted.

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C. Object and purpose Article 6 para. 1 (art. 6-1) could by no means be under-estimated, when it is read with its ordinary meaning, without any right of access being integrated into it. Public hearing within reasonable time before an impartial tribunal, with delivery of judgment in open court, although one might describe them as procedural matters nevertheless are fundamentals in the administration of justice, and therefore Article 6 para. 1 (art. 6-1) has and deserves its raison dtre in the Charter of Human Rights, without grafting the right of access onto it. Its scope of operation will still be very wide. The Preamble of the European Convention on Human Rights and Fundamental Freedoms in its concluding paragraph declares: "Being resolved, as the Governments of European countries which are like- minded and have a common heritage of political traditions, ideals, freedom and the rule of law, to take the first step for the collective enforcement of certain of the Rights stated in the Universal Declaration." I think the United Kingdom Government was not unjustified in drawing our attention to the words "to take the first steps" and to the words "enforcement of certain of the Rights", occurring in that paragraph. As to the references made to the travaux prparatoires of the Convention, the Universal Declaration of Human Rights, the European Convention on Establishment, the International Covenant on Civil and Political Rights and other international instruments, I am content to make only very short observations. In the travaux prparatoires of the Declaration, the early drafts included expressly the words "right of access" but these words were dropped before the text took its final form. Article 8 of the Universal Declaration contains a right of access to courts for violations of fundamental rights granted by constitution or by law. Article 10 of the Universal Declaration more or less corresponds to the main part of Article 6 para. 1 (art. 6-1) of the European Convention and it does not refer to a right of access. It seems the main part of Article 6 para. 1 (art. 6-1) followed the pattern of Article 10 of the Universal Declaration. And so too does Article 14 para. 1 of the International Covenant. Article 7 of the European Convention on Establishment provides expressly a "right of access to the competent judicial and administrative authorities". The same applies to Article 2 para. 3 of the International Covenant. The above supports the view that when right of access to courts was intended to be incorporated in a treaty, this was done in express terms. I have already endeavoured to touch the main elements of interpretation in some order. When all elements are put together and considered compositively, to my mind the combined effect lends greater force to the correctness of the opinion submitted. As to Article 8 (art. 8) The Home Secretary, by not allowing prisoner Golder to communicate with his solicitor with a view to bringing an action for libel against the prison officer, Mr. Laird, was depriving the former of obtaining independent legal advice. In the circumstances of the case I find that Golder was denied right of respect for his correspondence and such denial amounts to a breach of the Article (art. 8) in question.

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Guzzardi v Italy (ECtHR) Guzzardi v Italy App No 7367/76 (ECtHR, 6 November 1980)

COURT (PLENARY)

CASE OF GUZZARDI v. ITALY

(Application no. 7367/76)

JUDGMENT

STRASBOURG 6 November 1980

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AS TO THE FACTS I. PARTICULAR FACTS OF THE CASE A. The criminal proceedings taken against Mr. Guzzardi 9. Mr. Guzzardi, an Italian citizen born in 1942, had left Palermo (Sicily) in 1966 to take up residence in Vigevano (in the province of Pavia). He was arrested on 8 February 1973, placed in detention on remand in Milan and then charged with conspiracy and being an accomplice to the abduction on 18 December 1972 of a businessman; the latter had been freed by his kidnappers on 7 February 1973 after payment of a substantial ransom. The applicant was acquitted on 13 November 1976 by the Milan Regional Court (Tribunale di Milano) for lack of sufficient evidence, but convicted on 19 December 1979 by the Milan Court of Appeal which sentenced him to eighteen years imprisonment and a fine. The criminal proceedings in question are not in issue, at least not in direct issue, in the present case. 10. Under Article 272 (first paragraph, item 2) of the Italian Code of Criminal Procedure, the applicants detention on remand during which he married his fiance by whom he shortly afterwards had a son - could not continue for more than two years; it thus had to terminate on 8 February 1975 at the latest. 11. On that date, Mr. Guzzardi was removed from Milan gaol and taken under police escort to the island of Asinara, which lies off Sardinia. B. The measure of "special supervision" applied to the applicant 12. On 23 December 1974, the Milan Chief of Police (questore) had in fact sent to the Milan State prosecutor (procuratore della Repubblica) a report recommending that Mr. Guzzardi be subjected to the measure of "special supervision" provided for in section 3 of Act no. 1423 of 27 December 1956 ("the 1956 Act" - see paragraphs 45-51 below) and section 2 of Act no. 575 of 31 May 1965 ("the 1965 Act" - see paragraph 52 below). The report referred to indications that although the applicant claimed to be working in the building trade, he was actually engaged in illegal activities and belonged to a band (cosca) of mafiosi; it listed four convictions pronounced against him in 1965, 1967, 1969 and 1972 and described him as "one of the most dangerous" of individuals. Following an application made in accordance with this recommendation by the State prosecutor on 14 January 1975, the Milan Regional Court (2nd Criminal Chamber) directed on 30 January that Mr. Guzzardi be placed under special supervision for three years, the measure to be combined with the obligation to reside "in the district (comune) of the island of Asinara", a locality that had been designated by the Ministry of the Interior. In its decision the Court further directed that the applicant should: - start looking for work within a month, establish his residence in the prescribed locality, inform the supervisory authorities immediately of his address and not leave the place fixed without first notifying them; - report to the supervisory authorities twice a day and whenever called upon to do so; - lead an honest and law-abiding life and not give cause for suspicion; - not associate with persons convicted of criminal offences and subjected to preventive or security measures;
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- not return to his residence later than 10 p.m. and not go out before 7 a.m., except in case of necessity and after having given notice in due time to supervisory authorities; - not keep or carry any arms; - not frequent bars or night-clubs and not take part in public meetings; - inform the supervisory authorities in advance of the telephone number and name of the person telephoned or telephoning each time he wished to make or receive a long-distance call. 13. Mr. Guzzardi appealed to the Milan Court of Appeal; his appeal had no suspensive effect (section 4, sixth paragraph, of the 1956 Act) and so did not prevent the contested decision from being put into effect. In a memorial of 10 February 1975, his lawyer, Mr. Catalano, challenged the decision on a number of grounds, alleging that it was invalid and unjustified. He submitted, in particular, that on Asinara his client could neither find employment nor live together with his wife and child; there was thus an inconsistency between the reasoning and the operative provisions of the decision of 30 January. In addition, the decision referred to a non-existent district since in point of fact the island was no more than a sub-division of the district of Porto Torres (Sardinia). Mr. Catalano requested the Court of Appeal, in the first place, to quash the decision in its entirety; in the alternative, to limit it to special supervision without an order for compulsory residence; in the further alternative, to designate a district in Northern Italy where the applicant might find work, live with his family, meet with his lawyer in order to prepare his defence in the criminal proceedings and attend, as and when necessary, an urological clinic to receive the treatment required by his state of health. 14. On 12 February, the Court of Appeal (1st Criminal Chamber), by way of a preliminary ruling on submissions to the same effect by the public prosecutor, ordered that Mr. Guzzardi be transferred to the urological clinic of Sassari hospital (Sardinia); it also instructed its registry to seek information from the carabinieri in Sassari on the possibility of finding accommodation for three people and work on the island of Asinara. However, on 14 February the prosecuting authorities requested the Court of Appeal to revoke or suspend the aforesaid order. They pointed out that during his detention on remand Mr. Guzzardi had refused to submit to analyses in the University of Milan urological clinic; that experts considered that he was probably not suffering from any serious illness; that his covert intention was to use hospitalisation as a means of escape; that section 3 of the 1956 Act did not prohibit an order for compulsory residence in a given locality within a district; that the Court of Cassation had so held in two judgments, one of which concerned precisely the island of Asinara, which was, besides, "potentially" one of the best places in Italy for tourism. The Court of Appeal consequently suspended its order on the same day and directed that further hearings on the matter be held on 12 March 1975. 15. The officer commanding the criminal investigation department of the Milan carabinieri wrote, also on 14 February 1975, to the Court of appeal with the following information which had been supplied by the Sassari carabinieri: - for those subjected to compulsory residence on Asinara, there were only two flats suitable for accommodating a family; they were occupied by the families in turn for periods of between thirty and sixty days; - the island offered no possibility of permanent employment; there was just one firm which employed two residents in turn for short spaces of time; - the police stationed on Asinara were in a position to effect the requisite supervision.

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16. On 17 and 21 February 1975, Mr. Catalano filed memorials with the Court of Appeal challenging the "fanciful" statements of the prosecuting authorities and requesting that further enquiries be undertaken in the shape of an investigation on the spot (sopral-luogo). In his view, his client was physically and mentally a prisoner (carcerato) on Asinara; he was vegetating there in conditions worse than those of his detention on remand. The applicant himself, in a letter of 20 February, described the island as a "veritable concentration camp". 17. On 12 March 1975, the Milan Court of Appeal (1st Chamber) dismissed the appeal and confirmed the decision of 30 January. As regards Mr. Guzzardis health and the absence of violation of section 3 of the 1956 Act, the Court of Appeal relied in substance on the arguments that had already been invoked by the prosecuting authorities on 14 February (see paragraph 14 above, second sub-paragraph). It found no good reason for regarding Asinara as an unsuitable locality for compulsory residence. It emphasised that the contested measure was designed to separate the individual from his milieu and render his contacts with it more difficult. This requirement took precedence over other problems, such as the absence of regular employment and of adequate accommodation for a family; moreover, at the time of his marriage the applicant could not have hoped to live with his wife and son since he was then in detention on remand and under a serious charge. His criminal record, the most disquieting criminal activities in which he engaged under the cloak of honesty, his violent character and his exceptional cunning showed that he presented a marked danger to society (spiccata pericolosit sociale). Supervision of such an individual was sufficiently important to justify the curtailment of other individual legal interests taken into account by the law (laffievolimento di alter situazioni giuridiche soggettive che la legge prende in considerazione). 18. Mr. Guzzardi appealed to the Court of Cassation. In a supplementary memorial of 3 April 1975, his lawyer put forward three grounds of appeal pursuant to Articles 475 par. 3 and 524 par. 1 and 3 of the Code of Criminal Procedure: (i) It was not permissible under section 3 of the 1956 Act to make an order for a persons compulsory residence - which amounted to subjecting him to a "judicial sanction" limiting his private and family liberty (libert privata e famigliare) - on any scrap of land (qualunque pezzo di terra), such as Asinara, regardless of its area (quali che siano i metri quadrati entro cui si deve osservare il soggiorno), rather than on the whole of the territory of a district. The contrary interpretation adopted by the Court of Appeal was "restrictive and aberrant" and disregarded a mans right to private and family life (alla vita privata e famigliare) which was guaranteed by the European Convention and the Italian Constitution. If the Court of Cassation were nevertheless inclined to follow that interpretation, it should refer the matter to the Constitutional Court. (ii) The Court of Appeals statement that Mr. Guzzardi did not need any particular medical treatment was a misrepresentation of the facts (travisamento dei fatti). The law did not permit any curtailment of legal interests which it protected, conferred and made mandatory (non consent[iva] veruno affievolimento di situazioni giuridiche tutelate, volute e pretese proprio dalla legge). It followed that the Court of Appeal had applied the law incorrectly (errata applicazione della legge) when it held that the necessity for special supervision justified such curtailment. (iii) Finally, the reasoning was contradictory (contraddittoriet) in various respects. Thus, the Court of Appeal had - without an investigation on the spot - deemed Asinara to be suitable for the execution of the measure complained of although the applicant would not there be able to comply with the directives contained in the Milan Regional Courts decision.

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Mr. Catalano therefore requested the Court of Cassation to quash the judgment of 12 March 1975 after transmitting the file to the Constitutional Court for the purpose of obtaining a ruling that section 3 of the 1956 Act, as interpreted by the Court of Appeal, was incompatible with Article 13, fourth paragraph, and Article 27, second and third paragraphs, of the Constitution. Article 13 concerns "personal liberty": the fourth paragraph provides that "the infliction of any physical or mental violence on persons subjected to any form of restriction on their liberty shall be a punishable offence". The second paragraph of Article 27 enshrines the presumption of innocence; the third paragraph stipulates that "punishment may not take the form of treatment repugnant to feelings of humanity and must be aimed at re-education of the convicted person". 19. The Court of Cassation gave judgment on 6 October 1975. It accepted the submissions of the public prosecutor attached to the Court of Cassation and dismissed the appeal as being devoid of foundation. As regards the first ground of appeal, the Court of Cassation pointed out that its settled case-law established that under certain conditions, which were satisfied in the present case, an order for compulsory residence could refer to a given locality within a district. Likewise, the "curtailment" of, and the "undoubted limitations" on, "various rights of the individual concerned" stemmed directly from the application of measures which had on numerous occasions been recognised to be in conformity with the Constitution, for example in a judgment delivered by the Constitutional Court on 15 June 1972. As regards the second ground, the Court of Cassation held that in the particular circumstances the Court of Appeal had been right in turning down the argument concerning Mr. Guzzardis state of health. As regards the third ground, the Court of Cassation perceived no contradiction since the intended object was to remove the applicant from Milan and to separate him from the members of the mafia who carried on their activities there without hindrance. The Court also declared the question of constitutionality raised by the applicant to be manifestly ill-founded. There again, the public prosecutor had cited the above-mentioned judgment of 15 June 1972; he had in addition referred to the administrative nature of the decision designating the locality (natura amministrativa della determinazione del luogo). 20. On 14 November 1975, Mr. Catalano made two applications to the Milan Regional Court. The first application was addressed to the President of the 2nd Criminal Chamber in his capacity of judge supervising the execution of sentences (giudice di sorveglianza). It requested him to cancel (abolire) the compulsory residence order, maintaining that if the President, or someone designated by him for the purpose, were to visit Asinara, he would be left in no doubt that the obligation to live there was contrary to the law, the legislation, justice and individual human rights. The second application invited the 2nd Chamber to substitute for Asinara a district where Mr. Guzzardi could work, not come into contact with suspects (indiziati) and live with his wife and son who had been obliged to leave the island since their permit to reside there had expired. The lawyer referred to an Order of 27 October 1975 concerning an appeal by one Ignazio Pullar; the Milan Court of Appeal had stated therein that it was for the judge supervising the execution of sentence to make an appraisal of living conditions on Asinara. The 2nd Criminal Chamber gave its decision on 20 January 1976. First of all, it affirmed that the implementation of preventive measures was a matter within the competence of the
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police authorities (pubblica sicurezza) and not of the judge supervising the execution of sentences. It added that exigencies of the protection of society justified the special form of isolation undergone by those sent to Asinara, namely individuals who were extremely dangerous. However, those exigencies necessitated neither separating those concerned from their families nor depriving them of regular employment. Accordingly, the Regional Court, whilst rejecting both applications, directed that the text of its decision be communicated to the Minister of the Interior and to the Sassari questore. 21. On 21 July 1976, the Milan questore requested the Milan Regional Court to order Mr. Guzzardis transfer to the district of Force, in the province of Ascoli Piceno, on the Italian mainland. The reason advanced was that the simultaneous presence on Asinara of the applicant and of his co-accused (coimputato), Ignazio Pullar, who was also in the process of "serving" (scontare) a compulsory residence measure, might have unfortunate repercussions on the ensuing stages of the criminal proceedings and, above all, on security on the island. The Regional Court (vacation Chamber) gave a decision to that effect, and for the same reasons, on the following day; it specified that the remainder of its decision of 30 January 1975 (see paragraph 12 above) was to continue in force. 22. Mr. Guzzardi had to remain at Force until 8 February 1978, on which date the threeyear period fixed by the last-mentioned decision expired.

B. The alleged breach of Article 5 par. 1 (art. 5-1) 89. Article 5 par. 1 (art. 5-1) of the Convention reads: "Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a) the lawful detention of a person after conviction by a competent court; (b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law; (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; (d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority; (e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants; (f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition."

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1. The existence of a deprivation of liberty in the present case 90. The Commission was of the view that on Asinara the applicant suffered a deprivation of liberty within the meaning of the Article (art. 5); it attached particular significance to the extremely small size of the area where he was confined, the almost permanent supervision to which he was subject, the all but complete impossibility for him to make social contacts and the length of his enforced stay at Cala Reale (see paragraphs 94-99 of the report). 91. The Government disputed the correctness of this analysis. They reasoned as follows. The factors listed above were not sufficient to render the situation of persons in compulsory residence on the island comparable to the situation of prisoners as laid down by Italian law; there existed a whole series of fundamental differences that the Commission had wrongly overlooked. The distinguishing characteristic of freedom was less the amount of space available than the manner in which it could be utilised; a good many districts in Italy and elsewhere were less than 2.5 sq. km. in area. The applicant was able to leave and return to his dwelling as he wished between the hours of 7 a.m. and 10 p.m. His wife and son lived with him for fourteen of the some sixteen months he spent on Asinara; the inviolability of his home and of the intimacy of his family life, two rights that the Convention guaranteed solely to free people, were respected. Even as regards his social relations, he was treated much more favourably than someone in penal detention: he was at liberty to meet, within the boundaries of Cala Reale, the members of the small community of free people - about two hundred individuals - living on the island, notably at Cala dOliva; to go to Sardinia or the mainland if so authorised; to correspond by letter or telegram without any control; to use the telephone, subject to notifying the carabiniere of the name and number of his correspondent. The supervision of which he complained constituted the raison dtre of the measure ordered in his respect. Finally, the fact that more than sixteen months elapsed before his transfer to Force was of itself of no relevance (see paragraph 7 of the memorial of December 1979 and the oral pleadings of 29 January 1980). 92. The Court recalls that in proclaiming the "right to liberty", paragraph 1 of Article 5 (art. 5-1) is contemplating the physical liberty of the person; its aim is to ensure that no one should be dispossessed of this liberty in an arbitrary fashion. As was pointed out by those appearing before the Court, the paragraph is not concerned with mere restrictions on liberty of movement; such restrictions are governed by Article 2 of Protocol No. 4 (P4-2) which has not been ratified by Italy. In order to determine whether someone has been "deprived of his liberty" within the meaning of Article 5 (art. 5), the starting point must be his concrete situation and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question (see the Engel and others judgment of 8 June 1976, Series A no. 22, p. 24, par. 58-59). 93. The difference between deprivation of and restriction upon liberty is nonetheless merely one of degree or intensity, and not one of nature or substance. Although the process of classification into one or other of these categories sometimes proves to be no easy task in that some borderline cases are a matter of pure opinion, the Court cannot avoid making the selection upon which the applicability or inapplicability of Article 5 (art. 5) depends. 94. As provided for under the 1956 Act (see paragraphs 48-49 above), special supervision accompanied by an order for compulsory residence in a specified district does not of itself come within the scope of Article 5 (art. 5). The Commission acknowledged this: it focused its attention on Mr. Guzzardis "actual position" at Cala Reale (see paragraphs 5, 94, 99, etc. of the report) and pointed out that on 5 October 1977 it had declared inadmissible application no. 7960/77 lodged by the same individual with regard to his living conditions at Force (see paragraph 93 of the report and paragraph 56 above).
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It does not follow that "deprivation of liberty" may never result from the manner of implementation of such a measure, and in the present case the manner of implementation is the sole issue that falls to be considered (see paragraph 88 above). 95. The Governments reasoning (see paragraph 91 above) is not without weight. It demonstrates very clearly the extent of the difference between the applicants treatment on Asinara and classic detention in prison or strict arrest imposed on a serviceman (see the above-mentioned Engel and others judgment, p. 26, par. 63). Deprivation of liberty may, however, take numerous other forms. Their variety is being increased by developments in legal standards and in attitudes; and the Convention is to be interpreted in the light of the notions currently prevailing in democratic States (see notably the Tyrer judgment of 25 April 1978, Series A no. 26, pp. 15-16, par. 31). Whilst the area around which the applicant could move far exceeded the dimensions of a cell and was not bounded by any physical barrier, it covered no more than a tiny fraction of an island to which access was difficult and about nine-tenths of which was occupied by a prison. Mr. Guzzardi was housed in part of the hamlet of Cala Reale which consisted mainly of the buildings of a former medical establishment which were in a state of disrepair or even dilapidation, a carabinieri station, a school and a chapel. He lived there principally in the company of other persons subjected to the same measure and of policemen. The permanent population of Asinara resided almost entirely at Cala dOliva, which Mr. Guzzardi could not visit, and would appear to have made hardly any use of its right to go to Cala Reale. Consequently, there were few opportunities for social contacts available to the applicant other than with his near family, his fellow "residents" and the supervisory staff. Supervision was carried out strictly and on an almost constant basis. Thus, Mr. Guzzardi was not able to leave his dwelling between 10 p.m. and 7 a.m. without giving prior notification to the authorities in due time. He had to report to the authorities twice a day and inform them of the name and number of his correspondent whenever he wished to use the telephone. He needed the consent of the authorities for each of his trips to Sardinia or the mainland, trips which were rare and, understandably, made under the strict supervision of the carabinieri. He was liable to punishment by "arrest" if he failed to comply with any of his obligations. Finally, more than sixteen months elapsed between his arrival at Cala Reale and his departure for Force (see paragraphs 11, 12, 21, 23-42 and 51 above). It is admittedly not possible to speak of "deprivation of liberty" on the strength of any one of these factors taken individually, but cumulatively and in combination they certainly raise an issue of categorisation from the viewpoint of Article 5 (art. 5). In certain respects the treatment complained of resembles detention in an "open prison" or committal to a disciplinary unit (see the above-mentioned Engel and others judgment, p. 26, par. 64). On 20 January 1976, the Milan Regional Court had let it be understood that it did not regard that treatment as satisfactory. The administrative authorities also had some misgivings for they investigated the possibility of taking remedial measures; since they did not pursue the matter in the face of the expense involved and the time needed, the Ministry of the Interior decided in August 1977 to strike Asinara out of the list of places for compulsory residence (see paragraphs 20 and 43 above). Two telegrams from the Ministry to the Milan Chief of Police, dated 19 and 23 August 1977 and concerning one Alberti Gerlando, establish that this decision was not unconnected with application no 7367/76 even though Mr. Guzzardi had already left Cala Reale; the Government appended these telegrams to their memorial of May 1980. Several items of the documentary evidence filed thus show that the island was not suitable for a normal application of the 1956 and 1965 Acts. This was eventually recognised by the Italian State.
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The Court considers on balance that the present case is to be regarded as one involving deprivation of liberty. 2. The compatibility of the deprivation of liberty found in the present case with paragraph 1 of Article 5 (art. 5-1) 96. It remains to be determined whether the situation was one of those, exhaustively listed in Article 5 par. 1 (art. 5-1) of the Convention (see the Winterwerp judgment of 24 October 1979, Series A no. 33, p. 16, par. 37), in which the Contracting States reserve the right to arrest or detain individuals. (a) Sub-paragraph (e) of Article 5 par. 1 (art. 5-1-e) (pleaded by the Government) 97. The Government relied, in the alternative, on sub-paragraph (e) of Article 5 par. 1 (art. 5-1-e), maintaining that mafiosi like the applicant were "vagrants" and "something else besides" (see paragraph 8 of the memorial of December 1979 and the oral pleadings of 29 January 1980). In paragraph 1 of section 1, the 1956 Act refers to "idlers and habitual vagrants who are fit for work", a phrase clarified by the Constitutional Court in its judgment no. 23 of 23 March 1964. In the Governments opinion, the imposition on a "vagrant" of preventive measures restricting, or even depriving him of, his liberty was justified, under the Convention and Italian law, not so much by his lack of a fixed abode as by the absence of any apparent occupational activity ("attivit lavorativa palese") and, hence, the impossibility of identifying the source of his means of subsistence. The existence of this danger factor, the Government continued, was recognised by the Milan Regional Court in its decision of 30 January 1975 (see paragraph 12 above); in addition and above all, that Court took notice of the far more serious risk stemming from the applicants links with mafia associations which engaged in kidnapping with a view to extracting ransoms. According to the Government, provision could not be made in an international instrument for the typically Italian phenomenon of the mafia, yet it would be an absurd conclusion to regard Article 5 par. 1 (e) (art. 5-1-e) as allowing vagrants but not presumed mafiosi to be deprived of their liberty. 98. The Court concurs with the Commissions contrary view (see paragraph 104 of the report and the oral pleadings of 29 January 1980). There was no reference to paragraph 1 of section 1 of the 1956 Act in either the report of 23 November 1974 of the Milan Chief of Police or the State prosecutors application of 14 January 1975 or the Regional Courts decision of 30 January 1975 (see paragraph 12 above) or the Court of Appeals judgment of 12 March 1975. These authorities relied on the 1956 Act solely in combination with the 1965 Act which concerns individuals whom there are strong reasons to suspect of belonging to mafia-type associations (see paragraph 52 above). What is more, they in no way described or depicted Mr. Guzzardi as a vagrant. Admittedly, they noted, in passing, that there were serious doubts as to whether he really worked as a mason as he claimed, but they laid much greater stress on his record, his illegal activities, his contacts with habitual criminals and still more his links with the mafia. The Chief of Police even said that no state of poverty, idleness or vagrancy furnished an explanation for this criminal conduct ("manifestazioni criminose che non hanno una causa giustificativa in uno stato di indigenza ovvero di ozio o di vagabondaggio"). Besides, the applicants way of life at the time, as disclosed by the documentary evidence filed, is in no way consonant with the ordinary meaning of the word "vagrant", this being the meaning that has to be utilised for Convention purposes (see the above mentioned De Wilde, Ooms and Versyp judgment, p. 37, par. 68; cf., for the phrase "persons of unsound mind", the above-mentioned Winterwerp judgment, p. 17, par. 38). Although they denied it, the
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Government were in essence reasoning a fortiori; at the hearing of 9 February 1978 before the Commission, their Agent described Mr. Guzzardi as "a vagrant in the wide sense of the term", "a monied vagrant" (see p. 61 of the verbatim record: "vagabondo nel senso largo dellespressione"; "vagabondo ricco"). However, the exceptions permitted by Article 5 par. 1 (art. 5-1) call for a narrow interpretation (see the above-mentioned Winterwerp judgment, p. 16, par. 37). The Governments argument is open to a further objection. In addition to vagrants, subparagraph (e) (art. 5-1-e) refers to persons of unsound mind, alcoholics and drug addicts. The reason why the Convention allows the latter individuals, all of whom are socially maladjusted, to be deprived of their liberty is not only that they have to be considered as occasionally dangerous for public safety but also that their own interests may necessitate their detention. One cannot therefore deduce from the fact that Article 5 (art. 5) authorises the detention of vagrants that the same or even stronger reasons apply to anyone who may be regarded as still more dangerous. (b) Other sub-paragraphs of Article 5 par. 1 (art. 5-1) (not pleaded by the Government) 99. The Court has also examined the matter under the other sub- paragraphs of Article 5 par. 1 (art. 5-1), which were not pleaded by the Government. 100. On a true analysis, the order for Mr. Guzzardis compulsory residence was not a punishment for a specific offence but a preventive measure taken on the strength of indications of a propensity to crime (see paragraphs 9 and 12 above). According to the Commission, it must follow from this that, for the purpose of sub-paragraph (a) (art. 5-1-a), the measure did not constitute detention "after conviction by a competent court" (see paragraph 102 of the report). In the Courts opinion, comparison of Article 5 par. 1 (a) (art. 5-1-a) with Articles 6 par. 2 and 7 par. 1 (art. 6-2, art. 7-1) shows that for Convention purposes there cannot be a "condamnation" (in the English text: "conviction") unless it has been established in accordance with the law that there has been an offence - either criminal or, if appropriate, disciplinary (see the above-mentioned Engel and others judgment, p. 27, par. 68). Moreover, to use "conviction" for a preventive or security measure would be consonant neither with the principle of narrow interpretation to be observed in this area (see paragraph 98 above) nor with the fact that that word implies a finding of guilt. The Court thus reaches the same conclusion as the Commission. 101. The deprivation of liberty complained of was not covered by sub-paragraph (b) (art. 5-1-b) either. Admittedly, under the procedure laid down by the 1956 Act judicial decisions are a kind of sanction for failure to heed a prior warning (diffida), but the warning is not indispensable if, as in the present case, recourse is had to the 1965 Act; moreover, the warning is issued by the Chief of Police and so does not constitute an "order of a court" (see paragraphs 46 and 52 above). As regards the words "to secure the fulfilment of any obligation prescribed by law", they concern only those cases where the law permits the detention of a person to compel him to fulfil a "specific and concrete" obligation which he has failed to satisfy (see the abovementioned Engel and others judgment, p. 28, par. 69). However, as the Commission rightly emphasised, the 1956 and 1965 Acts impose general obligations (see paragraph 103 of the report).
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102. Neither was the applicant in one of the situations dealt with by sub-paragraph (c) (art. 5-1-c). It is true that there was "reasonable suspicion of [his] having committed an offence" and that he remained subject to charges throughout the time he spent on Asinara, but the decisions of the Regional Court (30 January 1975), the Court of Appeal (12 March 1975) and the Court of Cassation (6 October 1975) had no connection in law with the investigation being pursued in his respect: they were based on the 1956 and 1965 Acts which are applicable irrespective of whether or not there has been a charge and do not prescribe any subsequent appearance "before the competent legal authority" (see paragraphs 9, 11, 12, 17, 19, 21 and 45-52 above). Mr. Guzzardis detention on remand had terminated on 8 February 1975, on the expiry of the two years time-limit laid down by Article 272 (first paragraph, item 2) of the Code of Criminal Procedure (see paragraph 10 above). If - as the applicant insinuated but did not prove (see paragraph 73 in fine of the report) - the said Acts had been utilised in order to prolong the detention, it would not in that case have been "lawful"; whilst the French text of sub-paragraph (c), (art. 5-1-c) unlike that of sub-paragraphs (a), (b), (d), (e) and (f) (art. 5-1-a, art. 5-1-b, art. 5-1-d, art. 5-1-e, art. 5-1-f), does not contain the equivalent word "rgulire", the English version does speak of "lawful" detention and the principle expressed by this adjective dominates the whole of Article 5 par. 1 (art. 5-1) (see the above-mentioned Winterwerp judgment, pp. 17-18, par. 39-40). In addition, problems might have arisen in connection with paragraph 3 of Article 5 (art. 5-3), which has to be read together with paragraph 1 (c) (art. 5-1-c) (see the above-mentioned Ireland v. the United Kingdom judgment, p. 75, par. 199), and even with Article 18 (art. 18). At first sight, a more likely hypothesis is that the measure complained of was taken because it was "reasonably considered necessary to prevent [Mr. Guzzardis] committing an offence" or, at the outside, "fleeing after having done so". However, in that case as well a question would arise as to the measures "lawfulness" since, solely on the basis of the 1956 and 1965 Acts, an order for compulsory residence as such, leaving aside the manner of its implementation, does not constitute deprivation of liberty (see paragraph 94 above). It would also be necessary to consider whether the requirements of paragraph 3 of Article 5 (art. 5-3) had been observed (see the Lawless judgment of 1 July 1961, Series A no. 3, pp. 51-53, par. 13-14). In any event, the phrase under examination is not adapted to a policy of general prevention directed against an individual or a category of individuals who, like mafiosi, present a danger on account of their continuing propensity to crime; it does no more than afford the Contracting States a means of preventing a concrete and specific offence. This can be seen both from the use of the singular ("an offence", "celle-ci" in the French text; see the Matznetter judgment of 10 November 1969, Series A no. 10, pp. 40 and 43, separate opinions of Mr. Balladore Pallieri and Mr. Zekia) and from the object of Article 5 (art. 5), namely to ensure that no one should be dispossessed of his liberty in an arbitrary fashion (see the abovementioned Winterwerp judgment, p. 16, par. 37). 103. Finally, sub-paragraphs (d) and (f) of Article 5 par. 1 (art. 5-1-d, art. 5-1-f) are obviously not relevant. (c) Conclusion 104. To sum up, from 8 February 1975 to 22 July 1976 the applicant was the victim of a breach of Article 5 par. 1 (art. 5-1).

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FOR THESE REASONS, THE COURT 1. Rejects by sixteen votes to two the plea based by the Government on the ex officio examination of the case under Articles 5 and 6 (art. 5, art. 6); 2. Rejects by ten votes to eight the Governments objection that domestic remedies have not been exhausted; 3. Rejects by fifteen votes to three the Governments plea as to the disappearance of the object of the proceedings; 4. Holds by eleven votes to seven that there was in the instant case deprivation of liberty within the meaning of Article 5 (art. 5) of the Convention; 5. Holds unanimously that the said deprivation of liberty was not justified under subparagraph (e) of Article 5 par. 1 (art. 5-1-e) or under sub-paragraph (b) (art. 5-1-b); 6. Holds by sixteen votes to two that the said deprivation of liberty was also not justified under sub-paragraph (a) (art. 5-1-a); 7. Holds by twelve votes to six that the said deprivation of liberty was not justified under subparagraph (c) (art. 5-1-c) either; 8. Holds, to sum up, by ten votes to eight, that from 8 February 1975 to 22 July 1976 the applicant was the victim of a breach of Article 5 par. 1 (art. 5-1); 9. Holds unanimously that in the instant case there was no breach of Articles 3, 6 or 9 (art. 3, art. 6, art. 9); 10. Holds by seventeen votes to one that there was also no breach of Article 8 (art. 8); 11. Holds by twelve votes to six that the Italian Republic is to pay to the applicant under Article 50 (art. 50) a sum of one million (1,000,000) Lire. Done in English and in French, the French text being authentic, at the Human Rights Building, Strasbourg, this sixth day of November, one thousand nine hundred and eighty. DISSENTING OPINION OF THE PRESIDENT, Mr. BALLADORE PALLIERI (Translation) I share the Courts opinion that "as provided for under the 1956 Act ..., special supervision accompanied by an order for compulsory residence in a specified district does not of itself come within the scope" of our Article 5 (art. 5) (see paragraph 94 of the judgment). I also agree with the Courts view that, for the purposes of exhaustion of domestic remedies, it is not necessary for the applicant to have pleaded before the national courts the Article of our Convention or perhaps even the corresponding domestic rules, such as the first and second paragraphs of Article 13 of the Italian Constitution which read:
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"Personal liberty shall be inviolable. No form of personal detention, inspection or search and no other restriction on personal liberty shall be permitted unless it is effected pursuant to a reasoned direction of the judicial authorities and save in the cases and forms prescribed by law." However, in my view, it should at least be required that the applicant has complained of conduct on the part of the State that is contrary to the content of these Articles. In addition, once more in my opinion and contrary to that of the Court, account can be taken in this connection solely of the requests which the applicant addressed to the national courts. It is only by comparing the content of those requests with the content of the Articles in question that one can decide whether the applicants intention was to complain of an infringement of the freedoms provided for in those Articles. To this end, it is not possible to rely, as the Court did, on mere sentences spoken or written in the course of the domestic proceedings. If Mr. Guzzardis request to the national courts are examined, it can be seen at once that they sought first and foremost revocation of the compulsory residence order: that was his principal request, even before the Court of Appeal. They thus bore on an issue that has no connection with the issue facing our Court which, as we have said previously, is not concerned with the lawfulness in abstracto of the Italian Act of 1956. It is true that the applicant also complained, as regards his actual treatment on Asinara, of his inability to obtain on the island medical treatment required by his state of health and to live together with his family without hindrance. Here again, however, this is a matter of other freedoms and other rights which have no connection with Article 5 (art. 5) of the Convention, this being the only Article in respect of which the question of exhaustion of domestic remedies arises. Finally, it is also true that the applicant asserted that he was physically and mentally a prisoner on Asinara and was vegetating there in conditions worse than those of his detention on remand and that he described Cala Reale as a "veritable concentration camp". However, we can find an explanation of what he meant by these remarks in his appeal to the Court of Cassation: in that appeal he relied not on the first and second paragraphs of Article 13 of the Italian Constitution, which relate to the protection of individual liberty against any measure involving detention, but on the fourth paragraph which stipulates: "The infliction of any physical or mental violence on persons subjected to any form of restriction on their liberty shall be a punishable offence." Besides, confirmation that the applicant never had it in mind to complain of limitation of his liberty, within the meaning of the first two paragraphs of Article 13 of the Italian Constitution and Article 5 (art. 5) of our Convention, is to be found in the fact that he did not rely on Article 5 (art. 5) in his application to the Commission and that a complaint by him to that effect had to be entirely constructed by the Commission of its own motion. Even if one were to accept the possibility of the new criterion of interpretation referred to by the Court, namely the "flexible" interpretation, I do not see how it could be applied to that fundamental right of the State which is safeguarded by prior exhaustion of domestic remedies. In any event, the interpretation should have been effected on the basis of objective data and not of a mere hunt for intentions. Finally, account should be taken of the fact that when Mr. Guzzardi made two further applications to the Milan Regional Court on 14 November 1975 - applications that did actually concern the issue raised before us - he obtained a transfer elsewhere and the camp on Asinara was eventually closed.

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Hornsby v Greece(ECtHR) Hornsby v Greece App No 18357/97 (ECtHR, 19 March 1997)

CONSEIL DE LEUROPE

COUNCIL OF EUROPE

COUR EUROPENNE DES DROITS DE LHOMME EUROPEAN COURT OF HUMAN RIGHTS

COURT (CHAMBER)

CASE OF HORNSBY v. GREECE (Application no. 18357/91)

JUDGMENT

STRASBOURG 19 March 1997

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AS TO THE FACTS

I. CIRCUMSTANCES OF THE CASE

A. The applications for authorisation to open a private language school 6. Mr David Hornsby and his wife Mrs Ada Ann Hornsby were born in the United Kingdom in 1937 and 1939 respectively. They are graduate teachers of English and live on the island of Rhodes. 7. On 17 January 1984 the second applicant applied to the Ministry of Education in Athens for authorisation to establish in Rhodes a private school (frontistirion) for the teaching of English (see paragraph 29 below). On 25 January the Ministry refused the application on the ground that only Greek nationals could be granted such authorisation by the provincial secondary education authorities. 8. On 12 March 1984 Mrs Hornsby tried to deliver a second application in person at the offices of the Dodecanese Secondary Education Authority, but the responsible civil servant refused to acknowledge receipt. After a complaint had been lodged by Mrs Hornsbys lawyer, the authority informed her on 5 June 1984 that under the Greek legislation in force foreign nationals could not obtain authorisation to open a frontistirion. 9. Mrs Hornsby, considering that making nationality a condition for authorisation to establish a frontistirion contravened the Treaty of Rome of 25 March 1957, applied to the Commission of the European Communities, which referred the case to the Court of Justice of the European Communities. In a judgment of 15 March 1988 (no. 147/86, Commission of the European Communities v. the Hellenic Republic), the Court of Justice held that "by prohibiting nationals of other member States from setting up frontistiria the Hellenic Republic [had] failed to fulfil its obligations under Articles 52 and 59 of the EEC Treaty". 10. On 1 April 1988 Mrs Hornsby made a further application to the Dodecanese Secondary Education Authority and on the same day Mr Hornsby separately sent the authority a similar application. On 12 April 1988 the authority refused both applications for the same reasons as it had given in its reply of 5 June 1984 (see paragraph 8 above). 11. On 15 September 1988 the Director of Secondary Education for the Dodecanese province informed the applicants that the question of granting non-Greeks authorisation to open a frontistirion was being reviewed by the competent authorities.

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12. In a letter of 23 November 1988 the applicants requested the Prime Minister to take the necessary steps to ensure compliance with the judgment given by the Court of Justice on 15 March 1988 (see paragraph 9 above). B. The proceedings in the Supreme Administrative Court 13. On 8 June 1988 each of the applicants had lodged with the Supreme Administrative Court an application to set aside the decisions of the Dodecanese Director of Secondary Education (see paragraph 10 above). By two judgments of 9 and 10 May 1989 (nos. 1337/1989 and 1361/1989), the Supreme Administrative Court set the decisions aside in the following, identical terms: "... This application seeks annulment of the Dodecanese Director of Secondary Educations decision ... of 12 April 1988 rejecting the request of the applicant, a British national, for authorisation to set up a frontistirion for foreign-language teaching in Rhodes. Section 68 (1) of Law no. 2545/1940 ... provides: Authorisation to set up a frontistirion shall be granted to natural persons possessing the qualifications required for employment as a teacher in a primary or secondary school in the public system, or having equivalent academic qualifications. In addition, Article 18 para. 1 of the Civil Servants Code - Article 2 para. 3 of which also applies to secondary and primary teachers - provides: No one shall be appointed to a civil service post who does not have Greek nationality. It appears from these provisions that it is against the law for a non-Greek to be given authorisation to set up a frontistirion for the teaching of foreign languages. Article 52 of the Treaty of 25 March 1957 instituting the EEC ... proclaims freedom of establishment for the nationals of a member State within the territory of another member State, prohibiting all discrimination on the ground of nationality as regards the right to take up activities as self-employed persons and to set up and run businesses. That provision ... has been directly applicable in Greek law since 1 January 1981, when the Treaty came into force, without it being necessary to amend Greek legislation beforehand to bring it into line with Community law. The above-mentioned bar preventing non-Greeks from being granted authorisation to set up a frontistirion for the purpose of teaching foreign languages, in so far as it concerns the nationals of the other member States of the European Communities, is contrary to Article 52 of the Treaty (judgment no. 147/86 of the Court of Justice of the European Communities, 15 March 1988, Commission v. the Hellenic Republic), since it has been without legal force, regard being had to the foregoing considerations, since 1 January 1981. Consequently, the impugned decision rejecting the applicants request - based on the erroneous premiss that the bar complained of continues to apply to all nonGreeks, without any distinction between the nationals of other member States of the European Communities and the nationals of non-member States - is unlawful and must therefore be set aside.

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The application under consideration must accordingly be allowed. For these reasons ... The Supreme Administrative Court sets aside the Rhodes Director of Secondary Educations decision ... of 12 April 1988. ..." 14. On 3 July 1989 two associations of frontistirion owners and three owners of such establishments in Rhodes lodged a third-party appeal (tritanakopi) against judgments nos. 1337/1989 and 1361/1989 with the Supreme Administrative Court. This appeal was dismissed by the Supreme Administrative Court on 25 April 1991. 15. On 8 August 1989 the applicants lodged two further applications for authorization with the Dodecanese Secondary Education Authority, enclosing the judgments of the Supreme Administrative Court and emphasising that no further delay in granting authorisation could be justified. However, they received no reply. On 27 February 1990 the applicants lawyer again applied to the authority. C. The proceedings in the Rhodes Criminal Court 16. On 28 March 1990 the applicants brought a private prosecution in the Rhodes Criminal Court against the Dodecanese Director of Secondary Education and any other civil servant responsible, relying on Article 259 of the Criminal Code (see paragraph 24 below). On 22 October 1993 the Criminal Court gave judgment against the applicants, holding that even supposing the director had been acting unlawfully when he refused authorisation, the intent required by Article 259 for the elements of the offence to be made out had not been established. D. The proceedings in the Rhodes First Instance Civil Court 17. On 14 November 1990 the applicants brought proceedings in the Rhodes First Instance Civil Court seeking compensation (Articles 914 and 932 of the Civil Code and sections 104 and 105 of the Introductory Law (Isagogikos Nomos) to the Civil Code (see paragraph 26 below)) for the prejudice they alleged had been caused them on account of the administrative authorities refusal to comply with the judgments of the Supreme Administrative Court (see paragraph 13 above). Mr and Mrs Hornsby claimed 30,025,200 and 41,109,200 drachmas (GRD)

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respectively for pecuniary damage and loss of income, and GRD 100,000,000 for non-pecuniary damage. 18. On 30 January 1992 the Rhodes First Instance Civil Court declared the application inadmissible (judgment no. 32/1992) on the ground that the dispute submitted to it came within the jurisdiction of the administrative courts. E. The proceedings in the Rhodes Administrative Court 19. On 3 July 1992 the applicants brought an action for damages against the State in the Rhodes Administrative Court. They relied, inter alia, on Article 914 of the Civil Code and section 105 of the Introductory Law to the Civil Code. In addition, they argued that the compensation should cover not only the pecuniary and non-pecuniary damage they had already sustained but also the damage they would continue to sustain until the administrative authorities granted them the authorisation they sought. On 15 December 1995, in judgment no. 346/1995, the Administrative Court accepted that the administrative authorities had unlawfully refused to process Mrs Hornsbys application for authorisation of 12 March 1984 (see paragraph 8 above) and that after publication of the judgments of the Court of Justice and the Supreme Administrative Court (see paragraphs 9 and 13 above) they had failed to comply with them. However, considering that the applicants had not sufficiently proved the damage they claimed to have sustained, it ordered further investigative measures. F. The applications to the Minister of Education 20. On 20 April 1990 the applicants asked the Minister of Education to intervene. They applied to him again on 14 January and 29 July 1991 and to the Minister responsible for managing Cabinet business on 25 October 1991. 21. On 14 January 1993 the Dodecanese Director of Secondary Education informed the applicants that he had written to the Minister of Education to ask if he could grant the authorisation requested, in the light of the Supreme Administrative Courts judgments of 25 April 1991 (see paragraph 14 above). On 3 May 1993 he informed them that he had again written to the Minister reminding him that two years had already gone by since the above-mentioned judgments of the Supreme Administrative Court and that their application was still pending. He also referred to three previous letters to the Minister which had gone unanswered. 22. A presidential decree (no. 211/1994) published on 10 August 1994 recognised the right of nationals of member States of the European Communities to establish frontistiria in Greece (see paragraph 28 below).

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However, those who did not possess a Greek secondary school-leaving certificate had to pass an examination in Greek language and history. On 20 October 1994 the Minister of Education asked the Dodecanese Director of Secondary Education to resume consideration of the applicants request in the light of Presidential Decree no. 211/1994 and to keep the Ministry informed of further developments. On 11 November 1994 the Director sent the applicants a photocopy of the decree and urged them to take the necessary steps. On 7 February 1996 he wrote to them again expressing his surprise that they had not yet taken the examination they needed to pass in order to obtain authorisation to open a frontistirion and to teach in one. He informed them that it was illegal for them to continue working in a frontistirion (belonging to a Greek national) under the relevant new legislation and asked them to regularise their situation if they wished to avoid application of the statutory penalties. II. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 OF THE CONVENTION (art. 6-1) 38. The applicants alleged that the administrative authorities refusal to comply with the Supreme Administrative Courts judgments of 9 and 10 May 1989 had infringed their right to effective judicial protection of their civil rights. They relied on Article 6 para. 1 of the Convention (art. 6-1), which provides: "In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law ..." 39. The Government did not deny that the proceedings in the Supreme Administrative Court concerned the applicants civil rights within the meaning of Article 6 (art. 6). They submitted that the Supreme Administrative Court had ruled on those rights in full compliance with the requirements of that Article (art. 6) and had given two judgments in the applicants favour, the content of which was not contested by the administrative authorities. However, they maintained that the applicants complaint did not fall within the scope of Article 6 (art. 6), which guaranteed only the fairness of the "trial" in the literal sense of that term, that is the proceedings conducted before the judicial authority alone. The lodging of the applicants two applications of 8 August 1989 and the administrative authorities failure to reply (see paragraph 15 above) had not created a new "dispute" (contestation in the French text) over their civil rights. The administrative authorities delay in complying with the above-mentioned judgments of the Supreme Administrative Court was an entirely different question from the judicial determination of the existence of those rights. Execution of the judgments of the Supreme Administrative Court fell within the sphere of public law and, in particular, of the relations between the judicial and administrative authorities, but could not in any circumstances be deemed to come within the ambit of Article 6 (art. 6); such a conclusion could not be deduced from either the wording of that Article (art. 6) or even the intentions of those who had drafted the Convention. Lastly, the Government contested the analogy drawn by the Commission in its report between the Van de Hurk v. the Netherlands case (judgment of 19 April 1994, Series A no. 288) and the Hornsby case. In the former case the Crowns (statutory) power partially or completely to deprive a judgment of its effect rendered the proper administration of justice nugatory. In the
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present case, however, the administrative authorities had unlawfully failed to comply with a final judicial decision and could be compelled to do so by any of the numerous remedies afforded by the Greek legal system. 40. The Court reiterates that, according to its established case-law, Article 6 para. 1 (art. 6-1) secures to everyone the right to have any claim relating to his civil rights and obligations brought before a court or tribunal; in this way it embodies the "right to a court", of which the right of access, that is the right to institute proceedings before courts in civil matters, constitutes one aspect (see the Philis v. Greece judgment of 27 August 1991, Series A no. 209, p. 20, para. 59). However, that right would be illusory if a Contracting States domestic legal system allowed a final, binding judicial decision to remain inoperative to the detriment of one party. It would be inconceivable that Article 6 para. 1 (art. 6-1) should describe in detail procedural guarantees afforded to litigants - proceedings that are fair, public and expeditious - without protecting the implementation of judicial decisions; to construe Article 6 (art. 6) as being concerned exclusively with access to a court and the conduct of proceedings would be likely to lead to situations incompatible with the principle of the rule of law which the Contracting States undertook to respect when they ratified the Convention (see, mutatis mutandis, the Golder v. the United Kingdom judgment of 21 February 1975, Series A no. 18, pp. 16-18, paras. 34-36). Execution of a judgment given by any court must therefore be regarded as an integral part of the "trial" for the purposes of Article 6 (art. 6); moreover, the Court has already accepted this principle in cases concerning the length of proceedings (see, most recently, the Di Pede v. Italy and Zappia v. Italy judgments of 26 September 1996, Reports of Judgments and Decisions 1996-IV, pp. 13831384, paras. 20-24, and pp. 1410-1411, paras. 16-20 respectively). 41. The above principles are of even greater importance in the context of administrative proceedings concerning a dispute whose outcome is decisive for a litigants civil rights. By lodging an application for judicial review with the States highest administrative court the litigant seeks not only annulment of the impugned decision but also and above all the removal of its effects. The effective protection of a party to such proceedings and the restoration of legality presuppose an obligation on the administrative authorities part to comply with a judgment of that court. The Court observes in this connection that the administrative authorities form one element of a State subject to the rule of law and their interests accordingly coincide with the need for the proper administration of justice. Where administrative authorities refuse or fail to comply, or even delay doing so, the guarantees under Article 6 (art. 6) enjoyed by a litigant during the judicial phase of the proceedings are rendered devoid of purpose. 42. The Court notes that following the judgment of the Court of Justice of the European Communities (see paragraph 9 above) the Supreme Administrative Court set aside the two decisions by which the Director of

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Secondary Education had refused the applicants - solely on the basis of their nationality - the authorisation they sought (see paragraphs 7-8 and 13 above). As a result of these judgments the applicants could then assert the right to satisfaction of their requests; in repeating them on 8 August 1989 (see paragraph 15 above) they were merely reminding the administrative authorities of their obligation to take a decision consistent with the legal rules whose breach had led to the setting aside of the impugned decisions. Nevertheless, the authorities did not reply until 20 October 1994 (see paragraph 22 above). Admittedly, the applicants could have made a further application for judicial review of this implied refusal under sections 45 and 46 of Presidential Decree no. 18/1989 (see paragraph 27 above), but in the circumstances of the case the Court considers that they could not reasonably expect such a remedy to bring them the result they sought (see paragraph 37 above). 43. The Court understands the national authorities concern to regulate, after the abovementioned judgments of the Supreme Administrative Court, the setting up and operation of frontistiria in a manner which was compatible with the countrys international obligations and at the same time calculated to ensure the quality of the instruction provided. Moreover, it is right and proper that the authorities should have a reasonable time to choose the most suitable means to give effect to the judgments concerned. 44. However, from 15 March 1988, when the Court of Justice of the European Communities gave judgment (see paragraph 9 above), and in any event from 9 and 10 May 1989, when the Supreme Administrative Court gave its ruling on the applicants case (see paragraph 13 above), until the adoption of Presidential Decree no. 211/1994 on 10 August 1994 the Greek legislation in force laid down no particular condition for nationals of European Community member States who wished to open a frontistirion in Greece apart from the condition imposed on Greek nationals also, namely possession of a university degree, which the applicants satisfied (see paragraphs 6 and 29 above). Furthermore, it does not appear that the applicants have given up their objective of opening a frontistirion; when they applied on 3 July 1992 to the Rhodes Administrative Court they sought compensation not only for the damage they alleged they had sustained but also for the damage they would continue to sustain up to the date on which the administrative authorities granted them the authorisation requested (see paragraph 19 above). 45. By refraining for more than five years from taking the necessary measures to comply with a final, enforceable judicial decision in the present case the Greek authorities deprived the provisions of Article 6 para. 1 of the Convention (art. 6-1) of all useful effect. There has accordingly been a breach of that Article (art. 6-1).

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FOR THESE REASONS, THE COURT 1.Dismisses by eight votes to one the Governments preliminary objections. 2. Holds by seven votes to two that Article 6 para. 1 of the Convention (art. 6-1) is applicable in the case and has been breached; 3. Holds unanimously that the question of the application of Article 50 of the Convention (art. 50) is not ready for decision; accordingly (a) reserves it; (b) invites the Government and the applicants to submit their observations on the said question within the forthcoming three months, and in particular to inform it of any agreement they might reach; (c) reserves the further procedure and delegates to the President of the Chamber power to fix the same if need be

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158

Ireland v United Kingdom (ECtHR) Ireland v United Kingdom App No 5310/71 (ECtHR, 18 January 1981)

COURT (PLENARY)

CASE OF IRELAND v. THE UNITED KINGDOM

(Application no. 5310/71)

JUDGMENT

STRASBOURG 18 January 197

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C. Questions concerning the merits 162. As was emphasised by the Commission, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 (art. 3). The assessment of this minimum is, in the nature of things, relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim, etc. 163. The Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment, irrespective of the victims conduct. Unlike most of the substantive clauses of the Convention and of Protocols Nos. 1 and 4 (P1, P4), Article 3 (art. 3) makes no provision for exceptions and, under Article 15 para. 2 (art. 15-2), there can be no derogation therefrom even in the event of a public emergency threatening the life of the nation. 164. In the instant case, the only relevant concepts are "torture" and "inhuman or degrading treatment", to the exclusion of "inhuman or degrading punishment". 1. The unidentified interrogation centre or centres (a) The "five techniques" 165. The facts concerning the five techniques are summarised at paragraphs 96-104 and 106107 above. In the Commissions estimation, those facts constituted a practice not only of inhuman and degrading treatment but also of torture. The applicant Government asks for confirmation of this opinion which is not contested before the Court by the respondent Government. 166. The police used the five techniques on fourteen persons in 1971 that is on twelve including T 6 and T 13, in August before the Compton Committee was set up, and on two in October whilst that Committee was carrying out its enquiry. Although never authorised in writing in any official document, the five techniques were taught orally by the English Intelligence Centre to members of the RUC at a seminar held in April 1971. There was accordingly a practice. 167. The five techniques were applied in combination, with premeditation and for hours at a stretch; they caused, if not actual bodily injury, at least intense physical and mental suffering to the persons subjected thereto and also led to acute psychiatric disturbances during interrogation. They accordingly fell into the category of inhuman treatment within the meaning of Article 3 (art. 3). The techniques were also degrading since they were such as to arouse in their victims feelings of fear, anguish and inferiority capable of humiliating and debasing them and possibly breaking their physical or moral resistance. On these two points, the Court is of the same view as the Commission. In order to determine whether the five techniques should also be qualified as torture, the Court must have regard to the distinction, embodied in Article 3 (art. 3), between this notion and that of inhuman or degrading treatment. In the Courts view, this distinction derives principally from a difference in the intensity of the suffering inflicted. The Court considers in fact that, whilst there exists on the one hand violence which is to be condemned both on moral grounds and also in most cases under the domestic law of the
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Contracting States but which does not fall within Article 3 (art. 3) of the Convention, it appears on the other hand that it was the intention that the Convention, with its distinction between "torture" and "inhuman or degrading treatment", should by the first of these terms attach a special stigma to deliberate inhuman treatment causing very serious and cruel suffering. Moreover, this seems to be the thinking lying behind Article 1 in fine of Resolution 3452 (XXX) adopted by the General Assembly of the United Nations on 9 December 1975, which declares: "Torture constitutes an aggravated and deliberate form of cruel, inhuman or degrading treatment or punishment". Although the five techniques, as applied in combination, undoubtedly amounted to inhuman and degrading treatment, although their object was the extraction of confessions, the naming of others and/or information and although they were used systematically, they did not occasion suffering of the particular intensity and cruelty implied by the word torture as so understood. 168. The Court concludes that recourse to the five techniques amounted to a practice of inhuman and degrading treatment, which practice was in breach of Article 3 (art. 3). (b) Ill-treatment alleged to have accompanied the use of the five techniques 169. The applicant Government claim that the fourteen persons subjected to the five techniques, or some of those persons including T 6 and T 13, also had to undergo other kinds of treatment contrary to Article 3 (art. 3). The Commission has found such treatment only in the case of T 6, although it regarded it as probable that the use of the five techniques was sometimes accompanied by physical violence (see paragraph 105 above). 170. As far as T 6 is concerned, the Court shares the Commissions opinion that the security forces subjected T 6 to assaults severe enough to constitute inhuman treatment. This opinion, which is not contested by the respondent Government, is borne out by the evidence before the Court. 171. In the thirteen remaining cases examined in this context, including the contested case of T 13, the Court has no evidence to support a finding of breaches of Article 3 (art. 3) over and above that resulting from the application of the five techniques. 172. Accordingly, no other practice contrary to Article 3 (art. 3) is established for the unidentified interrogation centre or centres; the findings relating to the individual case of T 6 cannot, of themselves, amount to proof of a practice. 2. Palace Barracks 173. The Commission came to the view that inhuman treatment had occurred at Palace Barracks in September, October and November 1971 in seven of the nine "illustrative" cases it examined, namely those of T 2, T 8, T 12, T 15, T 9, T 14 and T 10. It considered that these cases, combined with other indications, showed that there had been in these Barracks, in the autumn of 1971, a practice in connection with the interrogation of prisoners by members of the RUC which was inhuman treatment. The British Government do not contest these conclusions; the Irish Government ask the Court to confirm them but also to supplement them in various respects. (a) Autumn 1971 174. Insofar as the Commission has found that a practice of inhuman treatment was followed in the autumn of 1971, for example in the cases of T 2, T 8, T 12, T 15, T 9, T 14 and T 10, the
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facts summarised above (paragraphs 110-111 and 115-116) bear out its opinion. The evidence before the Court reveals that, at the time in question, quite a large number of those held in custody at Palace Barracks were subjected to violence by members of the RUC. This violence, which was repeated violence occurring in the same place and taking similar forms, did not amount merely to isolated incidents; it definitely constituted a practice. It also led to intense suffering and to physical injury which on occasion was substantial; it thus fell into the category of inhuman treatment. According to the applicant Government, the violence in question should also be classified, in some cases, as torture. On the basis of the data before it, the Court does not share this view. Admittedly, the acts complained of often occurred during interrogation and, to this extent, were aimed at extracting confessions, the naming of others and/or information, but the severity of the suffering that they were capable of causing did not attain the particular level inherent in the notion of torture as understood by the Court (see paragraph 167 above). 175. In their memorial of 28 July 1976, the applicant Government asked the Court to hold, unlike the Commission, that T 1 and T 4 had also been victims of violations of Article 3 (art. 3) (see paragraphs 112-114 above). The delegates of the Commission argued that it would serve no purpose to add these two cases to the list since, like the other seven, they date from the autumn of 1971 and there is no longer any dispute between those appearing before the Court as to the existence during this period of a practice in breach of Article 3 (art. 3). At the hearings in February 1977, the Irish Government acknowledged the validity of this argument. They declared that the Court would not need to make a specific finding on the contested cases of T 1 and T 4 if it confirmed the Commissions non-contested conclusions. The Court takes note of this declaration. For the reasons given by the delegates, it considers that an examination of these two individual cases would be superfluous. (b) From autumn 1971 to June 1972 176. Finally, the Irish Government request the Court to hold that the practice complained of continued until June 1972 when Palace Barracks were closed down as a holding centre. In their submission, there is no proof to the contrary and there are indications that the practice did so continue. The respondent Government state, inter alia, that they do not perceive how, by relying on nothing more than inferences, the Court could on this issue reach a conclusion different from the Commissions. 177. Concurring with the submission made by the delegates of the Commission, the Court finds that, like the Commission, it lacks sufficient evidence on which to decide whether or not the practice in question continued at Palace Barracks beyond the autumn of 1971: the only two cases dating from the first six months of 1972 (T 30 and T 31) figured amongst the "41 cases" and not the "illustrative" cases (see paragraphs 93, 109 and 116 above). For the reasons explained below (paragraph 184), the Court does not consider that it has to try to obtain further evidence. It therefore restricts its findings in the same way as the Commission.

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3. Other places 178. According to the applicant Government, a practice or practices in breach of Article 3 (art. 3) existed in Northern Ireland from 1971 to 1974, for example at Girdwood Park and at Ballykinler; this allegation is denied by the respondent Government. The Commission was of the opinion that T 16 and T 7 had been victims of treatment that was both inhuman and degrading and T 11 of treatment that was inhuman: T 16 on 13 August 1971 at Girdwood Park, T 7 on 28 October 1971 in a street in Belfast and T 11 on 20 December 1971 at Albert Street Barracks, also in Belfast. However, the Commission considered that no practice in breach of Article 3 (art. 3) had been established in relation to these cases, including the general conditions at Girdwood Park (see paragraph 147 above) and, further, that the conditions of detention at Ballykinler did not disclose a violation of that Article (art. 3) (ibid.). (a) Ballykinler 179. The Court first examined the situation at the Ballykinler military camp. For this purpose, it did not have to investigate separately the individual contested case of T 3 on which the Irish Government are no longer seeking a specific finding (see paragraph 158 above). 180. The RUC, with the assistance of the army, used Ballykinler as a holding and interrogation centre for a few days early in August 1971. Some dozens of people arrested in the course of Operation Demetrius were held there in extreme discomfort and were made to perform irksome and painful exercises; eleven of those persons subsequently received compensation (see paragraphs 123-126 above). There was thus a practice rather than isolated incidents. The Court found confirmation of this in the judgment of 18 February 1972 in the Moore case. 181. The Court has to determine whether this practice violated Article 3 (art. 3). Clearly, it would not be possible to speak of torture or inhuman treatment, but the question does arise whether there was not degrading treatment. The Armagh County Court granted Mr. Moore 300 by way of damages, the maximum amount it had jurisdiction to award. This fact shows that the matters of which Mr. Moore complained were, if nothing else, contrary to the domestic law then in force in the United Kingdom. Furthermore, the way in which prisoners at Ballykinler were treated was characterised in the judgment of 18 February 1972 as not only illegal but also harsh. However, the judgment does not describe the treatment in detail; it concentrates mainly on reciting the evidence tendered by the witnesses and indicates that the judge rejected that given on behalf of the defence. The Compton Committee for its part considered that, although the exercises which detainees had been made to do involved some degree of compulsion and must have caused hardship, they were the result of lack of judgment rather than an intention to hurt or degrade. To sum up, the RUC and the army followed at Ballykinler a practice which was discreditable and reprehensible but the Court does not consider that they infringed Article 3 (art. 3). (b) Miscellaneous places 182. There remain the various other places referred to by the Irish Government (see paragraphs 119-122 and 127-132 above). The information before the Court concerning these places - for example the large number of cases in which compensation was paid by the British authorities and the many criminal or disciplinary sanctions imposed on members of the security forces (see paragraphs 140-143 above) - suggests that there must have been individual violations
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of Article 3 (art. 3) in Northern Ireland over and above the breaches already noted by the Court (see paragraphs 167, 170 and 174 above). However, the Commission did not regard this information, which it had obtained by using a method accepted by the Parties (see paragraph 93 above), as being sufficient to disclose a practice or practices in breach of Article 3 (art. 3). The Court shares this view. Admittedly, the evidence before the Court bears out the Commissions opinion on the cases of T 16, T 7 and T 11 which the respondent Government do not contest (see paragraphs 120, 128 and 129 above). However, these were incidents insufficiently numerous and inter-connected to amount to a practice, even if one were to add the contested case of T 5 (St. Genevieves School, Belfast, 13 August 1972, paragraph 130 above), on which the applicant Government are no longer seeking a specific finding (see paragraph 158 above). 183. The Irish Government stress, inter alia, that interrogations at Palace Barracks and Girdwood Park were conducted by the same members of the RUC on a rotating system (see paragraph 108 above). The Government regard it as improbable that these men observed Article 3 (art. 3) in the second of these centres when they contravened it in the first. There is some force in this argument, but it is only a presumption and so cannot be taken as conclusive on its own. 184. The Court would be empowered to obtain, if necessary proprio motu, additional evidence (Rule 38 of the Rules of Court). However, such a course would oblige the Court to select a series of further "illustrative" cases and to hear a substantial number of further witnesses, failing which it might well, as the delegates of the Commission emphasised, arrive at extremely tenuous conclusions. It is not essential to re-open the investigation in this way in the present case. Indeed, the preventive measures taken by the United Kingdom (see paragraphs 133-136 above) at first sight render hardly plausible, especially as regards the period after the introduction of direct rule (30 March 1972), if not the suggestion of individual violations of Article 3 (art. 3) - on which the Court does not have to give a specific ruling (see paragraph 157 above), at least the suggestion of the continuation or commencement of a practice or practices in breach of that Article (art. 3). Furthermore, anyone claiming to be the victim of a breach of Article 3 (art. 3) in Northern Ireland is entitled to exercise the domestic remedies open to him (Article 26 the Convention) (art. 26) and subsequently, if need be, to apply to the Commission whose competence to receive "individual" petitions has been recognised by the United Kingdom (Article 25) (art. 25); this in fact often happened. Finally, the findings made in connection with the five techniques and Palace Barracks, henceforth embodied in a binding judgment of the Court, provide a far from negligible guarantee against a return to the serious errors of former times. In these circumstances, the interests protected by the Convention do not compel the Court to undertake lengthy researches that would delay the Courts decision. 185. In conclusion, the Court does not find, as regards the places concerned, any practice in breach of Article 3 (art. 3). 4. The Irish request for a consequential order 186. In a letter dated 5 January 1977, the applicant Government requested the Court to order that the respondent Government - refrain from reintroducing the five techniques, as a method of interrogation or otherwise; - proceed as appropriate, under the criminal law of the United Kingdom and the relevant disciplinary code, against those members of the security forces who have committed acts in

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breach of Article 3 (art. 3) referred to in the Commissions findings and conclusions, and against those who condoned or tolerated them. At the hearings, the applicant Government withdrew the first request following the solemn undertaking given on behalf of the United Kingdom Government on 8 February 1977 (see paragraph 153 above); on the other hand, the second request was maintained. 187. The Court does not have to consider in these proceedings whether its functions extend, in certain circumstances, to addressing consequential orders to Contracting States. In the present case, the Court finds that the sanctions available to it do not include the power to direct one of those States to institute criminal or disciplinary proceedings in accordance with its domestic law. B. On Article 5 taken together with Article 15 (art. 15+5) 202. The applicant Government maintain that the powers relating to extrajudicial deprivation of liberty which were applied in Northern Ireland from 9 August 1971 to March 1975 were not in complete conformity with Article 15 (art. 15) and, accordingly, violated Article 5 (art. 5). The Commission is unanimous in not accepting this claim and it is disputed by the respondent Government. 203. Article 15 (art. 15) provides: "1. In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law. 2. No derogation from Article 2 (art. 2), except in respect of deaths resulting from lawful acts of war, or from Articles 3, 4 (paragraph 1) and 7 (art. 3, art. 4-1, art. 7) shall be made under this provision. 3. Any High Contracting Party availing itself of this right of derogation shall keep the Secretary-General of the Council of Europe fully informed of the measures which it has taken and the reasons therefore. It shall also inform the Secretary-General of the Council of Europe when such measures have ceased to operate and the provisions of the Convention are again being fully executed." 204. Article 5 (art. 5) does not appear amongst the entrenched provisions listed in paragraph 2 of Article 15 (art. 15-2) and is therefore one of the Articles subject to the "right of derogation" reserved by the Contracting States, the exercise of which is regulated by paragraphs 1 and 3 (art. 15-1, art. 15-3). 1. On the "public emergency threatening the life of the nation" 205. Article 15 (art. 15) comes into play only "in time of war or other public emergency threatening the life of the nation". The existence of such an emergency is perfectly clear from the facts summarised above (paragraphs 12 and 29-75) and was not questioned by anyone before either the Commission or the Court. The crisis experienced at the time by the six counties therefore comes within the ambit of Article 15 (art. 15).

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2. On the "extent strictly required" 206. The Contracting States may make use of their right of derogation only "to the extent strictly required by the exigencies of the situation". The Irish Government consider the "extent strictly required" to have been exceeded, whereas the British Government and the Commission assert the contrary.

FOR THESE REASONS, THE COURT I. ON ARTICLE 3 (art. 3) 1. holds unanimously that, although certain violations of Article 3 (art. 3) were not contested, a ruling should nevertheless be given thereon; 2. holds unanimously that it has jurisdiction to take cognisance of the cases of alleged violation of Article 3 (art. 3) to the extent that the applicant Government put them forward as establishing the existence of a practice; 3. holds by sixteen votes to one that the use of the five techniques in August and October 1971 constituted a practice of inhuman and degrading treatment, which practice was in breach of Article 3 (art. 3); 4. holds by thirteen votes to four that the said use of the five techniques did not constitute a practice of torture within the meaning of Article 3 (art. 3); 5. holds by sixteen votes to one that no other practice of ill-treatment is established for the unidentified interrogation centres; 6. holds unanimously that there existed at Palace Barracks in the autumn of 1971 a practice of inhuman treatment, which practice was in breach of Article 3 (art. 3); 7. holds by fourteen votes to three that the last-mentioned practice was not one of torture within the meaning of Article 3 (art. 3); 8. holds unanimously that it is not established that the practice in question continued beyond the autumn of 1971;

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9. holds by fifteen votes to two that no practice in breach of Article 3 (art. 3) is established as regards other places; 10. holds unanimously that it cannot direct the respondent State to institute criminal or disciplinary proceedings against those members of the security forces who have committed the breaches of Article 3 (art. 3) found by the Court and against those who condoned or tolerated such breaches; II. ON ARTICLE 5 (art. 5) 11. holds unanimously that at the relevant time there existed in Northern Ireland a public emergency threatening the life of the nation, within the meaning of Article 15 para. 1 (art. 151); 12. holds unanimously that the British notices of derogation dated 20 August 1971, 23 January 1973 and 16 August 1973 fulfilled the requirements of Article 15 para. 3 (art. 15-3); 13. holds by sixteen votes to one that, although the practice followed in Northern Ireland from 9 August 1971 to March 1975 in the application of the legislation providing for extrajudicial deprivation of liberty entailed derogations from paragraphs 1 to 4 of Article 5 (art. 5-1, art. 52, art. 5-3, art. 5-4), it is not established that the said derogations exceeded the extent strictly required by the exigencies of the situation, within the meaning of Article 15 para. 1 (art. 151); 14. holds unanimously that the United Kingdom has not disregarded in the present case other obligations under international law, within the meaning of Article 15 para. 1 (art. 15-1); 15. holds by fifteen votes to two that no discrimination contrary to Articles 14 and 5 (art. 14+5) taken together is established; III. ON ARTICLE 6 (art. 6)

16. holds unanimously that the derogations from Article 6 (art. 6), assuming it to be applicable in the present case, are compatible with Article 15 (art. 15); 17. holds by fifteen votes to two that no discrimination contrary to Articles 14 and 6 (art. 14+6) taken together, assuming the latter Article (art. 6) to be applicable in the present case, is established;
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Italy v Commission (ECJ) Case 13/63 Italy v Commission [1963] ECR 165

Summary 1 . Independently of the question to what extent the commission, when receiving an application under article 226, is obliged to give a preliminary hearing to any government concerned, there is no failure to do so if the commission Has informed the government in question of the existence of the application and that government has not replied to the questions put to it by the commission within a period of time compatible with the urgency required by the treaty . 2 . The production of a commodity may constitute a sector of the economy within the meaning of article 226 of the eec treaty if that commodity, according to generally accepted ideas, is clearly different from other related products . 3 . The existence of difficulties which are serious and liable to persist is not precluded by the fact that those involved support the commission's measures by their own efforts, as such efforts are presupposed by article 226 which is intended to permit the sector in difficulty to adjust itself to the common market . 4 . As the commission is obliged by article 226 of the eec treaty to give priority to such measures as will least disturb the functioning of the common market, it must take into account that in cases of doubt the 'common' characteristic of the market suffers less if derogation from the rules of the treaty is made only within the framework of the relations between two member states .
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5 . In authorizing protective measures, the commission is entitled to make a distinction according to the countries and not only according to the undertakings of the common market, assuming that there are reasonable grounds for such a distinction .

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This is so when it is possible to find, within a given country, a price level which is clearly different from the price level in the other countries . 6 . The different treatment of dissimilar situations does not lead automatically to the conclusion that there is discrimination, as an appearance of discrimination in form may correspond in fact to an absence of discrimination in substance . Discrimination in substance may consist not only in treating similar situations differently, but also in treating different situations identically .

Parties In case 13/63 Government of the italian republic, represented by professor riccardo monaco, head of the legal department of the ministry of foreign affairs, acting as agent, assisted by pietro peronaci, deputy avvocato generale dello stato, With an address for service in luxembourg at the embassy of the italian republic, applicant, V Commission of the european economic community, represented by alberto sciollalagrange, legal adviser of the european executives, acting as agent, with an address for service in luxembourg at the office of henri manzanares, secretary of the legal service of the european executives, 2 Place de metz, defendant,

Subject of the case Application for annulment of the decision of 17 january 1963 ( official journal of 13 february 1963, pp . 268 et seq .) Authorizing the french republic to take protective Measures under article 226 of the eec treaty against the importation of domestic electric refrigerators and certain spare parts of italian origin;

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Grounds I - on the infringement of essential procedural requirements 1 . On the failure to give the italian government a hearing the applicant maintains that the commission should have Given it a hearing before making its decision . It is not necessary in this case to examine to what extent such a preliminary consultation was required . In fact, it is not disputed that after telephone conversations with the office of the italian permanent representative in brussels informing the office of the french government's request, the defendant addressed to the said representative various questions in writing relating to the request, to which there was no reply . Because of the applicant's silence, which lasted a month, the defendant cannot be reproached for having adopted the disputed decision without further ado . This complaint must therefore be dismissed . 2 . On the complaint of insufficient reasoning The applicant has raised a series of complaints to the effect that the statement of reasons on which the disputed decision is based does not satisfy the conditions required by article 190 of the treaty and claims that the reasons given for the decision are insufficient to make it possible to Single out imports from italy as the origin of the difficulties in question . However, the decision was not limited to considering the volume of the various imports, but also made a comparison between the price of the italian products and the prices both of french products and of other imported products, which according to it were noticeably higher . It is incorrect to argue that the decision should also have considered the difference between the sale prices to the consumer, since it is impossible to make a definite finding at this stage because of the discounts given and because the difficulties have to be assessed in respect of the producers; it was therefore necessary to take into consideration the prices charged to the whole-salers . There was no point in examining whether the margin of profit allowed to the wholesalers by the french producers was reasonable or not, since it was a matter of judging the price difference between the french product and the italian product on its arrival on french territory, that is to say, at the moment

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When these two products are in the same market and at the same commercial stage . According to the applicant, the preamble should have taken into account the question whether the greater margin allowed by the italian producers to their distributors in france was justified by the heavier charges which fell upon the latter . However, as the said preamble finds that the difference between the free-at-frontier price of the italian products and the ex - factory price of the french products was 30% the clear consequence of this, in the opinion of the defendant, is that there were no other elements capable of reducing in actual fact the competitive advantage represented by this percentage . The applicant complains that the defendant omitted to ascertan whether the producers of other exporting countries offered their distributors in france profits comparable with those enjoyed by the importers of italian products . Although the preamble states that the italian prices were not comparable with the prices of products imported from other countries, it implies clearly that importers of italian products could buy more cheaply than other importers . Consequently the reference desired by the applicant was superfluous . The applicant is wrong in claiming that the decision compares french production calculated over ten months with exports and imports calculated over seven and six months respectively; whereas the table included in the decision compared data from corresponding periods . Finally, the applicant makes the point that the recital dealing with the difference between french and italian prices is not clear and is based upon inaccurate facts . From the point of view of reasoning, the wording in question does not lack clarity, since it shows in a clear form the data which the defendant considered decisive . It follows from the foregoing that the complaint of insufficient reasoning must be dismissed . Ii - on misuse of powers The applicant complains that the commission used its powers under article 226 to reach a result falling within the scope of the anti-dumping measures of article 91 . Nothing, however, either in the disputed decision or in the attitude Of the defendant allows this decision to be regarded as a disguised anti-dumping measure, since no complaint of dumping had been made . The fact that the disputed duty was

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Of a limited duration, and was on a diminishing scale, is incompatible with an anti-dumping measure which would have to be applied according to the duration of the practices to be resisted which cannot normally be foreseen . This complaint should, therefore, be dismissed . Iii - on infringement of the treaty 1 . On the concept of 'sector of the economy' The applicant disputes that the french refrigerator industry is a 'sector of the economy' within the meaning of article 226 . The production of a commodity can constitute such a 'sector' if that commodity, according to generally accepted ideas, is clearly different from other related products . These conditions are fulfilled here . 2 . On the taxation of compressor units It is not disputed that for compressor units there existed none of the difficulties established by the defendant in the sector of completed refrigerators . However, the Defendant has alleged the need to avoid diversion of trade, and points out that the installation of compressor units in refrigerators which are not equipped with them is a very easy operation . The applicant itself moreover made the Point that the importers of italian products into france has to undertake the repair of the products sold . Therefore, it seems probable that they are sufficiently well equipped to assemble compressor units also, without being forced to set up new factories . Consequently the applicant has not shown that the desire to avoid diversion of trade was without foundation . This complaint must therefore be dismissed . 3 . On the application of the concept of 'difficulties which are serious and liable to persist' Under article 226 ( 1 ) of the treaty, protective measures may be authorized in case of difficulties which are serious and liable to persist in any sector of the economy . ( a ) taken by themselves, the figures put forward by the defendant, marking the decrease in french production from 1961 to 1962 as well as the increase in imports into france during the same period figures not disputed by the applicant -, allow the inference that such difficulties did exist . However, it should be examined whether the arguments advanced by the applicant are such as to rebut this presumption .

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( B ) the applicant states that french production for 1962, to the extent of 265 000 appliances, was not enough to satisfy the needs of the domestic market . This allegation is irrelevant . In fact, this circumstance does not necessarily presuppose insufficient manufacturing capacity, but may equally be ascribed to the fact that the imports themselves caused the recession in french production . ( c ) the applicant next attempts to show that, of the french production for 1962, the number of refrigerators unsold at the end of the year amounted to roughly 8 000 at most . However, adopting the applicant's method of calculation, and substituting for its original figures those which were accepted at the hearing by both parties, apart from insignificant differences, one arrives at a number between 48 000 and 57 000 . One must take into consideration not only the situation existing in 1962, but above all the development which has taken place since the liberalization of trade . In this respect, the considerable size of the stocks held by the producers at the end of 1961 and 1962 ( 145 000 and 193 000 Respectively ), as well as the difference between these two figures, take on their full significance . The applicant maintains that the stockpiled models were out of date . However, a crisis at the retail stage may equally be due to the fact that the producer is not succeeding in disposing of the production of previous years . Finally, the applicant's argument assumes that the french products sold in 1962 Came exclusively from that same year's production, which has not been shown . ( d ) finally, the parties disagree on the question whether the price reduction carried out by the french producers immediately prior to the disputed decision applied to the whole or the greater part of the products, as the applicant considers, or only a small quantity of them . The applicant's statement, supposing it to be accurate, reveals rather the existence of 'serious difficulties', since it is obvious that a considerable reduction, spontaneously decided upon by producers, may be a symptom of keen competition . Furthermore, although article 226 is intended to permit the sector in difficulty to adjust itself to the common market, it assumes that those involved are in a position to support the commission's measures by their own efforts . The fact that such efforts are made does not therefore preclude the existence of 'serious difficulties '. ( e ) it is thus not established that the defendant has wrongly applied the concept of 'serious difficulties '. In these circumstances, the court must dismiss this complaint .

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4 . As to discrimination ( a ) complaint is made that the decision improperly infringed the principle of non discrimination by authorizing the french government to impose a special duty on italian products alone, to the exclusion of the same products originating either in other states of the community or in third countries . The different treatment of non-comparable situations does not lead automatically to the conclusion that there is discrimination . An appearance of discrimination in form may therefore correspond in fact to an absence of discrimination in substance . Discrimination in substance would consist in treating either similar situations differently or different situations identically . ( b ) further, as the commission is required to limit its interventions to what is 'strictly necessary', it must be permissible for it to intervene only in respect of those phenomena which constitute the cause of the difficulties in question . Besides, it is obliged to give 'priority...to such measures as will least disturb the functioning of the common market '. In this respect it must take into account that in cases of doubt the 'common' nature of the market will suffer less if derogation from the rules of the treaty is made only within the framework of the relations between Two member states . Moreover, the argument just rejected is itself liable to favour discrimination which might just as well take the form of dissimilar situations being treated identically . Finally, in authorizing protective measures, the commission is entitled to make a distinction between countries rather than between undertakings in the common market when there are reasonable grounds for such a distinction . This is so when it is possible to find, within a given country, a price level which is clearly different from the price level in other countries . ( c ) it is necessary to ascertain therefore whether the circumstances in this case can justify a limitation of the protective measures to italian imports alone . The defendant saw the origin of the french difficulties in 'The huge increase in imports originating in the italian republic', and consequently it limited the protective measures to italian products . In order to justify its judgment and the choice of this measure, the commission took as its principal basis the finding that, on the one hand, the volume of imports from third countries 'has not increased to an abnormal degree' and is therefore 'not

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Liable to hinder the reorganization of the french sector in question' and, on the other hand, that the price of products imported from other member states 'does not differ appreciably from the price of similar french products and that the increase in the volume of imports, whilst higher, is not considered as abnormal '. It does not appear from the evidence brought to the notice of the court that this assessment by the commission is clearly erroneous . It is not disputed that imports from third countries are inconsiderable . It has not been shown that the commission was mistaken in stating that the price of products originating in other member states did not differ appreciably from the price of similar french products . It was therefore able, by this comparison with the volume of imports originating in other member states ( which it did not consider to be abnormal ), to come to the conclusion that the huge increase in imports from italy was a factor capable of justifying the specific measure which was the subject of the decision . ( d ) in view of all the preceding considerations, it follows that the sixth to the eleventh recitals in the preamble to The disputed decision justify the imposition of duty on italian products alone . The complaint of discrimination must therefore be dismissed . 5 . On the complaint relating to material error in the calculation of the price differences In the words of the decision, the difference 'between the average price per litre of italian refrigerators free-at- frontier and the average price per litre of the same french appliances at the wholsale stage', that is to say, the ex- factory price, as the defendant explained during the proceedings, 'amounted to 30% of the italian price free-at- frontier in france whilst the existing customs protection is no higher than 7.5 %'. The applicant considers that the commission should also have taken account of other factors which would have considerably reduced this difference . ( a ) the applicant does not dispute the figures put forward by the defendant relating to the french price invoiced to the wholesalers ( 2 946 ffrs ) as well as the italian price freeat-frontier ( 2 245 ffrs ), figures from which an arithmetical difference amounting to as much as 31.2% appears . It restricts itself to comparing the method of calculation chosen by the defendant with another method Of calculation based on the respective discounts . However, it has not been shown that this method of calculation

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Would be more sound and more appropriate in the circumstances than that adopted by the commission . In fact, the defendant cannot be criticized for having used the most important and the most certain price factors . Further, the applicant has in no way explained or specified how the undisputed difference between the prices of the french products at the moment when they leave the factory and The prices of the italian products at the moment when they arrive on french territory is reduced later by the operation of discounts . Nor has it indicated the basis on which it has calculated the said discounts . ( b ) in order to demonstrate the existence of the special charges which the distributors of italian products have to bear, the applicant merely sets forth certain figures extracted from the balance-sheets of two importing companies . However, these figures have no probative value . First, they were calculated on the basis of the turnover of the companies in question, and thus on a basis which it is difficult to compare with the prices in practice paid by the wholesalers, which is the only issue here . Secondly, the said figures leave entirely open the question whether the balance-sheets of the distributors of french products contain comparable entries . Finally, a considerable proportion of the balancesheet entries relied on consists of 'extra commercial expenses', a formula too general to allow any conclusions to be drawn from it . For the foregoing reasons this complaint must be dismissed .

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Konig v Germany (ECtHR) Konig v Germany App No 6232/73 (ECtHR, 28 June 1978)

COURT (PLENARY)

CASE OF KNIG v. GERMANY

(Application no. 6232/73)

JUDGMENT

STRASBOURG 28 June 1978

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AS TO THE FACTS 15. The applicant, a German national born in 1918, had taken up practice as an ear, nose and throat specialist in 1949. In 1960, he opened at Bad Homburg (Hessen) in the Federal Republic of Germany a clinic of which he was the owner; he was the only medical practitioner working at the clinic which he ran and managed himself and where he performed, in particular, plastic surgery. 16. On 16 October 1962, proceedings against Dr. Knig for unprofessional conduct were instituted by the Regional Medical Society (Landesrztekammer) before the Tribunal for the Medical Profession (Berufsgericht fr Heilberufe) attached to the Frankfurt Administrative Court (Verwaltungsgericht) and he was declared unfit to practise on 9 July 1964. The Regional Tribunal for the Medical Profession (Landesberufsgericht fr Heilberufe) attached to the Hessenadministrative Court of Appeal (Verwaltungsgerichtshof) rejected Dr. Knig's appeal on 14 October 1970. The accusations against the applicant upheld by the Regional Tribunal including the following: having offered a beauty specialist 20 % of his fees and one of his patients DM 100 for each client they introduced to him; having persuaded a patient to have treatment not covered by social security by assurances that he would in that case be able to use more effective methods; having refused to make out for one of his clients an account corresponding to the fee actually paid; having, as an ear, nose and throat specialist, performed an operation not falling within the field in which he specialised; having had a beauty specialist assist him during operations; having widely-publicised his practice in the daily and weekly press; having used on his name-plates, notepaper and prescription forms wording contrary to the rules of the medical profession. 17. In 1967, the applicant had his authorisation to run his clinic withdrawn and then, in 1971, his authorisation to practise. Criminal proceedings were taken against him in 1972 for, inter alia, the illegal practice of medicine. Actions brought by Dr. Knig to challenge both of these withdrawals have been in progress before the competent administrative courts since November 1967 and October 1971, respectively. 18. The applicant complains of the length of the proceedings taken by him against the withdrawals of the authorisations; he makes no complaint about either the disciplinary proceedings before the professional tribunals or the criminal proceedings. 1. The medical profession in the Federal Republic of Germany 19. In the Federal Republic of Germany, the medical profession is governed partly by Federal law and partly by the law of the Lnder. The principal rules relevant for the present case are to be found, in particular, in the Federal Medical Practitioners' Act (Bundesrzteordnung - hereinafter referred to as "the Federal Act") in the version of 4 February 1970 as last amended on 2 March 1974 and 26 March 1975, the Regulations of 28 October 1970 on the grant of the authorisation to practise medicine (Approbationsordnung fr rzte - hereinafter referred to as "the Regulations") and the Hessen Act on the Professional Bodies and Tribunals for Medical Practitioners, Dentists, Veterinary Surgeons and Pharmacists (Gesetz ber die Berufsvertretungen und ber die Berufsgerichtbarkeit der rzte, Zahnrzte, Tierrzte and Apotheker - hereinafter referred to as "the Hessen Act") in the version of 18 April 1966.

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20. According to paragraph 1 of Article 1 of the Federal Act, the medical practitioner shall have the care of the health of each individual and of the community as a whole. Under paragraph 2, he exercises a liberal profession and not a trade or business. In order to be able to practise on a permanent basis, an authorisation issued by the appropriate services of the Lnder is required. (Articles 2 para. 1 and 12 of the Federal Act and Article 35 of the Regulations). This authorisation is granted on request if the person concerned: "1. is German ... or is a stateless alien ..., 2. has not been guilty of behaviour showing that he is unfit or unreliable to exercise the profession ..., 3. is not incapable of, or unsuited for, the exercise of the ... profession on account of an infirmity, of some weakness in his mental or physical faculties, or of an addiction (Sucht), 4. after studying medicine for a minimum of six years, including a minimum of eight months' and maximum of twelve months' practical training in a hospital, has passed the medical examination in a place where this Act is applicable. ..." (Article 3 para. 1 of the Federal Act). If the application is granted, the person concerned receives a document (Approbationsurkunde) certifying that the statutory conditions are satisfied and adding: "With effect from today's date, he (she) is granted authorisation to exercise the medical profession .... Such grant authorises the doctor to practise medicine" (Article 36 of the Regulations and Appendix 21 thereto). If, on the other hand, the authorisation has to be refused for nonfulfilment of one of the conditions, the applicant or his representative must first be given a hearing (Article 3 para. 4 of the Federal Act.) An authorisation that has been issued must be withdrawn if one of those conditions either was not satisfied at the time of the grant or ceases to be met afterwards (Article 5 of the Federal Act). 21. Anyone wishing to run a clinic must have an authorisation pursuant to the Trade and Business Act (Gewerbeordnung) and is entitled thereto if he fulfils the conditions stipulated by Article 30 para. 1 of the Act (see paragraph 27 below). Since the management of a clinic is classified as a trade or business, the person running it does not have to be a doctor himself. However, he is required to take all necessary staffing and organisational measures to ensure the treatment of patients in his institution. He must, therefore, employ one or more doctors responsible for the care of his clients. The authorisation is withdrawn if it transpires either that the documents supporting the application were incorrect or that the requisite conditions were never, or have ceased to be, satisfied (Article 53 of the same Act; paragraph 27 below). 22. It is not disputed that, according to German law, the right to be authorised to practise medicine and the right to be authorised to run a private clinic are rights conferred on the individual by public law and protected by Article 12 of the Basic Law which guarantees freedom to exercise a profession. Again, exercise of the medical profession, unlike the running of a private clinic, is not considered in the Federal Republic to be a trade or business (see paragraph 20 above); although it also has the purpose of providing an income, its primary aim is disinterested, namely, rendering assistance to mankind.
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Medical treatment is a matter for a private-law contract between doctor and patient. Such a contract serves to guarantee the free choice of a medical adviser, maintain a relationship of trust between him and his patient and uphold professional secrecy. However, the contract does not establish a well-defined set of rights and obligations since it imposes on the doctor a duty to provide basically unlimited services to anyone seeking treatment. Moreover, the rules on the medical profession forbid its members to advertise and even regulate in detail the size and content of their name-plates. Again, medical practitioners cannot fix their fees at will but must comply with the Regulations even when not practising as national health doctors. Minimum and maximum fees for medical services are specified by Federal Government decrees, taking into account the legitimate interests of practitioners and of the persons or organisations having to pay them (Article 11 of the Federal Act). Those affiliated to the social security health insurance funds about 80 % of the population - are entitled to medical treatment according to the terms of the legislation and agreements in force. The majority of medical practitioners are approved national health doctors and obliged to treat members of the insurance funds. The Federal Constitutional Court (Bundesverfassungsgericht) has held that such practitioners are not administering a public service but fulfilling a public-law duty and, by their enrolment, are integrated within a system of public law. (Collected Decisions of the Constitutional Court, Vol. 11, pp 30 et seq.). 23. Medical practitioners carry out their duties under the control, inter alia, of their societies and of the professional tribunals, these institutions being governed by Lnder Law. 24. Articles 1 and 2 para. 1 of the Hessen Act provide that regional medical societies are public-law associations to which all doctors practising in the Land belong. Practitioners who fail to register with the competent society or to fulfil their other obligations under its statutes may be fined (Article 7 of the Hessen Act.) Article 4 para. 1 of the Hessen Act gives the following definition of each society's functions: "1. supervision of the discharge of (its) members' professional duties ..., 2. promotion of the further training of society members, 3. promotion of harmonious relations among society members and settlement of any disputes, arising in the exercise of the profession, between members or between them and third persons, without prejudice to the jurisdiction of other authorities, 4. assisting the official health service in the performance of its functions, ..." The authorities and the societies must assist each other in the fulfilment of their respective functions (Article 5 of the Hessen Act). The societies are under State supervision which extends to observance of the laws and statutes. The competent Minister may quash any decision contravening these texts (Article 16 of the Hessen Act) and may at any time request information from the societies concerning their affairs (Article 17 para. 1). 25. If the council of the society suspects a practitioner of unprofessional conduct, it refers the matter to the Tribunal for the Medical Profession (Articles 18 and 29 para. 3 of the Hessen Act). Under Article 20 para. 1, the decision at first instance is given by that Tribunal which is attached to the Administrative Court for the locality and has three members, namely the President, or his representative, and two assessors belonging to the defendant's professional group (Article 21 para. 1).
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An appeal against the Tribunal's decision may be made to the Regional Tribunal for the Medical Profession attached to the Hessen Administrative Court of Appeal (Articles 41 and 20 para. 2); the appellate tribunal is composed of five members, namely the President, or his representative, two other judges of the Administrative Court of Appeal and two assessors belonging to the defendant's professional group (Article 21 para. 2). The professional tribunals may impose the following penalties, the second, third and fourth of which may be combined: warning, reprimand, temporary suspension of the right to vote in society proceedings, fine up to DM 10,000 and finding that the individual is unfit to exercise the profession (Article 19 paras. 1 and 3). The authorisation to practise is not automatically revoked as the result of the lastmentioned finding. Although its ultimate purpose is the individual's exclusion from the profession, it binds neither the Regierungsprsident, who alone has power to withdraw the authorisation, nor any courts which may be called upon to examine the lawfulness of such a withdrawal. 26. Decisions by the Regierungsprsident withdrawing either an authorisation to practise or an authorisation to run a private clinic may be challenged before the administrative courts. However, before the person concerned can bring the matter before the courts, he must first have filed - unsuccessfully - an objection (Widerspruch) with the Regierungsprsident. 2. The withdrawal of the authorisation to run the clinic proceedings before the 4th Chamber of the Frankfurt Administrative Court 27. On 12 April 1967, at the request of the Regional Medical Society, the Regierungsprsident in Wiesbaden withdrew the applicant's authorisation to run his clinic, claiming that he could not be relied on to conduct the institution properly and lacked the diligence and knowledge required for its technical and administrative management. The Regierungsprsident adverted to an inspection of the clinic which had revealed, in November 1965, numerous irregularities: out of thirty-four medical records, eighteen were not maintained correctly; the training of the staff was insufficient for the work entrusted to them; the equipment in the treatment room left something to be desired; the instruments, some of which were beginning to rust, were in part badly kept; the X-ray machinery lacked safety devices. Inspectors were said to have found in January 1967 that, amongst other things, the operating theatre and its equipment had not been cleaned. The Regierungsprsident relied also on evidence given by several people to the effect that, between 1962 and October 1966, the clinic had in fact been managed by a young employee who was aged eighteen in 1962 and was unqualified. She supervised the staff and took care of the patients and had allegedly confirmed that dog-food was kept in the refrigerator at the clinic and that the applicant allowed men to be present in the rooms outside visiting hours. According to her, Dr. Knig also made advances to her and one of her colleagues on several occasions. The decision of the Regierungsprsident was based on the following provisions of the Trade and Business Act: Article 30 para. 1 "A person running a private clinic, maternity home or mental hospital requires an authorisation from the higher administrative authority. The authorisation may be refused only: (a) if the facts show that the said person cannot be relied on properly to conduct and manage the institution;
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..." Article 53 para. 2 "The licences ... mentioned in [Article] 30 ... may be withdrawn ... only: 1. ... 2. if it subsequently appears that the person running the institution does not possess the qualifications required for the grant of the licence ... or that the premises or technical equipment of the institution no longer satisfy the requirements for the grant of the authorisation. ..." 28. On 13 July 1967, the applicant filed an objection which was rejected by the Regierungsprsident on 6 October. Dr. Knig then appealed, on 9 November, to the Frankfurt Administrative Court, the case being assigned on the following day of its 4th Chamber which is competent to hear disputes relating to the law on trade and business activities. These appeals had the effect of suspending enforcement of the decision complained of. 29. As early as 10 November, the court asked the Regierungsprsident for his observations; it received them on 8 February 1968, after extending the time granted and sending a reminder. The Regierungsprsident was requested on 27 March to supply further information and he submitted a written pleading on 30 May. He indicated therein that the applicant was to undergo a psychiatric examination whose results would be forwarded to the court later. The court asked the Regierungsprsident about this on 10 June, 25 July and 9 August; he supplemented his earlier observations but told the court on 10 January 1969 that the applicant had not agreed to be so examined. On 16 January, the court asked the Regierungsprsident to clarify a point in his pleading; this clarification was received by the court on 2 April. 30. In the meantime and until January 1969, the court had tried to obtain from, notably, the Regierungsprsident (10 June 1968) and the competent local authorities (10 October), the addresses of several persons who might be called as witnesses. The court also endeavoured, as from 8 January 1969, to procure files on the applicant, including those of the professional tribunals (see paragraph 16 above). On 26 August 1969, the court decided to hear sixteen witnesses at sittings fixed for 25 and 26 November. For this purpose, it tried, for example on 11 and 18 September, to obtain the addresses of witnesses and requested the production of other files concerning Dr. Knig. On 27 November, the court fixed 2 December as the date for the oral hearing (mndliche Verhandlung) and for the continuation of the taking of evidence from the witnesses, including a certain Mr. Xymenes who had made serious accusations against Dr. Knig before the Regional Medical Society. The court sat on 2, 8 and 12 December. It imposed fines (Ordnungsstrafen) of DM 100 and DM 500 on Mr. Xymenes for failing to appear. On 3 February 1970, the court decided not to hear the appeals (Beschwerden) made by Mr. Xymenes against these penalties on 30 December 1969 and 2 January 1970 and to transmit the file to the Hessen Administrative Court of Appeal. On 17 February, the latter court invited those concerned to present their observations and it set aside the two fines on 9 and 10 March.
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31. On 17 April 1970, the file was returned to the Administrative Court which, on 14 May, informed the parties of the state of the proceedings. It asked them to indicate as soon as possible what evidence they proposed to put forward, pointing out that several persons had offered to make statements on the medical treatment given to them by the applicant. The court also stated that, as far as it was concerned, the hearings could be resumed at the end of June or the beginning of July since the lay judges would be available then. On 29 May, Dr. Knig indicated that he would abstain from nominating further witnesses if the Regierungsprsident did likewise. However, on 8 June, the latter named a certain number of additional witnesses and, on 6 July, he filed with the court a pleading dealing with the evidence taken so far. This pleading was sent by the court on 13 July to the applicant for his comments; on 24 September, he requested in writing that seventy-six witnesses be heard should the court decide to hear those mentioned by the Regierungsprsident. There followed a further exchange of pleadings. 32. On 25 February 1971, the Regierungsprsident informed the court that Mr. Xymenes was detained in prison at Constance and could accordingly be served with a summons to appear. After advising the applicant, the court wrote on 14 April to the competent authorities in Constance to enquire whether Mr. Xymenes was being held in the prison and, if so, for how long. The prison replied on 27 April that the witness had been released. 33. On 29 April 1971, the judge acting as rapporteur directed that the file be sent back to the President of the Chamber to enable him to fix the date of the hearing, but this instruction was not carried out, probably due to a mistake on the part of the registry. On 24 May, Mr. Schmidt-Leichner of Frankfurt announced that he was no longer acting as Dr. Knig's lawyer. 34. The applicant, who on 26 August 1971 had asked the court to fix the date for the hearing without delay, was told on 2 September that the file would be submitted to the President of the Chamber immediately he returned from holiday. An order of the court set 5 September as the date for such submission. On 20 October, Messrs. Bossi, Breme and Ufer of Munich told the court that they were now acting for Dr. Knig. Following receipt of a letter from the Frankfurt Regional Employment Tribunal (Landesarbeitsgericht), the file was returned to the judge acting as rapporteur on 21 October. 35. On 29 November 1971 and 12 January 1972, the court attempted yet again, but without success, to contact Mr. Xymenes to discover whether he would be able to give evidence in January/February or in February/March 1972. On 21 February, the court fixed 28 March as the date for a hearing to which it summoned Mr. Xymenes. He did not appear and on 29 March was fined DM 500 by the court which also ordered him to attend a further hearing due to be held on 31 May. Relying on a medical certificate, Mr. Xymenes on 8 April lodged an objection against this penalty but the court dismissed the objection and sent the file to the Hessen Administrative Court of Appeal. On 26 April, the latter court asked the witness's doctor to supply further details about the said certificate: it received them on 2 May and set the fine aside on 18 May. The file was returned on 29 May to the Administrative Court which on the same day cancelled the hearing fixed for 31 May, on the ground that the presence of Mr. Xymenes could not be secured. Pursuant to an order of 7 June 1972, there was a further hearing on 11 July. Once again, Mr. Xymenes did not appear.
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On 13 July, the Court fined him DM 500. On 10 August, it directed that the taking of evidence would continue on 19 September. On 22 August, it issued a subpoena against Mr. Xymenes who gave evidence on 19 September. 36. At the conclusion of this last sitting, the court granted the parties the faculty of submitting, by 15 October, their written observations on the result of the examination of witnesses. Dr. Knig took advantage of this on 13 October. On 14 November, other lawyers informed the court that they had been instructed by the applicant and requested it to await their written pleading. This document, which arrived on 12 February 1973, commented on the evidence already obtained, repeated the earlier applications for evidence to be taken and made new applications therefore. On the same day, Mr. Demme announced that he was Dr. Knig's new lawyer. The court transmitted the pleading to the Regierungsprsident on 22 February. In the meantime, on 30 January, the court had requested Dr. Knig to produce his records on two of his former patients. Having received only photocopies of the documents in question, the court renewed its request on 22 February and tried to trace a further witness. 37. On 30 March 1973, the court supplemented its order of 26 August 1969 (see paragraph 30 above) and fixed 17 April as the date for the continuation of the taking of evidence and for the oral hearing. At the close of its sitting on 17 April, it indicated that it would give a decision on 8 May. However, after trying to obtain witnesses' addresses and taking cognisance, on 18 April, of another written pleading from the applicant, the court on 2 May adjourned sine die the date for delivery of its decision; at the same time and also subsequently, it requested Dr. Knig to supply further information, which was received on 14 May and 9 July. Between these dates, the court also had researches made for the addresses of several witnesses. The parties supplemented their pleadings on 26 and 30 July 1973. 38. On 16 August 1973, the court decided that there should be a second additional enquiry and, in particular, the hearing of five new witnesses. On the next day, it sent the file to the Bad Kissingen District Court (Amtsgericht) for it to hear one of those witnesses; on 20 August, it directed that the three others should be heard on 21 September but, on 22 August, postponed this to 5 October at Dr. Knig's request. When the file came back from Bad Kissingen, the court on 19 September asked the Altena District Court to hear another witness. 39. Previously, on 22 August, the applicant had filed with the Hessen Minister of Justice a disciplinary complaint (Dienstaufsichtsbeschwerde) in which he also declared that he challenged "the Frankfurt Administrative Court". For this reason, on 3 October, the court cancelled the hearing due to take place two days later. On 4 October, the 3rd Chamber of the Administrative Court, which appeared to have jurisdiction in the matter, asked Dr. Knig to specify which of the judges he was challenging, pointing out that it was not possible to challenge all the members of a Chamber. The applicant replied on 19 October that his claim was limited to the judge of the 4th Chamber acting as rapporteur and that he objected to certain wording used by the latter in the letters rogatory sent on 19 September to the Altena District Court. On the same day, Mr. Schilling, acting on behalf of Dr. Knig, complained about the length of the proceedings to the Federal Constitutional Court. The Administrative Court was invited on 31 October to present its observations and it did so on 9 November, transmitting the file to the Constitutional Court on 15 November. The latter, by a decision of 28 November, refused to hear the complaint on the ground that it did not offer sufficient prospects of success.

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Following the return of the file on 10 December, the Administrative Court on 8 January 1974 upheld the challenge against the judge acting as rapporteur. 40. The file was then transmitted by the Administrative Court to the Hessen Minister of Justice to enable him to give a decision on the disciplinary complaint; he received the file on 14 January 1974 and returned it on 8 March. On 22 March, the court sent the file to the Hagen public prosecutor's department (Staatsanwaltschaft) as requested by it and by the President of the Regional Court (Landgericht) of the same town, who needed it in order to examine another disciplinary complaint by Dr. Knig. 41. On 26 April 1974, the applicant asked the Administrative Court not to hear a witness who it was contemplated should be summoned. This request was repeated on 28 May but rejected on 6 June by the court which decided to hold a hearing on 30 July. Only some of the witnesses appeared on that day. One was heard at home on 14 August and another gave evidence in writing. On 14 August, the file was sent to the Hessen Minister of Justice for the purposes of the proceedings instituted by Dr. Knig on 3 July 1973 before the Commission. On this occasion, the President of the 4th Chamber made known his observations on the outcome of the court's enquiry; he was of the opinion that the partly contradictory statements of the witnesses did not allow a firm conclusion to be drawn on the applicant's activities as manager of the clinic; accordingly, the question arose whether his conduct as a medical practitioner also had to be taken into account; however, it was not for the 4th Chamber to rule on the complaints against Dr. Knig in this last-mentioned capacity since they were the object of proceedings pending before the 2nd Chamber. 42. On 25 August, the applicant submitted observations on the statements made by one witness and applied for seven further witnesses to be heard. A copy of this pleading, which the court had requested from him on 28 August, was sent on 5 September to the Regierungsprsident who replied on 7 October. The Hessen Minister of Justice returned the file to the Administrative Court on 28 October. 43. The court had previously been advised that in July the applicant had entrusted his case to another lawyer, Mr. Unruh. The latter returned the brief on 26 November and his successor Mr. Heldmann, who had given notice on 18 October 1974 that he was acting for Dr. Knig, did likewise on 21 February 1975. 44. On 10 February 1975, the President of the 4th Chamber had a meeting with the applicant who stated that he had let the clinic premises for use as an old people's home and would re-open the clinic - in association with a surgeon - only after being authorised to practise again. Furthermore, he agreed that priority be given to the proceedings, pending before the 2nd Chamber, concerning the exercise by him of his profession. 45. The file was sent on 5 May to the Hessen Minister of Justice for the purpose of the Commission proceedings. It was returned to the court on 26 June and then communicated on 4 July to Dr. Knig's new lawyer, Mr. Cartus of Karlsruhe, who on 16 April had indicated that he had been instructed. The Court had allowed him two weeks to consult the file and, on 11 July, extended this period to 8 August. However, on 18 July, Dr. Knig informed the court that he had withdrawn Mr. Cartus' instructions and requested that he be asked to return the file which Dr. Knig wished to study himself. The court communicated on 21 July with the lawyer who returned the file on 29 July.

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On 1, 4 and 11 August, the applicant and his new lawyer, Mr. Mattern, who acted for him from 22 July to 14 August, requested the court to send them certain documents, including verbatim records of evidence, two of which were despatched to them on 18 August. From 11 to 23 September, the file was with Mr. Unruh who, since 11 September, had once again been entrusted with Dr. Knig's case. 46. On 6 November 1975, there was added to the file a second challenge lodged by the applicant with the Hessen Minister of Justice on 10 October (see also paragraph 67 below). On 2 December, the President of the Chamber wrote to Dr. Knig to enquire whether his intention was to challenge the members of the Chamber on the ground of bias and, if so, which members. As regards the duration of the proceedings, the President remarked: "I wish to point out that we have repeatedly talked about the expediency of continuing the proceedings concerning the authorisation to run a clinic and pending before the 4th Chamber. On those occasions you agreed with me that it was necessary first of all to await the conclusion of the proceedings relative to the authorisation to practise medicine because they had to be regarded as having priority. You also mentioned that you would not re-open your clinic before that date although in law you would be entitled to do so. Should you have changed your mind, please let me know." Dr. Knig's lawyer replied on 8 December that the claim related primarily to the President of the 2nd Chamber and the manner in which the last hearing before that Chamber had been conducted. He requested the court not to decide, for the time being, whether his client was challenging the 4th Chamber. On the subject of the duration of the proceedings, the lawyer declared: "The question of the conclusion of the proceedings concerning the authorisation to practise medicine has at present priority because in those proceedings immediate enforcement of the administrative decision has been ordered. It is known that there is no order for immediate enforcement of the decision to withdraw the authorisation to run the clinic; consequently, as regards the last two sentences in your letter of 2 December 1975, there is at present no need for the 4th Chamber of the Frankfurt-on-Main Administrative Court to give an early decision." The applicant withdrew Mr. Unruh's instructions on 25 April 1976. 47. The proceedings before the 4th Chamber accordingly remained suspended and were resumed only after the 2nd Chamber had delivered judgment on 9 June 1976. Hearings, which originally had been arranged for 17 May 1977 and were then postponed at the applicant's request, took place in June. On 22 June 1977, the 4th Chamber dismissed the applicant's appeal against the withdrawal of the authorisation to run his clinic. Its judgment was based on the evidence taken during the hearing of seventeen witnesses between November 1969 and August 1974. Dr. Knig appealed to the Hessen Administrative Court of Appeal where the case is still pending before the Chamber (Senat) which, on 2 May 1978, ruled on his appeal against the judgment of the 2nd Chamber of the Administrative Court (see paragraph 69 below). Another lawyer, Mr. Hofferbert of Frankfurt, is representing the applicant before the Administrative Court of Appeal. 48. According to statistics supplied by the Government, purely by way of indication, concerning the action before the 4th Chamber, 1,149 days of the proceedings are attributable to measures taken by the court, 1,725 to measures taken by the applicant and his lawyers and
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555 to measures taken by third parties, including the defendant administrative authorities, the professional bodies and the witnesses.

AS TO THE LAW 1. On the alleged violation of Article 6 para. 1 (art. 6-1) of the Convention 85. The Court recalls that neither the disciplinary proceedings against Dr. Knig - which in the event took place before the professional tribunals - nor the criminal proceedings instituted against him are in issue in the present case (see paragraph 18 above). The applicant complains of the length of the actions he brought before the Frankfurt Administrative Court (see paragraph 18 above). He alleges that there has been a violation of Article 6 para. 1 (art. 6-1) of the Convention which provides: "In the determination of his civil rights and obligations or of any criminal charges against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice." The Court has therefore to decide whether Article 6 para. 1 (art. 6-1) is applicable in the present case and, if so, whether the criterion of a "reasonable time" appearing in that Article (art. 6-1) was respected in each of the two sets of judicial proceedings concerned. (a) On the applicability of Article 6 para. 1 (art. 6-1) of the Convention 86. The majority of the Commission is of the opinion that Article 6 para. 1 (art. 6-1) is applicable to the rights claimed by the applicant before the Frankfurt Administrative Court, namely the right to run his clinic and the right to exercise his profession of medical practitioner; it considers these rights to be "civil". The majority is divided into two groups which reach the same conclusion, albeit for different reasons. The correctness of this opinion is disputed by the Government. 87. The Court notes at the outset that, as is not contested, under the legislation of the State concerned the actions brought by the applicant before the German courts concern "rights". The difference of view between Commission and Government relates only to the question whether the present case involves disputes ("contestations") over civil rights within the meaning of Article 6 para. 1 (art. 6-1) of the Convention. 88. Both the Commission and the Government agree that the concept of "civil rights and obligations" cannot be interpreted solely by reference to the domestic law of the respondent State. The problem of the "autonomy" of the meaning of the expressions used in the Convention, compared with their meaning in domestic law, has already been raised before the Court on several occasions. Thus, it has decided that the word "charge" appearing in Article 6 para. 1 (art. 6-1) has to be understood "within the meaning of the Convention" (Neumeister judgment of 27 June 1968, Series A no. 8, p. 41, para. 18, as compared with the second sub-paragraph on p. 28 and the first sub-paragraph on p. 35; see also Wemhoff judgment of 27 June 1968,
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Series A no. 7, pp. 26-27, para. 19; Ringeisen judgment of 16 July 1971, Series A no. 13, p. 45 para. 110; Engel and others judgment of 8 June 1976, Series A no. 22, p. 34 para. 81). The Court has also recognised, in the context of the case of Engel and others, the "autonomy" of the concept of "criminal" within the meaning of Article 6 para. 1 (art. 6-1) (abovementioned Engel and others judgment, p. 34, para. 81). Again, the Court has already acknowledged, implicitly, that the concept of "civil rights and obligations" is autonomous (above-mentioned Ringeisen judgment, p. 39, para. 94). The Court confirms this case-law on the present occasion. Hence, it considers that the same principle of autonomy applies to the concept in question; any other solution might lead to results incompatible with the object and purpose of the Convention (see, mutatis mutandis, the above-mentioned Engel and others judgment, p. 34, para. 81). 89. Whilst the Court thus concludes that the concept of "civil rights and obligations" is autonomous, it nevertheless does not consider that, in this context, the legislation of the State concerned is without importance. Whether or not a right is to be regarded as civil within the meaning of this expression in the Convention must be determined by reference to the substantive content and effects of the right - and not its legal classification - under the domestic law of the State concerned. In the exercise of its supervisory functions, the Court must also take account of the object and purpose of the Convention and of the national legal systems of the other Contracting States (see, mutatis mutandis, the above-mentioned Engel and others judgment, p. 35, para. 82). 90. The Government submit that Article 6 para. 1 (art. 6-1) covers private-law disputes in the traditional sense, that is disputes between individuals or between an individual and the State to the extent that the latter had been acting as a private person, subject to private law; amongst other things, disputes between an individual and the State acting in its sovereign capacity would be excluded from the ambit of that Article (art. 6-1). As regards the field of application of Article 6 para. 1 (art. 6-1), the Court held in its Ringeisen judgment of 16 July 1971 that "for Article 6 para. 1 (art. 6-1) to be applicable to a case ('contestation') it is not necessary that both parties to the proceedings should be private persons .... The wording of Article 6 para. 1 (art. 6-1) is far wider; the French expression 'contestations sur (des) droits et obligations de caractre civil' covers all proceedings the result of which is decisive for private rights and obligations. The English text, 'determination of ... civil rights and obligations', confirms this interpretation. The character of the legislation which governs how the matter is to be determined ... and that of the authority which is invested with jurisdiction in the matter ... are therefore of little consequence" (Series A no. 13, p. 39, para. 94). If the case concerns a dispute between an individual and a public authority, whether the latter had acted as a private person or in its sovereign capacity is therefore not conclusive. Accordingly, in ascertaining whether a case ("contestation") concerns the determination of a civil right, only the character of the right at issue is relevant. 91. The Court recalls firstly that the applicant's appeals before the German administrative courts do not concern the right to be authorised to run a clinic and to be authorised to exercise the medical profession (see paragraphs 20, 21, 28 and 51 above): in challenging the withdrawal of his authorisations ordered by the competent authorities, Dr. Knig is claiming the right to continue his professional activities for which he had obtained the necessary authorisations. If the proceedings before the administrative courts were successful, the applicant would not be granted new authorisations: the Court would simply annul the withdrawal decisions taken by the Regierungsprsidenten in Wiesbaden and Darmstadt (see Article 42 of the German Code of Administrative Procedure).
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Therefore, it remains to be ascertained whether Dr. Knig's right to continue to run a private clinic and his right to continue to exercise the medical profession are civil rights within the meaning of Article 6 para. 1 (art. 6-1). 92. The Court notes that, in the Federal Republic of Germany, the running of a private clinic is in certain respects a commercial activity carried on with a view to profit, classified by German law as a "Gewerbe". This activity is carried on in the private sector through the conclusion of contracts between the clinic and its patients and resembles the exercise of a private right in some ways akin to the right of property. Private clinics are certainly subject to supervision effected by the authorities in the public interest in order, inter alia, to protect health; supervision in the public interest, which moreover exists as a general rule for all private professional activities in the member States of the Council of Europe, cannot of itself lead to the conclusion that the running of a private clinic is a public-law activity. An activity presenting, under the law of the State concerned, the character of a private activity cannot automatically be converted into a public-law activity by reason of the fact that it is subject to administrative authorisations and supervision, including if appropriate the withdrawal of authorisations, provided for by law in the interests of public order and public health. The Court recalls in this context the Ringeisen case in which supervision by the public authorities concerned a contract for sale between private individuals: the Court nonetheless concluded that the right at issue had a civil character (above-mentioned judgment, p. 39, para. 94). 93. The medical profession counts, in the Federal Republic of Germany, among the traditional liberal professions; moreover, Article 1 para. 2 of the Federal Act expressly so provides (see paragraph 20 above). Even under the national health scheme, the medical profession is not a public service: once authorised, the doctor is free to practise or not, and he provides treatment for his patients on the basis of a contract made with them. Of course, besides treating his patients, the medical practitioner, in the words of the above-mentioned Act, "has the care of the health of the community as a whole". This responsibility, which the medical profession bears towards society at large, does not, however, alter the private character of the medical practitioner's activity: whilst of great importance from the social point of view, that responsibility is accessory to his activity and its equivalent is to be found in other professions whose nature is undeniably private. 94. In these conditions, it is of little consequence that here the cases concern administrative measures taken by the competent bodies in the exercise of public authority. Neither does it appear pertinent that, under the law of the State concerned, it is for administrative courts to give the decision on these cases and to do so in proceedings which leave to the court the responsibility for the investigation and for the conduct of the trial. All that is relevant under Article 6 para. 1 (art. 6-1) of the Convention is the fact that the object of the cases in question is the determination of rights of a private nature. 95. Since it thus considers the rights affected by the withdrawal decisions and forming the object of the cases before the administrative courts to be private rights, the Court concludes that Article 6 para. 1 (art. 6-1) is applicable, without it being necessary in the present case to decide whether the concept of "civil rights and obligations" within the meaning of that provision extends beyond those rights which have a private nature. 96. Before the Commission, the applicant claimed, in the alternative, that, in view of the nature of the complaints which led to the decisions he contests, he is in reality faced with a "criminal charge" within the meaning of Article 6 para. 1 (art. 6-1) of the Convention. In its report, the Commission recalled that it had rejected this claim in its decision on the admissibility of the application.

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The Court notes first of all that this claim by the applicant related to the same facts as his contention that the actions before the German courts concerned civil rights. This was accordingly not a separate complaint but a formal submission or a mere legal argument. However, once a case is duly referred to it, the Court may take cognisance of every question of law arising in the course of the proceedings and concerning facts submitted to its examination by a Contracting State or by the Commission. Master of the characterisation to be given in law to the facts, the Court is empowered to examine them, if it deems it necessary and if need be ex officio, in the light of the Convention as a whole (see, inter alia, the judgment of 23 July 1968 on the merits of the "Belgian Linguistic" case, Series A no. 6, p. 30, para. 1; the De Wilde, Ooms and Versyp judgment of 18 June 1971, Series A no. 12, p. 29, para. 49; the Handyside judgment of 7 December 1976, Series A no. 24, p. 20, para. 41; the judgment of 18 January 1978 in the case of Ireland v. the United Kingdom, Series A no. 25, p. 63, para. 157). However, the Court does not consider that it has to examine whether in this case paragraph 1 of Article 6 (art. 6-1) is also relevant under the "criminal charge" head. For, although the requirements of Article 6 (art. 6) as regards cases ("contestations") concerning civil rights are less onerous than they are for criminal charges, this difference is of no consequence here: all proceedings covered by Article 6 (art. 6) are subject to the requirement of a "reasonable time", whose observance by the German courts remains to be examined. (b) On the observance of Article 6 para. 1 (art. 6-1) of the Convention 97. According to the Commission, the duration of the proceedings instituted by the applicant before the administrative courts exceeded the "reasonable time" stipulated by Article 6 para. 1 (art. 6-1) of the Convention. Before the Court, the Agent of the Government conceded that the length of those proceedings was a serious matter. She referred, moreover, to certain proposals under discussion in the Federal Republic of Germany designed to accelerate the procedure before the administrative courts. Although she questions whether, in the circumstances of the case, it is possible to speak of a violation of the Convention, she leaves it to the Court to assess whether the duration of the proceedings was reasonable. 98. In order to be able to arrive at a decision, the Court must first specify the period to be taken into account in the application of Article 6 para. 1 (art. 6-1). According to the Government and the Commission, time starts to run from the date of the filing of the appeals with the Administrative Court of first instance. The Court does not share this view. As the Court stated in its Golder judgment of 21 February 1975, "it is conceivable ... that in civil matters the reasonable time may begin to run, in certain circumstances, even before the issue of the writ commencing proceedings before the court to which the plaintiff submits the dispute" (Series A no. 18, p. 15, para. 32). This is the situation in the applicant's case, since he could not seise the competent court before having the lawfulness and the expediency of the impugned administrative acts examined in preliminary proceedings (Vorverfahren) before the administrative authority (Article 68 of the German Code of Administrative Procedure). Consequently, in the present case, the reasonable time stipulated by Article 6 para. 1 (art. 6-1) starts to run on the day on which Dr. Knig lodged an objection against the withdrawals of his authorisations. As regards the period to which Article 6 (art. 6) is applicable, the Court has held that in criminal matters this period covers the whole of the proceedings in question, including appeal proceedings (above-mentioned Wemhoff judgment, pp. 26 and 27, paras. 18 and 20; abovementioned Neumeister judgment, p. 41, para. 19; Delcourt judgment of 17 January 1970, Series A no. 11, pp. 13-15, paras. 25 and 26). The position - as, moreover, the Government
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concede - is no different in the case of disputes ("contestations") over civil rights and obligations for which Article 6 para. 1 (art. 6-1) likewise requires that there be - at first instance, on appeal or in cassation a determination. 99. The reasonableness of the duration of proceedings covered by Article 6 para. 1 (art. 61) of the Convention must be assessed in each case according to its circumstances. When enquiring into the reasonableness of the duration of criminal proceedings, the Court has had regard, inter alia, to the complexity of the case, to the applicant's conduct and to the manner in which the matter was dealt with by the administrative and judicial authorities (abovementioned Neumeister judgment, pp. 42-43, paras. 20-21; above-mentioned Ringeisen judgment, p. 45, para. 110). The Court, like those appearing before it, considers that the same criteria must serve in the present case as the basis for its examination of the question whether the duration of the proceedings before the administrative courts exceeded the reasonable time stipulated by Article 6 para. 1 (art. 6-1). 100. Before embarking upon this examination, the Court wishes to emphasise that it is not its function to express an opinion on the German system of procedure before administrative courts which, as the Agent of the Government stated, enjoys a long tradition. Admittedly, the present system may appear complex on account of the number of courts and remedies but the Court is not unaware that the explanation for this situation is to be found in the eminently praiseworthy concern to reinforce the guarantees of individual rights. Should these efforts result in a procedural maze, it is for the State alone to draw the conclusions and, if need be, to simplify the system with a view to complying with Article 6 para. 1 (art. 6-1) of the Convention. (i) The proceedings relative to the withdrawal of the authorisation to run the clinic 101. These proceedings, which began on 13 July 1967 when the applicant filed an objection against the withdrawal of the authorisation (see paragraph 28 above), have still not been concluded: the Hessen Administrative Court of Appeal has not yet ruled on Dr. Knig's appeal against the judgment of 22 June 1977 of the 4th Chamber of the Frankfurt Administrative Court. 102. It is clearly a matter for serious concern - as the Government moreover admit - that more than ten years and ten months have elapsed without a decision on the merits of the case and that it was necessary to wait for almost ten years for the judgment at first instance. It is true - and on this point the Court shares the Government's opinion - that the 4th Chamber of the Administrative Court encountered great difficulties in tracing witnesses several of whom had in the meantime changed name or address (see paragraphs 30, 32, 35, 36, 37 and 41 above). This applied particularly to the witness Xymenes whom the Chamber was not able to hear until thirty-three months after the first summons (see paragraphs 30, 32 and 35 above). However, the Government in no way pleaded that the case raised exceptionally complex issues of fact or of law. The Court appreciates that there was a certain interrelation between this action and the action - pending before the 2nd Chamber of the same court - relative to the withdrawal of the authorisation to practise, since the applicant's activities as manager of a clinic were, to a large extent, indistinguishable from his activities as a medical practitioner. However, this can scarcely have caused complications. On the contrary, the 4th Chamber had at its disposal the file of the Regional Tribunal for the Medical Profession which, on 14 October 1970, had declared Dr. Knig unfit to practise (see paragraphs 16 and 30 above). On this point the Court notes that the Agent of the Government herself is of the opinion that better coordination between the two Chambers would have been desirable.
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103. On the other hand, the Government laid great weight on the applicant's behaviour during the proceedings: in their view, Dr. Knig is personally responsible for about half of the length of the proceedings because of the way in which he organised the conduct of his case. The Government cited especially the frequent changes of lawyer, the juxtaposition of various appeals and the fresh proposals of evidence at different stages. The repeated changing of lawyers - which was certainly within Dr. Knig's rights - had repercussions on the progress of the proceedings since the different lawyers inevitably needed some time to acquaint themselves with the file. It must be borne in mind that in fact the delays mentioned by the Government do not total more than a few months (see paragraphs 36 and 45 above). The Court also observes that Dr. Knig did not discharge his first lawyer until 24 May 1971 that is after nearly four years of procedure (see paragraph 33 above). The Court likewise considers that some delays necessarily resulted from the applicant's various appeals and the overlapping of proceedings which they occasioned. However, the Court notes that all those appeals were made after the month of July 1973 that is after six years of procedure and at a time when Dr. Knig had already been deprived for two years of the authorisation to practise. In fact, the first of the two challenges - which, like the second, was included in a disciplinary complaint and, what is more, was upheld - dates from 22 August 1973 (see paragraph 39 above); it was not until two years later, that is, on 10 October 1975, that Dr. Knig made - unsuccessfully - the second challenge (see paragraph 46 above). Nevertheless, even before the decision on the first challenge, the applicant had, on 19 October 1973, filed with the Federal Constitutional Court an appeal against the length of the proceedings of which he had also complained as early as 3 July in his application to the Commission (see paragraphs 1, 39 and 41 above). Finally, another disciplinary complaint was filed by Dr. Knig with the President of the Hagen District Court in April 1974, that is, before the three 1973 proceedings were terminated (see paragraph 40 above). Obviously this overlapping did not make the 4th Chamber's task any easier, although only the challenges of 1973 and 1975 gave rise, in law, to an interruption of its proceedings in the strict sense. The Court is also inclined to share the Government's view that, by tendering fresh evidence after witnesses had been heard, the applicant put difficulties in the way of the investigation of the case. The evidence before the Court reveals that, after the order of 26 August 1969, the hearing of further witnesses was requested by Dr. Knig on 24 September 1970, 12 February 1973 and 25 August 1974 (see paragraphs 31, 36 and 42 above); his first request was subject to the proviso that he would abandon it if the Regierungsprsident for his part put forward no further witnesses (see paragraph 31 above). Finally, although the Court supplemented its order of 26 August 1969 on 30 March and 16 August 1973, only the second of these decisions seems to have led to a fresh proposal of evidence from Dr. Knig (see paragraphs 37, 38 and 42 above). 104. Having regard to the surprising length of the proceedings, the Court has examined each detail of the 4th Chamber's conduct of the case. Although the Court cannot reproach the Chamber for having insisted on hearing Mr. Xymenes or for having supplemented, after three years and seven months, its order of 26 August 1969, it notes, as did the Commission, that the exchange of pleadings with which the proceedings opened continued until 2 April 1969, that is, for nearly seventeen months. Apart from the researches for the addresses of certain witnesses and the request made to the professional tribunals for their files (see paragraphs 29 and 30 above), the first step in the investigation was not taken until 26 August 1969 when the 4th Chamber made its order on the evidence to be adduced (see paragraph 30 above). The Commission rightly stresses, furthermore, that the Chamber waited for seventeen months before calling for the
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professional tribunals' files despite the interrelation of the action before it and the action relative to the withdrawal of the authorisation to practise. Again, the despatch of the file to the authorities and courts to which the applicant had made his various appeals caused appreciable losses of time (see paragraphs 30, 31, 35, 38, 39, 40, 41, 42 and 45 above). To the extent that it was necessary for the competent authority to have the complete file at its disposal, it would have been desirable to consider the possibility of having a copy made. It must also be observed that the 4th Chamber decided on 10 February 1975, that is, more than seven years after being seised of the case, to postpone its judgment until the outcome of the action relative to the withdrawal of the authorisation to practise which had been pending for more than three years before the 2nd Chamber of the same court (see paragraphs 44 and 51 above). This decision was taken after three orders had been made concerning the evidence to be adduced by the parties and after the hearing of numerous witnesses. On this point, the Government admitted that, with the benefit of hindsight, doubts could arise as to whether the court properly conducted the enquiry. In fact, the European Court is unable to discern what the 4th Chamber, which in 1977 was able to dismiss the applicant's appeal on the basis of evidence taken between November 1969 and August 1974 (see paragraph 47 above), was expecting from the outcome of the proceedings pending before the 2nd Chamber. In this connection, the Court recalls that the latter proceedings had been suspended on 25 September 1973 to await the outcome of the criminal proceedings and were not resumed until 30 June 1975. The Court concludes that, in these circumstances, the 4th Chamber did not have sufficient reason for prolonging the proceedings in this way, even if account is taken of the applicant's consent (see paragraphs 44 and 46 above). 105. In an overall assessment of the various factors, the Court concludes that the delays occasioned by the difficulties in the investigation and by the applicant's behaviour do not of themselves justify the length of the proceedings. Without attaching decisive importance to any one step taken by the 4th Chamber rather than to another, the Court is in fact of the opinion that the principal reason for the length of the proceedings is to be found in the conduct of the case. The Court finds that it would have been possible for the 4th Chamber to bring the proceedings to an end at an earlier date. Taking into account the fact that the proceedings began on 13 July 1967 and ended on 22 June 1977, the Court concludes that the "reasonable time" stipulated by Article 6 para. 1 (art. 6-1) was exceeded. The Government stressed that Dr. Knig's appeal had the effect of suspending enforcement of the withdrawal of the authorisation to run his clinic (see paragraph 28 above) and that this feature of the proceedings might have been to his advantage. The Court recognises that this suspensive effect may have a bearing on the interpretation of the concept of "reasonable time". However, in view of the total duration of the proceedings and the prolonged uncertainty in which the applicant found himself, the Court cannot depart, on the ground of the appeal's suspensive effect, from the assessment at which it has arrived above. FOR THESE REASONS, THE COURT 1. holds by fifteen votes to one that Article 6 para. 1 (art. 6-1) is applicable to the proceedings relative to the withdrawal of the applicant's authorisation to run his clinic; 2. holds by fourteen votes to two that Article 6 para. 1 (art. 6-1) is applicable to the proceedings relative to the withdrawal of the applicant's authorisation to practise;

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3. holds by fifteen votes to one that there has been a violation of Article 6 para. 1 (art. 6-1) as regards the duration of the proceedings relative to the withdrawal of the authorisation to run the clinic; 4. holds by fifteen votes to one that there has been a violation of Article 6 para. 1 (art. 6-1) as regards the duration of the proceedings relative to the withdrawal of the authorisation to practise; 5. holds unanimously that the question of the application of Article 50 (art. 50) is not ready for decision; accordingly, (a) reserves the whole of the question of the application of Article 50 (art. 50); (b) invites the Commission's delegates to transmit to the Court, within three months from the delivery of this judgment, such claims as may be presented by the applicant and any observations which the delegates may have thereon; (c) decides that the Government shall have the right to reply to such claims and observations within two months from the date on which the Registrar shall have communicated them to the Government; (d) reserves the further procedure to be followed on this question. Done in French and English, the French text being authentic, at the Human Rights Building, Strasbourg, this twenty-eighth day of June, one thousand nine hundred and seventyeight.

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Kyprianou v Cyprus (ECtHR) Kyprianou v Cyprus App No 73797/01 (ECtHR, 27 January 2004)

SECOND SECTION

CASE OF KYPRIANOU v. CYPRUS

(Application no. 73797/01)

JUDGMENT STRASBOURG 27 January 2004 THIS CASE WAS REFERRED TO THE GRAND CHAMBER, WHICH DELIVERED JUDGMENT IN THE CASE ON 15 December 2005

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THE FACTS I. THE CIRCUMSTANCES OF THE CASE 288. The applicant was born in 1937 and lives in Nicosia. 289. The applicant is an advocate who has been practising for forty years. He was formerly a lawyer at the Office of the Attorney-General and a member of the Cypriot House of Representatives. 290. The applicants complaints originated in his conviction for contempt of court. On 14 February 2001 the applicant was defending someone accused of murder before the Limassol Assize Court. He was conducting the cross-examination of a prosecution witness, a police constable, and alleges that the court interrupted him after he had put a question to the witness. He claims that he had felt offended and had sought permission to withdraw from the case. The Government observed in reply that the court had made a routine intervention with a simple and polite remark regarding the manner in which the applicant was cross-examining of the witness. The applicant had immediately interrupted, without allowing the court to finish its remark and refusing to proceed with his cross-examination. 291. The verbatim record of the proceedings reports the following exchange (translation): Court: We consider that your cross-examination goes into detail beyond the extent to which it could go at this stage of the main trial regarding questions... Applicant: I will stop my cross-examination.... Court: Mr Kyprianou... Applicant: Since the Court considers that I am not doing my job properly in defending this man, I ask for your leave to withdraw from this case. Court: Whether an advocate is to be granted leave to withdraw or not, is a matter within the discretionary power of the Court and, in the light of what we have heard, no such leave is granted. We rely on the case of Kafkaros and Others v. the Republic and we do not grant leave. Applicant: Since you are preventing me from continuing my cross-examination on significant points of the case, then my role here does not serve any purpose. Court: We consider your persistence... Applicant: And I am sorry that when I was cross-examining, the members of the Court were talking to each other, sending ravasakia to each other, which is not compatible with allowing me to continue the cross-examination with the required vigour, if it is under the secret scrutiny of the Court. Court: We consider that what has just been said by Mr Kyprianou, and in particular the manner with which he addresses the Court, constitutes a contempt of court and Mr Kyprianou
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has two choices: either to maintain what he said and to give reasons why no sentence should be imposed on him, or to decide whether he should retract. We give him this opportunity exceptionally. Section 44.1 (a) of the Courts of Justice Law applies to its full extent. Applicant: You can try me. Court: Would you like to say anything? Applicant: I saw with my own eyes the small pieces of paper going from one judge to an other when I was cross-examining, in a way not very flattering to the defence. How can I find the stamina to defend a man who is accused of murder? Court (Mr Photiou): It so happens that the piece of paper to which Mr Kyprianou refers is still in the hands of brother Judge Mr Economou and Mr Kyprianou may inspect it. Court (Mrs Michaelidou): The exchange of written views between the members of the bench as to the manner in which Mr Kyprianou is conducting the case does not give him any rights, and I consider Mr Kyprianous behaviour utterly unacceptable. Court (Mr Fotiou): We shall have a break in order to consider the matter. The defendant (in the main trial) should in the meantime remain in custody. Court: We considered the matter during the adjournment and continue to believe that what Mr Kyprianou said, the content, the manner and the tone of his voice, constitute a contempt of court as provided for in section 44. 1 (a) of the Courts of Justice Law 14/60, that is showing to the court by way of words and conduct. We have asked Mr Kyprianou if he has anything to add before we pass sentence on him. If he has something to add, let us hear him, otherwise the Court should proceed. Applicant: Mr President, during the break, I wondered what the offence was which I had committed. The events took place in a very tense atmosphere. I am defending a very serious case; I felt that I was interrupted in my cross-examination and said what I said. I have been a lawyer for forty years, my record is unblemished and it is the first time that I face such an accusation. That is all I have to say. Court: We shall adjourn for ten minutes and shall then proceed with sentencing. 292. After a short break the Assize Court, by a majority, sentenced the applicant to five days imprisonment. The court referred to the above exchange between the applicant and its members and held as follows: ...It is not easy, through words, to convey the atmosphere which Mr Kyprianou had created since, quite apart from the unacceptable content of his statements, the tone of his voice as well as his demeanour and gestures to the Court, not only gave an unacceptable impression of any civilised place, and a courtroom in particular, but were apparently aimed at creating climate of intimidation and fear within the Court. We are not exaggerating at all in saying that Mr Kyprianou was shouting at and gesturing to the Court.
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It was pointed out to him that his statements and his behaviour amounted to contempt of court and he was given the opportunity to speak. And while there was a reasonable expectation that Mr Kyprianou would calm down and that he would apologise his apologies, Mr Kyprianou, in the same tone and with the same intensity already referred to, shouted, "You can try me". Later, after a long break, Mr Kyprianou was given a second chance to address the Court, in the hope that he would apologise and mitigate the damage caused by his behaviour. Unfortunately, at this stage Mr Kyprianou still showed no signs of regret or, at least, of apprehension for the unacceptable situation he had created. On the contrary, he stated that during the break he wondered what his crime had been, merely attributing his behaviour to the "very tense atmosphere". However, he was solely responsible for the creation of that atmosphere and, therefore, he cannot use it as an excuse. Mr Kyprianou did not hesitate to suggest that the exchange of views between the members of the bench amounted to exchange of "ravasakia", that is, "love letters" (See: "Dictionary of Modern Greek - Spoudi ravasaki (Slavic ravas), love letter, written love note"). And he accused the Court, which was trying to regulate the course of the proceedings, as it had the right and the duty to do, of restricting him and of doing justice in secret. We cannot conceive of another occasion of such a manifest and unacceptable contempt of court by any person, let alone an advocate. The judges as persons, whom Mr Kyprianou has deeply insulted, are the least of our concern. What really concerns us is the authority and integrity of justice. If the Courts reaction is not immediate and drastic, we feel that justice will have suffered a disastrous blow. An inadequate reaction on the part of the lawful and civilised order, as expressed by the courts, would mean accepting that the authority of the courts be demeaned. It is with great sadness that we conclude that the only adequate response, in the circumstances, is the imposition of a sentence of a preventive nature, which can only be imprisonment. We are well aware of the repercussions of this decision since the person concerned is an advocate of long standing, but it is Mr Kyprianou himself who, through his conduct, brought matters to this end. In the light of the above we impose a sentence of imprisonment of 5 days. 293. The president of the Court also decided to impose a fine of CYP 75 (128.45 euros). 294. The applicant served his prison sentence. 295. On 15 February 2001 the applicant filed an appeal with the Supreme Court, which was dismissed on 2 April 2001. As ground No. 8 of his appeal, he submitted that a sanction for contempt of court should not be used to suppress aggressive advocacy, so that the advocate had sufficient freedom to conduct his clients case as he saw fit. 296. The Supreme Court stated that the relevant constitutional provisions of Cypriot law on contempt of court reflected the principles of English law. It relied on Article 162 of the
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Constitution which enables the enactment of legislation giving jurisdiction to any court to order the imprisonment for up to 12 months of any person who does not comply with a judgment or order of that court, and to punish contempt of court. It held that Section 44.2 of the Courts of Justice Law was lawfully authorised by Article 162. Finally, it concluded that it was the applicant who had created a tense atmosphere by his disdainful attitude and by undermining his role. 297. The Supreme Court held inter alia: It is not by accident that the successive objectives of the constitutional legislator, which are embodied in Article 30 and Article 162 of the Constitution, exist side by side. The power to sanction contempt of court is aimed at the protection of judicial institutions, which is essential in order to safeguard a fair trial. ...The role of the judge is nothing more than that of the defender of judicial proceedings and of the courts authority, the very existence of which are necessary to secure a fair trial. A lawyer, a servant of justice, is not a party to the case. By abusing the right to be heard and being in contempt of court, a lawyer intervenes in the proceedings, as any third party, and interferes with the course and thereby harms justice. The judicial sanctioning of contempt, where necessary, is a judicial duty exercised for the purpose of the securing the right to a fair trial. 298. The Supreme Court concluded as follows: We find that Mr Kyprianou, by words and conduct, showed disrespect to the court and committed the offence of contempt in the face of the court contrary to Section 44.2 of the Law. 299. In relation to the sentence imposed on the applicant, the Supreme Court stated inter alia the following: It was up to the Assize Court to deal with the contempt and to decide the means for the treatment and punishment of the person responsible for the contempt. No reason has been shown which justifies our intervention as regards the sentence imposed. 4. Glossary 300. The Greek word (ravasakia) is the plural of the word (ravasaki) which has the following meanings: (1) G. Babinioti, Dictionary of Modern Greek Language, p. 1542 [. , ]: (i) short and secret letter or note with love content ( ); (ii) anything written (document, letter, etc.) mainly of un unpleasant nature, which is sent to someone. Synonyms: e.g. letter, note [ (, ), . , . .. , ]. (2) Bousnaki Brothers, The Great Popular Dictionary, 2002, p. 2983 [/ , ]:
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(i) note () ; (ii) love letter ( ). (3) Dictionary of the Common odern Greek, p. 1741 (Aristotle University Thessaloniki, Institute of Modern Greek Studies); ( , , ): (i) love letter, note (that is sent secretly); [ , ( )]; (ii) short written message normally of an unpleasant nature (warning, threats, etc.) for the recipient [ , . (, ) ].

THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 1 OF THE CONVENTION 301. The applicant contended that he had not been heard by an independent and impartial tribunal. The same court before which the alleged contempt had been committed had found him guilty and had sentenced him. He alleged that the Assize Court had both prosecuted and tried the offence, having been the sole witness in those proceedings, and had pronounced the sentence. Accordingly, the applicant complained of a violation of Article 6 1 which, insofar as relevant, reads as follows: In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing ... by an independent and impartial tribunal... A. Submissions of the parties 1. The Government 302. The Government submitted that the applicants allegations were based on the assumption that the judges had been involved in the matter as complainants and had therefore had a personal interest in the subsequent proceedings. They stated that such an assumption betrayed a fundamental misunderstanding of the nature and function of proceedings for contempt in the face of the court in common-law jurisdictions. They were not proceedings brought by one of the parties or by a complainant. They constituted a sui generis procedure aimed at securing the unimpeded functioning of the courts and safeguarding the authority of the judiciary. The proceedings were not adversarial in the sense that one person was opposed to another; they concerned the integrity of the judicial system. No single judge had any interest in them. The long-established power granted to common-law courts to sanction improper conduct committed in their face was a necessary and indispensable element of a fair trial itself. The Assize Courts own duty to ensure a fair trial of the persons accused of
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murder in the present case required it to possess the summary power to deal with any contempt before it. The applicant had not insulted the judges in their individual capacity but had sought to undermine the authority of the judicial system itself. 303. The Government further maintained that, in order to be effective, the judicial power to sanction attempts by any person in the courtroom to dominate the court and determine the course of the trial had to be exercised immediately. Otherwise the person in contempt would in effect have achieved his purpose. Moreover, if contempt proceedings had been brought before a different bench, there would have been certain undesirable consequences that could not have been overlooked: the members of the bench would have had to testify about the events which had taken place before their eyes. Their credibility in connection with the facts of which they had become aware while performing their functions would have had to have been tested by other judges and the very integrity of the judiciary would accordingly have been unnecessarily questioned. 304. According to the Government, the applicant would have been entitled to allege a breach of the impartiality rule only on the (incorrect) assumption that the Assize Court had been acting in a personal capacity in trying him. There was no basis for a finding of objective bias, if both the context and the fact that there was no complainant were borne in mind. Furthermore, the fact that the applicant had been able to appeal to the Supreme Court, a judicial body with full jurisdiction to review facts and law, cured any possible breach of the impartiality requirement. The requirements of Article 6 had been satisfied, if not by the Assize Court, then by the Supreme Court. The Supreme Court had independently found that the applicant had been guilty of the offence of contempt, and had upheld the sentence imposed by the Assize Court. The Government stressed that the judges of the Assize Court itself had not been parties to a dispute with the applicant, and the proceedings taken against him had not been taken for the purpose of vindicating any personal rights of the three insulted judges, but in order to protect the courts as a whole within a democratic society governed by the rule of law. The Assize Courts decision to act without delay had been both necessary and justified in the circumstances. 305. The Government submitted that the tribunal had to be presumed impartial until the contrary was proved. There was no evidence that the Assize Court had been biased against the applicant. The sentence of 5 days imprisonment had been upheld on appeal by the Supreme Court, and it was thus impossible to argue that the sentence revealed bias on the part of the Assize Court. The power of the court to ensure the proper course of its proceedings and to protect the integrity of the judicial system was necessary to allow the court to secure a fair hearing to those appearing before it. A power to take such measures as were necessary to protect the authority of the court constituted implied limitations on the requirements of Article 6 of the Convention. 2. The applicant 306. The applicant maintained that the sentence of five days imprisonment, imposed on an experienced lawyer of exemplary reputation for what (on the courts findings) had been a minor transgression, in itself suggested the existence of bias. He submitted that, in proceedings for contempt, a judge should refer the matter to another judge or to the Attorney General, especially if a judge had prematurely expressed a view as to guilt. The conduct of the bench in his case suggested bias, both on a subjective test (as evidenced by their words and the harsh sentence imposed on the applicant) and on an objective test (by virtue of their position as judges in their own cause). The members of the bench in question were both complainants and witnesses to the conduct which was alleged to have constituted contempt.
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The applicant maintained that it was particularly important that the issue should have been determined by an independent tribunal given that (a) there had been a dispute as to the applicants intended meaning in using the word ravasakia which was a matter of inference; (b) there had been a dispute as to whether he had been justified in complaining about the conduct of the court in the first place; (c) there had been a dispute as to whether his demeanour was intended to be, or was perceived to be, threatening; and (d) the court had been contemplating the imposition of a prison sentence on a lawyer for his conduct in court. 307. The applicant contended that the review by the Supreme Court in his case had not cured the alleged partiality. That court had not conducted a rehearing of the case. It had confined itself to points of law. Moreover, it had upheld the manifestly disproportionate sentence imposed on him. The case could have been dealt with by a simple adjournment of proceedings and/or referral of the matter to the Attorney General to decide whether to initiate proceedings or to refer the matter to another bench for trial. The court could also have referred the matter to the Attorney General, who is by law the Chairman of the Disciplinary Committee, responsible for disciplinary action. Such was the normal practice in Cyprus. As was a referral by a court to the Attorney General when, in the course of a hearing, the judge believed that a criminal offence might have been committed. B. The Courts assessment 1. Applicability of Article 6 308. The Court notes that the Government did not dispute the applicants submission that Article 6 of the Convention applied or more particularly, that the applicants conviction for contempt of court was a conviction for a criminal offence. In any event, the Court finds that the criminal nature of the offence of contempt of court in this case cannot be disputed. Applying the criteria established by the case-law of the Court (see Engel and others v. the Netherlands, judgment of 8 June 1976, Series A no. 22, 82-83; ztrk v. Germany, judgment of 21 February 1984, Series A no. 73, 48-50), namely a) the domestic classification of the offence, b) the nature of the offence, and c) the degree of severity of the penalty that the person concerned risks incurring, it is clear that the offence in question was criminal. The offence was classified in domestic law as criminal, it was not confined to the applicants status as a lawyer, the maximum possible sentence was one months imprisonment and the sentence actually imposed on the applicant was 5 days imprisonment (see Ezeh and Connors v. the United Kingdom [GC], nos. 39665/98 and 40086/98, 82-86, ECHR 2003-X). Therefore, the requirements of Article 6 of the Convention in respect of the determination of any criminal charge, and the defence rights of everyone charged with a criminal offence, apply fully in the present case. 2. Compliance with Article 6 309. The Court reiterates that it is of fundamental importance in a democratic society that the courts inspire confidence in the public and, above all, as far as criminal proceedings are concerned, in the accused. To that end it has constantly stressed that a tribunal must be impartial. Whilst impartiality normally denotes the absence of prejudice or bias, its existence or otherwise can, notably under Article 6 1 of the Convention, be tested in various ways. It is well established in the Courts case-law that there are two aspects to the requirement of impartiality. First, the tribunal must be subjectively free of personal prejudice or bias. Personal impartiality is to be presumed unless there is evidence to the contrary. Secondly, the
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tribunal must also be impartial from an objective viewpoint, that is, it must offer sufficient guarantees to exclude any legitimate doubts (see Sander v. the United Kingdom, no. 34129/96, 22, ECHR 2000-V, and Piersack v. Belgium, judgment of 1 October 1982, Series A no. 53, 30). 310. In the present case the applicant alleged that there was evidence of both objective and actual or subjective bias on the part of the Assize Court. (a) Objective test 311. The Court considers that the decisive feature of the case is that the judges of the court which convicted the applicant were the same judges before whom the contempt was allegedly committed. This in itself is enough to raise legitimate doubts, which are objectively justified, as to the impartiality of the court - nemo judex in causa sua. 312. The Governments assertion that the judges who convicted the applicant cannot be considered complainants in the proceedings and had no personal interest in the relevant offence but were simply defending the authority and standing of the court is, in the opinion of the Court, theoretical. The reality is that courts are not impersonal institutions but function through the judges who compose them. It is the judges who interpret a certain act or type of conduct as contempt of court. Whether a contempt has been committed must be assessed on the basis of the particular judges own personal understanding, feelings, sense of dignity and standards of behaviour. Justice is offended if the judges feel that it has been. Their personal feelings are brought to bear in the process of judging whether there has been a contempt of court. Their own perception and evaluation of the facts and their own judgment are engaged in this process. For that reason, they cannot be considered to be sufficiently detached, in order to satisfy the conditions of impartiality, to determine the issues pertaining to the question of contempt in the face of their own court. The Court endorses in this respect the statement of the Supreme Court of the United States in the case of Offutt v. USA (348 U.S. 11. 75 S.Ct.11): But judges also are human, and may, in a human way, quite unwittingly identify offence to self with obstruction to law. Accordingly, this Court has deemed it important that district judges guard against this easy confusion by not sitting themselves in judgment upon misconduct of counsel where the contempt charged is entangled with the judges personal feeling against the lawyer. 313. In this connection, the Court notes that, in their decision, the judges of the Assize Court acknowledged that as persons they were deeply insulted by the applicant, even though they went on to say that this was the least of their concerns, and emphasised the importance for them of upholding the authority and integrity of justice. 314. The Court considers that in situations where a court is faced with misbehaviour on the part of any person in the courtroom which may constitute the criminal offence of contempt, the correct course dictated by the requirement of impartiality under Article 6 1 of the Convention is to refer the question to the competent prosecuting authorities for investigation and, if warranted, prosecution, and to have the matter determined by a different bench from the one before which the problem arose. In fact, with the exception of Cyprus, this is the practice in the High Contracting Parties to the Convention as regards behaviour which constitutes the criminal offence of contempt of court. The situation regarding sanctions of a disciplinary nature, in the form of fines, imposed for behaviour which does not attract criminal liability, is different (Ravnsborg v. Sweden, judgment of 23 March 1994, Series A no. 283-B).
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(b) Subjective test 315. As regards the applicants contention concerning the subjective bias of the judges of the Assize Court, the Court notes that the principle that a tribunal shall be presumed to be free of personal prejudice or partiality is long established in the Courts case-law (see, for example, Le Compte, Van Leuven and De Meyere v. Belgium, judgment of 23 June 1981, Series A no. 43, p. 25, 58). The personal impartiality of each judge must be presumed until there is proof to the contrary (ibid.). 316. The Court accepts that the facts, as disclosed by the minutes of the relevant proceedings and the final decision of the Assize Court, reveal that a degree of personal partiality did indeed emerge on the part of the judges during their discussion with the applicant. This was triggered, to some extent, by the courts interpretation of the word ravasakia as love letters instead of notes although that word has two possible different meanings (see 23 above), the particular context in which it was used and the applicants statement that he saw: with [his] own eyes the small pieces of paper going from one judge to an other when [he] was cross-examining .... 317. In this respect, the Court notes that, in their decision, the judges of the Assize Court stated that the applicant did not hesitate to suggest that the exchange of views between the members of the bench amounted to an exchange of "ravasakia", that is, "love letters" and acknowledged that as persons they had been deeply insulted by the applicant, even though they went on to say that this was the least of their concerns. 318. The lack of impartiality is evidenced by the intemperate reaction of the judges to the conduct of the applicant, as evidenced by their haste to try him summarily for the criminal offence of contempt of court without availing themselves of other alternative, less drastic, measures such as a warning, reporting the applicant to his professional body, refusing to hear the applicant unless he withdrew his statements, or asking him to leave the courtroom. In this respect an additional important factor is the harsh punishment - immediate imprisonment which they imposed on the applicant while stating, for example: i) We cannot conceive of another occasion of such a manifest and unacceptable contempt of court by any person... ii) If the Courts reaction is not immediate and drastic, we feel that justice will have suffered a disastrous blow (). 319. The Court also finds relevant in this connection its observations and conclusions below regarding the complaints of breach of the presumption of innocence and insufficient information as to the nature and cause of the change against the applicant (paragraphs 52-58 and 65-68). (c) The review by the Supreme Court 320. The Court notes that the decision of the Assize Court was subsequently reviewed by the Supreme Court. According to the Courts case-law, it is possible for a higher tribunal, in certain circumstances, to make reparation for an initial violation of the Convention (see the De Cubber v. Belgium judgment of 26 October 1984, Series A no. 86, p. 19, 33). 321. However, in the present case, the Court observes that the Supreme Court agreed with the approach of the first instance court, i.e. that the latter could itself try a case of criminal
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contempt committed in its face, and rejected the applicants complaints which are now before this Court. There was no retrial of the case by the Supreme Court. As a court of appeal, the Supreme Court did not have full competence to deal de novo with the case, but could only review the first instance judgment for possible legal or manifest factual errors. It did not carry out an ab initio, independent determination of the criminal charge against the applicant for contempt of the Assize Court. Furthermore, the Supreme Court found that it could not interfere with the judgment of the Assize Court, accepting that that court had a margin of appreciation in imposing a sentence on the applicant. Indeed, although the Supreme Court had the power to quash the impugned decision on the ground that the composition of the Assize Court had not been such as to guarantee its impartiality, it declined to do so. 322. The Court also notes that the appeal did not have a suspensive effect on the judgment of the Assize Court. In this connection, it observes that the applicants conviction and sentence became effective under domestic criminal procedure on the same day as the delivery of the judgment by the Assize Court, i.e. on 14 February 2001. The applicant filed his appeal the next day, on 15 February 2001, whilst he was serving the five-day sentence of imprisonment. The decision on appeal was delivered on 2 April 2001, long after the sentence had been served. 323. In these circumstances, the Court is not convinced by the Governments argument that any defect in the proceedings of the Assize Court was cured on appeal by the Supreme Court. 324. In conclusion, the Court considers that there has been a breach of the principle of impartiality, on the basis of both the objective and subjective tests. Accordingly, there has been a violation of Article 6 1 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 6 2 OF THE CONVENTION 325. The applicant complained that he had been presumed guilty as soon as he had objected to the Assize Courts conduct. He argued that, in essence, he had only been expected to enter a plea in mitigation on his own behalf before the delivery of the courts final ruling. He alleged a violation of Article 6 2 of the Convention, which provides: Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. A. The parties submissions 1. The Government 326. The Government referred to their arguments on the question of impartiality. Further, they emphasised that there was no dispute over the underlying facts as to what had happened. Therefore it would have been absurd to adopt the ordinary procedure, where the facts constituting the offence were to be proved through witnesses. Finally, there was no indication that the presumption of innocence had not been upheld. The judges had applied the presumption automatically in their decision-making process, but the facts before them had been such as to rebut that presumption. All judges were imbued with the necessity of upholding the presumption of innocence, and automatically applied it without having to state expressly in every case that they had done so. The fact that the court had stated that what had been said prima facie constituted contempt, and invited representations on the matter, could not be considered a violation of Article 6 2 of the Convention. If the applicant had produced
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a good explanation for what he had said, he would not have been found in contempt. It was totally unrealistic to suggest that the court had closed its mind to this possibility. 2. The applicant 327. The applicant submitted that his appearance and that of the members of the bench, before a different, independent tribunal, in a hearing to assess whether the applicants words and actions amounted to contempt, would have been entirely practicable and fair to both sides. The presumption of innocence required the court to refrain from taking any decision as to the applicants guilt until all parties had had an opportunity to make representations. It was clear that the court had made up its mind as to his guilt immediately, and all he had been offered was an opportunity to enter a plea in mitigation as to sentence. That was clear from the Assize Courts judgment, where it was stated Later, after a long break, Mr Kyprianou was given a second chance to say something to the Court, in the hope that he would apologise and mitigate the damage caused by his behaviour. B. The Courts assessment 328. Although there is authority for the proposition that, if a violation of the principle of impartiality is found, it is not necessary to examine other complaints under Article 6 of the Convention (see Findlay v. the United Kingdom, judgment of 25 February 1997, Reports of Judgments and Decisions 1997-I, 80), the Court considers that, in the circumstances of the present case, there are grounds for examining the applicants other complaints under that Article (see mutatis mutandis, G v. Turkey [GC], no. 36590/97, 46, ECHR 2002-V). 329. The Court recalls that the presumption of innocence enshrined in Article 6 2 of the Convention is one of the constituent elements of a fair criminal trial guaranteed by Article 6 1. 330. In the present case the Court notes, on the basis of the minutes of the relevant proceedings, that the Assize Court formed and expressed an opinion during its discussion with the applicant amounting to a conclusion that it considered him guilty of the criminal offence of contempt of court. In particular, following the courts refusal to grant him leave to withdraw from the case and his statement regarding the exchange of ravasakia between the judges, the court stated the following: We consider that what has just been said by Mr Kyprianou and in particular the manner with which he addresses to the Court constitutes a contempt of court and Mr Kyprianou has two choices: either to maintain what he said and to give reasons why no sentence should be imposed on him or for him to decide whether he should retract. We give him this opportunity exceptionally. Section 44.1 (a) of the Courts of Justice Law applies to its full extent. 331. In this connection, the Court observes that the applicant was given little opportunity to react to the possibility of such a finding or put forward his own explanations and representations in this respect. 332. Furthermore, following the applicants persistence and a second short break, the court reaffirmed its view by stating that: We continue to believe that what Mr Kyprianou said, the content, the manner and the tone of his voice, constitute a contempt of Court as provided in Section 44.1 (a) of the Courts of Justice Law 14/60.

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333. The final decision of the Assize Court imposing the prison sentence was based on the above conclusions formed by the court during its discussions with the applicant. The Court agrees with the applicant that, essentially, he was asked for mitigation rather than given a full opportunity to defend himself against a charge which would have grave consequences for his liberty. In these circumstances, the Court finds that the Assize Court violated the principle of the presumption of innocence. 334. The Court reiterates its findings as regards the role of the Supreme Court (see 4346 above) and the failure to remedy the defects in the proceedings of the Assize Court on appeal. 335. It therefore finds that there has been a violation of Article 6 2 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 6 3 a. OF THE CONVENTION 336. The applicant contended that the Assize Court failed to inform him in detail of the accusations against him. In its decision on sentence, the Assize Court held that the applicants gestures were intended to create a climate of intimidation and fear within the court. The applicant claimed that he could not have known of the courts fears and that such an accusation should have been specifically put to him. He alleged a violation of Article 6 3 a) of the Convention, which provides: Everyone charged with a criminal offence has the following minimum rights: (a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; ... A. Submissions of the parties 1. The Government 337. The Government stated that Article 6 3 a. did not require that the accused be informed of all the evidence on which a charge was founded. It was sufficient that he was informed of the offences with which he was charged, together with the date and place of their alleged commission. 338. The Government further submitted that it was clear from the transcript of the proceedings before the Assize Court that the court had expressly referred both to the facts that constituted the offence and to the relevant statutory provisions. The Supreme Court concluded that the applicant had been sufficiently informed of the matters constituting the contempt. 339. The Government stressed that the events that constituted the offence had been brief and simple and had just taken place in the courtroom; there had been no dispute as to what had occurred. The court had expressly told the applicant that what had amounted to contempt had been the content of his specific statement and the tone in which it was made. The transcript of the proceedings could neither capture nor convey the tone in which the applicant had spoken, but he himself had been well aware of it. 340. It was highly formalistic to suggest that the allegation that the tone of his voice as well as his demeanour and gestures to the Assize Court had been apparently aimed at creating a climate of intimidation and fear within the Court constituted a separate allegation against the applicant. The Assize Court specifically mentioned the tone of his voice when addressing the Court. The Government submitted that the Court was simply not in a position
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to assess how a Cypriot court (consisting of native speakers of the Greek language) should have interpreted the Greek word ravasakia, which could mean love letters, derived from the Slavic word ravas. In any case, the applicant would have been well aware of the possible connotations of that word. He must have known that such a comment was inappropriate and capable of misinterpretation. 2. The applicant 341. The applicant submitted that the information about the charge levelled against him by the members of the bench had been lacking in detail and had not enabled him to prepare his defence. Contrary to the finding of the Supreme Court, neither the allegation of creating a climate of intimidation and fear, nor the suggestion that the court had interpreted the word ravasakia to mean love letters, had been put to him. B. The Courts assessment 342. The Court recalls that the fairness of proceedings must be assessed with regard to the case as a whole (see, for example, Miailhe v. France (No. 2), judgment of 26 September 1996, Reports 1996-IV, p. 1338, 43, and Imbrioscia v. Switzerland, judgment of 24 November 1993, Series A no. 275, pp. 13-14, 38). Article 6 3 a. of the Convention underlines the need for special attention to be paid to informing the defendant of the accusation. It affords the defendant the right to be informed not only of the cause of the accusation, that is to say the acts he is alleged to have committed and on which the accusation is based, but also the legal characterisation given to those acts. That information should be detailed (see Plissier and Sassi v. France [GC], no. 25444/94, 51, ECHR 1999-II). The scope of this provision must be assessed in the light of the more general right to a fair hearing guaranteed by Article 6 1 of the Convention. 343. In the present case, the Court observes that the applicant was informed of the nature and cause of the accusation against him by the Assize Court after the court had already formed the view that the applicant was guilty of the criminal offence of contempt of court (see 53-56 above). Furthermore, the material facts which influenced the courts decision, as expressed in the decision of the majority to impose a prison sentence on him, were not disclosed before that decision. These facts were, first, that the Assize Court interpreted the word ravasakia to mean love letters rather than notes; secondly, the courts objections regarding the applicants tone of voice and his gestures to the court which had created a climate of intimidation and fear within the Court; and thirdly, the Assize Courts view that the applicant had accused the court of restricting him and of doing justice in secret. 344. The Court reiterates it findings concerning the review by the Supreme Court ( 4346 above) and the failure to remedy the defects in the proceedings of the Assize Court on appeal. 345. In the light of the above, the Court finds that there has been a violation of Article 6 3 a. of the Convention. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Holds that there has been a violation of Article 6 1 of the Convention; 2. Holds that there has been a violation of Article 6 2 of the Convention; 3. Holds that there has been a violation of Article 6 3 a. of the Convention;
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4. Holds that it is not necessary to examine separately the applicants complaint under Article 10 of the Convention; 5. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 2 of the Convention, the following amounts, to be converted into Cypriot pounds at the rate applicable on the date of settlement: (i) EUR 15,000 (fifteen thousand euros) in respect of non-pecuniary damage; (ii) EUR 10,000 (ten thousand euros) in respect of costs and expenses; (iii) any tax that may be chargeable on the above amounts; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 6. Dismisses the remainder of the applicants claim for just satisfaction. Done in English, and notified in writing on 27 January 2004, pursuant to Rule 77 2 and 3 of the Rules of Court. S. DOLL Registrar J.-P. COSTA President

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Kadi and Al Barakaat International Foundation v Council and Commission (ECJ) Joined Cases C-402/05 P and C-415/05 P Kadi and Al Barakaat International Foundation v Council and Commission [2008] ECR I-6351

Joined Cases C-402/05 P and C-415/05 P Yassin Abdullah Kadi and Al Barakaat International Foundation v Council of the European Union and Commission of the European Communities Summary of the Judgment 1. To accept the interpretation of Articles 60 EC and 301 EC that it is enough for the restrictive measures laid down by Resolution 1390 (2002) of the United Nations Security Council and given effect by Regulation No 881/2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaeda network and the Taliban to be directed at persons or entities present in a third country or associated with one in some other way, would give those provisions an excessively broad meaning and would fail to take any account at all of the requirement, imposed by their very wording, that the measures decided on the basis of those provisions must be taken against third countries. Interpreting Article 301 EC as building a procedural bridge between the Community and the European Union, so that it must be construed as broadly as the relevant Community competences, including those relating to the common commercial policy and the free movement of capital, threatens to reduce the ambit and, therefore, the practical effect of that provision, for, having regard to its actual wording, the subject of that provision is the adoption of potentially very diverse measures affecting economic relations with third countries which, therefore, by necessary inference, must not be limited to spheres falling within other material powers of the Community such as those in the domain of the common commercial policy or of the free movement of capital. Moreover, that interpretation finds no support in the wording of Article 301 EC, which confers a material competence on the Community the scope of which is, in theory, autonomous in relation to that of other Community competences. Having regard to the purpose and subject-matter of that regulation, it cannot be considered that the regulation relates specifically to international trade in that it is essentially intended to promote, facilitate or govern trade, and it could not, therefore, be based on the powers of the Community in the sphere of the common commercial policy. A Community measure falls within the competence in the field of the common commercial policy provided for in Article 133 EC only if it relates specifically to international trade in that it is essentially intended to promote, facilitate or govern trade and has direct and immediate effects on trade in the products concerned. Nor can that regulation be regarded as falling within the ambit of the provisions of the EC Treaty on free movement of capital and payments, in so far as it
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prohibits the transfer of economic resources to individuals in third countries. With regard, first of all, to Article 57(2) EC, the restrictive measures at issue do not fall within one of the categories of measures listed in that provision. Next, so far as Article 60(1) EC is concerned, that provision cannot furnish the basis for the regulation in question either, for its ambit is determined by that of Article 301 EC. As regards, finally, Article 60(2) EC, this provision does not include any Community competence to that end, given that it does no more than enable the Member States to take, on certain exceptional grounds, unilateral measures against a third country with regard to capital movements and payments, subject to the power of the Council to require a Member State to amend or abolish such measures. (see paras 168, 176-178, 183, 185, 187-191, 193) 2. The view that Article 308 EC allows, in the special context of Articles 60 EC and 301 EC, the adoption of Community measures concerning not one of the objectives of the Community but one of the objectives under the EU Treaty in the sphere of external relations, including the common foreign and security policy (the CFSP), runs counter to the very wording of Article 308 EC. While it is correct to consider that a bridge has been constructed between the actions of the Community involving economic measures under Articles 60 EC and 301 EC and the objectives of the EU Treaty in the sphere of external relations, including the CFSP, neither the wording of the provisions of the EC Treaty nor the structure of the latter provides any foundation for the view that that bridge extends to other provisions of the EC Treaty, in particular to Article 308 EC Recourse to Article 308 EC demands that the action envisaged should, on the one hand, relate to the operation of the common market and, on the other, be intended to attain one of the objectives of the Community. That latter concept, having regard to its clear and precise wording, cannot on any view be regarded as including the objectives of the CFSP. The coexistence of the Union and the Community as integrated but separate legal orders, and the constitutional architecture of the pillars, as intended by the framers of the Treaties now in force, constitute considerations of an institutional kind militating against any extension of that bridge to articles of the EC Treaty other than those with which it explicitly creates a link. In addition, Article 308 EC, being an integral part of an institutional system based on the principle of conferred powers, cannot serve as a basis for widening the scope of Community powers beyond the general framework created by the provisions of the EC Treaty as a whole and, in particular, by those defining the tasks and the activities of the Community. Likewise, Article 3 EU, in particular its second paragraph, cannot supply a base for any widening of Community powers beyond the objects of the Community. (see paras 197-204) Article 308 EC is designed to fill the gap where no specific provisions of the Treaty confer on the Community institutions express or implied powers to act, if such powers appear none the less to be necessary to enable the Community to carry out its functions with a view to attaining one of the objectives laid down by the Treaty. Regulation No 881/2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaeda network and the Taliban, inasmuch as it imposes restrictive measures of an economic and financial nature, plainly falls within the ambit ratione materiae of Articles 60 EC and 301 EC. Since those articles do not, however, provide for any express or implied powers of action to impose such measures on addressees in no way linked to the governing regime of a third country such as those to whom that regulation applies, that lack of power, attributable to the limited
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3.

ambit ratione personae of those provisions, may be made good by having recourse to Article 308 EC as a legal basis for that regulation in addition to the first two provisions providing a foundation for that measure from the point of view of its material scope, provided, however, that the other conditions to which the applicability of Article 308 EC is subject have been satisfied. The objective pursued by the contested regulation being to prevent persons associated with Usama bin Laden, the Al-Qaeda network or the Taliban from having at their disposal any financial or economic resources, in order to impede the financing of terrorist activities, it may be made to refer to one of the objectives of the Community for the purpose of Article 308 EC. Inasmuch as they provide for Community powers to impose restrictive measures of an economic nature in order to implement actions decided on under the common foreign and security policy, Articles 60 EC and 301 EC are the expression of an implicit underlying objective, namely, that of making it possible to adopt such measures through the efficient use of a Community instrument. That objective may be regarded as constituting an objective of the Community for the purpose of Article 308 EC. Implementing such measures through the use of a Community instrument does not go beyond the general framework created by the provisions of the EC Treaty as a whole, because by their very nature they offer a link to the operation of the common market, that link constituting another condition for the application of Article 308 EC. If economic and financial measures such as those imposed by the regulation were imposed unilaterally by every Member State, the multiplication of those national measures might well affect the operation of the common market. (see paras 211, 213, 216, 222, 225-227, 229-230) 4. The Community is based on the rule of law, inasmuch as neither its Member States nor its institutions can avoid review of the conformity of their acts with the basic constitutional charter, the Treaty, which established a complete system of legal remedies and procedures designed to enable the Court of Justice to review the legality of acts of the institutions. An international agreement cannot affect the allocation of powers fixed by the Treaties or, consequently, the autonomy of the Community legal system, observance of which is ensured by the Court by virtue of the exclusive jurisdiction conferred on it by Article 220 EC, jurisdiction that forms part of the very foundations of the Community. With regard to a Community act which, like Regulation No 881/2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaeda network and the Taliban, is intended to give effect to a resolution adopted by the Security Council under Chapter VII of the Charter of the United Nations, it is not for the Community judicature, under the exclusive jurisdiction provided for by Article 220 EC, to review the lawfulness of such a resolution adopted by an international body, even if that review were to be limited to examination of the compatibility of that resolution with jus cogens, but rather to review the lawfulness of the implementing Community measure. Any judgment given by the Community judicature deciding that a Community measure intended to give effect to such a resolution is contrary to a higher rule of law in the Community legal order would not entail any challenge to the primacy of that resolution in international law. (see paras 281-282, 286-288) Fundamental rights form an integral part of the general principles of law whose observance the Court ensures. For that purpose, the Court draws inspiration from the constitutional
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traditions common to the Member States and from the guidelines supplied by international instruments for the protection of human rights on which the Member States have collaborated or to which they are signatories. In that regard, the European Convention for the Protection of Human Rights and Fundamental Freedoms has special significance. Respect for human rights is therefore a condition of the lawfulness of Community acts, and measures incompatible with respect for human rights are not acceptable in the Community. The obligations imposed by an international agreement cannot have the effect of prejudicing the constitutional principles of the EC Treaty, which include the principle that all Community acts must respect fundamental rights, that respect constituting a condition of their lawfulness which it is for the Court to review in the framework of the complete system of legal remedies established by the Treaty. It is not a consequence of the principles governing the international legal order under the United Nations that any judicial review of the internal lawfulness of the Regulation No 881/2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaeda network and the Taliban in the light of fundamental freedoms is excluded by virtue of the fact that that measure is intended to give effect to a resolution of the Security Council adopted under Chapter VII of the Charter of the United Nations. Such immunity from jurisdiction for a Community measure, as a corollary of the principle of the primacy at the level of international law of obligations under the Charter of the United Nations, especially those relating to the implementation of resolutions of the Security Council adopted under Chapter VII of that Charter, cannot find a basis in the EC Treaty. Article 307 EC may in no circumstances permit any challenge to the principles that form part of the very foundations of the Community legal order, which include the principles of liberty, democracy and respect for human rights and fundamental freedoms enshrined in Article 6(1) EU as a foundation of the Union. If Article 300(7) EC, providing that agreements concluded under the conditions set out therein are to be binding on the institutions of the Community and on Member States, were applicable to the Charter of the United Nations, it would confer on the latter primacy over acts of secondary Community law. That primacy at the level of Community law would not, however, extend to primary law, in particular to the general principles of which fundamental rights form part. The Community judicature must, therefore, in accordance with the powers conferred on it by the EC Treaty, ensure the review, in principle the full review, of the lawfulness of all Community acts in the light of the fundamental rights forming an integral part of the general principles of Community law, including review of Community measures which, like the regulation at issue, are designed to give effect to the resolutions adopted by the Security Council under Chapter VII of the Charter of the United Nations. (see paras 283-285, 299, 303-304, 306-308, 326) 6. The Community must respect international law in the exercise of its powers and a measure adopted by virtue of those powers must be interpreted, and its scope limited, in the light of the relevant rules of international law. In the exercise of its power to adopt Community measures taken on the basis of Articles 60 EC and 301 EC, in order to give effect to resolutions adopted by the Security Council under Chapter VII of the Charter of the United Nations, the Community must attach special importance to the fact that, in accordance with Article 24 of the Charter of the United Nations, the adoption by the Security Council of resolutions under Chapter VII of the Charter constitutes the exercise of the primary responsibility with which that international body is invested for the maintenance of peace and security at the global level, a responsibility which,
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under Chapter VII, includes the power to determine what and who poses a threat to international peace and security and to take the measures necessary to maintain or restore them. The Charter of the United Nations does not, however, impose the choice of a predetermined model for the implementation of resolutions adopted by the Security Council under Chapter VII, since they are to be given effect in accordance with the procedure applicable in that respect in the domestic legal order of each Member of the United Nations. The Charter of the United Nations leaves the Members of the United Nations a free choice among the various possible models for transposition of those resolutions into their domestic legal order. (see paras 291, 293-294, 298) 7. So far as concerns the rights of the defence, in particular the right to be heard, with regard to restrictive measures such as those imposed by Regulation No 881/2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaeda network and the Taliban, the Community authorities cannot be required to communicate, before the name of a person or entity is included for the first time in the list of persons or entities concerned by those measures, the grounds on which that inclusion is based. Such prior communication would be liable to jeopardise the effectiveness of the freezing of funds and resources imposed by that regulation. Nor, for reasons also connected to the objective pursued by that regulation and to the effectiveness of the measures provided by the latter, were the Community authorities bound to hear the appellants before their names were included for the first time in the list set out in Annex I to that regulation. In addition, with regard to a Community measure intended to give effect to a resolution adopted by the Security Council in connection with the fight against terrorism, overriding considerations to do with safety or the conduct of the international relations of the Community and of its Member States may militate against the communication of certain matters to the persons concerned and, therefore, against their being heard on those matters. Nevertheless, the rights of the defence, in particular the right to be heard, were patently not respected, for neither the regulation at issue nor Common Position 2002/402 concerning restrictive measures against Usama bin Laden, members of the Al-Qaeda organisation and the Taliban and other individuals, groups, undertakings and entities associated with them, to which that regulation refers, provides for a procedure for communicating the evidence justifying the inclusion of the names of the persons concerned in Annex I to that regulation and for hearing those persons, either at the same time as that inclusion or later and, furthermore, the Council neither communicated to the appellants the evidence used against them to justify the restrictive measures imposed on them nor afforded them the right to be informed of that evidence within a reasonable period after those measures were enacted. (see paras 334, 338-339, 341-342, 345, 348) The principle of effective judicial protection is a general principle of Community law stemming from the constitutional traditions common to the Member States, which has been enshrined in Articles 6 and 13 of the European Convention on Human Rights, this principle having furthermore been reaffirmed by Article 47 of the Charter of fundamental rights of the European Union. Observance of the obligation to communicate the grounds on which the name of a person or entity is included in the list forming Annex I to Regulation No 881/2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaeda network and the Taliban is necessary both to enable the persons to whom restrictive measures are addressed to defend their rights in the best possible
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conditions and to decide, with full knowledge of the relevant facts, whether there is any point in their applying to the Community judicature and also to put the latter fully in a position in which it may carry out the review of the lawfulness of the Community measure in question which is its duty under the EC Treaty. Given that those persons or entities were not informed of the evidence adduced against them and having regard to the relationship between the rights of the defence and the right to an effective legal remedy, they have also been unable to defend their rights with regard to that evidence in satisfactory conditions before the Community judicature and the latter is not able to undertake the review of the lawfulness of that regulation in so far as it concerns those persons or entities, with the result that it must be held that their right to an effective legal remedy has also been infringed. (see paras 335-337, 349, 351) 9. The importance of the aims pursued by a Community act is such as to justify negative consequences, even of a substantial nature, for some operators, including those who are in no way responsible for the situation which led to the adoption of the measures in question, but who find themselves affected, particularly as regards their property rights. With reference to an objective of public interest as fundamental to the international community as the fight by all means, in accordance with the Charter of the United Nations, against the threats to international peace and security posed by acts of terrorism, the freezing of the funds, financial assets and other economic resources of the persons identified by the Security Council or the Sanctions Committee as being associated with Usama bin Laden, members of the Al-Qaeda organisation and the Taliban cannot per se be regarded as inappropriate or disproportionate. In this respect, the restrictive measures imposed by Regulation No 881/2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaeda network and the Taliban constitute restrictions of the right to property which may, in principle, be justified. The applicable procedures must, however, afford the person or entity concerned a reasonable opportunity of putting his or its case to the competent authorities, as required by Article 1 of Protocol No 1 to the European Convention on Human Rights. Thus, the imposition of the restrictive measures laid down by that regulation in respect of a person or entity, by including him or it in the list contained in its Annex I, constitutes an unjustified restriction of the right to property, for that regulation was adopted without furnishing any guarantee enabling that person or entity to put his or its case to the competent authorities, in a situation in which the restriction of property rights must be regarded as significant, having regard to the general application and actual continuation of the restrictive measures affecting him or it. (see paras 361, 363, 366, 368-370) In so far as a regulation such as Regulation No 881/2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaeda network and the Taliban must be annulled so far as concerns the appellants, by reason of breach of principles applicable in the procedure followed when the restrictive measures introduced by that regulation were adopted, it cannot be excluded that, on the merits of the case, the imposition of those measures on the appellants may for all that prove to be justified. Annulment of that regulation with immediate effect would thus be capable of seriously and irreversibly prejudicing the effectiveness of the restrictive measures imposed by the regulation and which the Community is required to implement, because in the interval
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preceding its replacement by a new regulation the appellants might take steps seeking to prevent measures freezing funds from being applied to them again. In those circumstances, Article 231 EC will be correctly applied in maintaining the effects of the contested regulation, so far as concerns the appellants, for a period that may not exceed three months running from the date of delivery of this judgment. (see paras 373-374, 376)

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Lawless v Ireland (No. 3) (ECtHR) Lawless v Ireland (No. 3) App No 332/57 (ECtHR, 1 July 1961)

COURT (CHAMBER)

CASE OF LAWLESS v. IRELAND (No. 3)

(Application no 332/57)

JUDGMENT

STRASBOURG

1 July 1961
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AS TO THE FACTS I 1. The purpose of the Commission's request - to which is appended the Report drawn up by the Commission in accordance with the provisions of Article 31 (art. 31) of the Convention - is to submit the case of G.R. Lawless to the Court so that it may decide whether or not the facts of the case disclose that the Irish Government has failed in its obligations under the Convention. As appears from the Commission's request and from its Memorial, G.R. Lawless alleges in his Application that, in his case, the Convention has been violated by the authorities of the Republic of Ireland, inasmuch as, in pursuance of an Order made by the Minister of Justice under section 4 of Act No. 2 of 1940 amending the Offences against the State Act, 1939, he was detained without trial, between 13th July and 11th December 1957, in a military detention camp situated in the territory of the Republic of Ireland. 2. The facts of the case, as they appear from the Report of the Commission, the memorials, evidence and documents laid before the Court and the statements made by the Commission and by the Irish Government during the oral hearings before the Court, are in substance as follows: 3. G.R. Lawless is a builder's labourer, born in 1936. He is ordinarily resident in Dublin (Ireland). 4. G.R. Lawless admitted before the Commission that he had become a member of the IRA ("Irish Republican Army") in January 1956. According to his own statements, he left the IRA in June 1956 and a splinter group of the IRA in December 1956. II 5. Under the Treaty establishing the Irish Free State, signed on 6th December 1921 between the United Kingdom and the Irish Free State, six counties situated in the North of the Island of Ireland remained under British sovereignty. 6. On several occasions since the foundation of the Irish Free State, armed groups, calling themselves the "Irish Republican Army" (IRA), have been formed, for the avowed purpose of carrying out acts of violence to put an end to British sovereignty in Northern Ireland. At times the activities of these groups have been such that effective repression by the ordinary process of law was not possible. From time to time, the legislature has, therefore, conferred upon the Government special powers deal with the situation created by these unlawful activities; and such powers have sometimes included the power of detention without trial. On 29th December 1937 the Constitution at present in force in the Irish Republic was promulgated. In May 1938 all persons detained for political offences were released. When the political situation in Europe foreshadowed war, the IRA resumed its activities and committed fresh acts of violence. At the beginning of 1939 the IRA published documents described by it as a "declaration of war on Great Britain". Following that declaration, the IRA, operating from territory of the Republic of Ireland, intensified its acts of violence on British territory. 7. In order to meet the situation created by the activities of the IRA, the Parliament of the Republic of Ireland passed the Offences against the State Act, 1939, which came into force on 14th June 1939.
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III 8. Part II of the 1939 Act defines the "activities prejudicial to the preservation of public peace and order or to the security of the State". Part III contains provisions relating to organisations whose activities come under the Act and any which may therefore be declared an "unlawful organisation" by order of the Government. Section 21 of the 1939 Act provides as follows: Section 21: "(1) It shall not be lawful for any person to be a member of an unlawful organisation; (2) Every person who is a member of an unlawful organisation in contravention of this section shall be guilty of an offence under this section and shall: (a) on summary conviction thereof, be liable to a fine not exceeding fifty pounds, or at the discretion of the court, to imprisonment for a term not exceeding three months or to both such fine and such imprisonment; or (b) on conviction thereof on indictment, be liable to imprisonment for a term not exceeding two years." Part IV of the 1939 Act contains various provisions relating to the repression of unlawful activities, including, in section 30, the following provision relating to the arrest and detention of persons suspected of being concerned in unlawful activities: Section 30: "(1) A member of the Grda Sochna (if he is not in uniform on production of his identity card if demanded) may without warrant stop, search, interrogate, and arrest any person, or do any one or more of those things in respect of any person, whom he suspects of having committed or being about to commit or being or having been concerned in the commission of an offence under any section or sub-section of this Act, or an offence which is for the time being a scheduled offence for the purposes of Part V of this Act or whom he suspects of carrying a document relating to the commission or intended commission of any such offence as aforesaid. (2) Any member of the Grda Sochna (if he is not in uniform on production of his identity card if demanded) may, for the purpose of the exercise of any of the powers conferred by the next preceding sub-section of this section, stop and search (if necessary by force) any vehicle or any ship, boat, or other vessel which he suspects to contain a person whom he is empowered by the said sub-section to arrest without warrant. (3) Whenever a person is arrested under this section, he may be removed to and detained in custody in a Grda Sochna station, a prison, or some other convenient place for a period of twenty-four, hours from the time of his arrest and may, if an officer of the Grda Sochna not below the rank of Chief Superintendent so directs, be so detained for a further period of twenty-four hours. (4) A person detained under the next preceding sub-section of this section may, at any time during such detention, be charged before the District Court or a Special Criminal Court with an offence, or be released by direction of an officer of the Grda Sochna, and shall, if not so charged or released, be released at the expiration of the detention authorised by the said subsection.
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(5) A member of the Grda Sochna may do all or any of the following things in respect of a person detained under this section, that is to say: (a) demand of such person his name and address; (b) search such person or cause him to be searched; (c) photograph such person or cause him to be photographed; (d) take, or cause to be taken, the fingerprints of such person. (6) Every person who shall obstruct or impede the exercise in respect of him by a member of the Grda Sochna of any of the powers conferred by the next preceding sub-section of this section or shall fail or refuse to give his name and address or shall give, in response to any such demand, a name or an address which is false or misleading shall be guilty of an offence under this section and shall be liable on summary conviction thereof to imprisonment for a term not exceeding six months." Part V of the 1939 Act is concerned with the establishment of "Special Criminal Courts" to try persons charged with offences under the Act. Lastly, Part VI of the 1939 Act contained provisions authorising any Minister of State - once the Government had brought that Part of the Act into force - to order, in certain circumstances, the arrest and detention of any person whom he was satisfied was engaged in activities declared unlawful by the Act. 9. On 23rd June 1939, i.e. nine days after the entry into force of the Offences Against the State Act, the Government made an order under section 19 of the Act that the IRA, declared an "unlawful organisation", be dissolved. 10. About 70 persons were subsequently arrested and detained under Part VI of the Act. One of those persons brought an action in the High Court of Ireland, challenging the validity of his detention. The High Court declared the detention illegal and ordered the release of the person concerned by writ of habeas corpus. The Government had all the persons detained under the same clauses released forthwith. 11. Taking note of the High Court's judgment, the Government tabled in Parliament a Bill to amend Part VI of the Offences against the State Act, 1939. The Bill, after being declared constitutional by the Supreme Court, was passed by Parliament on 9th February 1940, becoming the Offences against the State (Amendment) Act, 1940 (No. 2 of 1940). This Act No. 2 of 1940 confers on Ministers of State special powers of detention without trial, "if and whenever and so often as the Government makes and publishes a proclamation declaring that the powers conferred by this Part of this Act are necessary to secure the preservation of public peace and order and that it is expedient that this Part of this Act should come into force immediately" (section 3, sub-section (2) of the Act). Under section 3, sub-section (4) of the Act, however, a Government proclamation bringing into force the special powers of detention may be annulled at any time by a simple resolution of the Lower House of the Irish Parliament. Moreover, under section 9 of the Act both Houses of Parliament must be kept fully informed, at regular intervals, of the manner in which the powers of detention have been exercised. 12. The powers of detention referred to in the Act are vested in Ministers of State. Section 4 of the Act provides as follows: "(1) Whenever a Minister of State is of opinion that any particular person is engaged in activities which, in his opinion, are prejudicial to the preservation of public peace and order

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or to the security of the State, such Minister may by warrant under his hand and sealed with his official seal order the arrest and detention of such person under this section. (2) Any member of the Grda Sochna may arrest without warrant any person in respect of whom a warrant has been issued by a Minister of State under the foregoing sub-section of this section. (3) Every person arrested under the next preceding sub-section of this section shall be detained in a prison or other place prescribed in that behalf by regulations made under this Part of this Act until this Part of this Act ceases to be in force or until he is released under the subsequent provisions of this Part of this Act, whichever first happens. (4) Whenever a person is detained under this section, there shall be furnished to such person, as soon as may be after he arrives at a prison or other place of detention prescribed in that behalf by regulations made under this Part of this Act, a copy of the warrant issued under this section in relation to such person and of the provisions of section 8 of this Act". 13. Under section 8 of the Offences against the State (Amendment) Act, 1940, the Government is required to set up, as soon as conveniently may be after the entry into force of the powers of detention without trial, a Commission (hereinafter referred to as "Detention Commission") to which any person arrested or detained under the Act may apply, through the Government, to have his case considered. The Commission is to consist of three persons, appointed by the Government, one to be a commissioned officer of the Defence Forces with not less than seven years' service and each of the others to be a barrister or solicitor of not less than seven years' standing or a judge or former judge of one of the ordinary courts. Lastly, section 8 of the Act provides that, if the Commission reports that no reasonable grounds exist for the continued detention of the person concerned, such person shall, with all convenient speed, be released. IV 14. After several years during which there was very little IRA activity, there was a renewed outbreak in 1954 and again in the second half of 1956. In the second half of December 1956 armed attacks were made on a number of Northern Ireland police barracks and at the end of the month a policeman was killed. In the same month a police patrol on border roads was fired on, trees were felled across roads and telephone wires cut, etc. In January 1957 there were more incidents of the same kind. At the beginning of the month there was an armed attack on Brookeborough Police Barracks during which two of the assailants were killed; both of them came from the 26-county area. Twelve others, of whom four were wounded, fled across the border and were arrested by the police of the Republic of Ireland. Thereupon, the Prime Minister of the Republic of Ireland, in a public broadcast address on 6th January 1957, made a pressing appeal to the public to put an end to these attacks. Six days after this broadcast, namely, on 12th January 1957, the IRA carried out an armed raid on an explosives store in the territory of the Republic of Ireland, situated at Moortown, County Dublin, for the purpose of stealing explosives. On 6th May 1957, armed groups entered an explosives store at Swan Laois, held up the watchman and stole a quantity of explosives.

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On 18th April 1957, the main railway line from Dublin to Belfast was closed by an explosion which caused extensive damage to the railway bridge at Ayallogue in County Armagh, about 5 miles on the northern side of the border. During the night of 25th-26th April, three explosions between Lurgan and Portadown, in Northern Ireland, also damaged the same railway line. On the night of 3rd/4th July a Northern Ireland police patrol on duty a short distance from the border was ambushed. One policeman was shot dead and another injured. At the scene of the ambush 87 sticks of gelignite were found to have been placed on the road and covered with stones, with wires leading to a detonator. This incident occurred only eight days before the annual Orange Processions which are widespread throughout Northern Ireland on 12th July. In the past, this date has been particularly critical for the maintenance of peace and public order. V 15. The special powers of arrest and detention conferred upon the Ministers of State by the 1940 (Amendment) Act were brought into force on 8th July 1957 by a Proclamation of the Irish Government published in the Official Gazette on 5th July 1957. On 16th July 1957, the Government set up the Detention Commission provided for in section 8 of that Act and appointed as members of that Commission an officer of Defence Forces, a judge and a district Justice. 16. The Proclamation by which the Irish Government brought into force on 8th July 1957 the special powers of detention provided for in Part II of the 1940 Act (No. 2) read as follows: "The Government, in exercise of the powers conferred on them by sub-section (2) of section 3 of the Offences against the State (Amendment) Act, 1940, (No. 2 of 1940), hereby declare that the powers conferred by Part II of the said Act are necessary to secure the preservation of public peace and order and that it is expedient that the said part of the said Act should come into force immediately." 17. By letter of 20th July 1957 the Irish Minister for External Affairs informed the SecretaryGeneral of the Council of Europe that Part II of the Offences against the State Act, 1940 (No. 2) had come into force on 8th July 1957. Paragraph 2 of that letter read as follows: "... Insofar as the bringing into operation of Part II of the Act, which confers special powers of arrest and detention, may involve any derogation from the obligations imposed by the Convention for the Protection of Human Rights and Fundamental Freedoms, I have the honour to request you to be good enough to regard this letter as informing you accordingly, in compliance with Article 15 (3) (art. 15-3) of the Convention." The letter pointed out that the detention of persons under the Act was considered necessary "to prevent the commission of offences against public peace and order and to prevent the maintaining of military or armed forces other than those authorised by the Constitution." The Secretary-General's attention was called to section 8 of the Act which provides for the establishment of a Commission to which any detained person can appeal. This Commission was set up on 16th July 1957. 18. Soon after the publication of the Proclamation of 5th July 1957 bringing into force the powers of detention provided for under the 1940 Act, the Prime Minister of the Government of the Republic of Ireland announced that the Government would release any person held
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under that Act who undertook "to respect the Constitution and the laws of Ireland" and "to refrain from being a member of or assisting any organisation declared unlawful under the Offences against the State Act, 1939". VI 19. G.R. Lawless was first arrested with three other men on 21st September 1956 in a disused barn at Keshcarrigan, County Leitrim. The police discovered in the barn a Thompson machine-gun, six army rifles, six sporting guns, a revolver, an automatic pistol and 400 magazines. Lawless admitted that he was a member of the IRA and that he had taken part in an armed raid when guns and revolvers had been stolen. He was subsequently charged on 18th October with unlawful possession of firearms under the Firearms Act, 1935 and under Section 21 of the Offences against the State Act, 1939. G.R. Lawless, together with the other accused, was sent forward for trial to the Dublin Circuit Criminal Court. On 23rd November 1956, they were acquitted of the charge of unlawful possession of arms. The trial judge had directed the jury that the requirements for proving the accussed's guilt had not been satisfied in that it not been conclusively shown that no competent authority had issued a firearm certificate authorising him to be in possession of the arms concerned. At the hearing before this Court on 26th October, the District Justice asked one of the accused, Sean Geraghty, whether he wished to put any questions to any of the policemen present. Sean Geraghty replied as follows: "As a soldier of the Irish Republican Army and as leader of these men, I do not wish to have any part in proceedings in this Court." When asked by the Justice whether he pleaded guilty or not guilty to the charge, he again said: "On behalf of my comrades and myself I wish to state that any arms and ammunition found on us were to be used against the British Forces of occupation to bring about the reunification of our country and no Irishman or woman of any political persuasion had anything to fear from us. We hold that it is legal to possess arms and also believe it is the duty of every Irishman to bear arms in defence of his country." Subsequently, G.R. Lawless in reply to a question by the Justice said: "Sean Geraghty spoke for me." Lawless was again arrested in Dublin on 14th May 1957 under section 30 of the 1939 Act, on suspicion of engaging in unlawful activities. A sketch map for an attack of certain frontier posts between the Irish Republic and Northern Ireland was found on him bearing the inscription "Infiltrate, annihilate and destroy." On the same day his house was searched by the police who found a manuscript document on guerrilla warfare containing, inter alia, the following statements: "The resistance movement is the armed vanguard of the Irish people fighting for the freedom of Ireland. The strength of the movement consists in the popular patriotic character of the movement. The basic mission of local resistance units are the destruction of enemy installations and establishments that is TA halls, special huts, BA recruiting offices, border huts, depots, etc. Attacks against enemy aerodromes and the destruction of aircraft hangars, depots of bombs and fuel, the killing of key flying personnel and mechanics, the killing or capture of high224

ranking enemy officers and high officials of the enemy's colonial Government and traitors to our country in their pay, that is, British officers, police agents, touts, judges, high members of the Quisling party, etc."

THE LAW 1. Whereas it has been established that G.R. Lawless was arrested by the Irish authorities on 11th July 1957 under sections 21 and 30 of the Offences against the State Act (1939) No. 13; that on 13th July 1957, before the expiry for the order for arrest made under Act No. 13 of 1939, G.R. Lawless was handed a copy of a detention order made on 12th July 1957 by the Minister of Justice under section 4 of the Offences against the State (Amendment) Act 1940; and that he was subsequently detained, first in the military prison in the Curragh and then in the Curragh Internment Camp, until his release on 11th December 1957 without having been brought before a judge during that period; 2. Whereas the Court is not called upon to decide on the arrest of G.R. Lawless on 11th July 1957, but only, in the light of the submissions put forward both by the Commission and by the Irish Government, whether or not the detention of G.R. Lawless from 13th July to 11th December 1957 under section 4 of the Offences against the State (Amendment) Act, 1940, complied with the stipulations of the Convention; 3. Whereas, in this connection the Irish Government has put in against the Application of G.R. Lawless a plea in bar as to the merits derived from Article 17 (art. 17) of the Convention; whereas this plea in bar should be examined first; As to the plea in bar derived from Article 17 (art. 17) of the Convention. 4. Whereas Article 17 (art. 17) of the Convention provides as follows: "Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention". 5. Whereas the Irish Government submitted to the Commission and reaffirmed before the Court (i) that G.R. Lawless, at the time of his arrest in July 1957, was engaged in IRA activities; (ii) that the Commission, in paragraph 138 of its Report, had already observed that his conduct was "such as to draw upon the Applicant the gravest suspicion that, whether or not he was any longer a member, he was still concerned with the activities of the IRA at the time of his arrest in July 1957"; (iii) that the IRA was banned on account of its activity aimed at the destruction of the rights and freedoms set forth in the Convention; that, in July 1957, G.R. Lawless was thus concerned in activities falling within the terms of Article 17 (art. 17) of the Convention; that he therefore no longer had a right to rely on Articles 5, 6, 7 (art. 5, art. 6, art. 7) or any other Article of the Convention; that no State, group or person engaged in activities falling within the terms of Article 17 (art. 17) of the Convention may rely on any of the provisions of the Convention; that this construction was supported by the Commission's decision on the admissibility of the Application submitted to it in 1957 by the German Communist Party; that, however, where Article 17 (art. 17) is applied, a Government is not released from its obligation towards other Contracting Parties to ensure that its conduct continues to comply with the provisions of the Convention; 6. Whereas the Commission, in the Report and in the course of the written pleadings and oral hearings before the Court, expressed the view that Article 17 (art. 17) is not applicable in the
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present case; whereas the submissions of the Commission on this point may be summarised as follows: that the general purpose of Article 17 (art. 17) is to prevent totalitarian groups from exploiting in their own interest the principles enunciated by the Convention; but that to achieve that purpose it is not necessary to take away every one of the rights and freedoms guaranteed in the Convention from persons found to be engaged in activities aimed at the destruction of any of those rights and freedoms; that Article 17 (art. 17) covers essentially those rights which, if invoked, would facilitate the attempt to derive therefrom a right to engage personally in activities aimed at the destruction of "any of the rights and freedoms set forth in the Convention"; that the decision on the admissibility of the Application submitted by the German Communist Party (Application No. 250/57) was perfectly consistent with this construction of Article 17 (art. 17); that there could be no question, in connection with that Application, of the rights set forth in Articles 9, 10 and 11 (art. 9, art. 10, art. 11) of the Convention, since those rights, if extended to the Communist Party, would have enabled it to engage in the very activities referred to in Article 17 (art. 17); Whereas, in the present case, the Commission was of the opinion that, even if G. R. Lawless was personally engaged in IRA activities at the time of his arrest, Article 17 (art. 17) did not preclude him from claiming the protection of Articles 5 and 6 (art. 5, art. 6) of the Convention nor absolve the Irish Government from observing the provisions of those Articles, which protect every person against arbitrary arrest and detention without trial; 7. Whereas in the opinion of the Court the purpose of Article 17 (art. 17), insofar as it refers to groups or to individuals, is to make it impossible for them to derive from the Convention a right to engage in any activity or perform any act aimed at destroying any of the rights and freedoms set forth in the Convention; whereas, therefore, no person may be able to take advantage of the provisions of the Convention to perform acts aimed at destroying the aforesaid rights and freedoms; whereas this provision which is negative in scope cannot be construed a contrario as depriving a physical person of the fundamental individual rights guaranteed by Articles 5 and 6 (art. 5, art. 6) of the Convention; whereas, in the present instance G.R. Lawless has not relied on the Convention in order to justify or perform acts contrary to the rights and freedoms recognised therein but has complained of having been deprived of the guarantees granted in Articles 5 and 6 (art. 5, art. 6) of the Convention; whereas, accordingly, the Court cannot, on this ground, accept the submissions of the Irish Government. As to whether the detention of G.R. Lawless without trial from 13th July to 11th December 1957 under Section 4 of the Offences against the State (Amendment) Act 1940, conflicted with the Irish Government's obligations under Articles 5 and 6 (art. 5, art. 6) of the Convention. 8. Whereas Article 5 (art. 5) of the Convention reads as follows: "(1) Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a) the lawful detention of a person after conviction by a competent court; (b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law; (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
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(d) the detention of a minor by lawful order for the purpose of educational supervision of his lawful detention for the purpose of bringing him before the competent legal authority; (e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants; (f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition. (2) Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him. (3) Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article (art. 5-1-c) shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial. (4) Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. (5) Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article (art. 5) shall have an enforceable right to compensation." 9. Whereas the Commission, in its Report, expressed the opinion that the detention of G.R. Lawless did not fall within any of the categories of cases listed in Article 5, paragraph 1 (art. 5-1) of the Convention and hence was not a measure deprivative of liberty which was authorised by the said clause; whereas it is stated in that opinion that under Article 5, paragraph 1 (art. 5-1), deprivation of liberty is authorised in six separate categories of cases of which only those referred to in sub-paragraphs (b) (art. 5-1-b) in fine ("in order to secure the fulfilment of any obligation prescribed by law") and (c) (art. 5-1-c) of the said paragraph come into consideration in the present instance, the Irish Government having invoked each of those sub-paragraphs before the Commission as justifying the detention of G.R. Lawless; that, with regard to Article 5, paragraph 1 (b) (art. 5-1-b) in fine, the detention of Lawless by order of a Minister of State on suspicion of being engaged in activities prejudicial to the preservation of public peace and order or to the security of the State cannot be deemed to be a measure taken "in order to secure the fulfilment of any obligation prescribed by law", since that clause does not contemplate arrest or detention for the prevention of offences against public peace and public order or against the security of the State but for securing the execution of specific obligations imposed by law; That, moreover, according to the Commission, the detention of G. R. Lawless is not covered by Article 5, paragraph 1 (c) (art. 5-1-c), since he was not brought before the competent judicial authority during the period under review; that paragraph 1 (c) (art. 5-1-c) authorises the arrest or detention of a person on suspicion of being engaged in criminal activities only when it is effected for the purpose of bringing him before the competent judicial authority; that the Commission has particularly pointed out in this connexion that both the English and French versions of the said clause make it clear that the words "effected for the purpose of bringing him before the competent judicial authority" apply not only to the case of a person arrested or detained on "reasonable suspicion of having committed an offence" but also to the case of a person arrested or detained "when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so"; that, furthermore, the presence of
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a comma in the French version after the words "s'il a t arrt et dtenu en vue d'tre conduit devant l'autorit judiciaire comptente" means that this passage qualifies all the categories of arrest and detention mentioned after the comma; that in addition, paragraph 1 (c) of Article 5 (art. 5-1-c) has to be read in conjunction with paragraph 3 of the same Article (art. 5-3) whereby everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of the said Article (art. 5-1-c) shall be brought promptly before a judge; that it is hereby confirmed that Article 5, paragraph 1 (c) (art. 5-1-c), allows the arrest or detention of a person effected solely for the purpose of bringing him before a judge; Whereas the Commission has expressed no opinion on whether or not the detention of G.R. Lawless was consistent with the provisions of Article 6 (art. 6) of the Convention; 10. Whereas the Irish Government have contended before the Court: - that the detention from 13th July to 11th December 1957 of G.R. Lawless whose general conduct together with a number of specific circumstances drew upon him, in the opinion of the Commission itself (paragraph 138 of its Report), "the gravest suspicion that he was concerned with the activities of the IRA" at the time of his arrest in July 1957 - was not a violation of Article 5 or 6 (art. 5, art. 6) of the Convention; whereas the Irish Government have contended that the Convention does not require that a person arrested or detained on preventive grounds shall be brought before a judicial authority; and that, consequently, the detention of G.R. Lawless did not conflict with the stipulations of the Convention; whereas on this point the Irish Government, not relying before the Court, as they had done before the Commission, on paragraph 1 (b) of Article 5 (art. 5-1-b), have made submissions which include the following: that Article 5 paragraph 1 (c) (art. 5-1-c) refers to two entirely separate categories of cases of deprivation of liberty - those where a person is arrested or detained "on reasonable suspicion of having committed an offence" and those where a person is arrested or detained "when it is reasonably considered necessary to prevent his committing an offence, etc."; that it is clear from the wording of the said clause that the obligation to bring the arrested or detained person before the competent judicial authority applies only to the former category of case; that this is the meaning of the clause, particularly in the English version; - that the preliminary work on Article 5 (art. 5) supports this construction of the said clause; that account must be taken of the fact that the said Article (art. 5) is derived from a proposal submitted to the Committee of Experts by the United Kingdom delegation in March 1950 and that the French version is consequently only a translation of the original English text; that, as regards paragraph 1 (c) on the Article (art. 5-1-c), the words "or when it is reasonably considered necessary" appeared in the first draft as "or which is reasonably considered to be necessary" and, in the English version, clearly refer to the words "arrest or detention" and not to the phrase "effected for the purpose of bringing him before the competent legal authority"; that this clause subsequently underwent only drafting alterations; - that Article 5, paragraph 3 (art. 5-3) does not conflict with this construction of paragraph 1 (c) of the same Article (art. 5-1-c); that paragraph 3 (art. 5-3) applies only to the first category of cases mentioned in paragraph 1 (c) (art. 5-1-c) and not to cases of the arrest or detention of a person "when it is reasonably considered necessary to prevent his committing an offence"; that this interpretation is supported by the fact that in Common Law countries a person cannot be put on trial for having intended to commit an offence; - that Article 5, paragraph 3 (art. 5-3), is also derived from a proposal submitted in March 1950 by the United Kingdom delegation to the "Committee of Experts" convened to prepare the first draft of a Convention; that the British proposal was embodied in the draft produced by the Committee of Experts; that this draft was then examined by a "Conference of Senior Officials" who deleted from paragraph 3 (art. 5-3) the words "or to prevent his committing a
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crime"; that paragraph 3 (art. 5-3), after amendment by the Senior Officials, accordingly read as follows: "Anyone arrested or detained on the charge of having committed a crime, in accordance with the provisions of paragraph 1 (c) (art. 5-1-c), shall be brought promptly before a judge or other officer authorised by law."; - that it follows from the foregoing that the Senior Officials intended to exclude from Article 5, paragraph 3 (art. 5-3), the case of a person arrested to prevent his committing a crime; that this intention on the part of the Senior Officials is further confirmed by the following passage in their Report to the Committee of Ministers (Doc. CM/WP 4 (50) 19, p. 14): "The Conference considered it useful to point out that where authorised arrest or detention is effected on reasonable suspicion of preventing the commission of a crime, it should not lead to the introduction of a regime of a Police State. It may, however, be necessary in certain circumstances to arrest an individual in order to prevent his committing a crime, even if the facts which show his intention to commit the crime do not of themselves constitute a penal offence. In order to avoid any possible abuses of the right thus conferred on public authorities, Article 13, para. 2 (art. 13-2), will have to be applied strictly."; - that it is clear from the report of the Senior Officials that they - being aware of the danger of abuse in applying a clause which, as in the case of Article 5, paragraph 1 (c) (art. 5-1-c), allows the arrest or detention of a person when it is reasonably considered necessary to prevent his committing an offence - wished to obviate that danger not by means of a judicial decision but through the strict enforcement of the rule in Article 13, paragraph 2, of the draft, which later became Article 18 (art. 18) of Convention; and that Article 5 (art. 5) subsequently underwent only drafting alterations which, however, did not make the meaning of the text absolutely clear or render it proof against misinterpretation; - whereas the Irish Government have contended that Article 6 (art. 6) of the Convention is irrelevant to the present case, since there was no criminal charge against Lawless; 11. Whereas the Commission in its Report and its Principal Delegate at the oral hearing rebutted the construction placed by the Irish Government on Article 5 (art. 5) and based in part on the preparatory work; whereas the Commission contends in the first place that, in accordance with a well-established rule concerning the interpretation of international treaties, it is not permissible to resort to preparatory work when the meaning of the clauses to be construed is clear and unequivocal; and that even reference to the preparatory work can reveal no ground for questioning the Commission's interpretation of Article 5 (art. 5); whereas, in support of its interpretation it has put forward submissions which may be summarised as follows: that it is true that, in the Council of Europe, Article 5 (art. 5) is derived from a proposal made to the Committee of Experts by the United Kingdom delegation in March 1950, but that that proposal was based on a text introduced in the United Nations by a group of States which included not only the United Kingdom but also France; that the United Nations text was prepared in a number of languages, including Englishand French; that the British delegation, when introducing their proposal in the Committee of Experts of the Council of Europe, put in both the French and the English versions of the text in question; that the English version cannot therefore be regarded as the dominant text; that on the contrary, all the evidence goes to show that the changes made in the English version, particularly in that of Article 5, paragraph 1 (c) (art. 5-1-c), during the preparatory work at the Council of Europe were intended to bring it into line with the French text, which, apart from a few drafting alterations of no importance to the present case, was essentially the same as that finally adopted for Article 5 (art. 5) of the Convention; that this is true even of the
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comma after the words "autorit judiciaire comptente", which strictly bears out the construction placed by the Commission on Article 5, paragraph 1 (c) (art. 5-1-c); that the preparatory work on Article 5, paragraph 3 (art. 5-3), leaves no room for doubt about the intention of the authors of the Convention to require that everyone arrested or detained in one or other of the circumstances mentioned in paragraph 1 (c) of the same Article (art. 5-1-c) should be brought promptly before a judge; that this text, too, had its origin in the United Nations draft Covenant in both languages; that the words "on the charge of having committed a crime" were in fact deleted on 7th August 1950 by the Committee of Ministers themselves, but only in order to bring the English text into line with the French, which had already been given the following wording by the Conference of Senior Officials: "Toute personne arrte ou dtenue, dans les conditions prvues au paragraphe 1 (c) (art. 5-1-c) etc. ..."; and that the submissions of the Irish Government therefore receive no support from the preparatory work; 12. Whereas in the first place, the Court must point out that the rules set forth in Article 5, paragraph 1 (b), and Article 6 (art. 5-1-b, art. 6) respectively are irrelevant to the present proceedings, the former because G.R. Lawless was not detained "for non-compliance with the ... order of a court" and the latter because there was no criminal charge against him; whereas, on this point, the Court is required to consider whether or not the detention of G.R. Lawless from 13th July to 11th December 1957 under the 1940 Amendment Act conflicted with the provisions of Article 5, paragraphs 1 (c) and 3 (art. 5-1-c, art. 5-3); 13. Whereas, in this connection, the question referred to the judgment of the Court is whether or not the provisions of Article 5, paragraphs 1 (c) and 3 (art. 5-1-c, art. 5-3), prescribe that a person arrested or detained "when it is reasonably considered necessary to prevent his committing an offence" shall be brought before a judge, in other words whether, in Article 5, paragraph 1 (c) (art. 5-1-c), the expression "effected for the purpose of bringing him before the competent judicial authority" qualifies only the words "on reasonable suspicion of having committed an offence" or also the words "when it is reasonably considered necessary to prevent his committing an offence"; 14. Whereas the wording of Article 5, paragraph 1 (c) (art. 5-1-c), is sufficiently clear to give an answer to this question; whereas it is evident that the expression "effected for purpose of bringing him before the competent legal authority" qualifies every category of cases of arrest or detention referred to in that sub-paragraph (art. 5-1-c); whereas it follows that the said clause permits deprivation of liberty only when such deprivation is effected for the purpose of bringing the person arrested or detained before the competent judicial authority, irrespective of whether such person is a person who is reasonably suspected of having committed an offence, or a person whom it is reasonably considered necessary to restrain from committing an offence, or a person whom it reasonably considered necessary to restrain from absconding after having committed an offence; Whereas, further, paragraph 1 (c) of Article 5 (art. 5-1-c) can be construed only if read in conjunction with paragraph 3 of the same Article (art. 5-3), with which it forms a whole; whereas paragraph 3 (art. 5-3) stipulates categorically that "everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article (art. 5-1-c) shall be brought promptly before a judge ..." and "shall be entitled to trial within a reasonable time"; whereas it plainly entails the obligation to bring everyone arrested or detained in any of the circumstances contemplated by the provisions of paragraph 1 (c) (art. 5-1-c) before a judge for the purpose of examining the question of deprivation of liberty or for the purpose of deciding on the merits; whereas such is the plain and natural meaning of the wording of both paragraph 1 (c) and paragraph 3 of Article 5 (art. 5-1-c, art. 5-3);

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Whereas the meaning thus arrived at by grammatical analysis is fully in harmony with the purpose of the Convention which is to protect the freedom and security of the individual against arbitrary detention or arrest; whereas it must be pointed out in this connexion that, if the construction placed by the Court on the aforementioned provisions were not correct, anyone suspected of harbouring an intent to commit an offence could be arrested and detained for an unlimited period on the strength merely of an executive decision without its being possible to regard his arrest or detention as a breach of the Convention; whereas such an assumption, with all its implications of arbitrary power, would lead to conclusions repugnant to the fundamental principles of the Convention; whereas therefore, the Court cannot deny Article 5, paragraphs 1 (c) and 3 (art. 5-1-c, art. 5-3), the plain and natural meaning which follows both from the precise words used and from the impression created by their context; whereas, therefore, there is no reason to concur with the Irish Government in their analysis of paragraph 3 (art. 5-3) seeking to show that that clause is applicable only to the first category of cases referred to in Article 5, paragraph 1 (c) (art. 5-1-c), to the exclusion of cases of arrest or detention of a person "when it is reasonably considered necessary to prevent his committing an offence"; Whereas, having ascertained that the text of Article 5, paragraphs 1 (c) and 3, (art. 5-1-c, art. 5-3) is sufficiently clear in itself and means, on the one hand, that every person whom "it is reasonably considered necessary to prevent ... committing an offence" may be arrested or detained only "for the purpose of bringing him before the competent legal authority" and, on the other hand, that once a person is arrested or detained he shall be brought before a judge and "shall be entitled to trial within a reasonable time", and that, having also found that the meaning of this text is in keeping with the purpose of the Convention, the Court cannot, having regard to a generally recognised principle regarding th interpretation of international treaties, resort to the preparatory work; 15. Whereas it has been shown that the detention of G.R. Lawless from 13th July to 11th December 1957 was not "effected for the purpose of bringing him before the competent legal authority" and that during his detention he was not in fact brought before a judge for trial "within a reasonable time"; whereas it follows that his detention under Section 4 of the Irish 1940 Act was contrary to the provisions of Article 5, paras. 1 (c) and 3 (art. 5-1-c, art. 5-3) of the Convention; whereas it will therefore be necessary to examine whether, in the particular circumstances of the case, the detention was justified on other legal grounds; As to whether the detention of G.R. Lawless from 13th July to 11th December 1957 under Section 4 of the Offences against the State (Amendment) Act, 1940, conflicted with the Irish Government's obligations under Article 7 (art. 7) of the Convention. 16. Whereas the Commission referred before the Court to the renewed allegation of G.R. Lawless that his detention constituted a violation of Article 7 (art. 7) of the Convention; whereas the said Article (art. 7) reads as follows: "(1) No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed. (2) This Article (art. 7) shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations." Whereas the submissions made by G.R. Lawless before the Commission were substantially as follows: that the 1940 Act was brought into force on 8th July 1957 and that he was arrested
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on 11th July 1957; that is was evident from the proceedings before the Detention Commission - which had to examine cases of detention effected under the 1940 Act - that the Minister of State, in signing the warrant of detention, had taken into consideration matters alleged to have occurred before 8th July 1957; that, if the substance rather than the form of the 1940 Act were considered, detention under that Act would constitute a penalty for having committed an offence; that the offences to which the 1940 Act relates were not punishable before 8th July 1957, when the Act came into force; that, furthermore, if he had been convicted of the alleged offences by an ordinary court, he would in all probability have been sentenced to less severe penalties which would have been subject to review on appeal in due course of law; 17. Whereas the Commission, in its Report, expressed the opinion that Article 7 (art. 7) was not applicable in the present case; that in particular, G.R. Lawless was not detained as a result of a conviction on a criminal charge and that his detention was not a "heavier penalty" within the meaning of Article 7 (art. 7); that, moreover, there was no question of section 4 of the 1940 Act being applied retroactively, since a person was liable to be detained under that clause only if a Minister of State was of the opinion that that person was, after the power of detention conferred by section 4 had come into force, engaged in activities prejudicial to the preservation of public peace and order or the security of the State; 18. Whereas the Irish Government share the Commission's opinion on this point; 19. Whereas the proceedings show that the Irish Government detained G.R. Lawless under the Offences against the State (Amendment) Act, 1940, for the sole purpose of restraining him from engaging in activities prejudicial to the preservation of public peace and order or the security of the State; whereas his detention, being a preventive measure, cannot be deemed to be due to his having been held guilty of a criminal offence within the meaning of Article 7 (art. 7) of the Convention; whereas it follows that Article 7 (art. 7) has no bearing on the case of G.R. Lawless; whereas, therefore, the Irish Government in detaining G.R. Lawless under the 1940 Act, did not violate their obligation under Article 7 (art. 7) of the Convention. As to whether, despite Articles 5 and 6 (art. 5, art. 6) of the Convention, the detention of G.R. Lawless was justified by the right of derogation allowed to the High Contracting Parties in certain exceptional circumstances under Article 15 (art. 15) of the Convention. 20. Whereas the Court is called upon to decide whether the detention of G.R. Lawless from 13th July to 11th December 1957 under the Offences against the State (Amendment) Act, 1940, was justified, despite Articles 5 and 6 (art. 5, art. 6) of the Convention, by the right of derogation allowed to the High Contracting Parties in certain exceptional circumstances under Article 15 (art. 15) of the Convention; 21. Whereas Article 15 (art. 15) reads as follows: "(1) In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law. (2) No derogation from Article 2 (art. 2), except in respect of deaths resulting from lawful acts of war, or from Articles 3, 4 (paragraph 1) and 7 (art. 3, art. 4-1, art. 7) shall be made under this provision. (3) Any High Contracting Party availing itself of this right of derogation shall keep the Secretary-General of the Council of Europe fully informed of the measures which it has taken and the reasons therefore. It shall also inform the Secretary-General of the Council of Europe
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when such measures have ceased to operate and the provisions of the Convention are again being fully executed."; 22. Whereas it follows from these provisions that, without being released from all its undertakings assumed in the Convention, the Government of any High Contracting Party has the right, in case of war or public emergency threatening the life of the nation, to take measures derogating from its obligations under the Convention other than those named in Article 15, paragraph 2 (art. 15-2), provided that such measures are strictly limited to what is required by the exigencies of the situation and also that they do not conflict with other obligations under international law; whereas it is for the Court to determine whether the conditions laid down in Article 15 (art. 15) for the exercise of the exceptional right of derogation have been fulfilled in the present case; (b) As to whether the measures taken in derogation from obligations under the Convention were "strictly required by the exigencies of the situation". 31. Whereas Article 15, paragraph 1 (art. 15-1), provides that a High Contracting Party may derogate from its obligations under the Convention only "to the extent strictly required by the exigencies of the situation"; whereas it is therefore necessary, in the present case, to examine whether the bringing into force of Part II of the 1940 Act was a measure strictly required by the emergency existing in 1957; 32. Whereas G.R. Lawless contended before the Commission that even if the situation in 1957 was such as to justify derogation from obligations under the Convention, the bringing into operation and the enforcement of Part II of the Offences against the State (Amendment) Act 1940 were disproportionate to the strict requirements of the situation; 33. Whereas the Irish Government, before both the Commission and the Court, contended that the measures taken under Part II of the 1940 Act were, in the circumstances, strictly required by the exigencies of the situation in accordance with Article 15, paragraph 1 (art. 151), of the Convention; 34. Whereas while the majority of the Commission concurred with the Irish Government's submissions on this point, some members of the Commission drew from the facts established different legal conclusions; 35. Whereas it was submitted that in view of the means available to the Irish Government in 1957 for controlling the activities of the IRA and its splinter groups the Irish Government could have taken measure which would have rendered superfluous so grave a measure as detention without trial; whereas, in this connection, mention was made of the application of the ordinary criminal law, the institution of special criminal courts of the type provided for by the Offences against the State Act, 1939, or of military courts; whereas it would have been possible to consider other measures such as the sealing of the border between the Republic of Ireland and Northern Ireland; 36. Whereas, however, considering, in the judgment of the Court, that in 1957 the application of the ordinary law had proved unable to check the growing danger which threatened the Republic of Ireland; whereas the ordinary criminal courts, or even the special criminal courts or military courts, could not suffice to restore peace and order; whereas, in particular, the amassing of the necessary evidence to convict persons involved in activities of the IRA and its splinter groups was meeting with great difficulties caused by the military, secret and terrorist character of those groups and the fear they created among the population; whereas the fact that these groups operated mainly in Northern Ireland, their activities in the Republic of Ireland being virtually limited to the preparation of armed raids across the border was an additional impediment to the gathering of sufficient evidence; whereas the sealing of the
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border would have had extremely serious repercussions on the population as a whole, beyond the extent required by the exigencies of the emergency; Whereas it follows from the foregoing that none of the above-mentioned means would have made it possible to deal with the situation existing in Ireland in 1957; whereas, therefore, the administrative detention as instituted under the Act (Amendment) of 1940 - of individuals suspected of intending to take part in terrorist activities, appeared, despite its gravity, to be a measure required by the circumstances; 37. Whereas, moreover, the Offences against the State (Amendment) Act of 1940, was subject to a number of safeguards designed to prevent abuses in the operation of the system of administrative detention; whereas the application of the Act was thus subject to constant supervision by Parliament, which not only received precise details of its enforcement at regular intervals but could also at any time, by a Resolution, annul the Government's Proclamation which had brought the Act into force; whereas the Offences against the State (Amendment) Act 1940, provided for the establishment of a "Detention Commission" made up of three members, which the Government did in fact set up, the members being an officer of the Defence Forces and two judges; whereas any person detained under this Act could refer his case to that Commission whose opinion, if favourable to the release of the person concerned, was binding upon the Government; whereas, moreover, the ordinary courts could themselves compel the Detention Commission to carry out its functions; Whereas, in conclusion, immediately after the Proclamation which brought the power of detention into force, the Government publicly announced that it would release any person detained who gave an undertaking to respect the Constitution and the Law and not to engage in any illegal activity, and that the wording of this undertaking was later altered to one which merely required that the person detained would undertake to observe the law and refrain from activities contrary to the 1940 Act; whereas the persons arrested were informed immediately after their arrest that they would be released following the undertaking in question; whereas in a democratic country such as Ireland the existence of this guarantee of release given publicly by the Government constituted a legal obligation on the Government to release all persons who gave the undertaking; Whereas, therefore, it follows from the foregoing that the detention without trial provided for by the 1940 Act, subject to the above-mentioned safeguards, appears to be a measure strictly required by the exigencies of the situation within the meaning of Article 15 (art. 15) of the Convention; 38. Whereas, in the particular case of G.R. Lawless, there is nothing to show that the powers of detention conferred upon the Irish Government by the Offences against the State (Amendment) Act 1940, were employed against him, either within the meaning of Article 18 (art. 18) of the Convention, for a purpose other than that for which they were granted, or within the meaning of Article 15 (art. 15) of the Convention, by virtue of a measure going beyond what was strictly required by the situation at that time; whereas on the contrary, the Commission, after finding in its Decision of 30th August 1958 on the admissibility of the Application that the Applicant had in fact submitted his Application to it after having exhausted the domestic remedies, observed in its Report that the general conduct of G.R. Lawless, "his association with persons known to be active members of the IRA, his conviction for carrying incriminating documents and other circumstances were such as to draw upon the Applicant the gravest suspicion that, whether or not he was any longer a member, he still was concerned with the activities of the IRA at the time of his arrest in July 1957; whereas the file also shows that, at the beginning of G.R. Lawless's detention under Act No. 2 of 1940, the Irish Government informed him that he would be released if he gave a
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written undertaking "to respect the Constitution of Ireland and the Laws" and not to "be a member of or assist any organisation that is an unlawful organisation under the Offences against the State Act, 1939"; whereas in December 1957 the Government renewed its offer in a different form, which was accepted by G.R. Lawless, who gave a verbal undertaking before the Detention Commission not to "take part in any activities that are illegal under the Offences against the State Acts 1939 and 1940" and was accordingly immediately released;

THE COURT Unanimously, (i) Dismisses the plea in bar derived by the Irish Government from Article 17 (art. 17) of the Convention; (ii) States that Articles 5 and 6 (art. 5, art. 6) of the Convention provided no legal foundation for the detention without trial of G.R. Lawless from 13th July to 11th December 1957, by virtue of Article 4 of the Offences against the State (Amendment) Act, 1940; (iii) States that there was no breach of Article 7 (art. 7) of the Convention; (iv) States that the detention of G.R. Lawless from 13th July to 11th December 1957 was founded on the right of derogation duly exercised by the Irish Government in pursuance of Article 15 (art. 15) of the Convention in July 1957; (v) States that the communication addressed by the Irish Government to the SecretaryGeneral of the Council of Europe on 20th July 1957 constituted sufficient notification within the meaning of Article 15, paragraph 3 (art. 15-3), of the Convention; Decides, accordingly, that in the present case the facts found do not disclose a breach by the Irish Government of their obligations under the European Convention for the Protection of Human Rights and Fundamental Freedoms; Decides, therefore, that the question of entitlement by G.R. Lawless to compensation in respect of such a breach does not arise. Done in French and in English, the French text being authentic, at the Council of Europe, Strasbourg, this first day of July one thousand nine hundred and sixty-one. R. CASSIN President

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Lorse v. Netherlands (ECtHR) Lorse v. Netherlands App No 52750/99 (ECtHR, 4 February 2003)

FORMER FIRST SECTION

CASE OF LORS AND OTHERS v. THE NETHERLANDS

(Application no. 52750/99)

JUDGMENT STRASBOURG 4 February 2003

FINAL

04/05/2003

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THE FACTS I. THE CIRCUMSTANCES OF THE CASE 346. The first applicant is Mr Jacobus Lors, who was born in 1945. The second applicant, Mrs Everdina Lors-Quint (born in 1961), is the wife of the first applicant. The third, fourth and fifth applicants, Pieternella Johanna Lors (born in 1985), Paula Martina Lors (born in 1987) and Jacobus Lors junior (born in 1992), are the children of the first and second applicants. The sixth, seventh, eighth and ninth applicants, Maria Petronella van Esch (born in 1965), Johanna Maria Lors (born in 1966), Neeltje Maria Lors (born in 1968) and Hubertus Joseph Lors (born in 1970), are children of the first applicant born out of previous relationships. The first applicant is currently serving a prison sentence in Dordrecht. The other applicants are all resident in Maastricht, with the exception of the ninth applicant who resides in Rotterdam. 347. The first applicant, hereinafter referred to as Mr Lors, was taken into police custody (in verzekering gesteld) on 24 July 1994 and subsequently placed in detention on remand (voorlopige hechtenis). He was initially detained in ordinary remand institutions (huizen van bewaring). 348. Mr Lors was convicted of drugs and firearms offences. He was sentenced at first instance to twelve years imprisonment and a fine of one million Netherlands guilders (NLG). On appeal the prison term was increased to fifteen years imprisonment, the fine remaining the same. His conviction and sentence became final on 30 June 1998 when his appeal on points of law was rejected by the Supreme Court (Hoge Raad). He is now serving that sentence. He will be eligible for provisional release no sooner than July 2004. It would appear that he has been sentenced in Belgium to a six-year prison sentence for drugs-related crimes but that the proceedings there are still pending. 349. On 14 September 1994, while the criminal proceedings were still pending, Mr Lors handed his counsel a letter from the prison authorities from which it appeared that it was intended to place him (Mr Lors) in an extra security institution. On 27 September 1994 Mr Lors was transferred to the Temporary Extra Security Institution (Tijdelijke Extra Beveiligde Inrichting, TEBI), part of the Nieuw Vosseveld Penitentiary Complex in Vught. 350. By a letter of 28 September 1994 the Minister of Justice informed Mr Lors that apart from the fact that he was suspected of very serious crimes, official information (ambtsberichten) was available from which it appeared that he was likely to use violence in an attempt to escape. Reference was made to the fact that he had already once managed to avoid being arrested, endangering human life in so doing. Reference was also made to the prison sentence awaiting him in Belgium. In these circumstances it was considered that public order would be severely affected should Mr Lors manage to escape. 351. Mr Lors was subsequently notified, by letters couched in similar terms and dated 21 November 1995, 29 May 1996, 5 December 1996, 16 June 1997, 9 December 1997, 19 June 1998 and 21 January 1999, of the prolongation of his detention in the TEBI and following the rejection of his appeal on points of law on 30 June 1998 in the Extra Security Institution (Extra Beveiligde Inrichting, EBI). 352. On a number of occasions Mr Lors made use of legal remedies to protest against his placement, and the prolongation of that placement, in the EBI. On 1 February 1999, for example, Mr Lors, through his counsel, lodged an appeal to the Appeals Board
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(beroepscommissie) of the Central Council for the Administration of Criminal Justice (Centrale Raad voor Strafrechtstoepassing) against the decision of 21 January 1999 to prolong his placement. In addition to stating that there was no factual justification for his continued detention in the EBI, he complained about the regime which he described as illbefitting a state governed by the rule of law. Privacy was entirely lacking. Human contact with his wife and children was excessively restricted, any kind of intimacy with them being impossible. His psychological and physical health were affected, the symptoms being daily headaches, shaking and loss of concentration, and he had had to seek the help of the prison psychologist. He referred to the findings of the European Committee for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment (CPT see below). 353. The Appeals Board gave its decision on 31 May 1999. It noted that there had been no new information since May 1996 which would tend to justify the fear that Mr Lors might attempt to escape. Moreover, the remainder of his sentence had significantly decreased and that, together with the nature of the offences of which he had been convicted, reduced the prospect that public order would be affected if he did escape. Finally, his behaviour was reported to be good. In these circumstances any doubt should benefit Mr Lors. Accordingly, the competent authorities were ordered to reconsider their decision within three weeks taking the decision of the Appeals Board into account. 354. On 15 June 1999 a placement officer of the Penitentiary Selection Centre (Penitentiair Selectie Centrum PSC) recommended that Mr Lors should remain in the EBI. Mr Lorss situation was described as relatively stable, the fact that his prolonged detention in the EBI was becoming more and more of a burden to him being a normal reaction to a situation that [was] in many respects relatively extreme (waarbij het feit dat een verblijf in de EBI steeds zwaarder gaat wegen een normale reactie is op een in veel opzichten betrekkelijk extreme situatie). 355. The Minister of Justice gave a new decision on 17 June 1999, again prolonging Mr Lorss detention in the EBI. It was stated that a new decision had been made taking into account advice given by the governor of the Nieuw Vosseveld penitentiary complex and the decision of the Appeals Board. In addition, reference was made to official information dated 4 June 1999 from which it appeared that there was new and recent information to the effect that Mr Lors still constituted an increased security risk. The nature of this information was not disclosed but it was concluded that Mr Lors was planning an escape with help from outside the institution and possibly involving the use of violence against persons. Reference was also made to the prison sentence which he would have to serve in Belgium. Finally, the Minister was of the opinion that in view of inter alia the seriousness of Mr Lorss offences, public order would be seriously affected if Mr Lors managed to escape. Thus, although account had been taken of the decision of the Appeals Board, this latter decision could not prevail over the new official information. 356. Mr Lorss detention in the EBI was again extended on 24 December 1999, since official information of June and November 1999 indicated that he still posed an increased security risk. In its decision of 16 March 2000 on Mr Lorss appeal against the prolongation of his placement in the EBI, the Appeals Board noted his arguments to the effect that his protracted stay in the EBI had negative effects not only on him but also on his relatives, and that he had referred to the present complaint lodged with the Court. Mr Lors had also submitted the report of the psychiatrist Dr S. (see paragraph 26 below). The Appeals Board rejected the complaint, finding that in the absence of facts or circumstances militating against a continuation of Mr Lorss detention in the EBI, the decision to prolong his placement was lawful and that, weighing up all the interests involved, it could not be considered
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unreasonable or unjust. The Appeals Board noted that it had taken into account the arguments raised by Mr Lors relating to his psychological condition. 357. By a letter dated 10 July 2000 the Minister of Justice informed Mr Lors of a further prolongation of his detention in the EBI. Reference was made to inter alia official information of June and November 1999 according to which Mr Lors still posed an increased security risk. There were indications that an attempt at escape would in all likelihood involve the help of co-detainees and/or persons outside the institution and the use of violence, inter alia through explosives, against persons. 358. On 18 July 2000 Mr Lors lodged an appeal against the prolongation of his detention at the EBI with the Appeals Board, arguing that the official information of June and November 1999 had no basis in fact and further submitting that his continued detention at the EBI constituted a violation of Articles 3 and 8 of the Convention, not only with respect to himself but also with respect to his wife and children. 359. On 22 November 2000 the Appeals Board rejected the appeal, finding that the risk that Mr Lors might escape was still too great to justify detaining him anywhere else than in a maximum security institution. It further considered that its task was to examine the decision to prolong Mr Lorss detention in the EBI, and not the regime pertaining in that institution as such. For that reason, the Appeals Board declined to rule on the complaint under Article 3 of the Convention. As to the complaint of a violation of Article 8 of the Convention, the Appeals Board considered that the second paragraph of that provision allowed for an interference with the right to respect for private and family life as long as such interference was in accordance with the law and was necessary in a democratic society in the interest of, inter alia, the prevention of disorder and crime. The Appeals Board concluded once more that in the absence of facts or circumstances militating against a continuation of Mr Lorss detention in the EBI, the decision to prolong his placement was lawful and that, weighing up all the interests involved, it could not be considered unreasonable or unjust. 360. Besides lodging appeals with the Appeals Board to contest the extension of his maximum security detention, Mr Lors, while still detained on remand, also applied for an interim injunction (kort geding) against the State on two occasions, arguing that his placement in the EBI was unlawful. Both applications were rejected, in 1996 and 1998 respectively. 361. On 15 January 2001 Mr Lors was transferred from the EBI to a prison in Maastricht with a different regime. Of all prisoners who have been subjected to the maximum security regime in the Netherlands, Mr Lors was by far the longest-serving. 362. Mr Lorss psychological condition was examined on a number of occasions. On 14 December 1999 Mr V., the head of the Psychological Department of the PSC, submitted an advisory opinion to the Minister of Justice concerning the prolongation of Mr Lorss placement at the EBI. His report of that date stated: ... The PSC has previously reported on [Mr Lors] on 15 June 1999 ... At that time it was reported that [Mr Lors], who has been detained in the EBI since 27 September 1994, was finding it increasingly difficult to cope with his stay there. [Mr Lors] appeared to have reversed his day-night rhythm. [Mr Lors] had no contacts with the prisons medical and mental health care team. It was reported that, all in all, a picture was beginning to emerge of a man for whom the stay in the EBI was becoming increasingly difficult to bear, with adverse consequences for his functioning. It was advised that an

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attempt be made to restore contacts with the medical and health care team so that the reaction to a renewed perspective of a further long stay in the EBI might be monitored. The report of the last six months shows ups and downs with more pronounced and more frequent mood swings, especially lately. Apart from the long duration of the stay in the EBI and the lack of contact with the family, the changes in the composition of the [EBI] population also... appear to play a role. All in all, I am of the opinion that the stay in the EBI is increasingly difficult to bear for Mr Lors, and, barring concrete evidence regarding the likelihood of an escape attempt, that a transfer is to be preferred on psychosocial grounds alone. 363. On 14 December 1999 Mr Lors was seen, in the EBI, by an independent psychiatrist, Dr S., at the request of his lawyer. Dr S. reported as follows: I am unable to make a definite psychiatric diagnosis from a single psychiatric examination; in particular, there are insufficient indications to diagnose a depression. There are, nevertheless, a number of indications suggesting that [Mr Lors] is suffering under the protracted isolation; he thus describes memory and orientation disorders as well as signs of depersonalisation which clearly point to that being the case. [Mr Lors] is a man ... who has learned to survive through toughness. It is debatable whether the psychological carapace he has built up over the years will be capable of withstanding the current extreme isolation, and it is, in my opinion, important therefore that a close eye be kept on him. Should he decompensate in a depressive sense the risk of which is certainly not hypothetical this will not be without danger: in such a situation a risk of suicidal actions is not to be underestimated. 364. On 20 March 2001, some two months after his transfer from the EBI, Mr Lors was seen by a different independent psychiatrist, Dr C., who had been requested by his lawyer to examine the psychological consequences of Mr Lorss stay in the EBI. According to Dr C., Mr Lors was suffering from a moderately serious (matig ernstig) depression with endogenous features, moderately serious panic attacks and a conditioned avoidance response. Although Mr Lors was not found to be suicidal, he was troubled by nightmares relating mainly to suicide. He was also irritable and suffered regular panic attacks. One of the reasons for this psychiatric condition was the fact that contact with his wife and children was seriously disrupted. He was incapable of working, either alone or with others, and his activity level was very much reduced. Dr C. expressed the opinion that there was a causal link between the outward symptoms of the depression as well as the psychiatric disorders he found and Mr Lorss long period of detention in the EBI. These disorders were becoming more marked now that Mr Lors had more opportunities to have contacts with other people following his transfer from the EBI. His isolation in the EBI meant that his complaints were less visible to the outside world and he was in a better position there to fight against them. Now that he was receiving more attention, including some from social workers in the prison, there was a lowering of his resistance and fighting spirit against his helplessness and feelings of abandonment. 365. After Dr C.s report had been transmitted to the Government, they requested Dr D., a forensic psychiatrist employed by the Forensic Psychiatric Service of the Ministry of Justice, to examine Mr Lors in order to find out whether he was indeed suffering from the psychiatric disorders described by Dr C. and, if so, whether these disorders were related to his detention in the EBI. Dr D. saw Mr Lors twice, in June and July 2001, and she noted in her
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report of 9 July 2001 that during these meetings he had not displayed any symptoms of a disturbance of a depressive nature. She replied to the questions put by the Government that at the time of her examination, Mr Lors was not suffering from a moderately serious depression. Although immediately after his transfer from the EBI he had had mild symptoms of an unspecified adjustment disorder, this was now in complete remission. Dr D. acknowledged that this disorder was probably directly related to his prolonged detention in the EBI, but noted that most people who were detained in semi-isolation or maximum security facilities reacted in a similar manner. In Dr D.s opinion, Mr Lors would have presented a similar profile if he had been detained in any other closed penal institution with rules similar to those in the EBI or semi-isolation facilities. 366. In a note dated 16 November 1999, the general practitioner of the third, fourth and fifth applicants described these children as being seriously traumatised as a result of the lack of contact with their father. 367. At the request of Mr Lorss lawyer, the probation services (Reclassering) issued an advisory report on 18 November 1999 describing the situation of Mr Lorss wife and their three children (i.e. the second to fifth applicants). Superficially, they seemed to have managed to cope with the problems they had faced in recent years. However, the very limited possibilities for contact with Mr Lors were causing problems. The fourth applicant had developed anorexia nervosa three years previously. The second applicant felt unable to discuss relationship problems with her husband knowing that everything that was said would be recorded and could be used against her husband. In the report, the family was described as psychological wreckage (psychisch wrakhout). The process which the three children were going through in relation to their father was likened to a process of mourning. In conclusion, the probation services supported the appeal which Mr Lors had instituted against the prolongation of his placement in the EBI. 368. In an information report (voorlichtingsrapport) of 20 March 2001, again requested by Mr Lorss lawyer, the probation services stated that the term psychological wreckage was still fully applicable to Mr Lorss family. I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 369. The applicants alleged that Mr Lorss detention in the EBI constituted a breach of Article 3 of the Convention, both in respect of Mr Lors and in respect of the other relatives. Article 3 provides: No one shall be subjected to torture or to inhuman or degrading treatment or punishment. A. Alleged violation of Article 3 of the Convention in respect of Mr Lors 1. Submissions of those appearing before the Court a. The applicants 370. The applicants submitted that in the light of the very critical comments expressed by the CPT on various aspects of the EBI regime there could be no doubt that this regime must be regarded as inhuman. 371. To illustrate that the CPTs findings also specifically applied to Mr Lors, the applicants pointed to a number of aspects concerning his individual situation. They referred
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in the first place to the fact that Mr Lors was the detainee who had been subjected to the EBI regime for far and away the longest, namely for more than six years, without that regime having been relaxed during that time. Second, the reports of the doctors S. and C., as well as the internal EBI-reports, all concluded that the EBI regime did indeed have significant harmful consequences for the psychological condition of Mr Lors. 372. The applicants had strong objections to the findings formulated by Dr D. and to the way she had reached her conclusions, which contradicted those contained in the aforementioned reports. Dr D.s view that Mr Lors would have presented the same profile had he been detained in a prison facility with a similar regime was unsustainable in the light of the Governments submissions at the admissibility stage of the present proceedings to the effect that the EBI regime could not be compared to that of any other penal institution. The fact that there were no studies of the effects of a long term stay in the EBI other than the reports relied on by the applicants and certainly no study comparing the effects of such a stay in the EBI with a stay in an ordinary prison facility further invalidated Dr D.s findings in the eyes of the applicants. 373. Two aspects of the regime had been particularly onerous for Mr Lors without being strictly necessary from a security point of view. Firstly, Mr Lors had been subjected to stripsearches including anal inspections on a weekly basis, and often more frequently, for more than six years and, when carried out at the same time as the weekly cell-inspection, regardless of whether he had had any contacts with the outside world. The strip-search involved his having to undress completely and to have all his bodily orifices inspected and explored, which required him also to adopt degrading positions like bending over while naked. During the time Mr Lors spent in the EBI, not a single indication was found to warrant the assumption that he had in any way whatsoever had or sought possession of objects which could compromise security within the institution. Secondly, as a result of the visiting regulations Mr Lors had been denied normal human contact, including physical contact, with his immediate family. The applicants submitted that the Government had failed to strike a fair balance between security considerations and their justified wish for physical contact, given that there had never been any concrete, tangible indications that Mr Lors had any plans to escape. Moreover, in view of the strict security arrangements surrounding visits it was impossible for any dangerous objects to be smuggled into the institution unobserved. Even if such were the case, it would be discovered during the strip-search following the visit. 374. The applicants thus maintained their claims that Mr Lors had been treated in an inhuman or, at the very least, degrading manner. b. The Government 375. The Government explained that the need for a maximum security prison had arisen after a large number of breakouts from prisons in the Netherlands had occurred in the 1980s and early 1990s, often involving the use of firearms, knives or similar weapons and the taking of hostages. The public had responded with growing alarm, while prison staff had begun to fear for their safety. 376. Although the Government did not deny that the EBI regime imposed severe restrictions and for this reason, as few people as possible were placed there , they were of the opinion that the conditions in the EBI were neither inhuman nor degrading. Each of the strict security measures applying in the EBI was justified in view of the serious risks that less stringent measures would entail. The Government submitted that they were very aware of their obligation to minimise any risk to prison staff and of their duty to do all they could to
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protect the public by preventing people convicted of serious crimes from returning to the community before completing their lawful sentences. 377. In the view of the Government, the CPTs comment that the regime could be considered to amount to inhuman treatment did not mean that it actually was inhuman, since it was impossible to say how the regime affected detainees in general; this rather depended on the individuals personality, character and other personal factors. Although it was clear that Mr Lors had had difficulties coping with the maximum security regime, the Government did not believe that this detention had been severely psychologically damaging. Mr Lors had enjoyed contacts with fellow inmates, had been allowed to receive visits from relatives and friends, and had had ample opportunity to make telephone calls as well as to take part in a wide variety of activities. His physical and mental well-being had been under close surveillance: as recognised in the report Care in and around the Maximum Security Prison, an operational system of psychological and psychiatric care was in place in the EBI, which made it unlikely that any serious harm to the mental health of detainees would go unnoticed. 378. Although the psychiatric report drawn up by Dr C. on 20 March 2001 gave cause for concern, it had to be borne in mind that this was based on an examination of Mr Lors after his transfer from the EBI, whilst during the last year of his detention in the EBI there had been no indications that his mental health was deteriorating. Moreover, it appeared from Dr D.s report of 9 July 2001 that, even if Mr Lorss mental health had suffered as a result of his detention in the EBI, the effects were temporary and not serious. 379. In conclusion, the Government held the view that the applicants had failed to demonstrate beyond reasonable doubt that Mr Lorss detention in the EBI should be described as inhuman treatment within the meaning of Article 3 of the Convention. 2. The Courts assessment a. General principles 380. The Court reiterates at the outset that Article 3 of the Convention enshrines one of the most fundamental values of democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victims behaviour (see, for example, Labita v. Italy [GC], no 26772/95, 119, ECHR 2000-IV). 381. The Court further reiterates that, according to its case-law, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see, among other authorities, Ireland v. the United Kingdom, judgment of 18 January 1978, Series A no. 25, p. 65, 162). 382. Treatment has been held by the Court to be inhuman because, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical and mental suffering, and also degrading because it was such as to arouse in the victims feeling of fear, anguish and inferiority capable of humiliating and debasing them (see, for example, Kuda v. Poland [GC], no. 30210/96, 92, ECHR 2000-XI). In order for a punishment or treatment associated with it to be inhuman or degrading, the suffering or humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment (see V. v. the United Kingdom [GC], no. 24888/94, 71, ECHR 1999-IX). The question whether the purpose of the treatment was to humiliate or debase the victim is a factor further
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to be taken into account, but the absence of any such purpose cannot conclusively rule out a violation of Article 3 (see, for example, Peers v. Greece, no. 28524/95, 74, ECHR 2001-III; Kalashnikov v. Russia, no. 47095/99, 101, ECHR 2002-VI). 383. Conditions of detention may sometimes amount to inhuman or degrading treatment (see Peers, cited above, 75). When assessing conditions of detention, account has to be taken of the cumulative effects of those conditions, as well as the specific allegations made by the applicant (see Dougoz v. Greece, no. 40907/98, 46, ECHR 2001-II). 384. While measures depriving a person of his liberty often involve an element of suffering or humiliation, it cannot be said that detention in a high security prison facility, be it on remand or following a criminal conviction, in itself raises an issue under Article 3 of the Convention. The Courts task is limited to examining the personal situation of the applicant who has been affected by the regime concerned (see Aerts v. Belgium, judgment of 30 July 1998, Reports of Judgments and Decisions 1998-V, pp. 1958-59, 34-37). In this connection the Court emphasises that, although public order considerations may lead states to introduce high security prisons for particular categories of detainees, Article 3 nevertheless requires those states to ensure that a person is detained in conditions which are compatible with respect for his human dignity, that the manner and method of the execution of the measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured (see Kuda, cited above, 92-94). 385. In this context, the Court has previously held that complete sensory isolation, coupled with total social isolation, can destroy the personality and constitutes a form of inhuman treatment which cannot be justified by the requirements of security or any other reason. On the other hand, the removal from association with other prisoners for security, disciplinary or protective reasons does not in itself amount to inhuman treatment or degrading punishment (see Messina v. Italy (dec.), no. 25498/94, ECHR 1999-V). In assessing whether such a measure may fall within the ambit of Article 3 in a given case, regard must be had to the particular conditions, the stringency of the measure, its duration, the objective pursued and its effects on the person concerned (see Dhoest v. Belgium, application no. 10448/83, Commissions report of 14 May 1987, Decisions and Reports (DR) 55, pp. 20-21, 117-18; McFeeley et al. v. the United Kingdom, application no. 8317/78, Commission decision of 15 May 1980, DR 20, p. 44). b. Application to the present case 386. Turning to the circumstances of the present case, the Court observes first of all that the applicants complaints of the conditions of Mr Lorss detention do not concern the material conditions within the EBI but rather the regime to which he was subjected. To this extent the case may be compared to a series of applications lodged against Italy where the applicants alleged that the special prison regime to which they were subjected pursuant to section 41 bis of the Prison Administration Act resulted in conditions which violated Article 3 of the Convention (see, for instance, Messina v. Italy (dec.), cited above; Indelicato v. Italy (dec.), no. 31143/96, 6 July 2000, unreported; Ganci v. Italy (dec.), no. 41576/98, 20 September 2001, unreported; Bonura v. Italy (dec.), no. 57360/00, 30 May 2002, unreported). 387. The Court notes that paragraphs 62-66 of the CPT report quoted above (paragraph 43) contain a detailed description of conditions obtaining in the EBI drawn up following a visit to the facility. Since neither party have argued that this description is factually incorrect,
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the Court accepts that it adequately reflects the situation in the EBI. However, the question whether or not Mr Lors was subjected to inhuman or degrading treatment within the meaning of Article 3 of the Convention depends on an assessment of the extent to which he was personally affected (see paragraph 62 above). 388. It is not in dispute that, throughout his detention in the EBI, Mr Lors was subjected to very stringent security measures. The Court further considers that Mr Lorss social contacts were strictly limited, taking into account that he was prevented from having contact with more than three fellow inmates at a time, that direct contact with prison staff was limited, and that, apart from once a month in the case of visits from members of his immediate family, he could only meet with visitors behind a glass partition. However, as it did in the cases against Italy referred to in paragraph 64 above, the Court cannot find that Mr Lors was subjected either to sensory isolation or to total social isolation. As a matter of fact, the Italian special regime was significantly more restrictive both as regards association with other prisoners and as regards visits: association with other prisoners was entirely prohibited and only family members were allowed to visit, once a month and for one hour (see Messina, cited above, 13). 389. Mr Lors was placed in the EBI because he was considered extremely likely to attempt to escape from detention facilities with a less strict regime, and if he were to escape, he was deemed to pose an unacceptable risk to society in terms of again committing serious violent crimes (see paragraph 33 above). Although Mr Lors denied that he harboured any such intentions, it is not for the Court to examine the validity of the assessment carried out by the domestic authorities. In view of the very serious offences of which Mr Lors was convicted (see paragraph 11 above), the Court accepts the assessment made by the domestic authorities. 390. In support of their claim that the EBI regime had such serious damaging effects on Mr Lorss mental health as to bring it within the scope of Article 3 of the Convention, the applicants submitted a number of reports relating to examinations of Mr Lorss psychological condition. Two of the reports submitted were drawn up during Mr Lorss stay in the EBI, while the other two were compiled shortly after his transfer from the EBI. The first two reports, prepared by Mr V. and Dr S. respectively, leave no doubt that Mr Lors had difficulties coping with his stay in the EBI and that it had adverse consequences for his functioning, increasingly so as time went on (see paragraphs 25 and 26 above). Dr C., who examined Mr Lors two months after his transfer from the EBI, found that he was suffering from a moderately serious depression with endogenous features and a moderately serious panic disorder. In his opinion, there was a causal link between Mr Lorss complaints and the psychiatric disorders found by him and Mr Lorss long stay in the EBI (see paragraph 27 above). However, Dr S., who examined Mr Lors during the latters stay in the EBI, found insufficient indications to conclude that he was suffering from a depression (see paragraph 26 above), and when Dr D. examined him some five months after his transfer from the EBI, Mr Lors did not display any symptoms of a disturbance of a depressive nature. Dr D. thus replied in the negative to the question put by the Government as to whether Mr Lors was indeed suffering from a moderately serious depression as reported by Dr C. She concluded in addition that the adjustment disorder which had affected Mr Lors following his transfer from the EBI had gone into remission by the time of her examination (see paragraph 28 above). 391. The Court does not diverge from the view expressed by the CPT that the situation in the EBI is problematic and gives cause for concern. This must be even more so if detainees

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are subjected to the EBI regime for protracted periods of time like Mr Lors in the present case, who was held in the EBI for approximately six and a quarter years. 392. The applicants also submitted that, if not inhuman, the treatment to which Mr Lors had been subjected was at the very least degrading. In this respect the Court observes that pursuant to the EBI house rules, Mr Lors was strip-searched prior to and following an open visit as well as after visits to the clinic, the dentists surgery or the hairdressers. In addition to this, for more than six years he was also obliged to submit to a strip-search, including an anal inspection, at the time of the weekly cell-inspection (see paragraph 37 above), even if in the week preceding that inspection he had had no contact with the outside world (see paragraph 65 of the CPT report) and despite the fact that he would already have been strip-searched had he received an open visit or visited the clinic, dentist or hairdressers. Thus, this weekly strip-search was carried out as a matter of routine and was not based on any concrete security need or Mr Lorss behaviour. The strip-search as practised in the EBI obliged Mr Lors to undress in the presence of prison staff and to have his rectum inspected, which required him to adopt embarrassing positions. 393. For Mr Lors, this was one of the features of the regime which was hardest to endure, but the Government maintained that the strip-searches were necessary and justified. 394. The Court has previously found that strip-searches may be necessary on occasions to ensure prison security or to prevent disorder or crime (see Valainas v. Lithuania, no. 44558/98, 117, ECHR 2001-VIII; Iwaczuk v. Poland, no. 25196/94, 59, 15 November 2001, unreported; McFeeley et al. v. the United Kingdom, cited above, 60-61). In the cases of Valainas and Iwaczuk one occasion of strip-search was at issue, whereas the case of McFeeley et al. concerned so-called close body searches, including anal inspections, which were carried out at intervals of seven to ten days, before and after visits and before prisoners were transferred to a new wing of the Maze Prison in Northern Ireland, where dangerous objects had in the past been found concealed in the recta of protesting prisoners. 395. In the present case, the Court is struck by the fact that Mr Lors was submitted to the weekly strip-search in addition to all the other strict security measures within the EBI. In view of the fact that the domestic authorities, through the reports drawn up by the Psychological Department of their Penitentiary Selection Centre, were well aware that Mr Lors was experiencing serious difficulties coping with the regime, and bearing in mind that at no time during Mr Lorss stay in the EBI did it appear that anything untoward was found in the course of a strip-search, the Court is of the view that the systematic stripsearching of Mr Lors required more justification than has been put forward by the Government in the present case. 396. The Court considers that in the situation where Mr Lors was already subjected to a great number of control measures, and in the absence of convincing security needs, the practice of weekly strip-searches that was applied to Mr Lors for a period of more than six years diminished his human dignity and must have given rise to feelings of anguish and inferiority capable of humiliating and debasing him. Accordingly, the Court concludes that the combination of routine strip-searching with the other stringent security measures in the EBI amounted to inhuman or degrading treatment in violation of Article 3 of the Convention. There has thus been a breach of this provision.

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B. Alleged violation of Article 3 of the Convention in respect of the other applicants 397. The applicants further complained that the restrictions on contacts with Mr Lors amounted to inhuman or at the very least degrading treatment with respect to his wife and children who, for more than six years, were not allowed to touch him. 398. The Government did not specifically address this issue. 399. Whilst the Court accepts that the conditions under which the visits from the other applicants to Mr Lors took place must have caused them emotional distress, it considers that the circumstances complained of did not attain the threshold of inhuman or degrading treatment within the meaning of Article 3 of the Convention as established in the Courts case-law. There has, accordingly, been no violation of Article 3 in respect of the second to ninth applicants. II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 400. The applicants also complained that Mr Lorss detention in the EBI breached their rights as guaranteed by Article 8 of the Convention. This provision, in so far as relevant, reads as follows: 1. Everyone has the right to respect for his private and family life ... . 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. 401. The applicants argued that the large number of security measures in force in the EBI, in particular the systematic strip-searching but also the monitoring of Mr Lorss telephone conversations and correspondence as well as the daily inspection of his cell, left Mr Lors not the tiniest space for a private life. They further complained of the conditions under which visits from the other applicants to Mr Lors had had to take place: behind a glass partition with no possibility of physical contact save for a handshake once a month. Bearing in mind that all communications between Mr Lors and his wife and children were monitored, the applicants contended that Mr Lorss detention in the EBI constituted an unjustified interference with the rights of his wife and children to respect for their private and family life as well. 402. The Government did not dispute the fact that the opportunities for the applicants to exercise their private and family life were restricted. They maintained, however, that the restrictions on Mr Lorss private and family life were inherent in his detention and necessary within the meaning of paragraph 2 of Article 8. The regime in the EBI was especially geared to the two weakest links in any security chain: contact with people outside the institution who were in a position to provide the information and means that would enable detainees to escape, and contact with prison staff, who were vulnerable to attack. This meant that the prisoner was not allowed to hold unmonitored conversations with his visitors or have physical contact such as would enable him to receive objects that could facilitate his escape, and that systematic controls and surveillance were justified. 403. To the extent that the applicants complaint of an unjustified interference with the right to respect for Mr Lorss private life encompasses the strip-searching to which he was
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subjected, the Court points out that it has already examined this aspect of the EBI regime in the context of Article 3 of the Convention. In view of the conclusion reached (see paragraph 74 above), it considers that it is not necessary to include this element in the examination of the present complaint. 404. The Court reiterates that any detention, lawful for the purposes of Article 5 of the Convention, by its nature entails a limitation on private and family life. Whilst it is an essential part of a prisoners right to respect for family life that the prison authorities should assist him in maintaining contact with his family (see Messina v. Italy, no. 25498/94, 61, ECHR 2000-X), the Court recognises at the same time that some measure of control over prisoners contacts with the outside world is called for and is not of itself incompatible with the Convention (see Kalashnikov v. Russia (dec.), no. 47095/99, ECHR 2001-XI). 405. Mr Lors was subjected to a regime which involved further restrictions on his private and family life than a regular Netherlands prison regime. Thus, his cell was inspected on a daily basis, his correspondence was read, his telephone conversations and conversations with visitors were monitored, he was allowed to associate with a limited number of fellow prisoners only and he was separated from his visitors by a glass partition except for the possibility of one open visit per month by members of his immediate family whose hand he was allowed to shake at the beginning and end of the visit. As there was thus an interference with Mr Lorss right to respect for his private and family life within the meaning of Article 8 1 of the Convention, the question arises whether this interference was justified under the terms of paragraph 2 of that provision, i.e. whether it can be regarded as being in accordance with the law for the purposes of one or more of the legitimate aims referred to in that paragraph and whether it can be regarded as being necessary in a democratic society. 406. The Court notes that the restrictions complained of were based on the 1999 Prisons Act, the Prisons Order and the EBI house rules and finds, therefore, no indication that the restrictions were not in accordance with the law. It also accepts that they pursued the legitimate aim of the prevention of disorder or crime within the meaning of Article 8 2 of the Convention. 407. The Court observes that Mr Lors was placed in the EBI because the authorities thought it likely that he might attempt to escape. As noted above (paragraph 67), it is not for the Court to assess the accuracy of this contention, but it does accept that the authorities were entitled to consider that an escape by Mr Lors would have posed a serious risk to society. To this extent, the present case is thus different from the cases against Italy to which reference is made above (paragraph 64): in those cases, the particular security features of the special regime had been designed in order to cut all links between the prisoners concerned and the criminal environment to which they had belonged. In the present case, the security measures were established in order to prevent escapes. The Court considers that the particular features of the Italian special regime and those of the EBI regime effectively illustrate this difference. Thus, in the Italian special regime more emphasis was placed on restricting contacts with other prisoners and with family members than in the EBI regime, whereas in the EBI, security is concentrated on those occasions when, and places where, the prisoner concerned might obtain or keep objects which could be used in an attempt at escape or where he might obtain or exchange information relating to such an attempt. Within these constraints, Mr Lors was able to receive visitors for one hour every week and to have contact, and take part in group activities, with other EBI inmates, albeit a limited number. Although strict security measures were in place, Mr Lors and the other applicants were thus nevertheless able to maintain regular contact.

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408. In the circumstances of the present case the Court finds that the restrictions of the applicants right to respect for their private and family life did not go beyond what was necessary in a democratic society to attain the legitimate aims intended. Accordingly, there has been no violation of Article 8 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 409. The applicants finally submitted that the refusal by the Appeals Board of the Central Council for the Administration of Criminal Justice, in its decision of 22 November 2000, to examine their complaint of a violation of Article 3 of the Convention (see paragraph 22 above) meant that they did not have an effective remedy within the meaning of Article 13 of the Convention at their disposal. Article 13 provides as follows: Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity. 410. The applicants stated that in the proceedings before the Appeals Board Mr Lors had not asked for a decision on the compatibility with Article 3 of the Convention of the EBI regime as such, but that he had confined the appeal to the extension of his detention in the EBI. The arguments presented on behalf of Mr Lors in those proceedings had centred rather on the psychological condition of the applicants, and the restrictions, which had been in place for many years, on Mr Lorss private life as well as the restrictions on contact between him and the other applicants. Mr Lors had thus claimed that his rights under the Convention and those of his family would be violated if his detention in the EBI was extended. 411. Mr Lors had not sought an interim injunction since only the compatibility with international agreements of the applicable regulations and the EBI regime as such could be addressed in those proceedings, with no possibility of account being taken of the particular circumstances of the applicants case. Furthermore, interim injunction proceedings could not have resulted in Mr Lorss transfer. 412. The Government insisted that an effective legal remedy had been available to the applicants. They explained that different legal remedies existed in respect of the decision to extend Mr Lorss placement in the EBI on the one hand, and matters concerning the conditions in the EBI and the maximum security regime as such on the other. The proceedings which had led to the impugned decision of the Appeals Board concerned the extension of Mr Lorss placement in the EBI. The Appeals Board had duly examined the question whether this extension was compatible with the Convention by reviewing the case in the light of both Articles 6 and 8 of the Convention. However, it had interpreted Mr Lorss objections based on Article 3 as an objection to the regime, and objections of this kind transcended the level of the individual detainee, for whom the appeals procedure under the 1999 Prisons Act was intended. 413. The Government argued that both Mr Lors and the other applicants could have instituted civil proceedings in order to have the lawfulness of the EBI regime reviewed in the light of the Convention. Although, in principle, such proceedings could not have resulted in Mr Lorss placement in the EBI being declared unlawful and his being transferred as a result, the outcome could have been that his continued detention in the EBI would have been pronounced unlawful, in which case the regime would have had to be modified in respect of Mr Lors.
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414. The Court observes that the decision to detain Mr Lors in the EBI was reviewed every six months (see paragraph 36 above). It appears from the file that prior to a decision on prolongation of that detention being taken, advice was sought, at least on a number of occasions, from the Penitentiary Selection Centre as to the psychological aspects of a prolongation (see paragraphs 25 and 35-36 above). Mr Lors was able to appeal the decision to prolong his detention (see paragraph 38 above). It appears from the decisions reached by the Appeals Board in his case that this Board not only assessed the risk and consequences of an escape by him, but that it also examined whether there were any indications or circumstances militating against an extension of his placement in the EBI and that it carried out a balancing exercise of all the interests involved (see paragraphs 19 and 22 above). In this context the Court observes that the interests of Mr Lorss family members must be deemed to have been taken into account in these proceedings (see paragraph 40 above). The Appeals Board stated explicitly in its decision of 16 March 2000 (see paragraph 19 above), that it also had regard to Mr Lorss psychological condition. 415. It is true that in its decision of 22 November 2000 the Appeals Board decided that it would not examine the compatibility with Article 3 of the Convention of the EBI regime as such (see paragraph 22 above). However, in view of the preceding paragraph the Court is satisfied that the Board did in fact address and rule on the applicants complaints relating to the allegedly deleterious effects on Mr Lors as well as on the other applicants of the continued detention of Mr Lors in the EBI. 416. The Court further observes that the Appeals Board is competent to take binding decisions: if it had been of the view that Mr Lorss placement ought not to be extended, it had the power to quash the impugned decision, following which a new decision would have had to be taken by the Minister with account being taken of the Boards ruling (see paragraph 39 above) this is in fact what the Appeals Board did in its decision of 31 May 1999 (see paragraph 16 above). Alternatively, the Appeals Board could have ruled that its decision was to take the place of the decision appealed against, or confine itself to annulling the impugned decision (see paragraph 39 above). 417. In addition, and as the Government have pointed out, it was open to the applicants to institute interim injunction proceedings if they wished to obtain a judicial ruling on the compatibility with Article 3 of the regime as such. Even if the court dealing with a request for such an interim injunction could not have ordered the State to transfer Mr Lors from the EBI to a prison with a less strict regime, such proceedings might nonetheless have resulted in an interim injunction being issued to the effect that the regime in the EBI be modified in respect of Mr Lors (see paragraph 42 above). 418. Given that the word remedy within the meaning of Article 13 does not mean a remedy bound to succeed, but simply an accessible remedy before an authority competent to examine the merits of a complaint (see Lacko and Others v. Slovakia (dec.), no. 47237/99, 2 July 2002; K. v. the United Kingdom, application no. 11468/85, Commission decision of 15 October 1986, DR 50, p. 199), the Court considers that the proceedings before the Appeals Board and the possibility of interim injunction proceedings taken together provided the applicants with an effective remedy (see Leander v. Sweden, judgment of 26 March 1987, Series A no. 116, pp. 29-30, 77) . Accordingly, the Court concludes that there has been no violation of Article 13 of the Convention.

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IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 419. Article 41 of the Convention provides: If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.

FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Holds that there has been a violation of Article 3 of the Convention in respect of Mr Lors; 2. Holds that there has been no violation of Article 3 of the Convention in respect of the other applicants; 3. Holds that there has been no violation of Article 8 of the Convention; 4. Holds that there has been no violation of Article 13 of the Convention; 5. Holds (a) that the respondent State is to pay Mr Lors, within three months from the date on which the judgment becomes final according to Article 44 2 of the Convention, the following amounts: (i) EUR 453.78 (four hundred and fifty three euros and seventy-eight cents) in respect of non-pecuniary damage; (ii) EUR 2,195 (two thousand one hundred and ninety-five euros) in respect of costs and expenses; (iii) any tax that may be chargeable on the above amounts; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 6. Dismisses the remainder of the applicants claim for just satisfaction.

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Maaouia v France (ECtHR) Maaouia v France App No 39652/98 (ECtHR, 5 October 2000)

CASE OF MAAOUIA v. FRANCE

(Application no. 39652/98)

JUDGMENT

STRASBOURG

5 October 2000

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THE FACTS I. THE CIRCUMSTANCES OF THE CASE 9. The applicant, who was born in 1958 in Tunisia, entered France in 1980 at the age of 22. On 14 September 1992 he married a French national, an invalid whose disability had been assessed at 80%, with whom he had been living since 1983. 10. On 1 December 1988 the Alpes-Maritimes Assize Court sentenced the applicant to six years' imprisonment for armed robbery and armed assault with intent for offences committed in 1985. He was released on 14 April 1990. 11. On 8 August 1991 the Minister of the Interior made a deportation order against him. The order was served on the applicant, who had been unaware of its existence, on 6 October 1992, when he attended the Nice Centre for Administrative Formalities in order to regularise his status. 12. He refused to travel to Tunisia and was prosecuted for failing to comply with a deportation order. On 19 November 1992 the Nice Criminal Court sentenced him to one year's imprisonment and made an order excluding him from French territory for ten years. That decision was upheld on appeal by the Aix-en-Provence Court of Appeal on 7 June 1993. An appeal on points of law was dismissed by the Court of Cassation on 1 June 1994 on the ground that the applicant had failed to challenge the legality of the deportation order in the courts below. 13. On 22 July 1994 the applicant applied to the Criminal Cases Review Board of the Court of Cassation for a review of the criminal proceedings that had resulted in his being imprisoned for one year and banned from French territory for ten years. In a judgment of 28 April 1997, which was served on 22 September 1997, the Court of Cassation dismissed that application. A. Proceedings before the administrative courts for an order quashing the deportation order made against the applicant 14. In December 1992 the applicant sought judicial review of the deportation order. In a judgment of 14 February 1994 the Nice Administrative Court quashed the deportation order of 8 August 1991, inter alia, on the ground that no notice had been served on the applicant requiring him to appear before the Deportation Board. That judgment became final on 14 March 1994 after being served on the Minister of the Interior. B. Application for rescission of the exclusion order 15. On the strength of the administrative court's judgment of 14 February 1994 quashing the deportation order, the applicant applied to the Principal Public Prosecutor's Office at the Aix-en-Provence Court of Appeal on 12 August 1994 for rescission of the ten-year exclusion order made by the Nice Criminal Court on 19 November 1992. He contended that he was married to a French national and held a provisional residence permit. 16. In a letter of 6 July 1995 the applicant reminded the Principal Public Prosecutor's Office of the terms of his application for rescission. Noting that the application had been outstanding for some time, he asked the office to arrange for it to be heard and a ruling given. On 12 July 1995 the Principal Public Prosecutor's Office requested the Public Prosecutor's Office at the
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Nice tribunal de grande instance for its opinion on the merits of the application and any information that would assist the court in deciding whether the exclusion order should be rescinded. On 19 September 1995 Nice Central Police Station sent the Principal Public Prosecutor's Office the results of an inquiry concerning the applicant. 17. On 3 November 1997 the Principal Public Prosecutor's Office at the Court of Appeal informed the applicant that the case would be heard on 26 January 1998. On that date the Aix-en-Provence Court of Appeal granted the applicant's application and rescinded the exclusion order on the ground that the Nice Administrative Court had quashed the deportation order. C. Steps taken by the applicant to regularise his immigration status 18. The applicant also sought to regularise his status with the immigration authorities. He initially obtained acknowledgment forms for applications for provisional residence permits (not work permits) for renewable three-month periods. On 4 September 1995, however, he was given a new three-month residence permit incorporating the right to seek employment. 19. On 14 September 1995 the applicant applied to the prefect for the Alpes-Maritimes dpartement for a residence permit allowing him to live and work in France for a prolonged period, as he was married to a French citizen. On 9 April 1996 the applicant received notice of a decision dated 2 April 1996 refusing him a residence permit. He appealed to the Nice Administrative Court, but his appeal was dismissed on 27 September 1996. 20. The applicant appealed on 24 December 1996 to the Lyons Administrative Court of Appeal. On 29 August 1997 the President of that court ordered the transfer of the file to the Marseilles Administrative Court of Appeal the court with jurisdiction where the case is currently pending. 21. On 21 July 1998 the applicant obtained a temporary residence permit valid for one year (from 13 July 1998 to 12 July 1999). Recently he obtained a ten-year residence permit with the right to seek employment. THE LAW ALLEGED VIOLATION OF ARTICLE 6 1 OF THE CONVENTION 25. The applicant complained in substance that the length of the proceedings which he had brought on 12 August 1994 for rescission of the exclusion order and which had ended with the decision of the Aix-en-Provence Court of Appeal of 26 January 1998 had been unreasonable, contrary to Article 6 1 of the Convention. The relevant part of that provision reads as follows : In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ... Applicability of Article 6 1 26. The Court must examine, firstly, whether Article 6 1 is applicable in the instant case. The Government submitted that it was not; the applicant disagreed.
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1. Submissions of the parties (a) The Government 27. The Government contended that Article 6 of the Convention was not applicable to the proceedings which the applicant had brought for rescission of the temporary exclusion order. 28. The Government argued, firstly, that the proceedings for rescission of the exclusion order did not concern a dispute (contestation) over civil rights and obligations. They did not deny the existence of a dispute, but maintained that no civil rights had been at stake. The exclusion order had been made against the applicant as a result of his failure to comply with an order for his deportation from France and the main issue, therefore, had been his right to stay in France. Accordingly, the measure was based on public-order considerations that did not concern civil law. The Government pointed out that the Commission had consistently expressed the view that proceedings relating to the entry, stay and deportation of aliens were outside the scope of that Article in so far as it concerned disputes over civil rights and obligations, the reason being that the acts in issue in such proceedings were governed by public law and represented the exercise of public-authority prerogatives. The fact that deportation orders generally had pecuniary or family implications for those concerned could not suffice to bring them within the civil limb of Article 6 1, as that would mean that all measures concerning immigration control were caught by the scope of that provision since they produced similar consequences for those on whom they were imposed. The Government concluded that litigation relating to exclusion orders, like all litigation concerning immigration control, could not be a civil dispute for the purposes of Article 6 1 of the Convention. 29. The Government further pointed out that under the Commission's settled case-law, deportation and exclusion orders did not concern criminal charges or amount to punishment for the purposes of Article 6 of the Convention. The Government agreed with that analysis, which was based on the elementary observation that exclusion orders were not penalties, but administrative measures, even if, unusually, the legislature had assigned the task of making such orders to the criminal courts. Indeed, that observation was supported by the fact that under the laws of most States the administrative authorities were also competent to make such orders, the purpose being not to punish a specific act but to deter foreign nationals from further infringing the legislation on the entry and stay of aliens. The aim of exclusion orders was therefore essentially preventive. It was that special characteristic that made it possible to request the rescission of such orders, no equivalent remedy being available for criminal penalties in the strict sense. Referring to the criteria established by the Court's case-law for determining whether a particular penalty was criminal in character, the Government contended that it appeared clear that an exclusion order could not be regarded as a penalty or as criminal in character for the purposes of the Convention. It was a measure peculiar to immigration control and one far removed from the context of ordinary criminal proceedings. 30. The Government observed that in any event, however exclusion orders were classified, and even if they were classified as criminal penalties, it was common ground that proceedings for the rescission of such orders did not entail the court determining a criminal charge against the applicant. Such proceedings did not entail any decision by the relevant court on the merits of the charge. The court did not decide whether the applicant was guilty of the offence forming the basis of the exclusion order. Indeed, the arguments generally relied on by applicants when seeking rescission of an exclusion order showed that the debate focused on the applicant's personal circumstances, which, by definition, did not concern the validity of the earlier conviction. The court to which the application for rescission was made
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merely had to decide whether or not it should remain in effect. Indeed, when applications for rescission were lodged, the applicant was no longer a person charged since such applications were precluded unless the conviction had become final. Therefore applications for rescission of exclusion orders did not concern the penalty itself, but its enforcement. That observation had, moreover, led the Commission to express the opinion that the criminal limb of Article 6 1 was not applicable to disputes concerning applications for the rescission of such orders. 31. The Government concluded by asking the Court to hold that Article 6 1 of the Convention was inapplicable in the instant case. (b) The applicant 32. The applicant referred to the facts of the case and the various steps and procedures he had taken before the domestic courts in order to obtain the right to reside in France. He submitted that having regard, in particular, to the effects that the proceedings in issue had had on his family life, Article 6 1 of the Convention should be applicable. 2. The Court's assessment 33. The Court notes, firstly, that the Government have not denied the existence of a dispute (contestation) within the meaning of Article 6 1. However, they maintained that the dispute in question did not concern the determination of the applicant's civil rights or of a criminal charge against him, within the meaning of Article 6 1 of the Convention. 34. The Court points out that, under its case-law, the concepts of civil rights and obligations and criminal charge cannot be interpreted solely by reference to the domestic law of the respondent State. On several occasions, the Court has affirmed the principle that these concepts are autonomous, within the meaning of Article 6 1 of the Convention (see, among other authorities, the Knig v. Germany judgment of 28 June 1978, Series A no. 27, pp. 29-30, 88-89; the Baraona v. Portugal judgment of 8 July 1987, Series A no. 122, pp. 17-18, 42; and the Malige v. France judgment of 23 September 1998, Reports of Judgments and Decisions 1998-VII, p. 2935, 34). The Court confirms those principles in the instant case, as it considers that any other solution might lead to results that are incompatible with the object and purpose of the Convention (see, mutatis mutandis, the Engel and Others v. the Netherlands judgment of 8 June 1976, Series A no. 22, p. 34, 81, and the Knig judgment cited above, pp. 29-30, 88). 35. The Court has not previously examined the issue of the applicability of Article 6 1 to procedures for the expulsion of aliens. The Commission has been called upon to do so, however, and has consistently expressed the opinion that the decision whether or not to authorise an alien to stay in a country of which he is not a national does not entail any determination of his civil rights or obligations or of any criminal charge against him within the meaning of Article 6 1 of the Convention (see, for example, Uppal and Singh v. the United Kingdom, application no. 8244/78, Commission decision of 2 May 1979, Decisions and Reports (DR) 17, p. 149; Bozano v. France, application no. 9990/82, Commission decision of 15 May 1984, DR 39, p. 119; Urrutikoetxea v. France, application no. 31113/96, Commission decision of 5 December 1996, DR 87-B, p. 151; and Kareem v. Sweden, application no. 32025/96, Commission decision of 25 October 1996, DR 87-A, p. 173).
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36. The Court points out that the provisions of the Convention must be construed in the light of the entire Convention system, including the Protocols. In that connection, the Court notes that Article 1 of Protocol No. 7, an instrument that was adopted on 22 November 1984 and which France has ratified, contains procedural guarantees applicable to the expulsion of aliens. In addition, the Court observes that the preamble to that instrument refers to the need to take further steps to ensure the collective enforcement of certain rights and freedoms by means of the Convention .... Taken together, those provisions show that the States were aware that Article 6 1 did not apply to procedures for the expulsion of aliens and wished to take special measures in that sphere. That construction is supported by the explanatory report on Protocol No. 7 in the section dealing with Article 1, the relevant passages of which read as follows: 6. In line with the general remark made in the introduction ..., it is stressed that an alien lawfully in the territory of a member state of the Council of Europe already benefits from certain guarantees when a measure of expulsion is taken against him, notably those which are afforded by Articles 3 (prohibition of inhuman or degrading treatment) and 8 (right to respect for private and family life), in connection with Article 13 (right to an effective remedy before a national authority) of the ... Convention ..., as interpreted by the European Commission and Court of Human Rights ... 7. Account being taken of the rights which are thus recognised in favour of aliens, the present article has been added to the ... Convention ... in order to afford minimum guarantees to such persons in the event of expulsion from the territory of a Contracting Party. The addition of this article enables protection to be granted in those cases which are not covered by other international instruments and allows such protection to be brought within the purview of the system of control provided for in the ... Convention ... ... 16. The European Commission of Human Rights has held in the case of Application No. 7729/76 that a decision to deport a person does 'not involve a determination of his civil rights and obligations or of any criminal charge against him' within the meaning of Article 6 of the Convention. The present article does not affect this interpretation of Article 6. 37. The Court therefore considers that by adopting Article 1 of Protocol No. 7 containing guarantees specifically concerning proceedings for the expulsion of aliens the States clearly intimated their intention not to include such proceedings within the scope of Article 6 1 of the Convention. 38. In the light of the foregoing, the Court considers that the proceedings for the rescission of the exclusion order, which form the subject matter of the present case, do not concern the determination of a civil right for the purposes of Article 6 1. The fact that the exclusion order incidentally had major repercussions on the applicant's private and family life or on his prospects of employment cannot suffice to bring those proceedings within the scope of civil rights protected by Article 6 1 of the Convention (see, mutatis mutandis, the Neigel v. France judgment of 17 March 1997, Reports 1997-II, pp. 410-11, 43-44, and the Maillard v. France judgment of 9 June 1998, Reports 1998-III, pp. 1303-04, 39-41). 39. The Court further considers that orders excluding aliens from French territory do not concern the determination of a criminal charge either. In that connection, it notes that their characterisation within the domestic legal order is open to different interpretations. In any event, the domestic legal order's characterisation of a penalty cannot, by itself, be decisive for
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determining whether or not the penalty is criminal in nature. Other factors, notably the nature of the penalty concerned, have to be taken into account (see Tyler v. the United Kingdom, application no. 21283/93, Commission decision of 5 April 1994, DR 77, pp. 81-86). On that subject, the Court notes that, in general, exclusion orders are not classified as criminal within the member States of the Council of Europe. Such orders, which in most States may also be made by the administrative authorities, constitute a special preventive measure for the purposes of immigration control and do not concern the determination of a criminal charge against the applicant for the purposes of Article 6 1. The fact that they are imposed in the context of criminal proceedings cannot alter their essentially preventive nature. It follows that proceedings for rescission of such measures cannot be regarded as being in the criminal sphere either (see, mutatis mutandis, Renna v. France, application no. 32809/96, Commission's decision of 26 February 1997, unreported). 40. The Court concludes that decisions regarding the entry, stay and deportation of aliens do not concern the determination of an applicant's civil rights or obligations or of a criminal charge against him, within the meaning of Article 6 1 of the Convention. 41. Consequently, Article 6 1 is not applicable in the instant case.

FOR THESE REASONS, THE COURT Holds by fifteen votes to two that Article 6 1 of the Convention is not applicable. Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 5 October 2000.

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Mamatkulov and Abdurasulovic v Turkey (ECtHR) Mamatkulov and Abdurasulovic v Turkey App No 46827/99; 46951/99 (ECtHR, 6 February 2003)

FIRST SECTION

CASE OF MAMATKULOV AND ABDURASULOVIC v. TURKEY

(Applications nos. 46827/99 and 46951/99)

JUDGMENT

STRASBOURG

6 February 2003

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THE FACTS I. THE CIRCUMSTANCES OF THE CASE 420. The applicants were born in 1959 and 1971 and are currently in custody in the Republic of Uzbekistan. They are members of the Erk (Freedom) Democratic Party of Uzbekistan (O'zbekiston Erk Demokratik Partiyasi), an opposition party in the Republic of Uzbekistan. A. The applicant Rustam Mamatkulov 421. On 3 March 1999 the applicant arrived in Istanbul from Alma-Ata (Kazakhstan), on a tourist visa. He was arrested by Turkish police at Atatrk Airport (Istanbul) under an international arrest warrant and taken into police custody on suspicion of homicide, causing injuries by the explosion of a bomb in the Republic of Uzbekistan and an attempted terrorist attack on the President of Uzbekistan. 422. The Republic of Uzbekistan requested the applicant's extradition under a bilateral treaty with Turkey. 423. On 5 March 1999 the Bakrky Public Prosecutor made an application to the investigating judge for the applicant to be remanded in custody. The applicant, who was assisted by his lawyer, was brought before the judge the same day and remanded in custody for forty-five days, in accordance with the European Convention on Mutual Assistance in Criminal Matters, which was opened for signature on 20 April 1959. 424. On 11 March 1999 the first applicant was interviewed by the judge of the Bakrky Criminal Court. In an order made on the same day under the expedited-applications procedure the judge referred to the charges against the first applicant and noted that the offences concerned were not political or military in nature but ordinary criminal offences. The judge also made an order remanding the first applicant in custody pending his extradition. The applicant, who was assisted by his lawyer and an interpreter, denied the charges and protested his innocence. 425. In written pleadings that were lodged at a hearing on 11 March 1999, the first applicant's representative argued that the applicant was working for the democratisation of his country and that political dissidents in Uzbekistan were arrested by the authorities and subjected to torture in prison. He added that the first applicant had been in Kazakhstan at the material time and had asked the Turkish authorities for political asylum as his life was at risk. He argued that his client had been prosecuted for an offence of a political nature and, relying on Article 9 of the Turkish Criminal Code, asked the Criminal Court to refuse the Republic of Uzbekistan's request for extradition. 426. On 15 March 1999 the applicant appealed to the Bakrky Assize Court against the order made under the expedited-applications procedure on 11 March 1999. The Assize Court examined the file that had been produced to it and dismissed the applicant's appeal on 19 March 1999.

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B. The applicant Azkarov Z. Abdurasulovic 427. The applicant entered Turkey on 13 December 1998 on a false passport. On 5 March 1999, acting on a request for his extradition by the Republic of Uzbekistan, the Turkish police arrested him and took him into police custody. He was suspected of homicide, causing injuries to others by the explosion of a bomb in the Republic of Uzbekistan and an attempted terrorist attack on the President of Uzbekistan. 428. On 7 March 1999 the Bakrky Public Prosecutor made an application to the investigating judge for the applicant to be remanded in custody. On the same day the applicant was brought before a judge, who remanded him in custody. 429. In a letter of 12 March 1999 the Fatih Public Prosecutor applied to the Fatih Criminal Court for a determination of the applicant's nationality and of the nature of the alleged offence. 430. In a decision of 15 March 1999, after hearing the applicant, the Criminal Court determined his nationality and the nature of the offence pursuant to Article 9 of the Turkish Criminal Code. It held that the offences with which he had been charged were not political or military in nature but ordinary criminal offences. It also made an order remanding the applicant in custody pending his extradition. 431. At a hearing on 11 March 1999 the applicant's representative submitted that the offence with which the applicant had been charged was political in nature and that political dissidents in Uzbekistan were arrested by the authorities and subjected to torture in prison. He added that the applicant had been in Turkey at the material time on a false passport. 432. On 18 March 1999 the applicant appealed to the Istanbul Assize Court against the judgment of 15 March 1999. The Assize Court examined the file that had been produced to it and dismissed the applicant's appeal on 26 March 1999. C. The applicants' extradition and subsequent events 433. On 18 March 1999 the President of the Chamber decided to indicate to the Government, pursuant to Rule 39 of the Rules of Court, that it was desirable in the interest of the parties and the proper conduct of the proceedings before the Court not to extradite the applicants to the Republic of Uzbekistan until the Court has had an opportunity to examine the application further at its forthcoming session on 23 March 1999. 434. On 19 March 1999 the Turkish Cabinet issued a decree for the applicants' extradition. 435. On 23 March 1999 the Chamber decided to extend the interim measure indicated pursuant to Rule 39 until further notice. 436. On 27 March 1999 the applicants were handed over to the Uzbek authorities. 437. In a letter of 19 April 1999 the Government informed the Court that it had received the following assurances about the two applicants from the Uzbek authorities: (i) On 9 March and 10 April 1999 the Ambassador of the Republic of Uzbekistan transmitted two notes from the Ministry of Foreign Affairs to which were appended two letters from the Public Prosecutor, stating: The applicants' property will not be liable to general confiscation, and the applicants will not be subjected to acts of torture or sentenced to capital punishment; (ii) The Uzbek authorities added The Republic of Uzbekistan is a party to the United Nation's Convention against Torture and accepts and reaffirms its obligations to comply with

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the requirements of the provisions of that Convention both as regards Turkey and the international community as a whole. 438. On 11 June 1999 the Government transmitted to the Court a diplomatic note dated 8 June 1999 from the Ministry of Foreign Affairs of the Republic of Uzbekistan setting out the following points: It appears from investigations conducted by the Uzbek judicial authorities that Mamatkulov and Abdurasulovic have played an active role in planning and organising terrorist acts against the leaders of the Republic of Uzbekistan and its people since May 1997, as members of a criminal organisation led by C.H. and T.Y., who are notorious religious extremists. It appears from information obtained through cooperation with the intelligence services of foreign countries that Mamatkulov and Abdurasulovic have committed offences in Kazakhstan and Kyrgyzstan. Their indictment, which was drawn up on the basis of previously obtained evidence, contains a number of counts: setting up a criminal organisation, terrorism, a terrorist attack on the President, seizing power by the use of force or by the overthrow of the constitutional order, arson, uttering forged documents and voluntary homicide. All the investigations have been conducted with the participation of their lawyers. The defendants have made statements of their own free will on the activities of the criminal organisation and their role within it. That information has been corroborated by the other evidence that has been obtained. The assurances given by the Public Prosecutor of the Republic of Uzbekistan concerning Mamatkulov and Abdurasulovic comply with Uzbekistan's obligations under the United Nation's Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984. The defendants and their lawyers have examined the prosecution evidence relating to the investigation and the proceedings and a copy of the indictment transmitted to the Supreme Court has been served on them. Arrangements for the accused's security during the investigation and trial have been made through the use of secure premises (with cells specially equipped for that purpose) and appropriate measures have been taken to prevent them being attacked. The defendant's trial in the Supreme Court has recently begun with hearings in public. The hearings are attended by members of the local and foreign press. Members of diplomatic missions and representative of human-rights organisations also attend the hearings. Officials from the Embassy of the Republic of Turkey may also attend. 439. In a letter of 8 July 1999, the Government informed the Court that by a judgment of 28 June 1999 the Supreme Court of the Republic of Uzbekistan had found the applicants guilty of the offences charged and had sentenced them to terms of imprisonment. 440. In a letter of 15 September 1999, the applicants' representatives said that they were unable to contact the applicants. They said that conditions in Uzbek prisons were bad and that prisoners were subjected to torture. They noted, inter alia: ...
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The applicants did not have a fair trial in the Republic of Uzbekistan. The rule requiring trials to be held in public was not complied with. Our only information about the applicants' trial comes from the Uzbek authorities. We wrote to the Uzbek Embassy in Ankara on 25 June 1999 requesting permission to attend the trial as observers in our capacity as lawyers, but have received no reply. As to the allegation that the applicants' trial was followed by 'national and international journalists and representatives from human-rights organisations', the only nongovernmental organisation present in Uzbekistan that was able to follow the trial was Human Rights Watch. Although we have made express requests to that organisation, we have not been able to obtain any detailed information about the hearings and events at the trial. Since the applicants' extradition, we have been unable to contact them either by letter or by telephone. We still have no means of contacting them. This state of affairs serves to reinforce our suspicions that the applicants are not being held in proper prison conditions. According to the letter sent by the Court [ECHR] on 9 July 1999 and information published in the press, the applicant Rustam Mamatkulov has been sentenced to twentyyears' imprisonment. That is the heaviest sentence that can be handed down under the Uzbek Criminal Code. Furthermore, if account is taken of the conditions of detention in Uzbek prisons, and in particular of the use of torture, it is very difficult for prisoners to serve their sentences in the prisons in proper conditions. Moreover, it is generally believed that certain prisoners, in particular those convicted for offences pertaining to freedom of expression, are given additional sentences. 441. On 15 October 2001 the Ministry of Foreign Affairs for the Republic of Uzbekistan forwarded the following information to the Turkish Embassy: On 28 June 1999 the Supreme Court of the Republic of Uzbekistan found R. Mamatkulov and Z. Askarov guilty of the charges listed below and sentenced them to twenty-years' and eleven-years' imprisonment respectively: R. MAMATKULOV (a) Eighteen-years' imprisonment pursuant to Articles 28 and 97 of the Criminal Code (homicide with aggravating circumstances, namely: (i) murder of two or more people, (ii) murder of a person on official duty or of a close relative of such a person, (iii) use of means endangering the lives of others, (iv) use of cruel means, (v) offence committed in the defendant's own interests, (vi) offence committed on the basis of religious beliefs, (vii) offence committed with the aim of concealing another offence or of facilitating its commission, (viii) offence committed by a group of people or a criminal organisation in the interests of that organisation, (ix) repeat offence);
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(b) Eighteen-years' imprisonment pursuant to Article 155 3 (a) and (b) of the Criminal Code (terrorist offence); (c) Ten-years' imprisonment pursuant to Article 156 2 (d) of the Criminal Code (incitement to hatred and hostility giving rise to discrimination on grounds of race and religion); (d) Eighteen-years' imprisonment pursuant to Article 158 1 of the Criminal Code (attempted terrorist attack on the President of the Republic of Uzbekistan); (e) Eighteen-years' imprisonment pursuant to Article 159 4 of the Criminal Code (attempt to undermine the constitutional regime of the Republic of Uzbekistan, conspiracy to take power or overthrow the constitutional regime of the Republic of Uzbekistan); (f) Fifteen-years' imprisonment pursuant to Article 161 of the Criminal Code (attempt to destroy property or to damage peoples' health, massacres committed with the intention of harming the activities of State bodies and undermining social, political and economic stability); (g) Twelve-years' imprisonment pursuant to Article 168 4 (a) and (b) of the Criminal Code (fraud, obtaining the property of others by fraud or deception, by or in the interests of a group of individuals); (h) Ten-years' imprisonment pursuant to Article 223 2 (b) (entering or leaving Uzbek territory illegally and with premeditation); (i) Two-years' community service pursuant to Article 228 3 (manufacture, use and sale of false documents: seal, stamp, headed notepaper); (j) Eighteen-years' imprisonment pursuant to Article 242 1 (forming an armed organisation or gang to commit offences and holding a position of authority or special position within such organisation or gang). Is sentenced to twenty-years' imprisonment pursuant to Article 59 of the Criminal Code (aggregation of sentences for several offences) to be served in 'strict-regime' penal institutions. R. Mamatkulov is currently serving his sentence in Zarafan Prison, which is under the authority of the Office for Internal Affairs of the Province of Navoi. He is in good health and is entitled to receive visits from close relatives. He did not receive an amnesty under the 'Amnesty Decree' of 22 August 2001. Z. Abdurasulovi ASKAROV (a) Ten-years' imprisonment pursuant to Article 28 and 97 of the Criminal Code (aggravated with aggravating circumstances, namely: (i) murder of two or more people, (ii) murder of a person on official duty or of a close relative of such a person, (iii) use of means endangering the lives of others, (iv) use of cruel means, (v) offence committed in the defendant's own interests,
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(vi) offence committed on the basis of religious beliefs, (vii) offence committed with the aim of concealing another offence or of facilitating its commission, (viii) offence committed by a group of people or a criminal organisation in the interests of that organisation, (ix) repeat offence); (b) Ten-years' imprisonment pursuant to Article 155 2 (a) and (b) of the Criminal Code (terrorist offence, causing another's death); (c) Ten-years' imprisonment pursuant to Article 156 2 (d) of the Criminal Code (incitement to hatred and hostility giving rise to discrimination on grounds of race and religion); (d) Nine-years' imprisonment pursuant to Article 158 1 of the Criminal Code (attempted terrorist attack on the President of the Republic of Uzbekistan); (e) Nine-years' imprisonment pursuant to Article 159 4 of the Criminal Code (attempt to undermine the constitutional regime of the Republic of Uzbekistan, conspiracy to take power or overthrow the constitutional regime of the Republic of Uzbekistan); (f) Nine-years' imprisonment pursuant to Article 161 of the Criminal Code (attempt to destroy property or to damage peoples' health, massacres committed with the intention of harming the activities of State bodies and undermining social, political and economic stability); (g) Nine-years' imprisonment pursuant to Article 173 3 (b) (destruction of or intentional damage to property belonging to others by or in the interests of a group of individuals); (h) Ten-years' imprisonment pursuant to Article 223 2 (b) (entering or leaving Uzbek territory illegally and with premeditation); (i) Two-years' community service pursuant to Article 228 3 (manufacture, use and sale of false documents: seal, stamp, headed notepaper); (j) Ten-years' imprisonment pursuant to Article 242 1 (forming an armed organisation or gang to commit offences and holding a position of authority or special position within such organisation or gang). Is sentenced to eleven-years' imprisonment pursuant to Article 59 of the Criminal Code (aggregation of sentences for several offences) to be served in 'strict regime' penal institutions. Z. Askarov is currently serving his sentence in ayhali Prison, which is under the authority of the Office for Internal Affairs of the Province of Kakadarya. He is in good health and is entitled to receive visits from close relatives. He did not receive an amnesty under the 'Amnesty Decree' of 22 August 2001. 442. At the hearing on 23 October 2001, the Government informed the Court that on 19 October 2001, two officials from the Turkish Embassy had visited the applicants in Zarafan Prison and ayhali Prison, which are respectively 750 and 560 kilometres from Tashkent.
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According to the Embassy officials, the applicants were in good health and had not complained about their prison conditions either before or after trial. 443. On 3 December 2001 the Uzbek authorities communicated to the Government medical certificates that had been drawn up by military doctors in the prisons in which the applicants were being held. The doctors made the following findings: ... Mr Mamatkulov was imprisoned on 9 December 2000. He did not present any health problems on arrival. Examinations on 14 February 2000 and 2 April 2001 did not reveal any symptoms of pathology. On 19 November 2001 the prisoner attended the prison medical centre complaining of general weakness and a bout of coughing. ... on examination he was diagnosed as suffering from acute bronchitis and was prescribed medication ... ... Mr Abdurasulovic Askarov was imprisoned on 21 July 2001. He did not complain of any health problems on arrival. Examinations conducted on 25 July, 30 August and 23 October 2001 did not reveal any symptoms of pathology... 444. To date, the applicants' representatives have been unable to contact the applicants.

THE LAW III. ALLEGED VIOLATION OF ARTICLES 2 AND 3 OF THE CONVENTION 445. The applicants alleged that their extradition to the Republic of Uzbekistan would constitute a violation of Articles 2 and 3 of the Convention, which provides: Article 2 1. Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. 2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection. Article 3 No one shall be subjected to torture or to inhuman or degrading treatment or punishment. The Court considers that this complaint must be examined under Article 3.

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A. Arguments of the parties 1. The applicants' submissions 446. The lawyers representing the applicants said that they had been unable to contact the applicants, either by telephone or by letter, after their extradition and had received no response from the Turkish and Uzbek authorities to their requests for access to them. In that connection, they complained that conditions in Uzbek prisons were bad and prisoners subjected to torture. 447. In support of their allegations, they referred to reports by international bodies responsible for investigating human-rights abuses denouncing an administrative practice of torture and other forms of ill-treatment of political dissidents and the Uzbek regime's repressive policy towards dissidents. 448. They asserted that the applicants had adduced relevant evidence in the extradition proceedings in Turkey refuting the accusations against them. Accordingly, the fact that the applicants, who had been denied the right to legal assistance from a lawyer of their choosing, had fully admitted identical accusations to the Uzbek authorities, showed that they had been forced by torture and ill-treatment to confess to crimes which they had not committed. The Government 449. The Government maintained that in extradition proceedings Article 3 of the Convention should only apply in cases in which it was certain that the impugned treatment or punishment overseas would be inflicted and in which the person concerned had produced persuasive evidence that substantial grounds existed for believing that he or she faced torture or ill-treatment. 450. The Government observed that the applicants had been extradited after assurances had been obtained from the Uzbek authorities. Those assurances included an undertaking not to sentence the applicants to capital punishment, to ensure that the applicants would not be subjected to torture or ill-treatment and would not become liable to general confiscation of their property. They said that the Uzbek authorities had given an assurance that the Republic of Uzbekistan [was] a party to the United Nation's Convention against Torture and accept[ed] and reaffirm[ed] its obligations to comply with the requirements of the provisions of that Convention both as regards Turkey and the international community as a whole. The Government further observed that the reports of the human-rights organisations did not contain any information that might support the allegations of treatment contrary to Article 3. 451. As to whether the guarantees were sufficient to eliminate all possible risk, the Government maintained that the circumstances of the instant case were different from those in the case of Soering v. the United Kingdom (judgment of 7 July 1989, Series A no. 161), in which the Court had held that the decision to extradite the applicant to the United States would, if implemented, give rise to a breach of Article 3 ( 111 ). In that connection, they noted that the applicants, who were accused of acts of terrorism, had been sentenced by the Uzbekistan Supreme Court to twenty- and eleven-years' imprisonment respectively and that their trial had been attended by some eighty people, including officials from the Turkish and other Embassies and representatives of Helsinki Watch. The Government added that the applicants had been visited in prison in Uzbekistan by two officials from the Turkish Embassy and had informed them that they had not been subjected to ill-treatment following their extradition from Turkey, either before or after their trial. In the light of that evidence, and regard being had to the criteria set out in Cruz Varas and Others v. Sweden (20 March
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1991, Series A no. 201), the applicants did not face a real risk of being subjected to torture or persecution in Uzbekistan. 452. The Government argued that Article 3 was not to be construed in a way that would engage the extraditing State's responsibility indefinitely. The State's responsibility should end once the extradited person had been found guilty and had started to serve his or her sentence. It would be straining the language of Article 3 intolerably to hold that by surrendering a suspect in accordance with the terms of extradition agreements, the extraditing State had subjected him to the treatment or punishment he received after his conviction and sentence in the receiving State. So to hold would interfere with international-treaty rights and lead to a conflict with the norms of international judicial process, as it would entail adjudication on the internal affairs of foreign States that were not Parties to the Convention. There was a risk that it would cause serious harm to the Contracting State by restricting its ability to cooperate in the fight against international terrorism and organised crime. B. The Court's assessment 453. As the Court has previously stated, the Contracting States have the right, as a matter of well-established international law and subject to their treaty obligations, including the Convention, to control the entry, residence and expulsion of aliens. Moreover, the right to political asylum is not contained in either the Convention or its Protocols (Vilvarajah and Others v. the United Kingdom, 30 October 1991, Series A no. 215, p. 34, 102). 454. However, it is the settled case-law of the Court that extradition by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person in question would, if extradited, face a real risk of being subjected to treatment contrary to Article 3 in the receiving country. The establishment of such responsibility inevitably involves an assessment of conditions in the requesting country against the standards of Article 3 of the Convention. Nonetheless, there is no question of adjudicating on or establishing the responsibility of the receiving country, whether under general international law, under the Convention or otherwise. In so far as any liability under the Convention is or may be incurred, it is liability incurred by the extraditing Contracting State by reason of its having taken action which has as a direct consequence the exposure of an individual to proscribed ill-treatment (Soering cited above, p. 35, 89-91). 455. The Court reiterated that in determining whether substantial grounds have been shown for believing that a real risk of treatment contrary to Article 3 exists, it will assess the issue in the light of all the material placed before it or, if necessary, material obtained proprio motu (Vilvarajah and Others cited above, p. 36, 107). 456. Since the nature of the Contracting States' responsibility under Article 3 in cases of this kind lies in the act of exposing an individual to the risk of ill-treatment, the existence of the risk must be assessed primarily with reference to those facts which were known or ought to have been known to the Contracting State at the time of the expulsion; the Court is not precluded, however, from having regard to information which comes to light subsequent to the expulsion. This may be of value in confirming or refuting the appreciation that has been made by the Contracting Party or the well-foundedness or otherwise of an applicant's fears (Cruz Varas and Others cited above, p. 30, 76). 457. The Court reiterates that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is, in the nature of things, relative; it depends on all the circumstances of the case, such as the nature and context
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of the treatment or punishment, the manner and method of its execution, its duration and its physical or mental effects (Soering cited above, p. 39, 100). 458. The Court stresses that in order to raise an issue under Article 3, it must be established that, in the particular circumstances of the case, there was a real risk that the applicants would be subjected to treatment contrary to Article 3. 459. The Court has noted the observations made by the applicants' representatives on the information contained in the reports of international bodies responsible for investigating human-rights abuses denouncing an administrative practice of torture and other forms of illtreatment of political dissidents and the Uzbek regime's repressive policy towards such dissidents. It notes that Amnesty International alleges, inter alia, Reports of ill-treatment and torture by law enforcement officials of alleged supporters of banned Islamist opposition parties and movements, including women, continued... (see paragraphs 53-54 above). 460. While it is true that the attainment of the required evidentiary standard may follow from the co-existence of sufficiently strong, clear and concordant inferences or unrebutted presumptions (Aydn v. Turkey, 25 September 1997, Reports of Judgments and Decisions 1997-VI, p. 1888, 73), their evidential value must be considered in the light of the circumstances of the individual case and the seriousness and nature of the charge to which they give rise against the respondent State. In the instant case, the Court considers that, in spite of the serious concerns to which they give rise, the reports only describe the general situation in the Republic of Uzbekistan. There is nothing in them to support the specific allegations made by the applicants in the instant case, which require corroboration by other evidence. 461. The Court notes that the applicants' representatives say that they have been unable to contact the applicants since their extradition and have therefore had difficulty in obtaining evidence corroborating the applicants' version of events as alleged in the documents. 462. As regards the facts in issue, the Court considers on the basis of the evidence before it that the reason it has not been possible for any conclusive findings of fact to be made is that the applicants were denied an opportunity to have additional inquiries made in order to obtain evidence supporting their allegations under Article 3 of the Convention. 463. In the instant case, the Court observes that the Turkish Government contend that the applicants were extradited after an assurance had been obtained from the Uzbek Government. It notes that the assurance that [t]he applicants' property will not be liable to general confiscation, and the applicants will not be subjected to acts of torture or sentenced to capital punishment was given by the Public Prosecutor of the Republic of Uzbekistan, who added: The Republic of Uzbekistan is a party to the United Nation's Convention against Torture and accepts and reaffirms its obligations to comply with the requirements of the provisions of that Convention both as regards Turkey and the international community as a whole (see paragraph 29 above). 464. The Court takes formal cognisance of the diplomatic notes from the Uzbek authorities that have been produced by the Turkish Government and of the judgment of the Supreme Court of the Republic of Uzbekistan finding the applicants guilty of the offences with which they were charged and sentencing them to twenty- and eleven-years' imprisonment respectively (see paragraphs 30, 31 and 33 above). It notes further that the medical certificates issued by the prison doctors in the prisons in which Mr Mamatkulov and Mr Abdurasulovic are being held do not support the allegations made by the applicants' representatives that the applicants have been subjected to treatment contrary to Article 3 in Uzbekistan (see paragraph 35 above).

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465. Having regard to the circumstances of the case and the evidence before it, the Court considers that there is insufficient evidence for it to conclude that there has been a violation of Article 3 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 466. The applicants complained that the extradition proceedings in Turkey and the criminal proceedings against them in Uzbekistan had been unfair. They relied on Article 6 1 of the Convention, the relevant part of which provides: 1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law. A. The extradition proceedings in Turkey 467. The applicants complained that they had not had a fair hearing before the Criminal Court that had ruled on the request for their extradition, in that they had been unable to gain access to all the material in the case file or to put forward their arguments concerning the characterisation of the offence they were alleged to have committed. Applicability of Article 6 1 468. The Court reiterates that decisions regarding the entry, stay and deportation of aliens do not concern the determination of an applicant's civil rights or obligations or of a criminal charge against him, within the meaning of Article 6 1 of the Convention (Maaouia v. France [GC], no. 39652/98, 40, ECHR 2000-X). 469. Consequently, Article 6 1 is not applicable in the instant case. B. The criminal proceedings in Uzbekistan 470. The applicants submitted that there was no possibility of their being given a fair trial in their country of origin and that they faced a real risk of being sentenced to death and executed. They argued in that connection that the Uzbek judicial authorities were not independent of the executive. 471. The applicants' representatives alleged that the applicants had been held incommunicado until the start of their trial and had not been permitted representation by a lawyer of their choosing. They said that the depositions on which the finding of guilt had been based had been extracted under torture. 472. The Government said that the applicants' extradition could not engage the Turkish Government's responsibility under Article 6 1 of the Convention. 473. The Court noted that in its aforementioned Soering judgment (p. 45, 113), it said; The right to a fair trial in criminal proceedings, as embodied in Article 6 holds a prominent place in a democratic society. The Court does not exclude that an issue might exceptionally be raised under Article 6 by an extradition decision in circumstances where the fugitive has suffered or risks suffering a flagrant denial of a fair trial in the requesting country... 474. The Court noted that in the instant case the applicants were handed over to the Uzbek authorities on 27 March 1999. On 28 June 1999 the Supreme Court of the Republic of
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Uzbekistan found Mr Mamatkulov and Mr Abdurasulovic guilty of various offences and sentenced them to twenty-and eleven-years' imprisonment respectively (see paragraph 33 above). 475. On the basis of the evidence before it, the Court has held that it has not been shown that Mr Mamatkulov and Mr Abdurasulovic faced a real risk of being subjected to torture or inhuman or degrading treatment as a result of their extradition. Referring to its findings under Article 3 (see paragraphs 73-77 above), the Court holds that it has not been established by the evidence produced to it that the applicants have been denied a fair trial. Accordingly, no issue arises under Article 6 1 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 34 OF THE CONVENTION 476. The applicants' representatives maintained that by extraditing Mr Mamatkulov and Mr Abdurasulovic despite the measure indicated by the Court under Rule 39 of the Rules of Court, Turkey had failed to comply with its obligations under Article 34 of the Convention. Article 34 of the Convention provides: The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right. Rule 39 1 of the Rules of Court states: 1. The Chamber or, where appropriate, its President may, at the request of a party or of any other person concerned, or of its own motion, indicate to the parties any interim measure which it considers should be adopted in the interests of the parties or of the proper conduct of the proceedings before it. 2. Notice of these measures shall be given to the Committee of Ministers. 3. The Chamber may request information from the parties on any matter connected with the implementation of any interim measure it has indicated. A. The parties' submissions 477. The applicants' representatives said that although they had made several requests to the authorities for permission to contact the applicants following their extradition, they had been unable to do so, with the result that the applicants had been denied an opportunity to have further inquiries made in order to obtain evidence in support of their allegations under Article 3. They said in conclusion that the applicants' extradition had proved a real obstacle to the effective presentation of their application to the Court. 478. The Government submitted that no separate issue arose under Article 34 of the Convention, as the complaint under that provision was the same as that the applicants had raised under Article 3 of the Convention, which the Government said was unfounded. 479. As regards the effects of the interim measures the Court had indicated in the instant case under Rule 39, the Government referred to the aforesaid Cruz Varas and Others judgment as authority for the proposition that the Contracting States had no legal obligation to comply with such indications.
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B. The Court's assessment 1. General considerations 480. The Court has previously stated that former Articles 25 and 46 of the Convention are essential to the effectiveness of the Convention system, since they delineate the responsibility of the Commission and Court to ensure the observance of the engagements undertaken by the High Contracting Parties (Article 19), by determining their competence to examine complaints concerning alleged violations of the rights and freedoms set out in the Convention. In interpreting these key provisions the Court must have regard to the special character of the Convention as a treaty for the collective enforcement of human rights and fundamental freedoms (see, mutatis mutandis, Loizidou v. Turkey (preliminary objections), 23 March 1995, Series A no. 310, 70). 481. The object and purpose of the Convention as an instrument for the protection of individual human beings require that its provisions be interpreted and applied so as to make its safeguards practical and effective, as part of the system of individual applications. In addition, any interpretation of the rights and freedoms guaranteed has to be consistent with the general spirit of the Convention, an instrument designed to maintain and promote the ideals and values of a democratic society (Soering cited above, 87; mutatis mutandis, Klass and Others v. Germany, 6 September 1978, Series A no. 28, p. 18, 34). 482. The principle that the Convention is a living instrument which must be interpreted in the light of present-day conditions is firmly rooted in the Court's case-law. The Court has applied that principle not only to the substantive rules of the Convention (see, among other authorities, Soering cited above, 102; Dudgeon v. the United Kingdom, 22 October 1981, Series A no. 45; X, Y and Z v. the United Kingdom, 22 April 1997, Reports 1997II; V. v. the United Kingdom [GC] no. 24888/94, 72, ECHR 1999IX; and Matthews v. the United Kingdom [GC], no. 24833/94, 39, ECHR 1999I), but also when interpreting former Articles 25 and 46 of the Convention with regard to a Contracting State's acceptance of the jurisdiction of the Convention institutions (Loizidou (preliminary objections) cited above, 71). The Court said in the latter judgment that former Articles 25 and 46 of the Convention could not be interpreted solely in accordance with the intentions of their authors as expressed more than forty years ago. Thus, even if it had been established that the restrictions concerned were considered permissible under those provisions at the material time when a minority of the Contracting Parties adopted the Convention, such evidence could not be decisive. 483. Further, the undertaking not to hinder the effective exercise of the right of individual application precludes any interference with the individual's right to present and pursue his complaint before the Court effectively. That issue has been considered by the Court in previous judgments. It is of the utmost importance for the effective operation of the system of individual application instituted under Article 34 that applicants or potential applicants should be able to communicate freely with the Court without being subjected to any form of pressure from the authorities to withdraw or modify their complaints. Pressure includes not only direct coercion and flagrant acts of intimidation against actual or potential applicants, members of their family or their legal representatives, but also other improper indirect acts or contacts designed to dissuade or discourage applicants from pursuing a Convention remedy (see, among other authorities and mutatis mutandis, Akdivar and Others v. Turkey, 16 September 1996, Reports 1996-IV, p. 1219, 105; Kurt v. Turkey, 25 May 1998, Reports 1998-III, p. 1192, 159; Tanrkulu v. Turkey [GC], no. 23763/94, ECHR 1999-IV; arl v.
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Turkey, no. 24490/94, 85-86, 22 May 2001; and Orhan v. Turkey, no. 25656/94, 18 June 2002). 2. Did the applicants' extradition actually hinder the effective exercise of the right of individual application 484. The Court notes that the fact that the respondent Government extradited the applicants without complying with the measures indicated under Rule 39 of the Rules of Court raises the issue whether, in view of the special nature of the alleged violation of Article 3 of the Convention, there has been a violation of Article 34. In the present case, once they had been extradited the applicants were unable to remain in contact with their representatives. The Court reiterates in that connection that it is implicit in the notion of the effective exercise of the right of individual application that for the duration of the proceedings in Strasbourg the principle of equality of arms should be observed and an applicant's right to sufficient time and necessary facilities in which to prepare his or her case respected. In the present case, the applicants' representatives were not able to contact the applicants, despite their requests to the Turkish and Uzbek authorities for permission to do so. The applicants were thus denied an opportunity to have further inquiries made in order for evidence in support of their allegations under Article 3 of the Convention to be obtained. 485. The Court has previously considered whether, in the absence of an express clause in the Convention, its organs could derive from Article 34 (former Article 25), taken alone or together with Rule 39 (former Rule 36) or from any other source, the power to order interim measures (Cruz Varas and Others cited above; Conka and Others v. Belgium, no. 51564/99, decision of 13 March 2001). In those cases, it concluded that the power to order binding interim measures could not be inferred from either Article 34 in fine, or from other sources, but that a decision not to comply with an indication given under Rule 39 would have to be seen as aggravating any subsequent breach of Article 3 found by the Court (Cruz Varas and Others cited above, pp. 36-37, 102 and 103). In the aforementioned Conka and Others case, the Court also found: As regards the difficulties encountered by the applicants following their expulsion to Slovakia, it does not appear that they attained a level such that they were hindered in the exercise of their right under Article 34 of the Convention. 486. The Court will also examine the present case by reference to general principles of international law, in particular those concerning the binding force of interim measures indicated by other international courts. 487. The Court reiterates in that connection that the Convention must be interpreted in the light of the rules set out in the Vienna Convention of 23 May 1969 on the Law of Treaties, Article 31 3 (c) of which states that there shall be taken into account any relevant rules of international law applicable in the relations between the parties. The Court must determine the responsibility of the States in accordance with the principles of international law governing this sphere, while taking into account the special nature of the Convention as an instrument of human-rights protection (Golder v. the United Kingdom, judgment of 21 February 1975, Series A no. 18, 29). Thus, the Convention must be interpreted so far as possible consistently with the other principles of international law of which it forms a part (Al-Adsani v. the United Kingdom [GC], no. 35763/97, 60, ECHR 2001-XI). 488. The Court notes that different rules apply to interim, provisional or precautionary measures, depending on whether the complaint is made under the individual-petition procedures of the United Nations organs, or the Inter-American Court and Commission, or under the procedure for the judicial settlement of disputes of the International Court of
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Justice. In some instances provision is made for such measures in the treaty itself and in others in the rules of procedure (see paragraphs 39 to 44 above). 489. The Court notes that in a number of recent decisions and orders, international courts have stressed the importance and purpose of interim measures and pointed out that compliance with such measures was necessary to ensure the effectiveness of their decisions on the merits. In proceedings concerning international disputes, the purpose of interim measures is to preserve the parties' rights, thus enabling the body hearing the dispute to give effect to the consequences which a finding of responsibility following adversarial process will entail. 490. Under the jurisprudence of the Human Rights Committee of the United Nations, a failure to comply with interim measures constitutes a breach by the State concerned of its legal obligations under the International Covenant on Civil and Political Rights and the Optional Protocol thereto, and of its duty to cooperate with the Committee under the individual-communications procedure (see paragraphs 45-46 above). The United Nations Committee against Torture has considered the issue of a State Party's failure to comply with interim measures on a number of occasions. It has ruled: [c]ompliance with interim measures which the Committee considers reasonable is essential in order to protect the person in question from irreparable harm, which could, moreover, nullify the end result of the proceedings before the Committee (see paragraphs 47-48 above). In various orders concerning provisional measures, the Inter-American Court of Human rights has stated that in view of the fundamental objective of the American Convention on Human Rights, namely guaranteeing the effective protection of human rights, States Parties [had to] refrain from taking actions that may frustrate the restitutio in integrum of the rights of the alleged victims (see, among other authorities, the orders of 25 May and 25 September 1999 in the case of James et al. v. Trinidad and Tobago). 491. In its judgment of 27 June 2001 in the case of LaGrand (Germany v. United States of America), the International Court of Justice said: The object and purpose of the Statute is to enable the Court to fulfil the functions provided for therein, and in particular, the basic function of judicial settlement of international disputes by binding decisions in accordance with Article 59 of the Statute. The [purpose of] Article 41 ... is to prevent the Court from being hampered in the exercise of its functions because the respective rights of the parties to a dispute before the Court are not preserved. It follows from the object and purpose of the Statute, as well as from the terms of Article 41 when read in their context, that the power to indicate provisional measures entails that such measures should be binding, inasmuch as the power in question is based on the necessity, when the circumstances call for it, to safeguard, and to avoid prejudice to, the rights of the parties as determined by the final judgment of the Court. The contention that provisional measures indicated under Article 41 might not be binding would be contrary to the object and purpose of that Article. Furthermore, in that judgment, the International Court of Justice brought to an end the debate over the strictly linguistic interpretation of the words power to indicate (pouvoir indiquer in the French text) in the first paragraph of Article 41 and suggested (indication in the French text) in the second paragraph. Referring to Article 31 of the Vienna Convention on the Law of Treaties, which provides that treaties shall be interpreted in the light of their object and purpose, the International Court of Justice held that provisional measures were legally binding. 492. The Court points out that in the aforementioned case of Cruz Varas and Others, in which it had to decide whether the Commission had power under former Article 25 1 to
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order interim measures, it noted that that Article applied only to proceedings brought before the Commission and imposed an obligation not to interfere with the right of the individual to present his or her complaint to the Commission and to pursue it. Article 25 conferred upon an applicant a right of a procedural nature distinguishable from the substantive rights set out under Section I of the Convention or its Protocols. It may thus be seen that in that case the Court did not consider its own power to order interim measures but confined itself to examining the Commission's power. It considered the indication that had been given in the light of the nature of the proceedings before the Commission and of the Commission's role and concluded: Where the State has had its attention drawn in this way to the dangers of prejudicing the outcome of the issue then pending before the Commission any subsequent breach of Article 3 ... would have to be seen as aggravated by the failure to comply with the indication (Cruz Varas and Others cited above, 103). The Court emphasises in that connection that the Commission was not empowered to issue a binding decision that a Contracting State had violated the Convention, whereas the Court and the Committee of Ministers were. The Commission's task with regard to the merits was of a preliminary nature and its opinion on whether or not there had been a violation of the Convention was not binding. 493. While the Court is not formally bound to follow its previous judgments, in the interests of legal certainty and foreseeability it should not depart, without good reason, from its own precedents (see, among other authorities, mutatis mutandis, Chapman v. the United Kingdom [GC], no. 27238/95, 70, ECHR 2001-I; and Christine Goodwin v. the United Kingdom [GC], no. 28957/95, 74, 11 July 2002). It is of crucial importance that the Convention is interpreted and applied in a manner which renders its rights practical and effective, not theoretical and illusory. A failure by the Court to maintain a dynamic and evolutive approach would indeed risk rendering it a bar to reform or improvement (Stafford v. the United Kingdom [GC], no. 46295/99, 68, 28 May 2002). In the circumstances of the present case, the Court notes that in the light of the general principles of international law, the law of treaties and international case-law, the interpretation of the scope of interim measures cannot be dissociated from the proceedings to which they relate or the decision on the merits they seek to protect. 494. The Court will now re-examine this problem. It would stress that although the Convention right to individual application was intended as an optional part of the system of protection, it has over the years become of the highest importance and is now a key component of the machinery for protecting the rights and freedoms set out in the Convention. Under the system in force until 1 November 1998, the Commission only had jurisdiction to hear individual applications if the Contracting Party issued a formal declaration recognising its competence, which it could do for a fixed period. The system of protection as it now operates has, in that regard, been modified by Protocol No. 11, so that the right of individual application is no longer dependent on a declaration by the Contracting States. Thus, individuals now enjoy at the supranational level a real right of action to assert the rights and freedoms to which they are directly entitled under the Convention. 495. In the light of the foregoing considerations, it follows from Article 34 that, firstly, applicants are entitled to exercise their right to individual application effectively, within the meaning of Article 34 in fine that is to say, Contracting States must not prevent the Court from carrying out an effective examination of the application and, secondly, applicants who allege a violation of Article 3 are entitled to an effective examination of the issue whether a proposed extradition or expulsion will entail a violation of Article 3. Indications given by the Court, as in the present case, under Rule 39 of the Rules of Court, permit it to carry out an
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effective examination of the application and to ensure that the protection afforded by the Convention is effective; such indications also subsequently allow the Committee of Ministers to supervise execution of the final judgment. Such measures thus enable the State concerned to discharge its obligation to comply with the final judgment of the Court, which is legally binding by virtue of Article 46 of the Convention. Consequently, the terms of an indication given by the Court under Rule 39 must be interpreted against that background. 496. In the instant case, compliance with the indication given by the Court would undoubtedly have helped the applicants to argue their case before the Court. The material in the case file shows that the fact that Mr Mamatkulov and Mr Abdurasulovic were unable to take part in the proceedings before the Court or to speak to their lawyers hindered them in contesting the Government's arguments on the factual issues and in obtaining evidence. 497. In view of the duty of State Parties to the Convention to refrain from any act or omission that might undermine the authority and effectiveness of the final judgment (see Article 46), and in the light of the foregoing considerations, the Court finds that the extradition of Mr Mamatkulov and Mr Abdurasulovic, in disregard of the indications that had been given under Rule 39, rendered nugatory the applicants' right to individual application. The Court reiterates in that connection that the provisions of treaties must be interpreted in good faith in the light of the object and purpose of the treaty and in accordance with the principle of effectiveness. That rule applies also to regulatory provisions which must be interpreted in the light of the provisions of the treaty to which they relate. 498. The Court accordingly concludes that any State Party to the Convention to which interim measures have been indicated in order to avoid irreparable harm being caused to the victim of an alleged violation must comply with those measures and refrain from any act or omission that will undermine the authority and effectiveness of the final judgment. 499. Consequently, by failing to comply with the interim measures indicated by the Court under Rule 39 of the Rules of Court, Turkey is in breach of its obligations under Article 34 of the Convention.

FOR THESE REASONS, THE COURT 1. Holds unanimously that there has been no violation of Article 3 of the Convention; 2. Holds unanimously that Article 6 of the Convention is not applicable to the extradition proceedings in Turkey; 3. Holds unanimously that no issue arises concerning the applicants' complaint under Article 6 of the Convention; 4. Holds by six votes to one that there has been a violation of Article 34 of the Convention; 5. Holds unanimously that the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicants; 6. Holds unanimously (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 2 of the Convention, EUR
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10,000 (ten thousand euros) less EUR 905 (nine hundred and five euros) for legal costs and expenses, plus any tax that may be chargeable, to be converted into Turkish liras at the rate applicable on the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 7. Dismisses unanimously the remainder of the applicant's claim for just satisfaction

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Steel and Morris v United Kingdom (ECtHR) Steel and Morris v United Kingdom App No 68416/01 (ECtHR, 15 February 2005)

FOURTH SECTION

CASE OF STEEL AND MORRIS v. THE UNITED KINGDOM

(Application no. 68416/01)

JUDGMENT

STRASBOURG

15 February 2005

FINAL

15/05/2005

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THE FACTS I. THE CIRCUMSTANCES OF THE CASE A. The leaflet 500. The applicants, Helen Steel and David Morris, were born in 1965 and 1954 respectively and live in London. 501. During the period with which this application is concerned, Ms Steel was at times employed as a part-time bar worker, earning approximately 65 pounds sterling (GBP) per week, and was at other times unwaged and dependent on income support. Mr Morris, a former postal worker, was unwaged and in receipt of income support. He was a single parent, responsible for the day-to-day care of his son, aged 4 when the trial began. At all material times the applicants were associated with London Greenpeace, a small group, unconnected to Greenpeace International, which campaigned principally on environmental and social issues. 502. In the mid-1980s London Greenpeace began an anti-McDonald's campaign. In 1986 a six-page leaflet entitled What's wrong with McDonald's? (the leaflet) was produced and distributed as part of that campaign. It was last reprinted in early 1987. 503. The first page of the leaflet showed a grotesque cartoon image of a man, wearing a Stetson and with dollar signs in his eyes, hiding behind a Ronald McDonald clown mask. Running along the top of pages 2 to 5 was a header comprised of the McDonald's golden arches symbol, with the words McDollars, McGreedy, McCancer, McMurder, McDisease ... and so forth superimposed on it. 504. The text of page 2 of the leaflet read as follows (extract): What's the connection between McDonald's and starvation in the 'Third World'? THERE's no point feeling guilty about eating while watching starving African children on TV. If you do send money to Band Aid, or shop at Oxfam, etc., that's morally good but politically useless. It shifts the blame from governments and does nothing to challenge the power of multinational corporations. HUNGRY FOR DOLLARS McDonald's is one of several giant corporations with investments in vast tracts of land in poor countries, sold to them by the dollar-hungry rulers (often military) and privileged elites, evicting the small farmers that live there growing food for their own people. The power of the US dollar means that in order to buy technology and manufactured goods, poor countries are trapped into producing more and more food for export to the States. Out of 40 of the world's poorest countries, 36 export food to the USA the wealthiest. ECONOMIC IMPERIALISM Some 'Third World' countries, where most children are undernourished, are actually exporting their staple crops as animal feed i.e. to fatten cattle for turning into burgers in the 'First World'. Millions of acres of the best farmland in poor countries are being used for our benefit for tea, coffee, tobacco, etc. while people there are starving.
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McDonald's is directly involved in this economic imperialism, which keeps most black people poor and hungry while many whites grow fat. GROSS MISUSE OF RESOURCES GRAIN is fed to cattle in South American countries to produce the meat in McDonald's hamburgers. Cattle consume 10 times the amount of grain and soy that humans do: one calorie of beef demands ten calories of grain. Of the 145 million tons of grain and soy fed to livestock, only 21 million tons of meat and by-products are used. The waste is 124 million tons a year at a value of 20 billion US dollars. It has been calculated that this sum would feed, clothe and house the world's entire population for one year. The first page of the leaflet also included a photograph of a woman and child, with the caption: A typical image of 'Third World' poverty the kind often used by charities to get 'compassion money'. This diverts attention from one cause: exploitation by multinationals like McDonald's. The second and third pages of the leaflet contained a cartoon image of a burger, with a cow's head sticking out of one side and saying If the slaughterhouse doesn't get you and a man's head sticking out of the other, saying the junk food will! Pages 3 to 5 read as follows: FIFTY ACRES EVERY MINUTE EVERY year an area of rainforest the size of Britain is cut down or defoliated, and burnt. Globally, one billion people depend on water flowing from these forests, which soak up rain and release it gradually. The disaster in Ethiopia and Sudan is at least partly due to uncontrolled deforestation. In Amazonia where there are now about 100,000 beef ranches torrential rains sweep down through the treeless valleys, eroding the land and washing away the soil. The bare earth, baked by the tropical sun, becomes useless for agriculture. It has been estimated that this destruction causes at least one species of animal, plant or insect to become extinct every few hours. Why is it wrong for McDonald's to destroy rainforests? AROUND the Equator there is a lush green belt of incredibly beautiful tropical forest, untouched by human development for one hundred million years, supporting about half of the Earth's life-forms, including some 30,000 plant species, and producing a major part of the planet's crucial supply of oxygen. PET FOOD AND LITTER McDonald's and Burger King are two of the many US corporations using lethal poisons to destroy vast areas of Central American rainforest to create grazing pastures for cattle to be sent back to the States as burgers and pet food, and to provide fast-food packaging materials. (Don't be fooled by McDonald's saying they use recycled paper: only a tiny per cent of it is. The truth is it takes 800 square miles of forest just to keep them supplied with paper for one year. Tons of this end up littering the cities of 'developed' countries.) COLONIAL INVASION Not only are McDonald's and many other corporations contributing to a major ecological catastrophe, they are forcing the tribal peoples in the rainforests off their ancestral territories where they have lived peacefully, without damaging their
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environment, for thousands of years. This is a typical example of the arrogance and viciousness of multinational companies in their endless search for more and more profit. It's no exaggeration to say that when you bite into a Big Mac, you're helping McDonald's empire to wreck this planet. What's so unhealthy about McDonald's food? McDONALD's try to show in their 'Nutrition Guide' (which is full of impressivelooking but really quite irrelevant facts and figures) that mass-produced hamburgers, chips, colas and milkshakes, etc., are a useful and nutritious part of any diet. What they don't make clear is that a diet high in fat, sugar, animal products and salt (sodium), and low in fibre, vitamins and minerals which describes an average McDonald's meal is linked with cancers of the breast and bowel, and heart disease. This is accepted medical fact, not a cranky theory. Every year in Britain, heart disease alone causes about 18,000 deaths. FAST = JUNK Even if they like eating them, most people recognise that processed burgers and synthetic chips, served up in paper and plastic containers, is junk-food. McDonald's prefer the name 'fast-food'. This is not just because it is manufactured and served up as quickly a possible it has to be eaten quickly too. It's a sign of the junk-quality of Big Macs that people actually hold competitions to see who can eat one in the shortest time. PAYING FOR THE HABIT Chewing is essential for good health, as it promotes the flow of digestive juices which break down the food and send nutrients into the blood. McDonald's food is so lacking in bulk it is hardly possible to chew it. Even their own figures show that a 'quarter-pounder' is 48% water. This sort of fake food encourages over-eating, and the high sugar and sodium content can make people develop a kind of addiction a 'craving'. That means more profit for McDonald's, but constipation, clogged arteries and heart attacks for many customers. GETTING THE CHEMISTRY RIGHT McDONALD's stripy staff uniforms, flashy lighting, bright plastic dcor, 'Happy Hats' and muzak, are all part of the gimmicky dressing-up of low-quality food which has been designed down to the last detail to look and feel and taste exactly the same in any outlet anywhere in the world. To achieve this artificial conformity, McDonald's require that their 'fresh lettuce leaf', for example, is treated with twelve different chemicals just to keep it the right colour at the right crispness for the right length of time. It might as well be a bit of plastic. How do McDonald's deliberately exploit children? NEARLY all McDonald's advertising is aimed at children. Although the Ronald McDonald 'personality' is not as popular as their market researchers expected (probably because it is totally unoriginal), thousands of young children now think of burgers and chips every time they see a clown with orange hair. THE NORMALITY TRAP
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No parent needs to be told how difficult it is to distract a child from insisting on a certain type of food or treat. Advertisements portraying McDonald's as a happy, circuslike place where burgers and chips are provided for everybody at any hour of the day (and late at night), traps children into thinking they aren't 'normal' if they don't go there too. Appetite, necessity and above all money, never enter into the 'innocent' world of Ronald McDonald. Few children are slow to spot the gaudy red and yellow standardised frontages in shopping centres and high streets throughout the country. McDonald's know exactly what kind of pressure this puts on people looking after children. It's hard not to give in to this 'convenient' way of keeping children 'happy', even if you haven't got much money and you try to avoid junk-food. TOY FOOD As if to compensate for the inadequacy of their products, McDonald's promote the consumption of meals as a 'fun event'. This turns the act of eating into a performance, with the 'glamour' of being in a McDonald's ('Just like it is in the ads!') reducing the food itself to the status of a prop. Not a lot of children are interested in nutrition, and even if they were, all the gimmicks and routines with paper hats and straws and balloons hide the fact that the food they're seduced into eating is at best mediocre, at worst poisonous and their parents know it's not even cheap. RONALD'S DIRTY SECRET ONCE told the grim story about how hamburgers are made, children are far less ready to join in Ronald McDonald's perverse antics. With the right prompting, a child's imagination can easily turn a clown into a bogeyman (a lot of children are very suspicious of clowns anyway). Children love a secret, and Ronald's is especially disgusting. In what way are McDonald's responsible for torture and murder? THE menu at McDonald's is based on meat. They sell millions of burgers every day in 35 countries throughout the world. This means the constant slaughter, day by day, of animals born and bred solely to be turned into McDonald's products. Some of them especially chickens and pigs spend their lives in the entirely artificial conditions of huge factory farms, with no access to air or sunshine and no freedom of movement. Their deaths are bloody and barbaric. MURDERING A BIG MAC In the slaughterhouse, animals often struggle to escape. Cattle become frantic as they watch the animal before them in the killing-line being prodded, beaten, electrocuted and knifed. A recent British government report criticised inefficient stunning methods which frequently result in animals having their throats cut while still fully conscious. McDonald's are responsible for the deaths of countless animals by this supposedly humane method. We have the choice to eat meat or not. The 450 million animals killed for food in Britain every year have no choice at all. It is often said that after visiting an abattoir,
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people become nauseous at the thought of eating flesh. How many of us would be prepared to work in a slaughterhouse and kill the animals we eat? WHAT'S YOUR POISON? MEAT is responsible for 70% of all food-poisoning incidents, with chicken and minced meat (as used in burgers) being the worst offenders. When animals are slaughtered, meat can be contaminated with gut contents, faeces and urine, leading to bacterial infection. In an attempt to counteract infection in their animals, farmers routinely inject them with doses of antibiotics. These, in addition to growth-promoting hormone drugs and pesticide residues in their feed, build up in the animals' tissues and can further damage the health of people on a meat-based diet. What's it like working for McDonald's? THERE must be a serious problem: even though 80% of McDonald's workers are parttime, the annual staff turnover is 60% (in the USA it's 300%). It's not unusual for their restaurant workers to quit after just four or five weeks. The reasons are not hard to find. NO UNIONS ALLOWED Workers in catering do badly in terms of pay and conditions. They are at work in the evenings and at weekends, doing long shifts in hot, smelly, noisy environments. Wages are low and chances of promotion minimal. To improve this through Trade Union negotiation is very difficult: there is no union specifically for these workers, and the ones they could join show little interest in the problems of part-timers (mostly women). A recent survey of workers in burgerrestaurants found that 80% said they needed union help over pay and conditions. Another difficulty is that the 'kitchen trade' has a high proportion of workers from ethnic minority groups who, with little chance of getting work elsewhere, are wary of being sacked as many have been for attempting union organisation. McDonald's have a policy of preventing unionisation by getting rid of pro-union workers. So far this has succeeded everywhere in the world except Sweden, and in Dublin after a long struggle. TRAINED TO SWEAT It's obvious that all large chain-stores and junk-food giants depend for their fat profits on the labour of young people. McDonald's is no exception: three-quarters of its workers are under 21. The production-line system deskills the work itself: anybody can grill a hamburger, and cleaning toilets or smiling at customers needs no training. So there is no need to employ chefs or qualified staff just anybody prepared to work for low wages. As there is no legally-enforced minimum wage in Britain, McDonald's can pay what they like, helping to depress wage levels in the catering trade still further. They say they are providing jobs for school-leavers and take them on regardless of sex or race. The truth is McDonald's are only interested in recruiting cheap labour which always means that disadvantaged groups, women and black people especially, are even more exploited by industry than they are already. The leaflet continued, on pages 5 and 6, with a number of proposals and suggestions for change, campaigning and activity, and information about London Greenpeace.

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B. Proceedings in the High Court 505. Because London Greenpeace was not an incorporated body, no legal action could be taken directly against it. Between October 1989 and January or May 1991, UK McDonald's hired seven private investigators from two different firms to infiltrate the group with the aim of finding out who was responsible for writing, printing and distributing the leaflet and organising the anti-McDonald's campaign. The inquiry agents attended over forty meetings of London Greenpeace, which were open to any member of the public who wished to attend, and other events such as fayres and public, fund-raising occasions. McDonald's subsequently relied on the evidence of some of these agents at trial to establish that the applicants had attended meetings and events and been closely involved with the organisation during the period when the leaflet was being produced and distributed. 506. On 20 September 1990 McDonald's Corporation (US McDonald's) and McDonald's Restaurants Limited (UK McDonald's), together referred to herein as McDonald's, issued a writ against the applicants and three others, claiming damages of up to GBP 100,000 for libel caused by the alleged publication by the defendants of the leaflet. McDonald's withdrew proceedings against the three other defendants, in exchange for their apology for the contents of the leaflet. 507. The applicants denied publication, denied that the words complained of had the meanings attributed to them by McDonald's and denied that all or some of the meanings were capable of being defamatory. Further, they contended, in the alternative, that the words were substantially true or else were fair comment on matters of fact. 508. The applicants applied for legal aid but were refused it on 3 June 1992, because legal aid was not available for defamation proceedings in the United Kingdom. They therefore represented themselves throughout the trial and appeal. Approximately GBP 40,000 was raised by donation to assist them (for example, to pay for transcripts: see paragraph 20 below), and they received some help from barristers and solicitors acting pro bono: thus, their initial pleadings were drafted by lawyers, they were given some advice on an ad hoc basis, and they were represented during five of the pre-trial hearings and on three occasions during the trial, including the appeal to the Court of Appeal against the trial judge's grant of leave to McDonald's to amend the statement of claim (see paragraph 24 below). They submitted, however, that they were severely hampered by lack of resources, not just in the way of legal advice and representation, but also when it came to administration, photocopying, notetaking, and the tracing, preparation and payment of the costs and expenses of expert and factual witnesses. Throughout the proceedings McDonald's were represented by leading and junior counsel, experienced in defamation law, and by one or two solicitors and other assistants. 509. In March 1994 UK McDonald's produced a press release and leaflet for distribution to their customers about the case, entitled Why McDonald's is going to Court. In May 1994 they produced a document called Libel Action Background Briefing for distribution to the media and others. These documents included, inter alia, the allegation that the applicants had published a leaflet which they knew to be untrue, and the applicants counter-claimed for damages for libel from UK McDonald's. 510. Before the start of the trial there were approximately twenty-eight interim applications, involving various issues of law and fact, some lasting as long as five days. For example, on 21 December 1993 the trial judge, Mr Justice Bell (Bell J), ruled that the action should be tried by a judge alone rather than a judge and jury, because it would involve the prolonged examination of documents and expert witnesses on complicated scientific
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matters. This ruling was upheld by the Court of Appeal on 25 March 1994, after a hearing at which the applicants were represented pro bono. 511. The trial took place before Bell J between 28 June 1994 and 13 December 1996. It lasted for 313 court days, of which 40 were taken up with legal argument, and was the longest trial (either civil or criminal) in English legal history. Transcripts of the trial ran to approximately 20,000 pages; there were about 40,000 pages of documentary evidence; and, in addition to many written witness statements, 130 witnesses gave oral evidence 59 for the applicants, 71 for McDonald's. Ms Steel gave evidence in person but Mr Morris chose not to. 512. The applicants were unable to pay for daily transcripts of the proceedings, which cost approximately GBP 750 per day, or GBP 375 if split between the two parties. McDonald's paid the fee, and initially provided the applicants with free copies of the transcripts. However, McDonald's stopped doing this on 3 July 1995, because the applicants refused to undertake to use the transcripts only for the purposes of the trial, and not to publicise what had been said in court. The trial judge refused to order McDonald's to supply the transcripts in the absence of the applicants' undertaking, and this ruling was upheld by the Court of Appeal. Thereafter, the applicants, using donations from the public, purchased transcripts at reduced cost (GBP 25 per day), twenty-one days after the evidence had been given. They submit that, as a result, and without sufficient helpers to take notes in court, they were severely hampered in their ability to examine and cross-examine witnesses effectively. 513. During the trial, Mr Morris faced an unconnected action brought against him by the London Borough of Haringey relating to possession of a property. Mr Morris signed an affidavit (the Haringey affidavit) in support of his application to have those proceedings stayed until the libel trial was over, in which he stated that the libel action had arisen from leaflets we had produced concerning, inter alia, nutrition of McDonald's food .... McDonald's applied for this affidavit to be adduced as evidence in the libel trial as an admission against interest on publication by Mr Morris, and Bell J agreed to this request. Mr Morris objected that the affidavit should have read allegedly produced but that there had been a mistake on the part of his solicitor. The solicitor confirmed in writing to the court that the second applicant had instructed her to correct the affidavit, but that she had not done so because the error had not been material to the Haringey proceedings. The applicants submitted that they assumed that the solicitor's letter would be admitted in evidence, and that Bell J did not warn them that it was inadmissible until the closure of evidence, so that they did not realise they needed to adduce further evidence to explain the mistake. The applicants' appeal to the Court of Appeal against Bell J's admission of the affidavit was refused on 25 March 1996. 514. On 20 November 1995, Bell J ruled on the meaning of the paragraph in the leaflet entitled What's so unhealthy about McDonald's food?, finding that this part of the leaflet bore the meaning ... that McDonald's food is very unhealthy because it is high in fat, sugar, animal products and salt (sodium), and low in fibre, vitamins and minerals, and because eating it may well make your diet high in fat, sugar, animal products and salt (sodium), and low in fibre, vitamins and minerals, with the very real risk that you will suffer cancer of the breast or bowel or heart disease as a result; that McDonald's know this but they do not make it clear; that they still sell the food, and they deceive customers by claiming that their food is a useful and nutritious part of any diet. 515. The applicants appealed to the Court of Appeal against this ruling, initially relying on seven grounds of appeal. However, the day before the hearing on 2 April 1996 before the
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Court of Appeal, Ms Steel gave notice on behalf of both applicants that they were withdrawing six of the seven grounds, and now wished solely to raise the issue whether the trial judge had been wrong in determining a meaning which was more serious than that pleaded by McDonald's in their statement of claim. The applicants submitted that they withdrew the other grounds of appeal relating to the meaning of this part of the leaflet because lack of time and legal advice prevented them from fully pursuing them. They mistakenly believed that it would remain open to them to raise these matters again at a full appeal after the conclusion of the trial. The Court of Appeal decided against the applicants on the remaining single ground, holding that the meaning given to this paragraph by the judge was less severe than that pleaded by McDonald's. 516. In the light of the Haringey affidavit, McDonald's sought permission from the court to amend their statement of claim to allege that the applicants had been involved in the production of the leaflet and to allege publication dating back to September 1987. The applicants objected that such an amendment so late in the trial would be unduly prejudicial. However, on 26 April 1996 Bell J gave permission to McDonald's for the amendments; the applicants were allowed to amend their defence accordingly. 517. Before the trial, the applicants had sought an order that McDonald's disclose the notes made by their enquiry agents; McDonald's had responded that there were no notes. During the course of the trial, however, it emerged that the notes did exist. The applicants applied for disclosure, which was opposed by McDonald's on the ground that the notes were protected by legal professional privilege. On 17 June 1996 Bell J ruled that the notes should be disclosed, but with those parts which did not relate to matters contained in the witness statements or oral evidence of the enquiry agents deleted. 518. When all the evidence had been adduced, Bell J deliberated for six months before delivering his substantive 762-page judgment on 19 June 1997. On the basis, principally, of the Haringey affidavit and the evidence of McDonald's enquiry agents, he found that the second applicant had participated in the production of the leaflet in 1986, at the start of London Greenpeace's anti-McDonald's campaign, although the precise part he played could not be identified. Mr Morris had also taken part in the leaflet's distribution. Having assessed the evidence of a number of witnesses, including Ms Steel herself, he found that her involvement had begun in early 1988 and took the form of participation in London Greenpeace's activities, sharing its anti-McDonald's aims, including distribution of the leaflet. The judge found that the applicants were responsible for the publication of several thousand copies of the leaflet. It was not found that this publication had any impact on the sale of McDonald's products. He also found that the London Greenpeace leaflet had been reprinted word for word in a leaflet produced in 1987 and 1988 by an organisation based in Nottingham called Veggies Ltd. McDonald's had threatened libel proceedings against Veggies Ltd, but had agreed a settlement after Veggies rewrote the section in the leaflet about the destruction of the rainforest and changed the heading In what way are McDonald's responsible for torture and murder? to read In what way are McDonald's responsible for the slaughtering and butchering of animals?. 519. Bell J summarised his findings as to the truth or otherwise of the allegations in the leaflet as follows: In summary, comparing my findings with the defamatory messages in the leaflet, of which the Plaintiffs actually complained, it was and is untrue to say that either Plaintiff has been to blame for starvation in the Third World. It was and is untrue to say that they have bought vast tracts of land or any farming land in the Third World, or that they have caused the eviction of small farmers or anyone else from their land.
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It was and is untrue to say that either Plaintiff has been guilty of destruction of rainforest, thereby causing wanton damage to the environment. It was and is untrue to say that either of the Plaintiffs have used lethal poisons to destroy vast areas or any areas of Central American rainforest, or that they have forced tribal people in the rainforest off their ancestral territories. It was and is untrue to say that either Plaintiff has lied when it has claimed to have used recycled paper. The charge that McDonald's food is very unhealthy because it is high in fat, sugar, animal products and salt (sodium), and low in fibre, vitamins and minerals, and because eating it more than just occasionally may well make your diet high in fat, sugar, animal products and salt (sodium), and low in fibre, vitamins and minerals, with the very real, that is to say serious or substantial risk that you will suffer cancer of the breast or bowel or heart disease as a result, and that McDonald's know this but they do not make it clear, is untrue. However, various of the First and Second Plaintiffs' advertisements, promotions and booklets have pretended to a positive nutritional benefit which McDonald's food, high in fat and saturated fat and animal products and sodium, and at one time low in fibre, did not match. It was true to say that the Plaintiffs exploit children by using them as more susceptible subjects of advertising, to pressurise their parents into going into McDonald's. Although it was true to say that they use gimmicks and promote the consumption of meals at McDonald's as a fun event, it was not true to say that they use the gimmicks to cover up the true quality of their food or that they promote them as a fun event when they know that the contents of their meals could poison the children who eat them. Although some of the particular allegations made about the rearing and slaughter of animals are not true, it was true to say, overall, that the Plaintiffs are culpably responsible for cruel practices in the rearing and slaughter of some of the animals which are used to produce their food. It was and is untrue that the Plaintiffs sell meat products which, as they must know, expose their customers to a serious risk of food poisoning. The charge that the Plaintiffs provide bad working conditions has not been justified, although some of the Plaintiffs' working conditions are unsatisfactory. The charge that the Plaintiffs are only interested in recruiting cheap labour and that they exploit disadvantaged groups, women and black people especially as a result, has not been justified. It was true to say that the Second Plaintiff [UK McDonald's] pays its workers low wages and thereby helps to depress wages for workers in the catering trade in Britain, but it has not been proved that the First Plaintiff [US McDonald's] pays its workers low wages. The overall sting of low wages for bad working conditions has not been justified. It was and is untrue that the Plaintiffs have a policy of preventing unionisation by getting rid of pro-union workers. 520. As regards the applicants' counter-claim, Bell J found that McDonald's allegation that the applicants had lied in the leaflet had been unjustified, although they had been justified in alleging that the applicants had wrongly sought to deny responsibility for it. He held that the unjustified remarks had not been motivated by malice, but had been made in a
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situation of qualified privilege because McDonald's had been responding to vigorous attacks made on them in the leaflet, and he therefore entered judgment for McDonald's on the counter-claim also. 521. The judge awarded US McDonald's GBP 30,000 damages and UK McDonald's a further GBP 30,000. Mr Morris was severally liable for the whole GBP 60,000, and Mr Morris and Ms Steel were to be jointly and severally liable for a total of GBP 55,000 (GBP 27,500 in respect of each plaintiff). McDonald's did not ask for an order that the applicants pay their costs. C. The substantive appeal 522. The applicants appealed to the Court of Appeal on 3 September 1997. The hearing (before Lord Justices Pill and May and Mr Justice Keene) began on 12 January 1999 and lasted 23 days, and on 31 March 1999 the court delivered its 301-page judgment. 523. The applicants challenged a number of Bell J's decisions on general grounds of law, and contended as follows: (a) [McDonald's] had no right to maintain an action for defamation because: [US McDonald's] is a 'multinational' and [US and UK McDonald's] are each a public corporation which has (or should have) no right at common law to bring an action for defamation on the public policy ground that in a free and democratic society such corporations must always be open to unfettered scrutiny and criticism, particularly on issues of public interest; the right of corporations such as [McDonald's] to maintain an action for defamation is not 'clear and certain' as the judge held ... The law is on the contrary uncertain, developing or incomplete ... Accordingly the judge should have considered and applied Article 10 of the European Convention on Human Rights ... (b) The judge was wrong to hold that [McDonald's] need [not] prove any particular financial loss or special damage provided that damage to its good will was likely. (c) The judge should have held that the burden was on [McDonald's] to prove that the matters complained of by them were false. (d) The judge was wrong to hold that, to establish a defence of justification, the [applicants] had to prove that the defamatory statements were true. The rule should be disapplied in the light of Article 10 of the ECHR. (e) It should be a defence in English law to defamation proceedings that the defendant reasonably believed that the words complained of were true. (f) There should be a defence in English law of qualified privilege for a publication concerning issues of public importance and interest relating to public corporations such as [McDonald's]. (g) The judge should have held that the publication of the leaflet was on occasions of qualified privilege because it was a reasonable and legitimate response to an actual or perceived attack on the rights of others, in particular vulnerable sections of society who generally lack the means to defend themselves adequately (e.g. children, young workers, animals and the environment) which the [applicants] had a duty to make and the public an interest to hear.
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524. The Court of Appeal rejected these submissions. On point (a), it held that commercial corporations had a clear right under English law to sue for defamation, and that there was no principled basis upon which a line might be drawn between strong corporations which should, according to the applicants, be deprived of this right, and weaker corporations which might require protection from unjustified criticism. In dismissing ground (b), it held that, as with an individual plaintiff, there was no obligation on a company to show that it had suffered actual damage, since damage to a trading reputation might be as difficult to prove as damage to the reputation of an individual, and might not necessarily cause immediate or quantifiable loss. A corporate plaintiff which showed that it had a reputation within the jurisdiction and that the defamatory publication was apt to damage its goodwill thus had a complete cause of action capable of leading to a substantial award of damages. On grounds (c) and (d), the applicants' submissions were contrary to clearly established English law, which stated that a publication shown by a plaintiff to be defamatory was presumed to be false until proved otherwise, and that it was for the defendants to prove the truth of statements presented as assertions of fact. Moreover, the court found some general force in McDonald's submission that in the instant case they had in fact largely accepted the burden of proving the falsity of the parts of the leaflet on which they had succeeded. Dismissing grounds (e) to (g), the court observed that a defence of qualified privilege did exist under English law, but only where (i) the publisher acted under a legal, moral or social duty to communicate the information; (ii) the recipient of the information had an interest in receiving it; and (iii) the nature, status and source of the material and the circumstances of the publication were such that the publication should be protected in the public interest in the absence of proof of malice. The court accepted that there was a public interest in receiving information about the activities of companies and that the duty to publish was not confined to the mainstream media but could also apply to members of campaign groups, such as London Greenpeace. However, to satisfy the test, the duty to publish had to override the requirement to verify the facts. Privilege was more likely to be extended to a publication that was balanced, properly researched, in measured tones and based on reputable sources. In the instant case, the leaflet did not demonstrate that care in preparation and research, or reference to sources of high authority or status, as would entitle its publishers to the protection of qualified privilege. English law provided a proper balance between freedom of expression and the protection of reputation and was not inconsistent with Article 10 of the Convention. Campaign groups could perform a valuable role in public life, but they should be able to moderate their publications so as to attract a defence of fair comment without detracting from any stimulus to public discussion which the publication might give. The relaxation of the law contended for would open the way for partisan publication of unrestrained and highly damaging untruths, and there was a pressing social need to protect particular corporate business reputations, upon which the well-being of numerous individuals may depend, from such publications. 525. The Court of Appeal further rejected the applicants' contention that the appeal should be allowed on the basis that the action was an abuse of process or that the trial was conducted unfairly, observing as follows: Litigants in person who bring or contest a High Court action are inevitably undertaking a strenuous and burdensome task. This action was complex and the legal advice available to the [applicants] was, because of lack of funds, small in extent. We
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accept that the work required of the [applicants] at trial was very considerable and had to be done in an environment which, at least initially, was unfamiliar to them. As a starting-point, we cannot however hold it to be an abuse of process in itself for plaintiffs with great resources to bring a complicated case against unrepresented defendants of slender means. Large corporations are entitled to bring court proceedings to assert or defend their legal rights just as individuals have the right to bring actions and defend them. ... Moreover the proposition that the complexity of the case may be such that a judge ought to stop the trial on that ground cannot be accepted. The rule of law requires that rights and duties under the law are determined. ... As to the conduct of the trial, we note that the 313 hearing days were spread over a period of two and a half years. The timetable had proper regard to the fact that the [applicants] were unrepresented and to their other difficulties. They were given considerable time to prepare their final submissions to which they understandably attached considerable importance and which were of great length. For the purpose of preparing closing submissions, the [applicants] had possession of a full transcript of the evidence given at the trial. The fact that, for a part of the trial, the [applicants] did not receive transcripts of evidence as soon as they were made does not render the trial unfair. Quite apart from the absence of an obligation to provide a transcript, there is no substantial evidence that the [applicants] were in the event prejudiced by delay in receipt of daily transcripts during a part of the trial. On the hearing of the appeal, we have been referred to many parts of the transcripts of evidence and submissions and have looked at other parts on our own initiative. On such references, we have invariably been impressed by the care, patience and fairness shown by the judge. He was well aware of the difficulties faced by the [applicants] as litigants in person and had full regard to them in his conduct of the trial. The [applicants] conducted their case forcefully and with persistence as they have in this Court. Of course the judge listened to submissions from the very experienced leading counsel appearing for [McDonald's] but the judge applied his mind robustly and fairly to the issues raised. This emerges from the transcripts and from the judgment he subsequently handed down. The judge was not slow to criticise [McDonald's] in forthright terms when he thought their conduct deserved it. Moreover, it appears to us that the [applicants] were shown considerable latitude in the manner in which they presented their case and in particular in the extent to which they were often permitted to cross-examine witnesses at great length. ... [We] are quite unpersuaded that the appeal, or any part of it, should be allowed on the basis that the action was an abuse of the process of the Court or that the trial was conducted unfairly. 526. The applicants also challenged a number of Bell J's findings about the content of the leaflet, and the Court of Appeal found in their favour on several points, summarised as follows: On the topic of nutrition, the allegation that eating McDonald's food would lead to a very real risk of cancer of the breast and of the bowel was not proved. On pay and conditions we have found that the defamatory allegations in the leaflet were comment. In addition to the charges found to be true by the judge the exploiting of children by advertising, the pretence by the respondents that their food had a positive nutritional
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benefit, and McDonald's responsibility for cruel practices in the rearing and slaughtering of some of the animals used for their products the further allegation that, if one eats enough McDonald's food, one's diet may well become high in fat etc., with the very real risk of heart disease, was justified. ... 527. The Court of Appeal therefore reduced the damages payable to McDonald's, so that Ms Steel was now liable for a total of GBP 36,000 and Mr Morris for a total of GBP 40,000. It refused the applicants leave to appeal to the House of Lords. 528. On 21 March 2000 the Appeal Committee of the House of Lords also refused the applicants leave to appeal.

THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 1 OF THE CONVENTION 529. The applicants raised a number of issues under Article 6 1 of the Convention, which provides: In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal ... The applicants' principal complaint under this provision was that they were denied a fair trial because of the lack of legal aid. They also alleged that unfairness was caused as a result of the trial judge's ruling to admit as evidence an affidavit sworn by the second applicant, his refusal to allow adjournments on a number of occasions and his granting of permission to McDonald's to amend their pleadings at a late stage in the proceedings. A. Legal Aid 1. The parties' submissions (a) The applicants 530. The applicants pointed out that this was the longest trial, either civil or criminal, in English legal history. The entire length of the proceedings, from the issue of the writ on 20 September 1990 to the refusal by the House of Lords of leave to appeal on 21 March 2000, was nine years and six months. Before the trial started there were 28 pre-trial hearings, some of which lasted up to five days. The hearing before the High Court lasted from 28 June 1994 until 13 December 1996, a period of two years and six months, of which 313 days were spent in court, together with additional days in the Court of Appeal to contest rulings made in the course of the trial. The High Court proceedings involved about 40,000 pages of documentary evidence and 130 oral witnesses. The appeal hearing lasted 23 days. Overall, the case included over 100 days of legal argument. The transcripts of the hearings exceeded 20,000 pages. 531. The adversarial system in the United Kingdom is based on the idea that justice can be achieved if the parties to a legal dispute are able to adduce their evidence and test their opponent's evidence in circumstances of reasonable equality. At the time of the proceedings in question, McDonald's economic power outstripped that of many small countries (they enjoyed worldwide sales amounting to approximately 30 billion United States dollars in
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1995), whereas the first applicant was a part-time bar worker earning a maximum of GBP 65 a week and the second applicant was an unwaged single parent. The inequality of arms could not have been greater. McDonald's were represented throughout by Queen's Counsel and junior counsel specialising in libel law, supported by a team of solicitors and administrative staff from one of the largest firms in England. The applicants were assisted by lawyers working pro bono, who drafted their defence and represented them, during the 28 pre-trial hearings and appeals which took place over 37 court days, on eight days and in connection with five applications. During the main trial, submissions were made by lawyers on their behalf on only three occasions. It was difficult for sympathetic lawyers to volunteer help, because the case was too complicated for someone else just to dip into, and moreover the offers of help usually came from inexperienced, junior solicitors and barristers, without the time and resources to be effective. 532. The applicants bore the burden of proving the truth of a large number of allegations covering a wide range of difficult issues. In addition to the more obvious disadvantages of being without experienced counsel to argue points of law and to conduct the examination and cross-examination of witnesses in court, they had lacked sufficient funds for photocopying, purchasing the transcripts of each day's proceedings, tracing and proofing expert witnesses, paying the witnesses' costs and travelling expenses and note-taking in court. All they could hope to do was keep going: on several occasions during the trial they had to seek adjournments because of physical exhaustion. 533. They claimed that, had they been provided with legal aid with which to trace, prepare and pay the expenses of witnesses, they would have been able to prove the truth of one or more of the charges found to have been unjustified, for example, the allegations on diet and degenerative disease, food safety, hostility to trade unionism and/or that some of McDonald's international beef supplies came from recently deforested areas. Moreover, the applicants' inexperience and lack of legal training led them to make a number of procedural mistakes. Had they been represented, it is unlikely that they would have withdrawn all but one of their grounds on the interim appeal (see paragraph 23 above) or that the Haringey affidavit would have been admitted in evidence (see paragraph 21 above), and it was mainly on the basis of the mistake contained in that affidavit that the second applicant was found to have been involved in the publication of the leaflet. (b) The Government 534. The Government submitted that the Court should be slow to impose a duty to provide legal aid in civil cases, in view of the deliberate omission of any such obligation from the Convention. In contrast to the position in criminal proceedings (Article 6 3 (c)), the Convention left Contracting States with a free choice of the means of ensuring effective civil access to court (the Government relied on Airey v. Ireland, judgment of 9 October 1979, Series A no. 32, pp. 14-16, 26). States did not have unlimited resources to fund legal aid systems, and it was therefore legitimate to impose restrictions on eligibility for legal aid in certain types of low priority civil cases, provided such restrictions were not arbitrary (see Winer v. the United Kingdom, no. 10871/84, Commission decision of 10 July 1986, Decisions and Reports (DR) 48, p. 154, at pp. 171-72). 535. The Convention organs had considered the non-availability of legal aid in defamation cases under English law in six cases, and had never found it to be in breach of Article 6 1 (see Winer, cited above; Munro v. the United Kingdom, no. 10594/83, Commission decision of 14 July 1987, DR 52, p. 158; H.S. and D.M. v. the United Kingdom, no. 21325/93, Commission decision of 5 May 1993, unreported; Stewart-Brady v. the United
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Kingdom, nos. 27436/95 and 28406/95, Commission decision of 2 July 1997, DR 90-A, p. 45; McVicar v. the United Kingdom, no. 46311/99, ECHR 2002-III; and A. v. the United Kingdom, no. 35373/97, ECHR 2002-X). 536. The Court should not depart from this consistent jurisprudence in the present case, which, in the Government's submission, fell far short of the kind of exceptional circumstances where the provision of legal aid was indispensable for effective access to court (see Airey, cited above, pp. 14-16, 26). 537. First, the Government argued that the law and facts in issue in the litigation were not so difficult as to make legal aid essential. The applicants' conduct of their defence and counter-claim, and their success in proving many of the allegations made in the leaflet, demonstrated that they were capable of mastering any complexities of the law of defamation as it applied to them. 538. Furthermore, the Government contended that it was relevant that the applicants received advice and representation pro bono on a number of occasions, particularly for some of their appearances in the Court of Appeal and in drafting their pleadings. It appeared that the applicants also raised at least GBP 40,000 to fund their defence and that they received help with note-taking and other administrative tasks from volunteers sympathetic to their cause. Both Bell J and the Court of Appeal took into account the applicants' lack of legal training: Bell J, for example, assisted the applicants by reformulating questions for witnesses and did not insist on the usual procedural formalities, such as limiting the case to that pleaded; the Court of Appeal took note in its judgment of the need to safeguard the applicants from their lack of legal skill, conducted its own research to supplement the submissions made by the applicants and allowed them to introduce the defence of fair comment at the appeal stage, even though it had not been raised at first instance. The applicants intended the case to achieve maximum publicity, which it did. The hearings before the High Court and Court of Appeal took so long because the applicants were afforded every possible latitude in the presentation of their case; their evidence and submissions took up the great bulk of the time. 539. In the Government's submission it could not be assumed, in any event, that had legal aid generally been available for the defence of defamation actions, the applicants would have been granted it. The then Legal Aid Board (now the Legal Services Commission) would have had to make a decision, as it does in civil cases where legal aid is available, based on factors such as the merits of the case and whether the costs of litigation would be justified by the likely benefit to the aided party. The applicants published defamatory material without prior justification, and the tax-payer should not be required to pay for the research the applicants should have carried out before publishing the leaflet, or to bear the burden of placing the applicants in a position of equality with McDonald's, which was estimated to have spent in excess of GBP 10 million on legal expenses. 2. The Court's assessment 540. The Court reiterates that the Convention is intended to guarantee practical and effective rights. This is particularly so of the right of access to a court in view of the prominent place held in a democratic society by the right to a fair trial (see Airey, cited above, pp. 12-14, 24). It is central to the concept of a fair trial, in civil as in criminal proceedings, that a litigant is not denied the opportunity to present his or her case effectively before the court (ibid.) and that he or she is able to enjoy equality of arms with the opposing side (see, among many other examples, De Haes and Gijsels v. Belgium, judgment of 24 February 1997, Reports of Judgments and Decisions 1997-I, p. 238, 53).
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541. Article 6 1 leaves to the State a free choice of the means to be used in guaranteeing litigants the above rights. The institution of a legal aid scheme constitutes one of those means but there are others, such as for example simplifying the applicable procedure (see Airey, pp. 14-16, 26, and McVicar, 50, both cited above). 542. The question whether the provision of legal aid is necessary for a fair hearing must be determined on the basis of the particular facts and circumstances of each case and will depend, inter alia, upon the importance of what is at stake for the applicant in the proceedings, the complexity of the relevant law and procedure and the applicant's capacity to represent him or herself effectively (see Airey, pp. 14-16, 26; McVicar, 48 and 50; P., C. and S. v. the United Kingdom, no. 56547/00, 91, ECHR 2002-VI; and also Munro, cited above). 543. The right of access to a court is not, however, absolute and may be subject to restrictions, provided that these pursue a legitimate aim and are proportionate (see Ashingdane v. the United Kingdom, judgment of 28 May 1985, Series A no. 93, pp. 24-25, 57). It may therefore be acceptable to impose conditions on the grant of legal aid based, inter alia, on the financial situation of the litigant or his or her prospects of success in the proceedings (see Munro, cited above). Moreover, it is not incumbent on the State to seek through the use of public funds to ensure total equality of arms between the assisted person and the opposing party, as long as each side is afforded a reasonable opportunity to present his or her case under conditions that do not place him or her at a substantial disadvantage vis-vis the adversary (see De Haes and Gijsels, p. 238, 53, and also McVicar, 51 and 62, both cited above). 544. The Court must examine the facts of the present case with reference to the above criteria. First, as regards what was at stake for the applicants, it is true that, in contrast to certain earlier cases where the Court has found legal assistance to have been necessary for a fair trial (for example, Airey and P., C. and S. v. the United Kingdom, both cited above), the proceedings in issue here were not determinative of important family rights and relationships. The Convention organs have observed in the past that the general nature of a defamation action, brought to protect an individual's reputation, is to be distinguished, for example, from an application for judicial separation, which regulates the legal relationship between two individuals and may have serious consequences for any children of the family (see McVicar, 61, and Munro, both cited above). However, it must be recalled that the applicants did not choose to commence defamation proceedings, but acted as defendants to protect their right to freedom of expression, a right accorded considerable importance under the Convention (see paragraph 87 below). Moreover, the financial consequences for the applicants of failing to verify each defamatory statement complained of were significant. McDonald's claimed damages up of to GBP 100,000 and the awards actually made, even after reduction by the Court of Appeal, were high when compared to the applicants' low incomes: GBP 36,000 for the first applicant, who was, at the time of the trial, a bar worker earning approximately GBP 65 a week, and GBP 40,000 for the second applicant, an unwaged single parent (see paragraphs 9, 14 and 35 above). McDonald's have not, to date, attempted to enforce payment of the awards, but this was not an outcome which the applicants could have foreseen or relied upon. 545. As for the complexity of the proceedings, the Court notes its finding in McVicar (cited above, 55) that the English law of defamation and rules of civil procedure applicable in that case were not sufficiently complex as to necessitate the granting of legal aid. The proceedings defended by Mr McVicar required him to prove the truth of a single, principal
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allegation, on the basis of witness and expert evidence, some of which was excluded as a result of his failure to comply with the rules of court. He had also to scrutinise evidence submitted on behalf of the plaintiff and to cross-examine the plaintiff's witnesses and experts, in the course of a trial which lasted just over two weeks. 546. The proceedings defended by the present applicants were of a quite different scale. The trial at first instance lasted 313 court days, preceded by 28 interlocutory applications. The appeal hearing lasted 23 days. The factual case the applicants had to prove was highly complex, involving 40,000 pages of documentary evidence and 130 oral witnesses, including a number of experts dealing with a range of scientific questions, such as nutrition, diet, degenerative disease and food safety. Certain of the issues were held by the domestic courts to be too complicated for a jury properly to understand and assess. The detailed nature and complexity of the factual issues are further illustrated by the length of the judgments of the trial court and the Court of Appeal, which ran in total to over 1,100 pages (see, inter alia, paragraphs 18, 19, 30 and 49 above). 547. Nor was the case straightforward legally. Extensive legal and procedural issues had to be resolved before the trial judge was in a position to decide the main issue, including the meanings to be attributed to the words of the leaflet, the question whether the applicants were responsible for its publication, the distinction between fact and comment, the admissibility of evidence and the amendment of the statement of claim. Overall, some 100 days were devoted to legal argument, resulting in 38 separate written judgments (ibid.). 548. Against this background, the Court must assess the extent to which the applicants were able to bring an effective defence despite the absence of legal aid. In McVicar (cited above, 53 and 60), it placed weight on the facts that Mr McVicar was a well-educated and experienced journalist, and that he was represented during the pre-trial and appeal stages by a solicitor specialising in defamation law, from whom he could have sought advice on any aspects of the law or procedure of which he was unsure. 549. The present applicants appear to have been articulate and resourceful; in the words of the Court of Appeal, they conducted their case forcefully and with persistence (see paragraph 33 above), and they succeeded in proving the truth of a number of the statements complained of. It is not in dispute that they could not afford to pay for legal representation themselves, and that they would have fulfilled the financial criteria for the granting of legal aid. They received some help on the legal and procedural aspects of the case from barristers and solicitors acting pro bono: their initial pleadings were drafted by lawyers, they were given some advice on an ad hoc basis, and they were represented during five of the pre-trial hearings and on three occasions during the trial, including the appeal to the Court of Appeal against the trial judge's granting of leave to McDonald's to amend the statement of claim (see paragraph 16 above). In addition, they were able to raise a certain amount of money by donation, which enabled them, for example, to buy transcripts of each day's evidence 25 days later (ibid.). For the bulk of the proceedings, however, including all the hearings to determine the truth of the statements in the leaflet, they acted alone. 550. The Government have laid emphasis on the considerable latitude afforded to the applicants by the judges of the domestic courts, both at first instance and on appeal, in recognition of the disadvantages the applicants faced. However, the Court considers that, in an action of this complexity, neither the sporadic help given by the volunteer lawyers nor the extensive judicial assistance and latitude granted to the applicants as litigants in person was any substitute for competent and sustained representation by an experienced lawyer familiar with the case and with the law of libel (cf. P., C. and S. v. the United Kingdom, cited above, 93-95 and 99). The very length of the proceedings is, to a certain extent, a testament to the
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applicants' lack of skill and experience. It is, moreover, possible that had the applicants been represented they would have been successful in one or more of the interlocutory matters of which they specifically complain, such as the admission in evidence of the Haringey affidavit (see paragraph 21 above). Finally, the disparity between the respective levels of legal assistance enjoyed by the applicants and McDonald's (see paragraph 16 above) was of such a degree that it could not have failed, in this exceptionally demanding case, to have given rise to unfairness, despite the best efforts of the judges at first instance and on appeal. 551. It is true that the Commission declared inadmissible an earlier application under, inter alia, Article 6 1 by these same applicants (see H.S. and D.M. v. the United Kingdom, cited above), observing that they seem to be making a tenacious defence against McDonald's, despite the absence of legal aid .... That decision was, however, adopted over a year before the start of the trial, at a time when the length, scale and complexity of the proceedings could not reasonably have been anticipated. 552. The Government argued that, even if legal aid had been in principle available for the defence of defamation actions, it might well not have been granted in a case of this kind, or the amount awarded might have been capped or the award made subject to other conditions. The Court is not, however, persuaded by this argument. It is, in the first place, a matter of pure speculation whether, if legal aid had been available, it would have been granted in the applicants' case. More importantly, if legal aid had been refused or made subject to stringent financial or other conditions, substantially the same Convention issue would have confronted the Court, namely whether the refusal of legal aid or the conditions attached to its granting were such as to impose an unfair restriction on the applicants' ability to present an effective defence. 553. In conclusion, therefore, the Court finds that the denial of legal aid to the applicants deprived them of the opportunity to present their case effectively before the court and contributed to an unacceptable inequality of arms with McDonald's. There has, therefore, been a violation of Article 6 1 of the Convention. B. Other complaints under Article 6 1 554. The applicants also alleged that a number of specific rulings made by the judges in the proceedings caused unfairness in breach of Article 6 1. Thus, they complained that the circumstances surrounding the admission in evidence of the Haringey affidavit (see paragraph 21 above) had been unfairly prejudicial, as had Bell J's refusal to grant adjournments on a number of occasions and his decision to allow McDonald's to amend their statement of claim (see paragraph 24 above). 555. The Government denied that any unfairness had been caused by these rulings, which had instead struck a fair balance between the opposing litigants. 556. To the extent that these particular complaints have merit, the Court considers that they are subsumed within the principal complaint about lack of legal aid, since, even if it had not led to a different result, legal representation might have mitigated the effect on the applicants of the rulings in question. 557. In view of the above finding of a violation of Article 6 1 based on the lack of legal aid, the Court does not consider it necessary to examine separately these additional complaints. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Holds that there has been a violation of Article 6 1 of the Convention;
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2. Holds that there has been a violation of Article 10 of the Convention; 3. Holds (a) that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final according to Article 44 2 of the Convention, the following amounts, to be converted into pounds sterling at the rate applicable at the time of settlement: (i) EUR 20,000 (twenty thousand euros) to the first applicant and EUR 15,000 (fifteen thousand euros) to the second applicant in respect of non-pecuniary damage; (ii) EUR 47,311.17 (forty-seven thousand three hundred and eleven euros seventeen cents) in respect of costs and expenses; (iii) any tax that may be chargeable on the above amounts; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicants' claim for just satisfaction. Done in English, and notified in writing on 15 February 2005, pursuant to Rule 77 2 and 3 of the Rules of Court. Michael O'BOYLE Matti PELLONP Registrar President

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Neumeister v Austria (ECtHR) Neumeister v Austria App No 1936/63 (ECtHR, 27 June 1968)

COURT (CHAMBER)

CASE OF NEUMEISTER v. AUSTRIA

(Application no 1936/63)

JUDGMENT

STRASBOURG

27 June 1968

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THE FACTS 1. The object of the request of the Commission and the Application of the Government is that the Neumeister case should be referred to the Court, so that the latter may decide whether or not the facts indicate, on the part of the Republic of Austria, a violation of the obligations incumbent upon it under Articles 5 (3) and (4) and 6 (1) (art. 5-3, art. 5-4, art. 6-1) of the Convention. 2. The facts of the case, as they appear from the Report of the Commission, the memorials, documents and evidence supplied, and the oral statements of the respective representatives of the Commission and the Government may be summarised as follows: 3. Mr. Fritz Neumeister, an Austrian citizen born on 19 May 1922, is resident at Vienna where he was formerly the owner and director of a large transport firm, the "Internationales Transportkontor" or "ITEKA", which employed some two hundred persons. 4. On 11 August 1959, the Vienna Public Prosecution (Staatsanwaltschaft) requested the Regional Criminal Court (Landesgericht fr Strafsachen) of that city to open a preliminary investigation (Voruntersuchung), together with their immediate arrest, against five persons including Lothar Rafael, Herbert Huber and Franz Schmuckerschlag, and an enquiry (Vorerhebungen) concerning Fritz Neumeister and three other persons. On the previous day, the Revenue Office of the First District of Vienna had denounced (Anzeige) the parties in question before the Public Prosecution; it suspected some of having defrauded the exchequer by improperly obtaining, between the years 1952 and 1958, "reimbursement" which was designed to assist exports (Ausfuhrhndlervergtung and Ausfuhrvergtung) of more than 54.500,000 schillings in turnover tax (Umsatzsteuer), the others - Neumeister in particular - of having been involved in these transactions as accomplices (als Mitschuldige). In Austria, an act of this kind constitutes not merely a simple taxation offence but rather fraud (Betrug) within the meaning of Section 197 of the Austrian Criminal Code. By the terms of Section 200, fraud becomes a felony (Verbrechen) if the amount of loss caused for the sum fraudulently obtained exceeds 1,500 schillings. The punishment incurred is "severe imprisonment" of from five to ten years if this amount exceeds 10,000 schillings, if the offender has shown "exceptional audacity or cunning" or if he has made a habit of defrauding. (Section 203). These two amounts have since been altered: they are now 2,500 and 25,000 schillings respectively. 5. In conformity with the provisions of Austrian law (stndige Geschftsverteilung) the conduct of the investigation and of the enquiry instigated by the Public Prosecution was automatically assigned, on 17 August 1959, to the investigating Judge, Dr. Leonhard, who had already, since 13 February 1959, been working on another large case involving fraud, the Stgmller case. 6. On 21 January 1960, Neumeister appeared for the first time as a suspect ("Verdchtiger", in the Austrian sense of the word), before the Investigating Judge. In the course of his interrogation, which lasted for an hour and a quarter, Neumeister became aware of the above-mentioned steps taken by the Public Prosecution; he protested his innocence, a position from which, it would seem, he has never since wavered. 7. At the request of the Vienna Public Prosecution (22 February 1961), the Investigating Judge decided on 23 February 1961 to open a preliminary investigation concerning Neumeisters activities and ordered that Neumeister be taken into detention on remand (Untersuchungshaft).
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In consequence Neumeister was, on the following day, placed in detention on remand in connection with the case involving Rafael and associates (24 a Vr 6101/59). At the same time he was notified of his provisional release in a case involving customs frauds (No. 6 b Vr 8622/60) in respect of which he had been detained for some three weeks. This other case is not in issue before the European Court of Human Rights; it ended with the acquittal of the eight accused on 29 March 1963 before the Regional Criminal Court of Vienna, this judgment being confirmed on 14 April 1964 by the Austrian Supreme Court (Oberster Gerichtshof). During his detention the applicant was interrogated as an accused ("Beschuldigter", in the Austrian sense of this word) on 27 February, 2 March, 18 to 21 April and 24 April 1961. From the sixty-seven pages of minutes, it appears that the Investigating Judge informed him in detail of the statements concerning him made by several co-accused, including Franz Scherzer, Walter Vollmann (former director of the Iteka branch at Salzburg), Leopold Brunner and Lothar Rafael. The last named of these had fled abroad but had written a letter of more than thirty pages to the Court in which he heavily implicated Neumeister. The Applicant explained his conduct in detail; the interrogation generally took place in the presence of an inspector of taxes (Finanzoberrevisor), Mr. Besau. 8. On 12 May 1961, Neumeister was provisionally released on parole: he gave the solemn undertaking (Gelbnis) provided for by Section 191 of the Code of Criminal Procedure but was not required to deposit security. The Public Prosecution unsuccessfully challenged this decision before the Vienna Court of Appeal (Oberlandesgericht). 9. After his release, the Applicant resumed his professional activities. In the course of the trial concerning the alleged customs frauds (6 b Vr 8622/60) he had been obliged to sell the ITEKA company, seemingly at an extremely low price - about 700,000 schillings payable in forty-eight monthly instalments - but he established a small transport company, the Scherzinger company, with three employees. In July 1961 Neumeister visited Finland, with the authorisation of the Investigating Judge, for a holiday with his wife and their three children. At the beginning of February 1962 he made a trip to the Saar for several days, again with the permission of this Judge. He asserts that throughout the period, which lasted until his second arrest (12 July 1962; para. 12 infra), he often visited the Investigating Judge of his own free will. 10. Lothar Rafael was arrested at Paderborn (Federal Republic of Germany) on 22 June 1961 and was extradited to Austria on 21 December 1961, the Minister of Justice of NorthRhine Westphalia having acceded to the request of the Austrian authorities for Rafaels extradition. In January 1962, lengthy interrogations of Rafael were conducted by the Vienna Economic Police (Wirtschaftspolizei), during which the former levelled grave accusations against Neumeister. 11. Neumeister informed the Investigating Judge in the Spring of 1962 that he wished to visit Finland again to spend a holiday with his family during the month of July. The Investigating Judge raised no objections at that time. He is said later to have warned the Applicant that he would probably be confronted with Rafael in June but that it would in no way be necessary for him to give up his plans for a holiday abroad. On 3rd, 4th, 5th and 6th July 1962, Neumeister was interrogated by the Investigating Judge in the presence of the inspector of taxes, Mr. Besau. On being informed of the statements relating to him made by various witnesses and accused, in particular those made by Rafael in January 1962, he strenuously contested them. Fifty pages of minutes were noted on this occasion.
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The confrontation between Neumeister and Rafael took place before the Vienna Economic Police on 10 and 11 July 1962. It appears from the twenty-two pages of minutes that Neumeister persisted in his denials. On the morning of 12 July, the Investigating Judge informed Neumeister that his departure for Finland, planned for 15 July, met with the opposition of the Public Prosecution. When heard as a witness, on 7 July 1965, by a Sub-Commission of the European Commission of Human Rights, he gave the following fuller particulars on this point: "What I am going to say now is rather more difficult for me. My own intuition convinced me that Mr. Neumeister would come back from his trip to Finland. Mr. President, members of the Commission, you know that a judge cannot let himself be ruled only by intuition; he must be guided solely by the law. Since no treaty on judicial assistance or extradition exists as such between Austria and Finland, the law obliged me not to yield to my intuition that Neumeister would return. I know that I said to Mr. Neumeister then: My feeling tells me that you will come back; but I cannot personally give you permission without the approval of the prosecuting authority. This approval was then refused." The Applicant, for his part, alleged before the Sub-Commission that the Investigating Judge had given him permission to go to Finland despite the wish of the Public Prosecution that he should not. 12. Be this as it may, on the same day, 12 July 1961, at the request of the Public Prosecution, the Investigating Judge ordered Neumeisters arrest. The warrant (Haftbefehl) indicated first that Neumeister was suspected of having committed, between 1952 and 1957 and in consort with Lothar Rafael and other suspects, a series of fraudulent transactions which had caused the State a loss of some ten million schillings. It added that Neumeister, being fully aware of the charges assembled against him since his release (12 May 1961), must anticipate a heavy punishment; that his former employee, Walter Vollmann, for whom the results of the investigation had been less heavily incriminating, had nevertheless evaded prosecution by absconding; that the recent interrogations of the Applicant and his confrontation with Rafael had shown to him beyond any doubt that he would now be obliged to relinquish his attitude of total denial; that he intended to take his holidays abroad and that the withdrawal of his passport would not have offered an adequate safeguard, the possession of this document no longer being necessary for the crossing of certain frontiers. From these various circumstances the warrant deduced that there existed, in the case, a danger of flight (Fluchtgefahr), within the meaning of Section 175 (1) (2) of the Code of Criminal Procedure. Neumeister was arrested on the afternoon of 12 July 1962 near to his office. He immediately requested the elder of his daughters, Maria Neumeister, to cancel by telegram the tickets which he had booked for the crossing of the Baltic. He stated to the police officers who were sent to take him into custody that it had been his intention to visit the Public Prosecutors Office the following day with a view to seeking authorisation for his departure for Finland on Monday, 16 July. On 13 July 1962 Neumeister appeared for a few moments before the Investigating Judge who informed him that he was being placed in detention on remand (Section 176 (1) of the Code of Criminal Procedure). 13. On 23 July 1962, the applicant lodged his first appeal against the order of arrest of 12 July 1962. Emphasising that his firm, his home and his family were in Vienna, he stated
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that there were no grounds for believing in the reality of a danger of flight and that if he had wished to abscond he could easily have done so before. The Judges Chamber (Ratskammer) of the Regional Criminal Court of Vienna dismissed the appeal on 31 July 1962 for reasons similar to those set out in the order in dispute. In particular it laid great weight on the statements of Rafael which, in its opinion, had definitely worsened Neumeisters position. The Applicant challenged this decision on 4 August 1962. He maintained that Section 175 (1) (2) of the Code of Criminal Procedure required a "danger of flight" and not merely a "possibility of flight", that the presence of such a danger must be determined in the light of concrete facts and that the possibility of a heavy sentence was not a sufficient ground to assume danger of flight. It referred to a judgment of the Constitutional Court (Verfassungsgerichtshof) of 8 March 1961 (Official Collection of the Decisions of this Court, 1961, pages 80-82). The Court of Appeal (Oberlandesgericht) of Vienna dismissed the appeal (Beschwerde) on 10 September 1962. While endorsing the reasoning of the Judges Chamber, it added that Neumeister knew perfectly well that the charges weighing upon him had become more serious after 12 May 1961, that he must expect a heavy sentence in view of the enormity of the loss caused, and that according to a police report of 12 July 1962 he had carried out preparations for a journey abroad and had not abandoned them although the competent Investigating Judge had expressly refused the necessary authorisation. In these circumstances the Court was of the opinion that a danger of flight must be deemed to exist. 14. Neumeister filed a second request for provisional release on 26 October 1962. While once again endeavouring to prove the absence of a danger of flight, he offered for the first time, as a subsidiary request, a bank guarantee of 200,000 or, at the most, 250,000 schillings (Section 192 of the Code of Criminal Procedure). The Judges Chamber rejected the request on 27 December 1962. Recalling that Neumeister faced a punishment of from five to ten years severe imprisonment (Section 203 of the Criminal Code) and that he was answerable for a loss of about 6,750,000 schillings, it took the view that the deposit of security would not be sufficient to dispel the danger of flight and that it was therefore unnecessary to examine the amount of the security proposed. Neumeister challenged this decision on 15 January 1963. In addition to the arguments expounded in his request of 23 July 1962 and in his appeal of 4 August 1962, he pointed out: - that the amount of the loss wrongfully attributed to him in his view, had decreased considerably, from more than forty million schillings (24 February 1961) to a little more than eleven and a half million (12 May 1961) and was later to fall to 6,748,510 schillings (decision of 27 December 1962); - that certain persons detained in connection with other more important cases had recovered their freedom against the deposit of security; - that he had never sought to abscond, for instance between his release (12 May 1961) and his second arrest (12 July 1962), and, more especially, by taking advantage of his stay in Finland; - that only a few hours had elapsed between his appearance before the Investigating Judge, on the morning of 12 July 1962 and his arrest; - that this brief interval of time had not left him any real possibility of annulling the preparations for his journey, preparations which in any case he did not wish to forgo without attempting one last approach to the Public Prosecution;
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- that he had already undergone more than nine months detention on remand (24 February 1961-12 May 1961 and 12 July 1962-15 January 1963), another factor which, in his opinion, argued against the danger of flight; - that all his professional and family interests were centred around Vienna where, moreover, his wife had just opened a ladies ready-made dress shop. The Court of Appeal of Vienna rejected the appeal on 19 February 1963. Referring to its decision of 10 September 1962, it observed that the situation had not changed in a way favourable to Neumeister since then. It was true that the amount of loss attributed to him had diminished, but this sum did not include that for which he might be held responsible in a case concerning the sham export of machines (Kreisverkehr der Textilien der Firma Benistex). Moreover, it had not decreased to such a point as to be of decisive influence on the sentence which Neumeister would have to anticipate in the event of conviction. From this the Court concluded that the danger of flight remained so great that even the possible supplying of guarantees could not be considered (indiskutabel ist) and that such guarantees could in no way eliminate this danger. 15. Four weeks earlier, more precisely on 21 January 1963, the Investigating Judge had proceeded to another confrontation between Rafael and Neumeister who had substantially confirmed their respective statements of 10 and 11 July 1962. According to the Applicant the confrontation lasted for about a quarter of an hour. A page and a half of minutes were taken on this occasion. 16. On 12 July 1963, the same day as that on which he lodged his application with the European Commission of Human Rights, Neumeister filed a third request for provisional release to which he added a supplement on 16 July; he pledged himself to make the solemn undertaking (Gelbnis) laid down by Section 191 of the Code of Criminal Procedure and once again offered to provide, if need be, a bank guarantee of 200,000 or 250,000 schillings. While reiterating his earlier arguments, he observed: - that between his release (12 May 1961) and his second arrest (12 July 1962), he had always held himself at the disposition of the Investigating Judge, had presented himself of his own free will before the latter on five or six occasions to obtain information concerning the progress of the investigation and had informed him as far back as March 1962 of his plan to make a journey to Finland; - that the Austrian railways had authorised him to construct near the Vienna east railway station, a warehouse worth one and a half million schillings, a project which he had been unable to accomplish because of his imprisonment; - that since the imprisonment no new charge had been uncovered against him; - that Lothar Rafael, having made a number of confessions (Gestndiger), was seeking to improve his own lot by casting his guilt onto others and that his statements were completely uncreditworthy; - that after more than one year of detention on remand, the assumption of there existing a danger of flight was no longer plausible. The Investigating Judge rejected the request of 23 July 1963. He was of the opinion that the grounds stated in the decisions of 31 July 1962, 10 September 1962, 27 December 1962 and 19 February 1963 retained their relevance and that the documents in the file in substance corroborated Rafaels accusations against Neumeister. The latter then lodged with the Judges Chamber of the Regional Criminal Court of Vienna, on 5 August 1963, an appeal in which he restated many of the arguments summarised above to which he added others, in particular the following: - considering the size and complexity of the case, the investigation and the subsequent proceedings would seem to be of considerable length with the consequence that the length
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of the detention on remand, already greater than fourteen months, was in danger of exceeding that of the possible sentence, if remedial measures were not speedily taken; - the Investigating Judge had failed to answer several of Neumeisters arguments and to specify the documents which seemed to him to support Rafaels statements, which were in any case most likely to be withdrawn sooner or later; - the same judge had been in error in minimising the importance of the reduction of the loss attributed to Neumeister, a reduction which might very well continue in the future; - he had not based his decision on facts, but merely on presumptions concerning the effects of Rafaels assertions on Neumeisters state of mind (Seelenzustand). Neumeister further emphasised: - that he was prepared to deposit with the court his identity papers and his passport; - that he had no means whatsoever of supporting his family abroad; - that in any case flight would be senseless for a man of his age, all the more so since, in the case of his being extradited, he ran the risk of not benefiting from the period of his detention on remand being calculated as part of his possible sentence (allusion to Section 55 (a) in fine of the Criminal Code). The Judges Chamber dismissed the appeal on 8 August 1963. Referring to the decision which was being attacked and to those which had preceded it, in substance it observed: - that Rafaels statements were confirmed by a number of factors (originals of letters, accountable receipts, statements of account, witnesses testimony, etc.); - that the confrontation between Rafael and Neumeister in July 1962 had considerably worsened the latters position and that the Investigating Judge was correct in attaching importance to the effects which it could not fail to have upon the morale of the Applicant; - that, in these circumstances, the possible supplying of guarantees could not be considered (indiskutabel ist) and could in no way eliminate the danger of flight. On 20 August 1963, Neumeister lodged an appeal against this decision with the Vienna Court of Appeal. His complaints were substantially the same as those which he had formulated on 5 August 1963. He also charged the Judges Chamber with not having specified the contents of the documents supposed to corroborate Rafaels accusations, with having ignored the question of whether he, Neumeister, was aware of these documents, and with having overlooked the fact that more than six months had passed since the last decision of the Court of Appeal (19 February 1963). He also pointed out that he could easily have absconded, had he so wished, in the interval between his confrontation with Rafael and his arrest. The Court of Appeal was not called upon to decide the question, however: Neumeister withdrew his appeal on 11 September 1963 without giving any reasons for so doing. 17. On 16 September 1963, Neumeisters elder daughter filed with the Ministry of Justice a petition which sought her fathers release; she offered security of one million schillings. The Vienna Economic Police addressed to the Regional Criminal Court, on 13 November 1963, a confidential report from which it appeared that Maria Neumeister had unsuccessfully sought to obtain part of that sum from a former client of the Iteka and Scherzinger firms. 18. Some days earlier - on 6 November 1963, two days after the closing of the preliminary investigation (paragraphs 19 and 20 infra) - Dr. Michael Stern, attorney, had made, on Neumeisters behalf, a fourth request for provisional release. In it, he briefly repeated the arguments developed in the preceding requests, emphasised that the period during which the Applicant had been held on remand was already almost twenty months, and suggested a bank guarantee of one million schillings.
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In the course of the proceedings before the Commission, Neumeister stated that this last offer was made against his wishes as he was not, at that time, in a position to raise a guarantee for such a large sum. By a letter of 14 April 1964, Dr. Stern confirmed that in this matter he had acted on his own initiative. Before the Commission, the Governments representatives observed that the offer was binding on Neumeister and that the competent courts had no reason to believe that it did not express Neumeisters own wishes. The Investigating Judge rejected the request on 5 December 1963. Referring to the decisions of 31 July 1962, 10 September 1962, 27 December 1962, 19 February 1963 and 8 August 1963, he held that the Applicant had failed to bring forward any facts or arguments which could justify his release. Neumeister attacked this decision on 13 December 1963. He once more denied that any danger of flight existed; in his view the Regional Criminal Court of Vienna and the Vienna Court of Appeal had never evaluated correctly the facts which were relevant to this point, had based themselves on vague presumptions rather than solid proof and had mistakenly attached decisive importance to the enormous loss allegedly caused to the State. He complained in particular that the Regional Criminal Court had failed, in its decision of 5 December, to take into account the length of the detention on remand which he had already undergone. In conclusion, the appeal repeated the offer of a bank guarantee of one million schillings. The Judges Chamber of the Regional Criminal Court of Vienna allowed the appeal on 8 January 1964. It recognised that the Applicants arguments carried a certain weight: recalling that Neumeister faced a sentence of five to ten years severe imprisonment, it observed that it was uncertain as to whether he would benefit from the law providing for cases involving extenuating circumstances (auerordentliches Milderungsrecht, Section 265 (a) of the Code of Criminal Procedure) but that the length of detention on remand would, in all probability, be deducted from the sentence in the event of a conviction (Section 55 (a) of the Criminal Code) and that the inducement to flee was thereby considerably lessened (wesentlich verringert). However it considered that a guarantee of one million schillings was not sufficient to eliminate the danger of flight. On this point it emphasised that Section 192 of the Code of Criminal Procedure stipulates that the amount of bail depends not only on the circumstances of the detainee and on the financial situation of the person providing the security, but also on the consequences of the offence. For these reasons, the Judges Chamber ordered Neumeisters provisional release against security of two million schillings (either in cash or in the form of a bank guarantee) and the voluntary deposit (freiwillige Hinterlegung) of his passport with the Court. On 21 January 1964, Dr. Stern lodged, on behalf of Neumeister, an appeal designed to reduce the amount of security stipulated to one million schillings. The substance of his argument was that under Section 192 of the Code of Criminal Procedure, the consequences of an offence should be taken into consideration only after due allowance had been made for the circumstances of the detainee and the financial situation of the guarantor. From this he concluded that in no case should the courts demand a guarantee in excess of the means of the Applicant (Gesuchssteller), with the result that they might, if they so wished, prevent provisional release in a case where the loss was substantial. The decision in dispute was partially altered by that of 4 February 1964. After deciding that the appeal concerned solely the amount of the security required, the Vienna Court of Appeal came to the same conclusion as the Judges Chamber, to wit that a sum of one million schillings was too small, regard being had to the loss entailed by the acts in respect of which Neumeister was accused. It added that the Applicant most probably possessed far greater assets than the amount offered as bail, thanks to the profit he had made from these
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same acts. It also observed that he had not specifically claimed that his means would be exhausted by his having to give bail of one million schillings. The Court stated however that it did not have the necessary documents or information available to enable it to consider the amount of bail fixed by the Judges Chamber. It therefore remitted the case to the Judges Chamber emphasising that it was incumbent upon the latter, in the light of a detailed examination of Neumeisters circumstances and of the financial situation of the guarantors he could name to fix the bail between the limits of one and two million schillings. In a report dated 16 March 1964, drawn up at the request of the Judges Chamber, the Economic Police of Vienna expressed the opinion that Neumeister was quite unable to obtain two million schillings. This opinion was based on a number of documents from which it appeared that the Scherzinger firm was hardly in a healthy financial position and on the fact that Maria Neumeister stated that she could procure a guarantee of five hundred thousand schillings. The Judges Chamber of the Regional Criminal Court of Vienna reached its decision on 31 March 1964, that is, two weeks after the preferment of the indictment (paragraphs 19 and 21 infra). Besides mentioning the report of the Economic Police, it referred to a letter written by Neumeister dated 25 February 1964, according to which a person who wished to remain anonymous had agreed to provide security of one million two hundred and fifty thousand schillings. After adding together this sum and the five hundred thousand schillings offered by Maria Neumeister, the Judges Chamber reduced the amount of security required of the Applicant to one million seven hundred and fifty thousand schillings. In an appeal dated 20 April 1964, Neumeister requested that the sum should be reduced to one million two hundred and fifty thousand schillings; he maintained that the offer made by his daughter was included within that of the guarantor who did not wish to disclose his identity. The Vienna Court of Appeal dismissed the appeal on 20 May 1964. It was of the opinion that the Judges Chamber had complied with the decision of 4 February and that the consequences of the offence were of fundamental importance in the application of Section 192 of the Code of Criminal Procedure. 19. Meanwhile Judge Leonhard had, on 4 November 1963, announced the conclusion of the preliminary investigation and had sent the file to the Public Prosecution (Sections 111112 of the Code of Criminal Procedure). The file consisted of twenty-one volumes each of about five hundred pages, as well as a considerable number of other documents. On 17 March 1964, the Public Prosecution of Vienna had, for its part, completed the indictment (Anklageschrift) of which Neumeister had been notified on 26 March (Sections 207 and 208 of the Code of Criminal Procedure). 20. In the execution of his task, the Investigating Judge had been aided by the Economic Police of Vienna, by the taxation department (Inspector Besau), by the Austrian railways and by the postal service administration; nevertheless, he had still encountered considerable difficulties. Four of the principal accused, named Lothar Rafael, Herbert Huber, Franz Schmuckerschlag and Walter Vollmann, had fled abroad, the first three at the outset of the enquiries and the last-named after being provisionally released on parole. After rather long proceedings, the Austrian authorities had obtained Rafaels extradition (21 December 1961) from the Federal Republic of Germany, and Hubers (27 September 1962) from Switzerland. The Federal Republic of Germany had, however, refused to grant the
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extradition of Schmuckerschlag as he possessed German, as well as Austrian, nationality. Vollmann has not, up to the present time, been traced. To this were added a number of difficulties inherent in the nature, the size and the complexity of the acts complained of. At its outset, the investigation concerned twenty-two persons and twenty-two counts. The prosecution was required to prove, among other things, that the documents concerning the purchase of goods had been falsified, that the value of the exports had been overstated with fraudulent intent, that the recipient firms abroad were either non-existent or ignorant of the whole affair and that the exporters had deposited the proceeds of the sales in Switzerland or Liechtenstein. To achieve this aim it had been necessary to reconstruct many business operations which had taken place over a period of several years, to check the routes followed by one hundred and fifty or one hundred and sixty railway trucks, to study a large number of Revenue Office files, to hear dozens of witnesses, some of whom had to be examined again after Rafaels extradition, etc. Many of the witnesses lived abroad, for example in the Netherlands, Italy, the United States, Canada, Latin America, Africa and the Near East. The Republic of Austria had therefore been obliged to have recourse to the services of Interpol or to invoke the accords providing for mutual legal assistance which she had concluded with States such as the Netherlands, the Federal Republic of Germany, Italy, Switzerland and Liechtenstein. The enquiries conducted in the Netherlands, the Federal Republic of Germany and in Switzerland had in part taken place in the presence of Austrian officials and especially, as regards those in Switzerland, in the presence of Judge Leonhard, the Investigating Judge. Delays of from six to sixteen months had occurred between the sending of requests for legal assistance and the receipt of the results of the investigations which had taken place in the Netherlands, the Federal Republic of Germany, Italy and Switzerland. At the time of the closing of the investigation the request addressed to Switzerland remained pending on one point, with regard to which no positive result was, in the end, obtained, as the Swiss authorities were of the view (September 1964) that the professional duty of secrecy imposed on the Zurich bankers in question conflicted with the disclosure of the information sought. Liechtensteins reply was received in Austria only in June 1964. Firms under Soviet administration were also involved, especially at the beginning of the investigation: however, it was impossible to obtain documents from the Soviet Armed Forces Bank through which settlements had been effected. The course of the investigation seems to have been slowed down by the refusal of one of the accused - Herbert Huber - to make any statement whatsoever before the Investigating Judge. On the other hand, the proceedings relating to certain facts or accused had been severed by reason of their secondary importance (Section 57 (1) of the Code of Criminal Procedure); these seem to have been later abandoned (Section 34 (2) of the same code). At the time of the closure of the preliminary investigation, the number of accused in the case did not exceed ten. After 21 January 1963, the date of his last confrontation with Rafael, Neumeister was not heard again by the Investigating Judge who, during the same period, interrogated Rafael twenty-eight times (272 pages of minutes) and five other accused seventeen times in all (119 pages of minutes). According to the minutes of the confrontation of 21 January 1963, another confrontation was planned. It did not take place, however; in the Applicants opinion, it was Lothar Rafaels refusal to participate which prevented this intention being realised. 21. The indictment of 17 March 1964 was 219 pages long and concerned ten persons, in the following order: Lothar Rafael, Herbert Huber, Franz Scherzer, Fritz Neumeister, Iwan
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Ackermann, Leopold Brunner, Walter Vollmann, Hermann Fuchshuber, Helmut Dachs and Rudolf Grmmer; it was in no way concerned with the "Kreisverkehr der Textilien der Firma Benistex" case which was the object of separate proceedings (paragraph 22 infra). For his part, Neumeister was accused of aggravated fraud (Sections 197, 200, 201 (a) and (d) and 203 of the Criminal Code) in ten groups of transactions relating to very different items: toilet soap, tools (cutters and welding bars), ladies clothing (nylon stockings, skirts, blouses, etc.), gym shoes, leather and velvet goods, indoor lamps and running gear. The amount of loss for which he was called upon to answer exceeded 5,200,000 schillings. The loss attributed to the Applicant was the fourth highest of the accused, being less than that alleged to be caused by Rafael (more than 35,100,000 schillings), Vollmann (about 31,900,000 schillings), and Huber (about 31,800,000 schillings), but more than that caused by Scherzer (more than 1,400,000 schillings), Brunner (more than 1,250,000 schillings), Dachs (more than 1,100,000 schillings), Ackermann and Grommer (about 200,000 schillings). Some of the dealings did not concern him at all. This was the case, mainly with a large operation involving the export of textiles in which only Rafael, Huber and Vollmann were implicated (more than 25,700,000 schillings, pages 101-170 of the indictment). The Public Prosecution requested, inter alia, the opening of the trial before the Regional Criminal Court of Vienna, the calling of thirty-five witnesses and the reading of the affidavits of fifty-seven more. 22. On 3 June 1964, the Vienna Public Prosecution informed the Judges Chamber of the Regional Criminal Court that it was provisionally discontinuing the proceedings against Neumeister in the "Kreisverkehr der Textilien der Firma Benistex" case, although reserving the right to resume them at a later date (Section 34 (2), paragraph (1), of the Code of Criminal Procedure). At the time of the laying of the indictment, the Public Prosecution had prevailed upon the Court to sever these proceedings which had subsequently been dealt with separately (26 d VR 2407/64). On the same day, the Judges Chamber, stating that the total loss imputed to Neumeister had been reduced by more than four million schillings, decided to reduce to one million schillings - either in cash or in the form of a bankers guarantee - the amount of security required for the release of the Applicant. On 13 August 1964, Neumeister informed the Judges Chamber that his daughter, Maria Neumeister and another named person were prepared to stand surety for him (Brgen), the former putting up 850,000 schillings and the latter 150,000. The persons concerned confirmed this on the following day. After carrying out a check on their solvency (Tauglichkeit), the Judges Chamber accepted their offer on 16 September 1964. Some hours later the Applicant made the solemn undertaking provided for by Section 191 of the Code of Criminal Procedure, deposited his passport with the Court in conformity with the decision of 8 January 1964, which, on this point, was still in force, and was set at liberty. 23. The various decisions concerning Neumeisters detention on remand were all reached in accordance with Sections 113 (2) (first instance) and 114 (2) (appeal) of the Code of Criminal Procedure, at the end of a hearing not open to the public in the course of which the Public Prosecution was heard in the absence of the Applicant and his legal representative (in nichtffentlicher Sitzung nach Anhrung der Staatsanwaltschaft bzw. der Oberstaatsanwaltschaft). 24. On 9 October 1964, the date for the opening of the trial (Hauptverhandlung) was fixed for 9 November. On 18 June 1965, after one hundred and two days of the hearing, the Regional Criminal Court of Vienna, constituted as a mixed lay and legal court (Schffengericht), postponed
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the completion of the trial indefinitely so that the investigation might be completed. Having received a number of requests from the Public Prosecution and from some of the accused including Neumeister, it gave effect to several of them and ex officio called for certain additional measures of investigation to be taken. Herbert Hubers attitude seems to have played a major part in making this supplementary investigation necessary: whereas during the preliminary investigation he had maintained a strict silence, he explained his conduct in detail before the judges; according to Neumeister, Hubers statements were favourable to him while highly incriminating as regards Rafael. The Court nevertheless indicated that, in its opinion, some of the new enquiries and hearings of witnesses ordered by it should have been conducted earlier during the preliminary investigation. 25. In February and July 1965, Neumeister made the journey to Strasbourg with the permission of the Regional Court, in connection with the application filed by him before the European Commission of Human Rights. His passport is said to have been restored to him some days before the second of these journeys. 26. The additional investigation could not be conducted by Judge Leonhard who had appeared before the Court as a witness, (Section 68 of the Code of Criminal Procedure): it fell to his permanent substitute. It lasted for more than two years and was not therefore completed until after the adoption, on 27 May 1966, of the Commissions Report. The Investigating Judge examined numerous witnesses including Alfred Neumeister, the Applicants brother (13 December 1966), had experts reports drawn up, had resort to the services of the Exchequer, the Vienna Economic Police, and the police, the Post Office, Interpol, Swiss and German authorities, etc. The accused do not seem to have been examined again. On 8 March 1966, the Regional Criminal Court of Vienna informed Neumeister that a decision of the same day had, in pursuance of Section 109 of the Code of Criminal Procedure, discontinued (eingestellt) the proceedings instituted against him in respect of two of the counts. The amount of the loss imputed to the defendant was reduced by about 370,000 schillings. 27. The trial was resumed before the Regional Criminal Court of Vienna on 4 December 1967. According to the information supplied to the Court by the Government, it should last for between four and six months. 28. In his application instituting proceedings of July 1963 (No. 1936/63), the text of which was produced by the Commission at the request of the Court, Neumeister claimed: - that he had been arrested and detained without there being "reasonable suspicion" of his having committed an offence and without there being grounds for it to be "reasonably considered necessary" to prevent his fleeing (Article 5 (1) (c) of the Convention) (art. 5-1c); - that he had reason to doubt the impartiality of those persons who were competent both to pronounce upon his continued detention and also to conduct the investigation (Article 6 (1)) (art. 6-1); - that the procedure followed in the examination of his requests for provisional release did not conform with the requirements of Articles 5 (4) and 6 (1) and (3) (b) and (c) (art. 54, art. 6-1, art. 6-3-b, art. 6-3-c) ("equality of arms"; Waffengleichheit); - that he had been neither brought to trial "within a reasonable time" nor released pending trial. On this point, the Applicant in particular alleged that the Investigating Judge, who was required to deal simultaneously with several important cases, was no longer able to accomplish his task "within a reasonable time" within the meaning of Articles 5 (3) and 6 (1) (art. 5-3, art. 6-1) of the Convention.
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Neumeister complained, inter alia, of the decisions given some months earlier by the Judges Chamber of the Regional Criminal Court of Vienna and by the Court of Appeal. In the course of a hearing before the Commission, the Applicants lawyer also invoked Article 5 (2) (art. 5-2) of the Convention, affirming that his client had not been informed in detail and in writing of the charges against him. The Commission decided upon the admissibility of the Application on 6 July 1964. It rejected, on the grounds of their being manifestly ill-founded, the complaints based on paragraphs 1 (c) and 2 of Article 5 (art. 5-1-c, art. 5-2) of the Convention, but declared the Application admissible in so far as it was based on Articles 5 (3), 5 (4) and 6 (1) (art. 5-3, art. 5-4, art. 6-1) ("reasonable time" and "equality of arms"); it did not consider it necessary to pronounce upon the alleged violation of Article 6 (3) (art. 6-3) as the Applicant had not pursued this point. 29. Following the decision declaring admissible a part of the Application, a SubCommission ascertained the facts of the case and unsuccessfully sought a friendly settlement (Articles 28 and 29 of the Convention) (art. 28, art. 29). 30. Invoking Article 5 (3) (art. 5-3), the Applicant maintained before the Commission and the Sub-Commission that his detention on remand had lasted longer than was reasonable. In support of his contention he repeated many of the arguments he had put forward before the Investigating Judge, the Judges Chamber and the Court of Appeal of Vienna (see above). He also claimed that his second detention could be justified neither by the statements made about him by Lothar Rafael early in 1962 nor by the fact that Walter Vollmann had absconded; in particular he pointed out that Rafaels extradition (on 21 December 1961) had taken place more than six months before his own re-arrest (on 12 July 1962). According to the Applicant the position seemed in fact to be very much more in his favour at the time he lodged his Application (on 12 July 1963) than when he was first released (on 12 May 1961), this being due largely to his acquittal on 29 March 1963 in the Customs fraud case and the substantial reduction in the amount of the loss for which he was said to be responsible in the case against Rafael and others. The competent legal authorities were said to have disregarded this change for the better by prohibiting the Applicant from going to Finland again, by ordering his arrest and by refusing for a long time to release him either on parole, as in 1961, or even against adequate security. Neumeister also complained that they had delayed in obtaining information on his means before fixing the amount of bail; he maintained that Article 5 (3) (art. 5-3) in fine of the Convention precluded the stipulation of such a large amount of bail that the prisoners release became impossible in practice. He further alleged - while protesting his innocence that the length of his detention was out of proportion to the sentence he could expect if he were convicted: according to him, the sentence could not exceed twenty months, or at the most two years on the extreme hypothesis that the principal accused, Lothar Rafael, received the maximum provided by law. Without disputing the difficulties of the investigation, Neumeister remarked that the most complicated part of it concerned a textiles case with which he had nothing whatever to do; he added that the Investigating Judge had not heard him since 21 January 1963. His detention on remand was said to have caused him grave moral harm and material loss and greatly hampered the preparation of his defence. In his original application in July 1963, Neumeister affirmed that the Investigating Judge, having to deal simultaneously with several large cases, including that of Stgmller, was unable to complete his task within a reasonable time as provided in Articles 5 (3) and 6 (1) (art. 5-3, art. 6-1). Neumeister does not appear to have invoked the latter provision subsequently on the point in question.
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Lastly, according to the Applicant, the procedure in Austria for considering applications for release pending trial (Sections 113 (2) and 114 (2) of the Code of Criminal Procedure) is not in accordance with the principle of "equality of arms" (Waffengleichheit) safeguarded by Article 6 (1) (art. 6-1) of the Convention. Here Neumeister referred to the opinions expressed by the Commission in the Pataki and Dunshirn cases (Applications 596/59 and 789/60). He also maintained that a judicial organ that followed the procedure in question could not pass for a "court" within the meaning of Article 5 (4) (art. 5-4). 31. After the failure of the attempt to arrange a friendly settlement made by the SubCommission, the plenary Commission drew up a report as required by Article 31 (art. 31) of the Convention. The Report was adopted on 27 May 1966 and transmitted to the Committee of Ministers of the Council of Europe on 17 August 1966. The Commission expressed therein the following opinion which it later confirmed before the Court: (a) by eleven votes against one vote: the detention of the Applicant lasted beyond a "reasonable time", with the consequence that there was, in the case, a violation of Article 5 (3) (art. 5-3) of the Convention; (b) by six votes against six votes with the Presidents casting vote (Rule 29 (3) of the Rules of Procedure of the Commission): Neumeisters case was not heard "within a reasonable time" within the meaning of Article 6 (1) (art. 6-1); (c) by eight votes against two votes, with two abstentions: the proceedings regarding the Applicants release complied with Articles 5 (4) and 6 (1) (art. 5-4, art. 6-1). The Report contains several individual opinions, some concurring, some dissenting. Arguments of the Commission and the Government 1. In the Commissions view, Article 5 (3) (art. 5-3) of the Convention secures the right of every person detained in accordance with Article 5 (1) (c) (art. 5-1-c) either to release pending trial or to trial within a reasonable time. If a person detained on remand is provisionally released, then Article 5 (3) (art. 5-3) is thereby complied with as regards the future; if he is not released, he must be tried within a reasonable time. The Commission infers that detention must not be prolonged beyond a reasonable period. The most important problem, then, is said to be to interpret the words "reasonable time". The Commission finds the term vague and lacking in precision; thus its exact significance can be judged only in the light of the facts of the case, not "in abstracto". 2. In order to facilitate such evaluation, the Commission believes that it is in general necessary to examine an individual case according to the following seven "criteria", "factors" or "elements": (i) The actual length of detention. The Commission does not mean by this to set an "absolute time-limit" to the length of detention. Neither is it a question of measuring the length of detention by itself; it is simply a matter of using it as one of the criteria for determining whether that length is reasonable or unreasonable. (ii) The length of detention in relation to the nature of the offence, the penalty prescribed and to be expected in the event of conviction and national legislation on the deduction of the period of detention from any sentence passed. The Commission points out that the length of detention may vary according to the nature of the offence, the penalty prescribed and the likely penalty. Nevertheless, it considers that, in judging the relationship between the penalty and the length of detention, account must be taken of the principle of presumption of innocence laid down in Article 6 (2) (art. 6-2) of the Convention. If the period of detention were too similar in length to the sentence to be expected in case of conviction, the principle of presumption of innocence would not be entirely observed. (iii) The material, moral or other effects of detention upon the detained person beyond what are the normal consequences of detention.
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(iv) The conduct of the accused: (a) Did he contribute to the delay or expedition of the investigation or trial? (b) Were proceedings delayed by applications for release pending trial, appeals or other remedies? (c) Did he request release on bail or offer other guarantees to appear for trial? On this point the Commission considers that an accused who refuses to co-operate with the investigating organs or who uses the remedies open to him is thereby merely availing himself of his rights and should therefore not be penalised for doing so unless he acts in an abusive spirit or to an exaggerated extent. With regard to the conduct of the other accused, the Commission hesitates to accept that this can justify any prolongation of an individuals detention. (v) The difficulties in the investigation of the case (its complexity in respect of the facts or the number of witnesses or accused, the need to obtain evidence abroad, etc.). (vi) The manner in which the investigation was conducted: (a) the system of investigation applicable; (b) the conduct of the investigation by the authorities (their diligence in dealing with the case and the manner in which they organised the investigation). (vii) The conduct of the judicial authorities: (a) in dealing with applications for release pending trial; (b) in completing the trial. 3. The Commission considers that a rational plan of this kind makes it possible to arrive at "a coherent interpretation without any appearance of arbitrariness". It also remarks that the opinion to be formulated in a particular dispute will be the result of an assessment of all the factors. It may in fact happen that the application of some criteria will tend to lead to the conclusion that a period of detention was reasonable, whereas other criteria will suggest the opposite and still others will not clearly point either way. The overall conclusion is said then to depend on the relative value and importance of the various factors; this does not rule out the possibility that one of them alone may carry decisive weight in some circumstances. The Commission adds that in the above criteria it has tried to cover all the situations of fact that habitually arise in cases concerning detention on remand, but that the list drawn up by it is by no means exhaustive as exceptional situations may justify the use of other criteria. 4. In the present case the Commission has applied the seven criteria in finding the facts and in evaluating them from the legal point of view; some of the facts seem to it to be relevant in relation to several criteria. 5. In the Commissions view, application of the first criterion points to the conclusion that the length of Neumeisters detention was excessive. The Commission considers that the six-months time-limit stipulated in Article 26 (art. 26) in fine of the Convention precludes it from expressing any opinion on whether the length of the Applicants first period of detention - two months and seventeen days (24 February - 12 May 1961) - was "reasonable". On the other hand, it has considered the entire period of twenty-six months and four days that elapsed between 12 July 1962, when Neumeister was re-arrested, and 16 September 1964, when he regained his freedom. To the Governments contention that the only relevant period of detention is that previous to the filing of the Application (12 July 1963) the Commission replies that its work would be defeated if, in a case like this one, where there is a continuing situation, it were not competent to consider new facts subsequent to the filing of an application - which facts could just as easily be favourable to the respondent State.
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6. In the Commissions view, the second criterion by its very nature relates to the situation facing national authorities at the time of detention; thus it cannot be applied in retrospect, i.e. in the light of the sentence passed by the trial judge. Attempting to form a "tentative opinion" of the sentence to be expected by the Applicant in case of conviction, the Commission observes that: - section 203 of the Criminal Code provides for a sentence of five to ten years penal servitude; - the parties argued before it whether there was any proportion between the sentences that might be imposed and the damage caused by each of the accused in this case; but it does not propose to express any opinion on the matter; - Austrian legislation allows the courts to pass sentences lower than the usual minimum, provided there are extenuating circumstances. In view more particularly of this last possibility, of which Austrian courts are said to make plentiful use in practice, the Commission considers that the length of Neumeisters detention is close to the likely sentence in case of conviction. It also observes that under Section 55 (a) of the Austrian Criminal Code, the period of detention is as a rule to be counted as part of the sentence. However, the Commission does not view this as a factor likely to affect the judgment, in the light of the second criterion, as to whether the length of detention is reasonable; in this connection it stresses the uncertainty in which the prisoner has to live pending judgment. All in all, therefore, application of the second criterion is thought to indicate that the Applicants detention lasted longer than was reasonable. 7. The third criterion is said to point the same way, since Neumeister suffered professionally and financially to an unusual degree as a result of his detention. 8. With regard to the fourth criterion, the Commission finds that the Applicant does not appear to have prolonged the investigation unduly by his attitude. Of course he did not help shorten it, either, since he continually protested his innocence, but in doing so he was entirely within his rights. Neither does the Commission consider that the fact that he lodged a series of applications and availed himself of other remedies, in accordance with the law, indicates any intention on his part to delay proceedings abusively. His actions may, to be sure, have interrupted or slowed down the work of the Investigating Judge and the Public Prosecution by obliging them to forward the case record to the competent courts, but the Commission points out that there are in such cases technical means of ensuring uninterrupted work on the prosecution - for instance by making copies of the necessary documents. 9. In the Commissions view, the case in question was an exceedingly complicated one by reason of the nature, range and multiplicity of the transactions in question, their foreign ramifications and the number of accused and witnesses. Thus the fifth criterion would seem to justify a long period of detention. The Commission thinks however that the continued holding of Neumeister in detention cannot be explained by the difficulties of the preliminary investigation after it had been closed on 4 November 1963. 10. With regard to the sixth criterion, the Commission begins by analysing the provisions of Austrian law governing the preliminary investigation, in particular the distribution of cases among examining judges (Sections 83 (2) and 87 (3) of the Constitution, Section 18 of the Code of Criminal Procedure, Section 4 (2) of the "Gerichtsverfassungsnovelle" and Sections 17-19 of the "Geschftsordnung fr die Gerichtshfe Erster und Zweiter Instanz"); it then examines the course of the investigation of the Applicants case. It does not find that the competent organs neglected their duties or in any other similar way prolonged Neumeisters detention, but it considers that the
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working of the system in force caused certain delays, since the Investigating Judge had to deal with several very bulky and complicated cases at the same time. The Commission remarks that it has experienced some difficulty in finding out whether the allocation of cases can under Austrian law be changed once the annual distribution has been established. It points out that, while the Government denies that this can be done, the judge responsible for investigating the Matznetter case, which is also pending before the Court, was temporarily relieved of other cases. However, the Commission does not think it necessary to go further into the question: it is a general principle of international law that a State cannot invoke its own legislation to justify failure to fulfil its treaty obligations. The Commission therefore sees no reason to investigate whether the delays it has found to have occurred are the result of a legal obstacle or of failure to apply clauses by which they could have been avoided. In short, consideration of the facts in the light of the sixth criterion is said to suggest that the length of Neumeisters detention was excessive. It is true that, at the hearing in February 1968, the Governments representatives gave the Court further details of the steps taken to relieve the burden on the Investigating Judge (cf. infra). The Commissions answer is that those details would have caused it to amplify its Report somewhat if it had had them then; but that they are not of such a nature as to upset its conclusion. 11. The Commission considers that the conduct of the judicial authorities in connection with Neumeisters applications for release pending trial (first part of the seventh criterion) is open to differing evaluations. It therefore finds it hard to state with certainty whether or not an examination of this factor leads to the conclusion that the length of detention exceeded reasonable bounds. The Commission does not in any case accept the Governments argument (cf. infra) that Neumeister forfeited his right to "trial within a reasonable time" on the day the Judges Chamber of the Regional Criminal Court of Vienna first agreed in principle to release him on bail (8 January 1964). It asserts that the second sentence of Article 5 (3) (art. 5-3) of the Convention affords the Contracting States a middle way between continuing detention and outright release, but it does not consider that resort to that solution gives a Government an excuse for keeping in detention indefinitely a person who refuses to provide the security demanded, especially if he is in no position to do so: otherwise a Government could easily evade its obligations by requiring excessive guarantees. The Commission adds that the second part of the seventh criterion (the conduct of the judicial authorities in completing the trial) is inapplicable here in connection with Article 5 (3) (art. 5-3), since Neumeister was released before the trial opened. 12. In the light of an overall evaluation of these various factors, the Commission concludes, by eleven votes to one, that Article 5 (3) (art. 5-3) has been violated. It does not state the exact date on which it considers the violation to have begun: it thinks that its task was solely to give an opinion on whether or not the period of Neumeisters detention was reasonable. 13. In the Commissions view, the problem of the "time" stipulated in Article 6 (1) (art. 6-1) of the Convention is different from the problem under Article 5 (3) (art. 5-3), for the relevance of the former Article does not depend on the fact of detention. In a criminal case the period in question is thought by the Commission to date from the day on which the suspicion against a person begins to have substantial repercussions on his situation. In the present case, the Commission, by seven votes to five, has taken this to be the day of Neumeisters first interrogation by the Investigating Judge (21 January 1960) not, for instance, the date on which the charge was preferred (17 March 1964).
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The Commission furthermore considers, by nine votes to three, that the "time" referred to in Article 6 (art. 6) does not end with the opening of the trial or the hearing of the accused by the trial court (cf. the words "entendue" and "hearing") but, at the very least, with the "determination" by the court of first instance "of any criminal charge against him" ("... dcidera ... du bien-fond de toute accusation") - which has not yet come about in this case. The Commission does not think it necessary in the present instance to consider here whether this "time" would also include appeal proceedings, if any. For the purpose of determining whether a period of time is "reasonable" the Commission considers that several of the criteria it applies in connection with Article 5 (3) (art. 5-3) (the first, fourth, fifth, sixth and both parts of the seventh) also have a bearing, mutatis mutandis, on Article 6 (1) (art. 6-1). The Commission holds, in short, by six votes - including its Presidents casting vote - to six, that Neumeister was not heard within a reasonable time and that Article 6 (1) (art. 6-1) has thus not been observed in this respect. It does not attach great weight to the fact that Neumeister hardly complained at all on this score: it believes that it is competent to consider any point of law that seems to it to arise from the facts of an application, and if necessary to do so in relation to an article of the Convention not expressly invoked by the Applicant; this is said to be borne out by its previous practice and by Rule 41 (1) (d) of its Rules of Procedure. 14. In the Commissions view, the procedure in Austria for considering applications for release pending trial lies outside the scope of Article 6 (1) (art. 6-1) of the Convention, for it is concerned with the determination neither of a "criminal charge" (unanimous vote) nor of "civil rights and obligations" (seven votes to five). Unlike the Government (see below), the Commission does not think that Article 6 (art. 6) leaves it to the municipal law of each Contracting State to define the words quoted above. However, it does not feel able to interpret them broadly enough to cover the procedure in question. With the intention of explaining its views on the autonomous concept of "civil rights and obligations", it refers in particular to the "travaux prparatoires" on the Convention and its own earlier rulings. The Commission thinks it can be maintained that Article 5 (4) (art. 5-4) of the Convention, in stipulating that the lawfulness of detention shall be decided by a court, demands respect for certain fundamental principles. However, it does not find the procedure laid down in Sections 113 and 114 of the Austrian Code of Criminal Procedure to be contrary to that requirement (seven votes to five). The Commission concludes, by eight votes to two with two abstentions, that the proceedings on Neumeisters release involved no violation of either Article 5 (4) (art. 5-4) or Article 6 (1) (art. 6-1). 15. The Commission draws the Courts attention to the individual opinions - some concurring and some dissenting - expressed in its Report by certain of its members with regard to the various questions that arise in this case.

AS TO THE LAW A. The question whether the length of Neumeisters detention exceeded the reasonable time laid down in Article 5 (3) (art. 5-3) of the Convention 3. Under Article 5 (3) (art. 5-3) "everyone arrested or detained in accordance with the provisions of paragraph 1 (c)" of that Article (art. 5-1-c) "shall be entitled", inter alia, "to
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trial within a reasonable time or to release pending trial"; it is also provided that "release may be conditioned by guarantees to appear for trial". 4. The Court is of the opinion that this provision cannot be understood as giving the judicial authorities a choice between either bringing the accused to trial within a reasonable time or granting him provisional release even subject to guarantees. The reasonableness of the time spent by an accused person in detention up to the beginning of the trial must be assessed in relation to the very fact of his detention. Until conviction, he must be presumed innocent, and the purpose of the provision under consideration is essentially to require his provisional release once his continuing detention ceases to be reasonable. This is, moreover, the intention behind the Austrian legislation (Section 190 (1) of the Code of Criminal Procedure). 5. The Court is likewise of the opinion that, in determining in a given case whether or not the detention of an accused person exceeds a reasonable limit, it is for the national judicial authorities to seek all the facts arguing for or against the existence of a genuine requirement of public interest justifying a departure from the rule of respect for individual liberty. It is essentially on the basis of the reasons given in the decisions on the applications for release pending trial, and of the true facts mentioned by the Applicant in his appeals, that the Court is called upon to decide whether or not there has been a violation of the Convention. 6. In the present case Neumeister was subjected to two periods of detention on remand, the first from 24 February 1961 to 12 May 1961, lasting two months and seventeen days, and the second from 12 July 1962 to 16 September 1964, lasting two years, two months and four days. Admittedly the Court cannot consider whether or not the first period was compatible with the Convention; for even supposing that in 1961 Neumeister availed himself of certain remedies and exhausted them, he did not approach the Commission until 12 July 1963, that is to say, after the six-month time-limit laid down in Article 26 (art. 26) of the Convention had expired. That period of detention nevertheless constituted a first departure from respect for the liberty which Neumeister could in principle claim. In the event of his being convicted, this first period would normally be deducted from the term of imprisonment to which he would be sentenced (Section 55 (a) of the Austrian Criminal Code); it would thus reduce the actual length of imprisonment which might be expected. It should therefore be taken into account in assessing the reasonableness of his later detention. Moreover it is observed that the Austrian Government has accepted that the period spent by Neumeister in detention after his second arrest, on 12 July 1962, should be taken into account by the Court, although his Application was filed with the Commission more than six months after the final decision on his first request for provisional release. 7. The Austrian Government, however, has argued that the Court could not consider Neumeisters detention subsequent to 12 July 1963, the day on which he filed his Application, as the Application could relate only to facts that had taken place before this date. The Court considers it cannot accept this view. In his Application of 12 July 1963 Neumeister complained not of an isolated act but rather of a situation in which he had been for some time and which was to last until it was ended by a decision granting him provisional release, a decision which he sought in vain for a considerable time. It would be excessively formalistic to demand that an Applicant denouncing such a situation should file a new Application with the Commission after each final decision rejecting a request for
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release. This would pointlessly involve both the Commission and the Court in a confusing multiplication of proceedings which would tend to paralyse their working. For these reasons, the Court has found that it must examine Neumeisters continued detention on remand until his provisional release on 16 September 1964. 8. What strikes one first when examining the circumstances surrounding Neumeisters second detention is that, while his arrest on 12 July 1962 had been provoked by the recent statements of his co-accused Rafael, the Applicant, who had already been the subject of a long investigation, was not interrogated again during the fifteen months which elapsed between his second arrest (12 July 1962) and the close of the investigation (4 November 1963). On 21 January 1963, it is true, he was confronted with Rafael, but this confrontation, which was interrupted after a few minutes, was not recommenced, contrary to what was to be inferred from the minutes. Such a state of affairs called for particular attention on the part of the judicial authorities when examining the applications which Neumeister made to them with a view to obtaining his release pending trial. 9. The reason invoked by the authorities to justify their rejection of the applications for release was that mentioned in the arrest warrant of 12 July 1962, namely the danger that, by absconding, Neumeister would avoid appearing before the court that was to try him. In the view of the judicial authorities, this danger resulted from the anxiety which must have been caused to Neumeister by the statements made by his co-accused Rafael during his interrogations in January 1962 and his confrontations with Neumeister on 10 and 11 July 1962; these had, they argued, to such an extent aggravated the case against the accused and increased both the severity of the sentence to be expected in the event of his conviction and the amount of loss for which he could be held responsible that they must have given him a considerable temptation to abscond and thereby evade this two-fold - civil and criminal - liability. The first Austrian decisions found confirmation of this danger of flight in the fact that Neumeister was said to have continued the preparations for his trip to Finland after becoming aware of the worsening of his position and after being informed by the Investigating Judge that permission for the journey had been refused. 10. The Court finds it understandable that the Austrian judicial authorities considered the danger of flight as having been much increased in July 1962 by the greater gravity of the criminal and civil penalties which Rafaels new statements must have caused Neumeister to fear. The danger of flight cannot, however, be evaluated solely on the basis of such considerations. Other factors, especially those relating to the character of the person involved, his morals, his home, his occupation, his assets, his family ties and all kinds of links with the country in which he is being prosecuted may either confirm the existence of a danger of flight or make it appear so small that it cannot justify detention pending trial. It should also be borne in mind that the danger of flight necessarily decreases as the time spent in detention passes by for the probability that the length of detention on remand will be deducted from the period of imprisonment which the person concerned may expect if convicted, is likely to make the prospect seem less awesome to him and reduce his temptation to flee. 11. In the present case, Neumeisters counter-arguments against the reasons given by the Austrian judicial authorities in justification of his provisional detention have been summarised above (statement of the the facts, paras 13, 14, 16 and 18). The Applicant referred, both in his appeals and also before the Commission, to various circumstances relating to his settled position in Vienna, which were such as to combat any temptation for
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him to flee. His explanations of the alleged continuation of his preparations for his journey to Finland are confirmed by a study of the documents on the file and were not contradicted by the Investigating Judge in the course of his examination by the Commission (statement of the facts, paras 11, 12 and 14). The Investigating Judge also admitted before the Commission that he personally did not believe that Neumeister intended to abscond in order to avoid appearing at his trial (statement of the facts, para. 11). Such a statement from a judge who, in the course of the long investigation conducted since 1959, must have become well acquainted with the Applicant is certainly not without importance. 12. The Court is of the opinion that in these circumstances the danger that Neumeister would avoid appearing at the trial by absconding was, in October 1962 in any event, no longer so great that it was necessary to dismiss as quite ineffective the taking of the guarantees which, under Article 5 (3) (art. 5-3) may condition a grant of provisional release in order to reduce the risks which it entails. However, this was precisely the attitude of the Austrian judicial authorities when for the first time, on 26 October 1962, Neumeister proposed a bank guarantee of 200,000 or, if necessary, 250,000 schillings (statement of the facts, para. 14), again when this offer was repeated on 12 July 1963 (statement of the facts, para. 16) and even when the offer of bail was increased by his lawyer on 6 November 1963 to one million schillings (statement of the facts, para. 18). 13. The Court is not in a position to state an opinion as to the amount of security which could reasonably be demanded of Neumeister, and it does not reject the notion that the first offers could have been dismissed as insufficient. It notes however that the Austrian courts based their calculations mainly on the amount of loss resulting from the offences imputed to Neumeister which he might be called upon to make good. The loss was such that, according to the decisions given, the offer of a bank guarantee could not be considered ("indiskutabel", statement of the facts, paras. 14 and 16). This refusal by the judicial authorities to take any account whatsoever of the successive offers of bail made by Neumeister became less and less justified the nearer the offers came to the sum which could reasonably be considered sufficient to ensure his appearance at the trial. 14. When the principle of release conditioned by guarantees seemed acceptable, it was still exclusively in relation to the amount of loss that the amount of security required was fixed successively at 2,000,000, 1,750,000 and 1,250,000 schillings, finally to be reduced on 3 June 1964 to the sum of one million schillings which Neumeister was able to provide only on 16 September. This concern to fix the amount of the guarantee to be furnished by a detained person solely in relation to the amount of the loss imputed to him does not seem to be in conformity with Article 5 (3) (art. 5-3) of the Convention. The guarantee provided for by that Article (art. 5-3) is designed to ensure not the reparation of loss but rather the presence of the accused at the hearing. Its amount must therefore be assessed principally by reference to him, his assets and his relationship with the persons who are to provide the security, in other words to the degree of confidence that is possible that the prospect of loss of the security or of action against the guarantors in case of his non-appearance at the trial will act as a sufficient deterrent to dispel any wish on his part to abscond. 15. For these reasons, the Court finds that Neumeisters continued provisional detention until 16 September 1964 constituted a violation of Article 5 (3) (art. 5-3) of the Convention.
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B. The question whether the proceedings against Neumeister lasted beyond the reasonable time laid down in Article 6 (1) (art. 6-1) of the Convention 16. The Commission has expressed the opinion that it is competent to consider, even ex officio, whether the facts referred to it in an application disclose violations of the Convention other than those of which the application complains. This is certainly the case, and the same is true of the Court, as has already been held in the judgment of 1st July 1961 on the merits of the Lawless case (Publications of the Court, Series A, 1960-61, page 60, para. 40). It is however doubtful whether the question arose in the present case, since Article 6 (1) (art. 6-1) was expressly mentioned in the document filed by the Applicant in July 1963 (statement of the facts, paras. 28 and 30). In any event, as the whole of the proceedings against Neumeister since he was charged has been referred to it, the Court is of opinion that it must examine, as the Commission has done, whether or not the facts of the case disclose a violation of Article 6 (1) (art. 6-1). 17. The first paragraph of Article 6 (art. 6-1) provides that "in the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by (a) ... tribunal ...". 18. The period to be taken into consideration for verifying whether this provision has been observed necessarily begins with the day on which a person is charged, for otherwise it would not be possible to determine the charge, as this word is understood within the meaning of the Convention. The Court notes that Neumeister was charged on 23 February 1961. 19. Article 6 (1) (art. 6-1), furthermore, indicates as the final point, the judgment determining the charge; this may be a decision given by an appeal court when such a court pronounces upon the merits of the charge. In the present case there has not yet been a judgment on the merits. Neumeister appeared before the trial judge on 09 November 1964, but a decision given on 18 June 1965 called for further measures of investigation, and the trial was reopened on 4 December 1967. It goes without saying that none of these dates may be accepted as the end of the period to which Article 6 (1) (art. 6-1) applies. 20. That more than seven years have already elapsed since the laying of charges without any determination of them having yet been made in a judgment convicting or acquitting the accused, certainly indicates an exceptionally long period which in most cases should be considered as exceeding the reasonable time laid down in Article 6 (1) (art. 6-1). Moreover, an examination of the table by the Austrian Government of the activities of the Investigating Judge between 12 July 1962 and the close of the investigation on 4 November 1963 (Appendix IV of the Commissions Report), gives rise to serious disquiet. Not only was there during those fifteen months, as the Court has already noted (para. 8), no interrogation of Neumeister nor any confrontation of any importance with the other accused persons whose statements are said to have caused the Applicants second arrest, but between 24 June 1963 and 18 September of the same year, the Judge did not interrogate any of the numerous co-accused or any witness, nor did he proceed to any other measure of investigation. Lastly, it is indeed disappointing that the trial was not able to commence before 9 November 1964, that is a year after the closing of the investigation, and even more disappointing that, following such a long investigation, the trial court was compelled, after sitting for several months, to order further investigations which were not all caused by the statements of the accused Huber, who had remained silent until the trial.
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21. The Court does not however consider these various facts sufficient to warrant the conclusion that the reasonable time laid down in Article 6 (1) (art. 6-1) of the Convention was exceeded in the present case. It is beyond doubt that the Neumeister case was of extraordinary complexity by reason of the circumstances mentioned above (statement of the facts, para. 20). It is, for example, not possible to hold the Austrian judicial authorities responsible for the difficulties they encountered abroad in obtaining the execution of their numerous letters rogatory (arguments of the Government, para. 24). The need to wait for replies probably explains the delay in closing the investigation, despite the fact that no further measures of investigation remained to be conducted in Austria. The course of the investigation would probably have been accelerated had the Applicants case been severed from those of his co-accused, but nothing suggests that such a severance would here have been compatible with the good administration of justice (arguments of the Government, section 25 in fine). Neither does the Court believe that the course of the investigation would have been accelerated, if it had been allocated to more than one judge, even supposing that this had been legally possible. It also notes that, although the designated Judge could not in fact be relieved of the financial cases of which he had been seized before 1959, many other cases which would normally have fallen to him after this date were assigned to other judges (arguments of the Government, para. 25). It should moreover be pointed out that a concern for speed cannot dispense those judges who in the system of criminal procedure in force on the continent of Europe are responsible for the investigation or the conduct of the trial from taking every measure likely to throw light on the truth or falsehood of the charges (Grundsatz der amtswegigen Wahrheitserforschung). Finally, it is obvious that the delays in opening and reopening the hearing were in large part caused by the need to give the legal representatives of the parties and also the judges sitting on the case time to acquaint themselves with the case record, which comprised twenty-one volumes of about five hundred pages each as well as a large number of other documents (statement of the facts, para. 19).

FOR THESE REASONS, THE COURT Holds unanimously that there has been a breach of Article 5 (3) (art. 5-3) of the Convention; Holds by five votes to two that there has been no breach of Article 6 (1) (art. 6-1) of the Convention as regards the length of the proceedings against the Applicant; Holds unanimously that there has been no breach of Article 5 (4) (art. 5-4) or Article 6 (1) (art. 6-1) of the Convention as to the procedure followed in examining the requests for provisional release lodged by F. Neumeister; and Decides, accordingly, that the facts of the case disclose, on one of the three points at issue, a breach by the Republic of Austria of its obligations arising from the Convention.

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P v S and Cornwall County Council (ECJ) Case C-13/94 P v S and Cornwall County Council [1996] ECR I-2143
Grounds

1 By order of 11 January 1994, received at the Court on 13 January 1994, the Industrial Tribunal, Truro, referred to the Court for a preliminary ruling under Article 177 of the EC Treaty two questions on the interpretation of Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions (OJ 1976 L 39, p. 40 hereinafter "the directive"). 2 Those questions were raised in proceedings brought by P. against S. and Cornwall County Council. 3 P., the applicant in the main proceedings, used to work as a manager in an educational establishment operated at the material time by Cornwall County Council (hereinafter "the County Council"), the competent administrative authority for the area. In early April 1992, a year after being taken on, P. informed S., the Director of Studies, Chief Executive and Financial Director of the establishment, of the intention to undergo gender reassignment. This began with a "life test", a period during which P. dressed and behaved as a woman, followed by surgery to give P. the physical attributes of a woman. 4 At the beginning of September 1992, after undergoing minor surgical operations, P. was given three months' notice expiring on 31 December 1992. The final surgical operation was performed before the dismissal took effect, but after P. had been given notice. 5 P. brought an action against S. and the County Council before the Industrial Tribunal on the ground that she had been the victim of sex discrimination. S. and the County Council maintained that the reason for her dismissal was redundancy. 6 It appears from the order for reference that the true reason for the dismissal was P.' s proposal to undergo gender reassignment, although there actually was redundancy within the establishment. 7 The Industrial Tribunal found that such a situation was not covered by the Sex Discrimination Act 1975, inasmuch as it applies only to cases in which a man or woman is treated differently because he or she belongs to one or the other of the sexes. Under English law, P. is still deemed to be male. If P. had been female before her gender reassignment, the employer would still have dismissed her on account of that operation. However, the Industrial Tribunal was uncertain whether that situation fell within the scope of the directive.
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8 According to Article 1(1), the purpose of the directive is to put into effect in the Member States the principle of equal treatment for men and women, in particular as regards access to employment, including promotion, and to vocational training, and as regards working conditions. Article 2(1) of the directive provides that the principle of equal treatment means that there is to be "no discrimination whatsoever on grounds of sex, either directly or indirectly". 9 Furthermore, the third recital in the preamble to the directive states that equal treatment for men and women constitutes one of the objectives of the Community, in so far as the harmonization of living and working conditions while maintaining their improvement is to be furthered. 10 Considering that there was doubt as to whether the scope of the directive is wider than that of the national legislation, the Industrial Tribunal decided to stay proceedings and refer the following questions to the Court for a preliminary ruling: "(1) Having regard to the purpose of Directive No 76/207/EEC which is stated in Article 1 to put into effect the principle of equal treatment for men and women as regards access to employment etc ... does the dismissal of a transsexual for a reason related to a gender reassignment constitute a breach of the Directive? (2) Whether Article 3 of the Directive which refers to discrimination on grounds of sex prohibits treatment of an employee on the grounds of the employee' s transsexual state." 11 Article 3 of the directive, to which the Industrial Tribunal refers, is concerned with application of the principle of equal treatment for men and women to access to employment. 12 A dismissal, such as is in issue in the main proceedings, must be considered in the light of Article 5(1) of the directive, which provides that: "Application of the principle of equal treatment with regard to working conditions, including the conditions governing dismissal, means that men and women shall be guaranteed the same conditions without discrimination on grounds of sex." 13 The Industrial Tribunal' s two questions, which may appropriately be considered together, must therefore be construed as asking whether, having regard to the purpose of the directive, Article 5(1) precludes dismissal of a transsexual for a reason related to his or her gender reassignment. 14 The United Kingdom and the Commission submit that to dismiss a person because he or she is a transsexual or because he or she has undergone a gender-reassignment operation does not constitute sex discrimination for the purposes of the directive.

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15 In support of that argument, the United Kingdom points out in particular that it appears from the order for reference that the employer would also have dismissed P. if P. had previously been a woman and had undergone an operation to become a man. 16 The European Court of Human Rights has held that "the term 'transsexual' is usually applied to those who, whilst belonging physically to one sex, feel convinced that they belong to the other; they often seek to achieve a more integrated, unambiguous identity by undergoing medical treatment and surgical operations to adapt their physical characteristics to their psychological nature. Transsexuals who have been operated upon thus form a fairly welldefined and identifiable group" (judgment of 17 October 1986, in Rees v United Kingdom, paragraph 38, Series A, No 106). 17 The principle of equal treatment "for men and women" to which the directive refers in its title, preamble and provisions means, as Articles 2(1) and 3(1) in particular indicate, that there should be "no discrimination whatsoever on grounds of sex". 18 Thus, the directive is simply the expression, in the relevant field, of the principle of equality, which is one of the fundamental principles of Community law. 19 Moreover, as the Court has repeatedly held, the right not to be discriminated against on grounds of sex is one of the fundamental human rights whose observance the Court has a duty to ensure (see, to that effect, Case 149/77 Defrenne v Sabena [1978] ECR 1365, paragraphs 26 and 27, and Joined Cases 75/82 and 117/82 Razzouk and Beydoun v Commission [1984] ECR 1509, paragraph 16). 20 Accordingly, the scope of the directive cannot be confined simply to discrimination based on the fact that a person is of one or other sex. In view of its purpose and the nature of the rights which it seeks to safeguard, the scope of the directive is also such as to apply to discrimination arising, as in this case, from the gender reassignment of the person concerned. 21 Such discrimination is based, essentially if not exclusively, on the sex of the person concerned. Where a person is dismissed on the ground that he or she intends to undergo, or has undergone, gender reassignment, he or she is treated unfavourably by comparison with persons of the sex to which he or she was deemed to belong before undergoing gender reassignment. 22 To tolerate such discrimination would be tantamount, as regards such a person, to a failure to respect the dignity and freedom to which he or she is entitled, and which the Court has a duty to safeguard. 23 Dismissal of such a person must therefore be regarded as contrary to Article 5(1) of the directive, unless the dismissal could be justified

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under Article 2(2). There is, however, no material before the Court to suggest that this was so here. 24 It follows from the foregoing that the reply to the questions referred by the Industrial Tribunal must be that, in view of the objective pursued by the directive, Article 5(1) of the directive precludes dismissal of a transsexual for a reason related to a gender reassignment. Operative part

On those grounds, THE COURT, in answer to the questions referred to it by the Industrial Tribunal, Truro, by order of 11 January 1994, hereby rules: In view of the objective pursued by Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions, Article 5(1) of the directive precludes dismissal of a transsexual for a reason related to a gender reassignment.

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Patrick v Ministre des affairs culturelle Case 11/77 Patrick v Ministre des affairs culturelles [1977] ECR 1199
Summary 1 . The rule on equal treatment with nationals is one of the fundamental legal provisions of the community . As a reference to a set of legislative provisions effectively applied by the country of establishment to its own nationals , this rule is , by its essence , capable of being directly invoked by nationals of all the other member states . In laying down that freedom of establishment shall be attained at the end of the transitional period , article 52 imposes an obligation to attain a precise result , the fulfilment of which had to be made easier by , but not made dependent on , the implemen- tation of a programme of progressive measures . Since the end of the transitional period article 52 of the treaty has been a directly applicable provision , despite the absence , in a particular sphere , of the directives prescribed by articles 54 ( 2 ) and 57 ( 1 ) of the treaty . 2 . In the absence of transitional pro- visions concerning the right of establishment in the treaty of accession of 22 january 1972 , the principle contained in article 52 has , in the case of the new member states and their nationals , been fully effective since the entry into force of the said treaty , that is , since 1 january 1973 . Thus a member state cannot , after 1 january 1973 , make the exercise of the right to free establishment by a national of a new member
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state subject to an exceptional authorization in so far as he fulfils the conditions laid down by the legislation of the country of establishment for its own nationals . 3 . The legal requirement , in the various member states , relating to the pos- session of qualifications for admission to certain professions constitutes a restriction on the effective exercise of the freedom of establishment the abolition of which is , under article 57 ( 1 ), to be made easier by directives of the council for the mutual recognition of diplomas , certificates and other evidence of formal qualifications . Nevertheless , the fact that those directives have not yet been issued does not entitle a member state to deny the practical benefit of that freedom to a person subject to community law when the freedom of establishment provided for by article 52 can be ensured in that member state by virtue in particular of the provisions of the laws and regulations already in force . Grounds 1 by order of 3 january 1977 , lodged at the court registry on 25 january 1977 , the tribunal administratif , paris , referred to the court a question concerning the interpretation of articles 52 to 54 of the eec treaty concerning the right of establishment . 2 this question was submitted in connexion with a dispute between the french minister for cultural affairs and a british subject who possessed an architect ' s certificate issued in the united kingdom by the architectural association and who , early in 1973 , applied for authorization to practise as an architect in france . 3 under the first subparagraph of article 2 ( 2 ) of the french law of 31 december 1940 establishing the order of architects and governing the title and profession of architect , ' nationals of foreign countries shall be authorized to practise the profession of architect in france subject to the conditions of reciprocity laid down by diplomatic conventions and to production of a certificate equivalent to the certificate required for french architects ' . 4 under the third subparagraph of article 2 ( 2 ), ' foreigners not covered by provisions of a convention may , exceptionally , receive the said authorization ' . 5 under a ministerial decree of 22 june 1964 , adopted in implementation of this provision , holders of certificates issued by the aforesaid architectural association were considered to fulfil the conditions concerning equivalent qualifications laid down in the above-mentioned article 2 ( 2 ). 6 by decision of 9 august 1973 the applicant was refused the authorization requested on the ground that , under the provisions of the law of 31 december 1940 , such authorization continued to be exceptional in cases where there was no convention of reciprocity between france and the applicant ' s country of origin and that , in the absence of a specific convention for this purpose between member states of the eec and , in particular , between france and the united kingdom , the treaty establishing the european economic community could not be a substitute for such a convention because articles 52 to 58 concerning freedom of establishment referred , for the attainment of this freedom , to directives of the council which had not yet been issued . 7 the tribunal administratif , paris , to which an application has been made for the annulment of this decision , asks the court whether , ' in the state of community law on 9 august 1973 , . . . A british subject was entitled to invoke in his favour the benefit of the right of establishment to practise the profession of architect in a member state of the community ' . 8 under the provisions of article 52 of the treaty , freedom of establishment shall include the right to take up activities as self-employed persons and to pursue them ' under the conditions

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laid down for its own nationals by the law of the country where such establishment is effected '. 9 as the court of justice held in its judgment of 21 june 1974 ( reyners v belgium , case 2/74 ( 1974 ) ecr 631 ), the rule on equal treatment with nationals is one of the fundamental legal provisions of the community and , as a reference to a set of legislative provisions effectively applied by the country of establishment to its own nationals , this rule is , by its essence , capable of being directly invoked by nationals of all the other member states . 10 in laying down that , in the case of the old member states and their nationals , freedom of establishment shall be attained at the end of the transitional period , article 52 thus imposes an obligation to attain a precise result , the fulfilment of which had to be made easier by , but not made dependent on , the implementation of a programme of progressive measures . 11 the fact that this progression has not been adhered to leaves the obligation itself intact beyond the end of the period provided for its fulfilment . 12 it is not possible to invoke against the direct effect of the rule on equal treatment with nationals contained in article 52 the fact that the council has failed to issue the directives provided for by articles 54 and 57 or the fact that certain of the directives actually issued have not fully attained the objectives of non-discrimination required by article 52 . 13 after the expiry of the transitional period the directives provided for by the chapter on the right of establishment have become superfluous with regard to implementing the rule on nationality , since this is henceforth sanctioned by the treaty itself with direct effect . 14 in the absence of transitional provisions concerning the right of establishment in the treaty of accession of 22 january 1972 , the principle contained in article 52 has , in the case of the new member states and their nationals , been fully effective since the entry into force of the said treaty , that is , since 1 january 1973 . 15 thus a member state cannot , after 1 january 1973 , make the exercise of the right to free establishment by a national of a new member state subject to an exceptionel authorization in so far as he fulfils the conditions laid down by the legislation of the country of establishment for its own nationals . 16 in this connexion the legal requirement , in the various member states , relating to the possession of qualifications for admission to certain professions constitutes a restriction on the effective exercise of the freedom of establishment the abolition of which is , under article 57 ( 1 ), to be made easier by directives of the council for the mutual recognition of diplomas , certificates and other evidence of formal qualifications . 17 nevertheless , the fact that those directives have not yet been issued does not entitle a member state to deny the practical benefit of that freedom to a person subject to community law when the freedom of establishment provided for by article 52 can be ensured in that member state by virtue in particular of the provisions of the laws and regulations already in force . 18 the answer to the question referred to the court must therefore be that , with effect from 1 january 1973 , a national of a new member state who holds a qualification recognized by the competent authorities of the member state of establishment as equivalent to the certificate issued and required in that state enjoys the right to be admitted to the profession of architect and to practise it under the same conditions as nationals of the member state of establishment without being required to satisfy any additional conditions . Operative part

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On those grounds , The court , In answer to the question referred to it by the tribunal administratif , paris , by order of 3 january 1977 hereby rules : With effect from 1 january 1973 , a national of a new member state who holds a qualification recognized by the competent authorities of the member state of establishment as equivalent to the certificate issued and required in that state enjoys the right to be admitted to the profession of architect and to practise it under the same conditions as nationals of the member state of establishment without being required to satisfy any additional conditions

Schmidberger v Austria (ECJ)

Case C-112/00 Schmidberger v Austria [2003] ECR I-5659

Case C-112/00

Eugen Schmidberger, Internationale Transporte und Planzge v Republik sterreich

(Reference for a preliminary ruling from the Oberlandesgericht Innsbruck (Austria))

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(Free movement of goods Restriction resulting from actions of individuals Obligations of the Member States Decision not to prohibit a demonstration by environmental protesters which resulted in the complete closure of the Brenner motorway for almost 30 hours Justification Fundamental rights Freedom of expression and freedom of assembly Principle of proportionality) Opinion of Advocate General Jacobs delivered on 11 July 2002 I - 0000

Judgment of the Court, 12 June 2003

I - 0000

JUDGMENT OF THE COURT 12 June 2003 (1) ((Free movement of goods Restriction resulting from actions of individuals Obligations of the Member States Decision not to prohibit a demonstration by environmental protesters which resulted in the complete closure of the Brenner motorway for almost 30 hours Justification Fundamental rights Freedom of expression and freedom of assembly Principle of proportionality)) In Case C-112/00, REFERENCE to the Court under Article 234 EC by the Oberlandesgericht Innsbruck (Austria) for a preliminary ruling in the proceedings pending before that court between Eugen Schmidberger, Internationale Transporte und Planzge and Republik sterreich, on the interpretation of Articles 30, 34 and 36 of the EC Treaty (now, after amendment, Articles 28 EC, 29 EC and 30 EC) read together with Article 5 of the EC Treaty (now Article 10 EC), and on the conditions for liability of a Member State for damage caused to individuals by a breach of Community law, THE COURT,, composed of: G.C. Rodrguez Iglesias, President, J.-P. Puissochet, M. Wathelet and R. Schintgen (Rapporteur) (Presidents of Chambers), C. Gulmann, D.A.O. Edward, P. Jann, V. Skouris, F. Macken, N. Colneric, S. von Bahr, J.N. Cunha Rodrigues and A. Rosas, Judges, Advocate General: F.G. Jacobs, Registrar: H.A. Rhl (Principal Administrator), after considering the written observations submitted on behalf of: Eugen Schmidberger, Internationale Transporte und Planzge, by K.-H. Plankel, H. Mayrhofer and R. Schneider, Rechtsanwlte, the Republic of Austria, by A. Riccabona, acting as Agent, the Austrian Government, by H. Dossi, acting as Agent, the Greek Government, by N. Dafniou and G. Karipsiadis, acting as Agents,
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the Italian Government, by U. Leanza, acting as Agent, assisted by O. Fiumara, vice avvocato generale dello Stato, the Netherlands Government, by M.A. Fierstra, acting as Agent, the Commission of the European Communities, by J.C. Schieferer, acting as Agent, having regard to the Report for the Hearing, after hearing the oral observations of Eugen Schmidberger, Internationale Transporte und Planzge, represented by R. Schneider; the Republic of Austria, represented by A. Riccabona; the Austrian Government, represented by E. Riedl, acting as Agent; the Greek Government, represented by N. Dafniou and G. Karipsiadis; the Italian Government, represented by O. Fiumara; the Netherlands Government, represented by H.G. Sevenster, acting as Agent; the Finnish Government, represented by T. Pynn, acting as Agent; and the Commission, represented by J.C. Schieferer and J. Grunwald, acting as Agent, at the hearing on 12 March 2002, after hearing the Opinion of the Advocate General at the sitting on 11 July 2002, gives the following Judgment 1 By order of 1 February 2000, received at the Court on 24 March 2000, the Oberlandesgericht Innsbruck (Innsbruck Higher Regional Court) referred under Article 234 EC six questions for a preliminary ruling on the interpretation of Articles 30, 34 and 36 of the EC Treaty (now, after amendment, Articles 28 EC, 29 EC and 30 EC) read together with Article 5 of the EC Treaty (now Article 10 EC), and on the conditions for liability of a Member State for damage caused to individuals by a breach of Community law. 2 Those questions were raised in proceedings between Eugen Schmidberger, Internationale Transporte und Planzge ( Schmidberger) and the Republic of Austria concerning the permission implicitly granted by the competent authorities of that Member State to an environmental group to organise a demonstration on the Brenner motorway, the effect of which was to completely close that motorway to traffic for almost 30 hours. National law 3 Paragraph 2 of the Versammlungsgesetz (Law on assembly) of 1953, as subsequently amended ( VslgG) provides: (1) A person desirous of arranging a popular meeting or any meeting accessible to the public and not limited to invited guests must give written notice thereof to the authority (Paragraph 16) at least 24 hours in advance of the proposed event, stating the purpose, place and time of the meeting. The notice must reach the authority at least 24 hours before the time of the proposed meeting. (2) On demand the authority shall forthwith issue a certificate concerning the notice ... . 4
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Paragraph 6 of the VslgG provides: Meetings whose purpose runs counter to the criminal law or which, if held, are likely to endanger public order or the common weal are to be banned by the authorities. 5 Paragraph 16 of the VslgG provides: For the purposes of the present law, the usual meaning of the authority is: (a) in places within their competence, the Federal Police; (b) in the place where the Landeshauptmann [head of government of the Land] has his seat of government, where there is no Federal Police presence, the Sicherheitsdirektion [the security services]; ... (c) in all other places, the Bezirksverwaltungsbehrde [district administrative authority] . 6 Paragraph 42(1) of the Straenverkehrsordnung (Highway Code) of 1960, as subsequently amended ( the StVO), prohibits the transport by road of heavy goods trailers on Saturdays from 15.00 hrs to midnight and on Sundays and bank holidays from midnight to 22.00 hrs where the maximum permitted total weight of the heavy goods vehicle or of the trailer exceeds 3.5 tonnes. Further, according to Paragraph 42(2), during the periods stated in Paragraph 42(1) the movement of heavy goods vehicles, articulated lorries and rigid-chassis lorries having a maximum permitted total weight in excess of 7.5 tonnes is prohibited. Certain exceptions are permitted, in particular for the transport of milk, perishable foodstuffs or animals for slaughter (except for the transport of cattle on motorways). 7 Under Paragraph 42(6) of the StVO, the movement of heavy goods vehicles having a maximum permitted total weight in excess of 7.5 tonnes is prohibited between 22.00 hrs and 05.00 hrs. The journeys made by vehicles emitting noise below a certain level are not affected by that prohibition. 8 Pursuant to Paragraph 45(2) et seq. of the StVO, derogations in respect of road use may be granted in respect of individual applications and subject to certain conditions. 9 Paragraph 86 of the StVO provides: Marches. Unless provided otherwise, where it is intended to use a road for outdoor meetings, public or customary marches, local ftes, parades or other such assemblies, these must be declared in advance by their organisers to the authority .... The main proceedings and the questions referred for a preliminary ruling 10 According to the file in the main proceedings, on 15 May 1998 the Transitforum Austria Tirol, an association to protect the biosphere in the Alpine region, gave notice to the Bezirkshauptmannschaft Innsbruck (Innsbruck provincial government) under Paragraph 2 of the VslgG and Paragraph 86 of the StVO of a demonstration to be held from 11.00 hrs on Friday 12 June 1998 to 15.00 hrs on Saturday 13 June 1998 on the Brenner motorway (A13), resulting in that motorway being closed to all traffic on the section from the Europabrcke service area to the Schnberg toll station (Austria). 11

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On the same day, the chairman of that association gave a press conference following which the Austrian and German media disseminated information concerning the closure of the Brenner motorway. The German and Austrian motoring organisations were also notified and they too offered practical information to motorists, advising them in particular to avoid that motorway during the period in question. 12 On 21 May 1998, the Bezirkshauptmannschaft requested the Sicherheitsdirektion fr Tirol (Directorate of security for Tyrol) to provide instructions concerning the proposed demonstration. On 3 June 1998, the Sicherheitsdirektor issued an order that it was not to be banned. On 10 June 1998, there was a meeting of members of various local authorities in order to ensure that the demonstration would be free of trouble. 13 Considering that that demonstration was lawful as a matter of Austrian law, the Bezirkshauptmannschaft decided not to ban it, but it did not consider whether its decision might infringe Community law. 14 The demonstration took place at the stated place and time. Consequently, heavy goods vehicles which should have used the Brenner motorway were immobilised from 09.00 hrs on Friday 12 June 1998. The motorway was reopened to traffic on Saturday 13 June 1998 at approximately 15.30 hrs, subject to the prohibition on the movement of lorries in excess of 7.5 tonnes during certain hours on Saturdays and Sundays applicable under Austrian legislation. 15 Schmidberger is an international transport undertaking based at Rot an der Rot (Germany) which operates six articulated heavy goods vehicles with reduced noise and soot emission. Its main activity is the transport of timber from Germany to Italy and steel from Italy to Germany. Its vehicles generally use the Brenner motorway for that purpose. 16 Schmidberger brought an action before the Landesgericht Innsbruck (Innsbruck Regional Court) (Austria) seeking damages of ATS 140 000 against the Republic of Austria on the basis that five of its lorries were unable to use the Brenner motorway for four consecutive days because, first, Thursday 11 June 1998 was a bank holiday in Austria, whilst 13 and 14 June 1998 were a Saturday and Sunday, and second, the Austrian legislation prohibits the movement of lorries in excess of 7.5 tonnes most of the time at weekends and on bank holidays. That motorway is the sole transit route for its vehicles between Germany and Italy. The failure on the part of the Austrian authorities to ban the demonstration and to intervene to prevent that trunk route from being closed amounted to a restriction of the free movement of goods. Since it could not be justified by the protesters' right to freedom of expression and freedom of assembly the restriction was a breach of Community law in respect of which the Member State concerned incurred liability. In the present case, the damage suffered by Schmidberger consisted of the immobilisation of its heavy goods vehicles (ATS 50 000), the fixed costs in respect of the drivers (ATS 5 000) and a loss of profit arising from concessions on payment allowed to customers on account of the substantial delays in transporting the goods and the failure to make six journeys between Germany and Italy (ATS 85 000). 17 The Republic of Austria contended that the claim should be rejected on the grounds that the decision not to ban the demonstration was taken following a detailed examination of the facts, that information as to the date of the closure of the Brenner motorway had been
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announced in advance in Austria, Germany and Italy, and that the demonstration did not result in substantial traffic jams or other incidents. The restriction on free movement arising from a demonstration is permitted provided that the obstacle it creates is neither permanent nor serious. Assessment of the interests involved should lean in favour of the freedoms of expression and assembly, since fundamental rights are inviolable in a democratic society. 18 Having found that Schmidberger had not shown either that its lorries would have had to use the Brenner motorway on 12 and 13 June 1998 or that it had not been possible, after it had become aware that the demonstration was due to take place, to change its routes in order to avoid loss, the Landesgericht Innsbruck dismissed the action by judgment of 23 September 1999 on the grounds that the transport company had neither discharged the burden (under Austrian substantive law) of making out and proving its claim for pecuniary loss nor complied with its obligation (under Austrian procedural law) to present all the facts on which the application was based and which were necessary for the dispute to be determined. 19 Schmidberger then lodged an appeal against that judgment before the Oberlandesgericht Innsbruck, which considers that it is necessary to have regard to the requirements of Community law where, as in the present case, claims are made which are, at least in part, founded on Community law. 20 It considers that it is necessary in that regard to determine first whether the principle of the free movement of goods, possibly in conjunction with Article 5 of the Treaty, requires a Member State to keep open major transit routes and whether that obligation takes precedence over fundamental rights such as the freedom of expression and the freedom of assembly guaranteed by Articles 10 and 11 of the European Convention for the Protection of Human Rights and Fundamental Freedoms ( ECHR). 21 If so, the national court asks, secondly, whether the breach of Community law thus established is sufficiently serious to give rise to State liability. Questions of interpretation arise in particular in determining the degree of precision and clarity of Article 5 as well as Articles 30, 34 and 36 of the Treaty. 22 In the present case State liability might be incurred as a result of either legislative defect the Austrian legislature having failed to adapt the legislation on freedom of assembly to comply with the obligations arising under Community law, in particular under the principle of the free movement of goods or by reason of administrative fault the competent national authorities being required by the obligation of cooperation and loyalty laid down by Article 5 of the Treaty to interpret national law in such a way as to comply with the requirements of that Treaty as regards the free movement of goods, in so far as those obligations arising from Community law are directly applicable. 23 Thirdly, the court seeks guidance as to the nature and extent of the right to compensation based on State liability. It asks how stringent are the requirements as to proof of the cause and amount of the damage occasioned by a breach of Community law resulting from legislation or administrative action and wishes to know, in particular, whether a right to compensation also exists where the amount of the damage can only be assessed by general estimate. 24

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Lastly, the referring court harbours doubts as to the national requirements for establishing a right to compensation based on State liability. It asks whether the Austrian rules on the burden and standard of proof and on the obligation to submit all facts necessary for the determination of the dispute comply with the principle of legal effectiveness, in so far as the rights based on Community law cannot always be defined ab initio in their entirety and the applicant faces genuine difficulty in stating correctly all the facts required under Austrian law. Thus, in the present case, the content of the right to compensation based on State liability is so unclear, as regards its nature and extent, as to make a reference for a preliminary ruling necessary. The reasoning of the court ruling at first instance is likely to curtail claims based on Community law by rejecting the application on the basis of principles of national law and circumventing on purely formal grounds relevant questions of Community law. 25 Considering that the resolution of the dispute thus required an interpretation of Community law, the Oberlandesgericht Innsbruck decided to stay proceedings and refer the following questions to the Court for a preliminary ruling: 1. Are the principles of the free movement of goods under Article 30 et seq. of the EC Treaty (now Article 28 et seq. EC), or other provisions of Community law, to be interpreted as meaning that a Member State is obliged, either absolutely or at least as far as reasonably possible, to keep major transit routes clear of all restrictions and impediments, inter alia , by requiring that a political demonstration to be held on a transit route, of which notice has been given, may not be authorised or must at least be later dispersed, if or as soon as it can also be held at a place away from the transit route with a comparable effect on public awareness? 2. Where, on account of the failure by a Member State to indicate in its national provisions on freedom of assembly and the right to exercise it that, in the weighing of freedom of assembly against the public interest, the principles of Community law, primarily the fundamental freedoms and, in this particular case, the provisions on the free movement of goods, are also to be observed, a political demonstration of 28 hours' duration is authorised and held which, in conjunction with a pre-existing national generally applicable ban on holiday driving, causes an essential intra-Community goods transit route to be closed, inter alia , to the majority of heavy goods traffic for four days, with a short interruption of a few hours, does that failure constitute a sufficiently serious infringement of Community law in order to establish liability on the part of the Member State under the principles of Community law, provided that the other requirements for such liability are met? 3. Where a national authority decides that there is nothing in the provisions of Community law, in particular those concerning the free movement of goods and the general duty of cooperation and solidarity under Article 5 of the EC Treaty (now Article 10 EC), to preclude, and thus no ground on which to ban, a political demonstration of 28 hours' duration which, in conjunction with a pre-existing national generally applicable ban on holiday driving, causes an essential intra-Community goods transit route to be closed, inter alia , to the majority of heavy goods traffic for four days, with a short interruption of a few hours, does that decision constitute a sufficiently serious infringement of Community law in order to establish liability on the part of the Member State under the principles of Community law, provided that the other requirements for such liability are met? 4.
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Is the objective of an officially authorised political demonstration, namely that of working for a healthy environment and of drawing attention to the danger to public health caused by the constant increase in the transit traffic of heavy goods vehicles, to be deemed to be of a higher order than the provisions of Community law on the free movement of goods under Article 28 EC? 5. Is there loss giving rise to a claim founded on State liability where the person incurring the loss can prove that he was in a position to earn income, in the present case from the international transport of goods by means of the heavy goods vehicles operated by him but rendered idle by the 28 hour demonstration, yet is unable to prove the loss of a specific transport journey? 6. If the reply to Question 4 is in the negative: In order to comply with the obligation of cooperation and solidarity incumbent under Article 5 of the EC Treaty (now Article 10 EC) on national authorities, in particular the courts, and with the principle of effectiveness, must application of national rules of substantive or procedural law curtailing the ability to assert claims which are well founded under Community law, such as in the present case a claim founded on State liability, be deferred pending full elucidation of the substance of the claim at Community law, if necessary following a reference to the Court of Justice for a preliminary ruling? The questions referred for a preliminary ruling 46 It should be noted at the outset that the questions referred by the national court raise two distinct, albeit related, issues. 47 First, the Court is asked to rule on whether the fact that the Brenner motorway was closed to all traffic for almost 30 hours without interruption, in circumstances such as those at issue in the main proceedings, amounts to a restriction of the free movement of goods and must therefore be regarded as a breach of Community law. Second, the questions relate more specifically to the circumstances in which the liability of a Member State may be established in respect of damage caused to individuals as a result of an infringement of Community law. 48 On the latter question, the national court asks in particular for clarification of whether, and if so to what extent, in circumstances such as those of the case before it, the breach of Community law if made out is sufficiently manifest and serious to give rise to liability on the part of the Member State concerned. It also asks the Court about the nature and evidence of the damage to be compensated. 49 Given that, logically, this second series of questions need be examined only if the first issue, as defined in the first sentence of paragraph 47 of the present judgment, is answered in the affirmative, the Court must first give a ruling on the various points raised by that issue, which is essentially the subject of the first and fourth questions. 50 In the light of the evidence in the file of the main case sent by the referring court and the written and oral observations presented to the Court, those questions must be understood as seeking to determine whether the fact that the authorities of a Member State did not ban a demonstration with primarily environmental aims which resulted in the complete closure of a major transit route, such as the Brenner motorway, for almost 30 hours without interruption
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amounts to an unjustified restriction of the free movement of goods which is a fundamental principle laid down by Articles 30 and 34 of the Treaty, read together, if necessary, with Article 5 thereof. Whether there is a restriction of the free movement of goods 51 It should be stated at the outset that the free movement of goods is one of the fundamental principles of the Community. 52 Thus, Article 3 of the EC Treaty (now, after amendment, Article 3 EC), inserted in the first part thereof, entitled Principles, provides in subparagraph (c) that for the purposes set out in Article 2 of the Treaty the activities of the Community are to include an internal market characterised by the abolition, as between Member States, of obstacles to inter alia the free movement of goods. 53 The second paragraph of Article 7a of the EC Treaty (now, after amendment, Article 14 EC) provides that the internal market is to comprise an area without internal frontiers in which the free movement of goods is ensured in accordance with the provisions of the Treaty. 54 That fundamental principle is implemented primarily by Articles 30 and 34 of the Treaty. 55 In particular, Article 30 provides that quantitative restrictions on imports and all measures having equivalent effect are prohibited between Member States. Similarly, Article 34 prohibits, between Member States, quantitative restrictions on exports and all measures having equivalent effect. 56 It is settled case-law since the judgment in Case 8/74 Dassonville [1974] ECR 837, paragraph 5) that those provisions, taken in their context, must be understood as being intended to eliminate all barriers, whether direct or indirect, actual or potential, to trade flows in intraCommunity trade (see, to that effect, Case C-265/95 Commission v France [1997] ECR I6959, paragraph 29). 57 In this way the Court held in particular that, as an indispensable instrument for the realisation of a market without internal frontiers, Article 30 does not prohibit only measures emanating from the State which, in themselves, create restrictions on trade between Member States. It also applies where a Member State abstains from adopting the measures required in order to deal with obstacles to the free movement of goods which are not caused by the State ( Commission v France , cited above, paragraph 30). 58 The fact that a Member State abstains from taking action or, as the case may be, fails to adopt adequate measures to prevent obstacles to the free movement of goods that are created, in particular, by actions by private individuals on its territory aimed at products originating in other Member States is just as likely to obstruct intra-Community trade as is a positive act ( Commission v France , cited above, paragraph 31). 59 Consequently, Articles 30 and 34 of the Treaty require the Member States not merely themselves to refrain from adopting measures or engaging in conduct liable to constitute an obstacle to trade but also, when read with Article 5 of the Treaty, to take all necessary and appropriate measures to ensure that that fundamental freedom is respected on their territory
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( Commission v France , cited above, paragraph 32). Article 5 of the Treaty requires the Member States to take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising out of the Treaty and to refrain from any measures which could jeopardise the attainment of the objectives of that Treaty. 60 Having regard to the fundamental role assigned to the free movement of goods in the Community system, in particular for the proper functioning of the internal market, that obligation upon each Member State to ensure the free movement of products in its territory by taking the measures necessary and appropriate for the purposes of preventing any restriction due to the acts of individuals applies without the need to distinguish between cases where such acts affect the flow of imports or exports and those affecting merely the transit of goods. 61 Paragraph 53 of the judgment in Commission v France , cited above, shows that the case giving rise to that judgment concerned not only imports but also the transit through France of products from other Member States. 62 It follows that, in a situation such as that at issue in the main proceedings, where the competent national authorities are faced with restrictions on the effective exercise of a fundamental freedom enshrined in the Treaty, such as the free movement of goods, which result from actions taken by individuals, they are required to take adequate steps to ensure that freedom in the Member State concerned even if, as in the main proceedings, those goods merely pass through Austria en route for Italy or Germany. 63 It should be added that that obligation of the Member States is all the more important where the case concerns a major transit route such as the Brenner motorway, which is one of the main land links for trade between northern Europe and the north of Italy. 64 In the light of the foregoing, the fact that the competent authorities of a Member State did not ban a demonstration which resulted in the complete closure of a major transit route such as the Brenner motorway for almost 30 hours on end is capable of restricting intra-Community trade in goods and must, therefore, be regarded as constituting a measure of equivalent effect to a quantitative restriction which is, in principle, incompatible with the Community law obligations arising from Articles 30 and 34 of the Treaty, read together with Article 5 thereof, unless that failure to ban can be objectively justified. Whether the restriction may be justified 65 In the context of its fourth question, the referring court asks essentially whether the purpose of the demonstration on 12 and 13 June 1998 during which the demonstrators sought to draw attention to the threat to the environment and public health posed by the constant increase in the movement of heavy goods vehicles on the Brenner motorway and to persuade the competent authorities to reinforce measures to reduce that traffic and the pollution resulting therefrom in the highly sensitive region of the Alps is such as to frustrate Community law obligations relating to the free movement of goods. 66 However, even if the protection of the environment and public health, especially in that region, may, under certain conditions, constitute a legitimate objective in the public interest capable of justifying a restriction of the fundamental freedoms guaranteed by the Treaty,
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including the free movement of goods, it should be noted, as the Advocate General pointed out at paragraph 54 of his Opinion, that the specific aims of the demonstration are not in themselves material in legal proceedings such as those instituted by Schmidberger, which seek to establish the liability of a Member State in respect of an alleged breach of Community law, since that liability is to be inferred from the fact that the national authorities did not prevent an obstacle to traffic from being placed on the Brenner motorway. 67 Indeed, for the purposes of determining the conditions in which a Member State may be liable and, in particular, with regard to the question whether it infringed Community law, account must be taken only of the action or omission imputable to that Member State. 68 In the present case, account should thus be taken solely of the objective pursued by the national authorities in their implicit decision to authorise or not to ban the demonstration in question. 69 It is apparent from the file in the main case that the Austrian authorities were inspired by considerations linked to respect of the fundamental rights of the demonstrators to freedom of expression and freedom of assembly, which are enshrined in and guaranteed by the ECHR and the Austrian Constitution. 70 In its order for reference, the national court also raises the question whether the principle of the free movement of goods guaranteed by the Treaty prevails over those fundamental rights. 71 According to settled case-law, fundamental rights form an integral part of the general principles of law the observance of which the Court ensures. For that purpose, the Court draws inspiration from the constitutional traditions common to the Member States and from the guidelines supplied by international treaties for the protection of human rights on which the Member States have collaborated or to which they are signatories. The ECHR has special significance in that respect (see, inter alia , Case C-260/89 ERT [1991] ECR I-2925, paragraph 41; Case C-274/99 P Connolly v Commission [2001] ECR I-1611, paragraph 37, and Case C-94/00 Roquette Frres [2002] ECR I-9011, paragraph 25). 72 The principles established by that case-law were reaffirmed in the preamble to the Single European Act and subsequently in Article F.2 of the Treaty on European Union ( Bosman , cited above, paragraph 79). That provision states that [t]he Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law. 73 It follows that measures which are incompatible with observance of the human rights thus recognised are not acceptable in the Community (see, inter alia , ERT , cited above, paragraph 41, and Case C-299/95 Kremzow [1997] ECR I-2629, paragraph 14). 74 Thus, since both the Community and its Member States are required to respect fundamental rights, the protection of those rights is a legitimate interest which, in principle, justifies a restriction of the obligations imposed by Community law, even under a fundamental freedom guaranteed by the Treaty such as the free movement of goods.
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75 It is settled case-law that where, as in the main proceedings, a national situation falls within the scope of Community law and a reference for a preliminary ruling is made to the Court, it must provide the national courts with all the criteria of interpretation needed to determine whether that situation is compatible with the fundamental rights the observance of which the Court ensures and which derive in particular from the ECHR (see to that effect, inter alia , Case 12/86 Demirel [1987] ECR 3719, paragraph 28). 76 In the present case, the national authorities relied on the need to respect fundamental rights guaranteed by both the ECHR and the Constitution of the Member State concerned in deciding to allow a restriction to be imposed on one of the fundamental freedoms enshrined in the Treaty. 77 The case thus raises the question of the need to reconcile the requirements of the protection of fundamental rights in the Community with those arising from a fundamental freedom enshrined in the Treaty and, more particularly, the question of the respective scope of freedom of expression and freedom of assembly, guaranteed by Articles 10 and 11 of the ECHR, and of the free movement of goods, where the former are relied upon as justification for a restriction of the latter. 78 First, whilst the free movement of goods constitutes one of the fundamental principles in the scheme of the Treaty, it may, in certain circumstances, be subject to restrictions for the reasons laid down in Article 36 of that Treaty or for overriding requirements relating to the public interest, in accordance with the Court's consistent case-law since the judgment in Case 120/78 Rewe-Zentral ( Cassis de Dijon ) [1979] ECR 649. 79 Second, whilst the fundamental rights at issue in the main proceedings are expressly recognised by the ECHR and constitute the fundamental pillars of a democratic society, it nevertheless follows from the express wording of paragraph 2 of Articles 10 and 11 of the Convention that freedom of expression and freedom of assembly are also subject to certain limitations justified by objectives in the public interest, in so far as those derogations are in accordance with the law, motivated by one or more of the legitimate aims under those provisions and necessary in a democratic society, that is to say justified by a pressing social need and, in particular, proportionate to the legitimate aim pursued (see, to that effect, Case C-368/95 Familiapress [1997] ECR I-3689, paragraph 26, Case C-60/00Carpenter [2002] ECR I-6279, paragraph 42, and Eur. Court HR, Steel and Others v. The United Kingdom judgment of 23 September 1998, Reports of Judgments and Decisions 1998-VII, 101). 80 Thus, unlike other fundamental rights enshrined in that Convention, such as the right to life or the prohibition of torture and inhuman or degrading treatment or punishment, which admit of no restriction, neither the freedom of expression nor the freedom of assembly guaranteed by the ECHR appears to be absolute but must be viewed in relation to its social purpose. Consequently, the exercise of those rights may be restricted, provided that the restrictions in fact correspond to objectives of general interest and do not, taking account of the aim of the restrictions, constitute disproportionate and unacceptable interference, impairing the very substance of the rights guaranteed (see, to that effect, Case C62/90 Commission v Germany [1992] ECR I-2575, paragraph 23, and Case C-404/92 P X vCommission [1994] ECR I-4737, paragraph 18).
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81 In those circumstances, the interests involved must be weighed having regard to all the circumstances of the case in order to determine whether a fair balance was struck between those interests. 82 The competent authorities enjoy a wide margin of discretion in that regard. Nevertheless, it is necessary to determine whether the restrictions placed upon intra-Community trade are proportionate in the light of the legitimate objective pursued, namely, in the present case, the protection of fundamental rights. 83 As regards the main case, it should be emphasised at the outset that the circumstances characterising it are clearly distinguishable from the situation in the case giving rise to the judgment inCommission v France , cited above, referred to by Schmidberger as a relevant precedent in the course of its legal action against Austria. 84 By comparison with the points of fact referred to by the Court at paragraphs 38 to 53 of the judgment in Commission v France , cited above, it should be noted, first, that the demonstration at issue in the main proceedings took place following a request for authorisation presented on the basis of national law and after the competent authorities had decided not to ban it. 85 Second, because of the presence of demonstrators on the Brenner motorway, traffic by road was obstructed on a single route, on a single occasion and during a period of almost 30 hours. Furthermore, the obstacle to the free movement of goods resulting from that demonstration was limited by comparison with both the geographic scale and the intrinsic seriousness of the disruption caused in the case giving rise to the judgment in Commission v France , cited above. 86 Third, it is not in dispute that by that demonstration, citizens were exercising their fundamental rights by manifesting in public an opinion which they considered to be of importance to society; it is also not in dispute that the purpose of that public demonstration was not to restrict trade in goods of a particular type or from a particular source. By contrast, in Commission v France , cited above, the objective pursued by the demonstrators was clearly to prevent the movement of particular products originating in Member States other than the French Republic, by not only obstructing the transport of the goods in question, but also destroying those goods in transit to or through France, and even when they had already been put on display in shops in the Member State concerned. 87 Fourth, in the present case various administrative and supporting measures were taken by the competent authorities in order to limit as far as possible the disruption to road traffic. Thus, in particular, those authorities, including the police, the organisers of the demonstration and various motoring organisations cooperated in order to ensure that the demonstration passed off smoothly. Well before the date on which it was due to take place, an extensive publicity campaign had been launched by the media and the motoring organisations, both in Austria and in neighbouring countries, and various alternative routes had been designated, with the result that the economic operators concerned were duly informed of the traffic restrictions applying on the date and at the site of the proposed demonstration and were in a position

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timeously to take all steps necessary to obviate those restrictions. Furthermore, security arrangements had been made for the site of the demonstration. 88 Moreover, it is not in dispute that the isolated incident in question did not give rise to a general climate of insecurity such as to have a dissuasive effect on intra-Community trade flows as a whole, in contrast to the serious and repeated disruptions to public order at issue in the case giving rise to the judgment in Commission v France , cited above. 89 Finally, concerning the other possibilities envisaged by Schmidberger with regard to the demonstration in question, taking account of the Member States' wide margin of discretion, in circumstances such as those of the present case the competent national authorities were entitled to consider that an outright ban on the demonstration would have constituted unacceptable interference with the fundamental rights of the demonstrators to gather and express peacefully their opinion in public. 90 The imposition of stricter conditions concerning both the site for example by the side of the Brenner motorway and the duration limited to a few hours only of the demonstration in question could have been perceived as an excessive restriction, depriving the action of a substantial part of its scope. Whilst the competent national authorities must endeavour to limit as far as possible the inevitable effects upon free movement of a demonstration on the public highway, they must balance that interest with that of the demonstrators, who seek to draw the aims of their action to the attention of the public. 91 An action of that type usually entails inconvenience for non-participants, in particular as regards free movement, but the inconvenience may in principle be tolerated provided that the objective pursued is essentially the public and lawful demonstration of an opinion. 92 In that regard, the Republic of Austria submits, without being contradicted on that point, that in any event, all the alternative solutions which could be countenanced would have risked reactions which would have been difficult to control and would have been liable to cause much more serious disruption to intra-Community trade and public order, such as unauthorised demonstrations, confrontation between supporters and opponents of the group organising the demonstration or acts of violence on the part of the demonstrators who considered that the exercise of their fundamental rights had been infringed. 93 Consequently, the national authorities were reasonably entitled, having regard to the wide discretion which must be accorded to them in the matter, to consider that the legitimate aim of that demonstration could not be achieved in the present case by measures less restrictive of intra-Community trade. 94 In the light of those considerations, the answer to the first and fourth questions must be that the fact that the authorities of a Member State did not ban a demonstration in circumstances such as those of the main case is not incompatible with Articles 30 and 34 of the Treaty, read together with Article 5 thereof. The conditions for liability of the Member State 95 It follows from the answer given to the first and fourth questions that, having regard to all the circumstances of a case such as that before the referring court, the competent national
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authorities cannot be said to have committed a breach of Community law such as to give rise to liability on the part of the Member State concerned. 96 In those circumstances, there is no need to rule on the other questions referred concerning some of the conditions necessary for a Member State to incur liability for damage caused to individuals by that Member State's infringement of Community law.

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Selmouni v France (ECtHR) Selmouni v France App No 25803/94 (ECtHR, 28 July 1999)

CASE OF SELMOUNI v. FRANCE

(Application no. 25803/94)

JUDGMENT

STRASBOURG

28 JULY 1999

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THE FACTS 7. Mr Selmouni, a Netherlands and Moroccan national, was born in 1942 and is currently in prison in Montmdy (France). A. The origin and the filing of the complaint 8. On 20 November 1991 the police arrested Gray Tarek, Dominique Keledjian and Mr Keledjians girlfriend in connection with a drug-trafficking investigation, on the instructions of Mr de Larosire, an investigating judge at the Bobigny tribunal de grande instance. Dominique Keledjian made a voluntary statement, telling the police that he had bought his heroin in Amsterdam from a certain Gaby, who had helped him conceal it in order to bring it into France over a number of trips. He gave the police a telephone number in Amsterdam which enabled them to identify the applicant. 9. On 25 November 1991 Mr Selmouni was arrested following surveillance of a hotel in Paris. After being identified by Dominique Keledjian and his girlfriend, Mr Selmouni explained that he had had business dealings with Dominique Keledjian in the clothes trade. He denied any involvement in drug trafficking. 10. Mr Selmouni was held in police custody from 8.30 p.m. on 25 November 1991 until 7 p.m. on 28 November 1991. He was questioned by police officers from the Seine-Saint-Denis Criminal Investigation Department (SDPJ 93) in Bobigny. 11. Mr Selmouni was first questioned from 12.40 a.m. to 1.30 a.m. on 26 November 1991 by the police officers against whom he later made a complaint. Having been questioned and taken back to the court cells, Mr Selmouni had a dizzy spell. The court cell officers took him to the casualty department at Jean Verdier Hospital in Bondy at 3.15 a.m. The medical observations made by the casualty department read as follows: Date of examination: 26 November 1991. 3.15 a.m. Attends casualty complaining of assault. On examination, several superficial bruises and injuries found on both arms. Bruises on outer left side of face. Bruise on left hypochondrium. Marks of bruising on top of head. Chest pains increase with deep respiration. Neurological examination shows no abnormalities. 12. On 26 November 1991 the investigating judge extended police custody by forty-eight hours. Mr Selmouni was questioned from 4.40 p.m. to 5.10 p.m., at 7 p.m., from 8 p.m. to 8.15 p.m. and from 10.25 p.m. to 11.30 p.m. On the same day Mr Selmouni was examined by a Dr Aoustin, who made the following observations: Bruising to the left eyelid, left arm, lower back. Scalp painful. 13. On 27 November 1991 Mr Selmouni was questioned from 11 a.m. to 11.40 a.m. On examining him again, Dr Aoustin made the following notes: Substantial bruising to the left eyelid, left arm, lower back. Bruising to the scalp. Ate nothing yesterday Complaints forwarded. 14. After being questioned from 9.30 a.m. to 10.15 a.m. on 28 November 1991, Mr Selmouni was again examined by Dr Aoustin, who noted on his medical certificate:
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Bruising to the left eyelid, left arm, lower back. Bruising to the scalp. No current treatment. 15. At 11.30 a.m. on 29 November 1991 the applicant was examined by Dr Edery, a general practitioner. He drew up a certificate, at Mr Selmounis request, to the effect that Mr Selmouni claimed to have been assaulted. The certificate stated: Headaches, bruises under left and right eyes, on left and right arms, back, thorax, left and right thighs and left knee. All areas painful. 16. On the same day the applicant was brought before the investigating judge, who charged him with offences against the dangerous drugs legislation and remanded him in custody. On Mr Selmounis first appearance before the investigating judge, the latter, on his own initiative, appointed Dr Garnier, an expert in forensic medicine on the Paris Court of Appeals panel, to examine Mr Selmouni, who claim[ed] to have been ill-treated while in police custody, and another person, Mr Abdelmajid Madi, arrested on 26 November 1991 and charged with the same offences. 17. On 2 December 1991 the applicant was examined by Dr Nicot from the medical department of Fleury-Mrogis Prison. In a medical certificate drawn up at Mr Selmounis request the doctor made the following observations: extensive bruising to the trunk and thighs and substantial bruising round the eyes. Presents conjunctival bruises. Says sight impaired in left eye. 18. On 7 December 1991 Dr Garnier, the expert appointed by the investigating judge, examined the applicant at the prison. Mr Selmouni made the following statement to the doctor: I was stopped in the street on 25 November 1991 at about 9 a.m. There were no problems at that stage. I was taken to the hotel where I was living. One of the six plain-clothes policemen then hit me in the area of my left temple. I was then taken to Bobigny police station. At about 10 a.m. I was taken up to the first floor, where about eight people started hitting me. I had to kneel down. One police officer pulled me up by my hair. Another policeman hit me repeatedly on the head with an instrument resembling a baseball bat. Another one kept kicking and punching me in the back. The interrogation continued non-stop for about an hour. In the night I asked to be examined. I was taken to hospital, where I had head and chest X-rays. I was hit again at about 9 p.m. the following day during a further interrogation and this went on until 2 a.m. When I arrived at Fleury, I underwent a medical examination. 19. The doctor noted in his report: sub-orbital haematoma extending 2 cm below the left lower eyelid, purplish, almost completely healed, thin linear scar, approximately 1 cm long, continuing the line of the left eyebrow, one right sub-orbital haematoma, almost completely healed, multiple skin abrasions (six of which are large), almost completely healed, on the left arm,

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 two 5 cm linear skin abrasions possibly scratches on the right arm, 0.5 cm skin lesion on the back of the right hand, haematoma on the back of the thorax, over the right shoulder blade, one haematoma on the right side, severe (10 cm by 5 cm) haematoma on the left side of the thorax, three haematomas on the left side, severe (5 cm by 3 cm) haematoma on the front of the thorax, purplish, in the epigastric region, haematoma in the right prehepatic region, haematoma on the left of the ribcage 5 cm below the nipple, 5 cm by 3 cm haematoma on the left side on the axillary line, haematoma in the right subclavian region, haematoma on the right buttock, 10 cm by 5 cm haematoma on the left buttock, 5 cm by 1 cm linear haematoma on the outer front part of the left thigh, skin abrasion corresponding to a wound, now healing, on the front of the right ankle, swelling on the back of the right foot and a skin abrasion on the back of the foot, five superficial wounds, now healing, on the lower front part of the right leg, skin abrasions and bruised swelling on the back of the first two metacarpals of the left hand. The patient states that on his arrival at Fleury he was treated with skin cream and given painkillers. No injuries to the scalp or left eyeball

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20. The conclusion of the report is as follows: CONCLUSION Mr Selmouni states that he was subjected to ill-treatment while in policy custody. He presents lesions of traumatic origin on his skin that were sustained at a time which corresponds to the period of police custody. These injuries are healing well. 21. That report was attached to the investigation file opened in respect of the applicant. On 11 December 1991 the investigating judge sent it to the public prosecutors office. 22. In an order of 8 September 1992 the investigating judge committed the applicant for trial at the Criminal Court and ordered him to be kept in detention on remand. 23. On 17 February 1992 the public prosecutors office at the Bobigny tribunal de grande instance instructed the National Police Inspectorate to question the police officers concerned. 24. When questioned at Fleury-Mrogis Prison by an officer of the National Police Inspectorate on 1 December 1992, the applicant confirmed his earlier statement as follows: At about 8.30 p.m. on 25 November 1991 I was arrested in the vicinity of my hotel, the Terminus Nord, near the Gare du Nord in Paris by two or three plain-clothes policemen. They pushed me against a wall while pressing the barrels of two guns against my neck. I offered no resistance to my arrest and did not struggle. You remind me that during questioning on 27 November 1992 I admitted that I had attempted to escape arrest. I dispute that. First of all, I maintain that I did not make such a statement to the police officer who questioned me and, moreover, I signed the records of interview without having read them. The policeman told me on my release from police custody that he had got me to sign that I had resisted arrest and that they were covered. I was alone when I was arrested and immediately afterwards I was taken to my hotel room, which was searched in my presence. Two other policemen were already there. While they were searching my room, the youngest police officer of the group punched me on the left temple. When they had finished searching my room I was taken to the Drugs Squad station in Bobigny and to an office on the first or second floor. After I had been subjected to a body search, during which everything in my possession was taken, my interrogation by five police officers began. One of them, who appeared to be in charge, made me kneel on the floor and began pulling my hair while another one hit me in the ribs with a stick resembling a baseball bat. He then kept tapping me on the head with the bat. The three other police officers were also actively involved, punching me and some of them standing on my feet and crushing them. I seem to recall arriving at Bobigny police station at about 10 p.m. The treatment I have described continued until 1 a.m. Following that first interrogation I was handed over to uniformed policemen on the ground floor of the building in which I was detained. As my ribs and head were hurting from the blows I had received, I informed these policemen and was taken in the night to a hospital in the area, but
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cannot say which one. There I underwent several examinations, including X-rays, and was later taken to a police station, but not the one to which I had first been taken. The uniformed police officers treated me decently. The following morning, before being questioned a second time, I was examined on the premises of the Drugs Squad by a doctor, who was able to see the marks on my body caused by the policemens brutality. On 26 November 1992 I was questioned again by several police officers three or four at some point in the day. I believe it was at about 10 a.m. On that occasion they pulled my hair, punched me and hit me with a stick. In the evening of the same day, when there were fewer staff on the first floor, I was questioned again by six police officers, who were particularly brutal to me. I was punched, and beaten with a truncheon and a baseball bat. They all carried on assaulting me until 1 a.m. I think that this session of ill-treatment had begun at about 7 p.m. At one point they made me go out into a long office corridor where the officer I presumed was in charge grabbed me by the hair and made me run along the corridor while the others positioned themselves on either side, tripping me up. They then took me into an office where a woman was sitting and made me kneel down. They pulled my hair, saying to this woman Look, youre going to hear somebody sing. I remained there for about ten minutes. I cannot describe this woman to you, but she looked young. I was then taken back out into the corridor, where one of the police officers took out his penis and came up to me saying Here, suck this; at that point I was on my knees. I refused, keeping my mouth closed because he had brought his penis up to my lips. When I refused, that officer urinated over me at the suggestion of one of his colleagues. After that, I was taken to an office and threatened with burns if I did not talk. When I refused, they lit two blowlamps which were connected to two small blue gas-bottles. They made me sit down and placed the blowlamps about one metre away from my feet, on which I no longer had shoes. At the same time they were hitting me. Following that ill-treatment, they brandished a syringe, threatening to inject me with it. When I saw that, I ripped open my shirt-sleeve, saying Go on, you wont dare; as I had predicted, they did not carry out their threat. My reaction prompted a fresh outburst of violence from the policemen and I was ill-treated again. The police officers left me in peace for about fifteen minutes, then one of them said You Arabs enjoy being screwed. They took hold of me, made me undress and one of them inserted a small black truncheon into my anus. NB. When Mr Selmouni relates that scene, he starts crying. I am aware that what I have just told you is serious, but it is the whole truth, I really did suffer that ill-treatment. After the sexual assault, I was put into a cell again. The next day I was examined by a doctor, who was able to observe my condition.

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I had informed the doctor that the policemen had been assaulting me and I had even asked him to tell them to stop torturing me. The violence I have just described was committed during the nights of 25 to 26 and 26 to 27 November 1991. Thereafter, until I was brought before the investigating judge, I was occasionally punched. Before bringing me before the investigating judge, the policemen were very kind, even going so far as to offer me coffee. When I signed the papers concerning my belongings, I noticed that 2,800 guilders and a Dupont lighter had disappeared. I informed a policeman about this the one I thought was in charge who replied Shit, again, and the matter was left at that. The lighter bears the initials A.Z. I can identify the six policemen who hit me. I can also describe the part played by each one. The officer in charge is slightly balding. The one who showed me his penis and then sodomised me with a truncheon is of medium height, fairly thickset, aged 30 to 35, and fairhaired. As soon as I was brought before the investigating judge, I told him that I had been assaulted, and a few days later I was examined at the prison. However, on the actual day I was brought before the investigating judge I had seen a doctor at the Bobigny law courts. I have had a lawyer for one month and have informed him of the manner in which I was treated while in police custody. When I arrived at the prison, the marks left by the assault were all over my body. I now have trouble with my eyes. I am lodging a complaint against the policemen. 25. The record of the interview was sent to the Bobigny public prosecutor on 2 December 1992 as part of the proceedings numbered B.92.016.5118/4. 26. In a judgment of 7 December 1992 the Thirteenth Division of the Bobigny Criminal Court sentenced the applicant to fifteen years imprisonment and permanent exclusion from French territory and, as to the civil action by the customs authorities, ordered him to pay, jointly and severally with his co-accused, an aggregate sum of twenty-four million French francs. In a judgment of 16 September 1993 the Paris Court of Appeal reduced the prison sentence to thirteen years and upheld the remainder of the judgment. On 27 June 1994 the Court of Cassation dismissed the applicants appeal. 27. Mr Selmouni attended Htel-Dieu Hospital for treatment at regular intervals during his detention.

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THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 of the convention 70. The applicant complained that the manner in which he had been treated while in police custody had given rise to a violation of Article 3 of the Convention, according to which: No one shall be subjected to torture or to inhuman or degrading treatment or punishment. A. The Governments preliminary objection 71. The Governments main submission, which was the same as that made before the Commission, was that the complaint based on Article 3 could not be examined by the Court as the case stood because the applicant had not exhausted domestic remedies. The Government submitted that the applicants application to join the criminal proceedings against the police officers as a civil party was an ordinary remedy sufficient to afford redress for the alleged damage. It had to be acknowledged, they argued, that there had been major developments in the proceedings since the Commissions findings of 25 November 1996. They considered, however, that there were no special circumstances in the present case allowing the Convention institutions to absolve the applicant from the obligation to exhaust domestic remedies (see the Akdivar and Others v. Turkey judgment of 16 September 1996, Reports of Judgments and Decisions 1996-IV). The Government submitted that they could not be accused of remaining totally passive since an administrative inquiry had been undertaken on the initiative of the Bobigny public prosecutors office, which had subsequently requested, on 22 February 1993, that an investigation be opened. The Government also noted that although the handling of the proceedings had not been uniform, since periods of special diligence had alternated with periods of inactivity, the police officers had nonetheless ultimately been committed for trial at the Versailles Criminal Court. The Government pointed out that if the police officers were convicted, the applicant could, in his capacity as a civil party, claim compensation for the damage he had sustained. From that point of view, his application to join the criminal proceedings could not therefore be deemed to be ineffective within the meaning of Convention case-law. The Government argued that the present case was distinguishable from the Mitap and Mftolu v. Turkey case referred to by the Commission in its decision on admissibility (applications nos. 15530/89 and 15531/89, decision of 10 October 1991, Decisions and Reports (DR) 72, p. 169) and the cases of Tomasi v. France (application no. 12850/87, decision of 13 March 1990, DR 64, p. 128) and Ringeisen v. Austria (judgment of 16 July 1971, Series A no. 13), in which it had been acknowledged that the last stage of domestic remedies had been reached shortly after the lodging of the application but before the Commission had been called upon to decide on admissibility. Not only had the Commission not followed its usual case-law but, furthermore, the Mitap and Mftolu case had concerned the length of the proceedings and not an alleged violation of Article 3. The Government submitted that the excessive length of time taken to examine the applicants complaint could not ipso facto lead to a finding that the remedy was ineffective; that due consideration should be given in the present case to the fact that the police officers in question were having to answer for their acts before the national criminal courts; and that the application brought before the Court was therefore premature.
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72. The applicant replied that he had satisfied the obligation to exhaust domestic remedies. He observed that he had informed the officer of the National Police Inspectorate at the end of their interview on 1 December 1992 that he was lodging a complaint. He added that, owing to the failure of the public prosecutors office at the Bobigny tribunal de grande instance to take any action, he had on 1 February 1993 lodged a criminal complaint with the senior investigating judge together with an application to join the proceedings as a civil party. His complaint and application had been registered on 15 March 1993. Thereafter, the applicant alleged, he had had no remedy with which to expedite the proceedings. He referred to the Aksoy v. Turkey case (judgment of 18 December 1996, Reports 1996-VI) to support his submission that there is no obligation to have recourse to remedies which are inadequate or ineffective, maintaining that that definitely applied in the instant case. 73. The Commission found that Mr Selmouni had satisfied the requirements of Article 35 of the Convention. It considered, having regard to the seriousness of the applicants allegations and to the length of time which had elapsed since the events took place, that the authorities had not taken all the positive measures required in the circumstances of the case to bring the investigation to a rapid conclusion. 74. The Court points out that the purpose of Article 35 is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Convention institutions (see, for example, the Hentrich v. France judgment of 22 September 1994, Series A no. 296-A, p. 18, 33, and the Remli v. France judgment of 23 April 1996, Reports 1996-II, p. 571, 33). Consequently, States are dispensed from answering for their acts before an international body before they have had an opportunity to put matters right through their own legal system. That rule is based on the assumption, reflected in Article 13 of the Convention with which it has close affinity that there is an effective remedy available in respect of the alleged breach in the domestic system. In this way, it is an important aspect of the principle that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights (see the Handyside v. the United Kingdom judgment of 7 December 1976, Series A no. 24, p. 22, 48, and the Akdivar and Others judgment cited above, p. 1210, 65). Thus the complaint intended to be made subsequently to the Court must first have been made at least in substance to the appropriate domestic body, and in compliance with the formal requirements and time-limits laid down in domestic law (see the Cardot v. France judgment of 19 March 1991, Series A no. 200, p. 18, 34). 75. However, the only remedies which Article 35 of the Convention requires to be exhausted are those that relate to the breaches alleged and at the same time are available and sufficient. The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness; it falls to the respondent State to establish that these various conditions are satisfied (see, among other authorities, the following judgments: Vernillo v. France, 20 February 1991, Series A no. 198, pp. 11-12, 27; Akdivar and Others cited above, p. 1210, 66; and Dalia v. France, 19 February 1998, Reports 1998-I, pp. 87-88, 38). In addition, according to the generally recognised principles of international law, there may be special circumstances which absolve the applicant from the obligation to exhaust the domestic remedies at his disposal (see the Van Oosterwijck v. Belgium judgment of 6 November 1980, Series A no. 40, pp. 18-19, 36-40). 76. Article 35 provides for a distribution of the burden of proof. It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one
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available in theory and in practice at the relevant time, that is to say, that it was accessible, was one which was capable of providing redress in respect of the applicants complaints and offered reasonable prospects of success. However, once this burden of proof has been satisfied it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted or was for some reason inadequate and ineffective in the particular circumstances of the case or that there existed special circumstances absolving him or her from the requirement (see the Akdivar and Others judgment cited above, p. 1211, 68). One such reason may be constituted by the national authorities remaining totally passive in the face of serious allegations of misconduct or infliction of harm by State agents, for example where they have failed to undertake investigations or offer assistance. In such circumstances it can be said that the burden of proof shifts once again, so that it becomes incumbent on the respondent Government to show what they have done in response to the scale and seriousness of the matters complained of (ibid.). 77. The Court would emphasise that the application of this rule must make due allowance for the context. Accordingly, it has recognised that Article 35 must be applied with some degree of flexibility and without excessive formalism (see the Cardot judgment cited above, p. 18, 34). It has further recognised that the rule of exhaustion of domestic remedies is neither absolute nor capable of being applied automatically; in reviewing whether the rule has been observed, it is essential to have regard to the particular circumstances of the individual case (see the Van Oosterwijck judgment cited above, pp. 17-18, 35). This means, amongst other things, that the Court must take realistic account not only of the existence of formal remedies in the legal system of the Contracting Party concerned but also of the general legal and political context in which they operate as well as the personal circumstances of the applicants (see the Akdivar and Others judgment cited above, p. 1211, 69). 78. The Court points out that as soon as the applicant was released from police custody on 29 November 1991, the investigating judge dealing with the proceedings against him ordered an expert medical report (see paragraph 16 above) and that a preliminary investigation was carried out under the authority of the public prosecutor (see, in particular, paragraph 25 above). However, the Court notes that in the course of that preliminary investigation no statement was taken from the applicant until more than a year after the events in issue (see paragraph 24 above) and that the opening of a judicial investigation was not requested until after the applicant had lodged, on 1 February 1993, a criminal complaint together with an application to join the proceedings as a civil party (see paragraphs 28-29 above). The Court notes that the circumstances of the case show that there were a number of other delays which should be considered. Almost a year elapsed between the medical examination on 7 December 1991 (see paragraph 18 above) and the interviewing of the applicant by the National Police Inspectorate (see paragraph 24 above); thereafter, again nearly a year elapsed between the opening of a judicial investigation (see paragraph 29 above) and the holding of an identity parade of the police officers (see paragraph 38 above); and two years and over eight months elapsed between the date on which they were identified and the date on which they were placed under investigation (see paragraph 50 above). The Court observes, like the Commission, that five years after the events no one had been charged, despite the fact that the police officers accused by the applicant had been identified. Moreover, the police officers did not finally appear before the Criminal Court (see paragraph 58 above) until almost five years after they had been identified and seven years after the period of police custody in question. 79. In the Courts opinion, the issue is consequently not so much whether there was an inquiry, since it appears to have been conclusively established that there was one, as whether it
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was conducted diligently, whether the authorities were determined to identify and prosecute those responsible and, accordingly, whether the inquiry was effective. This issue is of particular importance if it is recalled that where an individual has an arguable claim that there has been a violation of Article 3 (or of Article 2), the notion of an effective remedy entails, on the part of the State, a thorough and effective investigation capable of leading to the identification and punishment of those responsible (see, among other authorities, the following judgments: Aksoy cited above, p. 2287, 98; Assenov and Others v. Bulgaria, 28 October 1998, Reports 1998-VIII, p. 3290, 102; and, mutatis mutandis, Soering v. the United Kingdom, 7 July 1989, Series A no. 161, pp. 34-35, 88). The Court considers that Mr Selmounis allegations, which as was clear from medical certificates of which the authorities were aware amounted at the very least to an arguable claim, were particularly serious, in respect of both the alleged facts and the status of the persons implicated. 80. Having regard to the foregoing, the Court considers, like the Commission, that the authorities did not take the positive measures required in the circumstances of the case to ensure that the remedy referred to by the Government was effective. 81. Accordingly, given the lack of convincing explanation by the Government as to the effectiveness and adequacy of the remedy they relied on, that is, a criminal complaint together with an application to join the proceedings as a civil party, the Court considers that the remedy available to the applicant was not, in the instant case, an ordinary remedy sufficient to afford him redress in respect of the violations he alleged. While emphasising that its decision is limited to the circumstances of this case and must not be interpreted as a general statement to the effect that a criminal complaint together with an application to join the proceedings as a civil party is never a remedy which must be used in the event of an allegation of ill-treatment during police custody, the Court decides that the Governments objection on grounds of failure to exhaust domestic remedies cannot be upheld. 2. The gravity of the treatment complained of 91. The applicant submitted that the threshold of severity required for the application of Article 3 had been attained in the present case. He considered that the motive for the police officers actions had been to obtain a confession, as he had been informed against and the police officers had been convinced that he was guilty even though the body search and the search of his hotel room at the time of his arrest had not yielded any evidence. He asserted that, aged 49, he had never been convicted or even arrested and that he stood by his refusal to admit any involvement in the drug trafficking being investigated by the police. He contended that the police officers had deliberately ill-treated him, given their constant questioning by day and, above all, by night. The applicant submitted that he had been subjected to both physical and mental ill-treatment. In his view, it was well known that such police practices existed, and that they required preparation, training and deliberate intent and were designed to obtain a confession or information. He argued that, in the light of the facts of the case, the severity and cruelty of the suffering inflicted on him justified classifying the acts as torture within the meaning of Article 3 of the Convention. 92. The Commission considered that the blows inflicted on the applicant had caused him actual injuries and acute physical and mental suffering. In its opinion, that treatment must have been inflicted on him deliberately and, moreover, with the aim of obtaining a confession or information. In the Commissions view, such treatment, inflicted by one or more State officials
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and to which medical certificates bore testimony, was of such a serious and cruel nature that it could only be described as torture, without it being necessary to give an opinion regarding the other offences, in particular of rape, alleged by the applicant. 93. In their memorial the Netherlands Government agreed with the Commissions assessment of the facts in the light of the provisions of the Convention, and with its conclusion. 94. The French Government pointed to a contradiction between the finding by the Commission, which noted the seriousness of the injuries found by Dr Garnier in his report of 7 December 1991, and the finding by Dr Garnier himself, who concluded in a later report that the injuries had no serious features. The Government also submitted that the eye specialist had concluded that there was no causal link between the alleged facts and the loss of visual acuity. In any event, they contended in the light of both the Courts case-law (see the Ireland v. the United Kingdom, Tomasi and Aydn judgments cited above) and the circumstances of the case that the ill-treatment allegedly inflicted by the police officers did not amount to torture within the meaning of Article 3 of the Convention. 95. The Court reiterates that Article 3 enshrines one of the most fundamental values of democratic societies. Even in the most difficult circumstances, such as the fight against terrorism and organised crime, the Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment. Unlike most of the substantive clauses of the Convention and of Protocols Nos. 1 and 4, Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15 2 even in the event of a public emergency threatening the life of the nation (see the following judgments: Ireland v. the United Kingdom cited above, p. 65, 163; Soering cited above, pp. 34-35, 88; and Chahal v. the United Kingdom, 15 November 1996, Reports 1996-V, p. 1855, 79). 96. In order to determine whether a particular form of ill-treatment should be qualified as torture, the Court must have regard to the distinction, embodied in Article 3, between this notion and that of inhuman or degrading treatment. As the European Court has previously found, it appears that it was the intention that the Convention should, by means of this distinction, attach a special stigma to deliberate inhuman treatment causing very serious and cruel suffering (see the Ireland v. the United Kingdom judgment cited above, pp. 66-67, 167). 97. The United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which came into force on 26 June 1987, also makes such a distinction, as can be seen from Articles 1 and 16: FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Dismisses the Governments preliminary objection that domestic remedies had not been exhausted; 2. Holds that there has been a violation of Article 3 of the Convention; 3. Holds that there has been a violation of Article 6 1 of the Convention on account of the length of the proceedings; 4. Holds that the respondent State is to pay the applicant, within three months, 500,000 (five hundred thousand) French francs for personal injury and non-pecuniary damage and 113,364 (one hundred and thirteen thousand three hundred and sixty-four) French francs for costs and
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expenses, on which sums simple interest at an annual rate of 3.47% shall be payable from the expiry of the above-mentioned three months until settlement; 5. Dismisses the remainder of the applicants claim for just satisfaction. Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 28 July 1999.

Luzius WILDHABER President Maud DE BOER-BUQUICCHIO Deputy Registra

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Spain v Eurojust (ECJ) Case C-160/03 Kingdom of Spain v Eurojust [2005] ECR I-2077
Case C-160/03 Kingdom of Spain v Eurojust

(Action for annulment under Article 230 EC Action brought by a Member State challenging calls for applications, issued by Eurojust, for positions as members of the temporary staff No jurisdiction of the Court Inadmissible) Opinion of Advocate General Poiares Maduro delivered on 16 December 2004 Judgment of the Court (Grand Chamber), 15 March 2005. Judgment 1 By its application, the Kingdom of Spain seeks the annulment, in seven calls for applications for the recruitment of temporary staff issued by Eurojust (the contested calls for applications), of the point concerning documents to be submitted in English by persons submitting their application form in another language, and of the various points in each call for applications concerning candidates qualifications in respect of knowledge of languages. Law 2 Title VI of the Treaty on European Union contains provisions on police and judicial cooperation in criminal matters, namely Articles 29 EU to 42 EU. 3 Article 31 EU describes the objectives of common action on judicial cooperation in criminal matters. 4 Article 34(2) EU provides: The Council shall take measures and promote cooperation, using the appropriate form and procedures as set out in this title, contributing to the pursuit of the objectives of the Union. To that end, acting unanimously on the initiative of any Member State or of the Commission, the Council may: (c) adopt decisions for any other purpose consistent with the objectives of this title, excluding any approximation of the laws and regulations of the Member States. These decisions shall be binding and shall not entail direct effect; the Council, acting by a qualified majority, shall adopt measures necessary to implement those decisions at the level of the Union; .
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5 Article 35 EU relates to the jurisdiction of the Court with regard to the provisions of Title VI of the Treaty on European Union. Paragraphs 6 and 7 of that article are worded as follows: 6. The Court of Justice shall have jurisdiction to review the legality of framework decisions and decisions in actions brought by a Member State or the Commission on grounds of lack of competence, infringement of an essential procedural requirement, infringement of this Treaty or of any rule of law relating to its application, or misuse of powers. The proceedings provided for in this paragraph shall be instituted within two months of the publication of the measure. 7. The Court of Justice shall have jurisdiction to rule on any dispute between Member States regarding the interpretation or the application of acts adopted under Article 34(2) whenever such dispute cannot be settled by the Council within six months of its being referred to the Council by one of its members. The Court shall also have jurisdiction to rule on any dispute between Member States and the Commission regarding the interpretation or the application of conventions established under Article 34(2)(d). 6 Article 41(1) EU provides: Articles 189, 190, 195, 196 to 199, 203, 204, 205(3), 206 to 209, 213 to 219, 255 and 290 of the Treaty establishing the European Community shall apply to the provisions relating to the areas referred to in this title. 7 Article 46 EU, which forms part of the final provisions of the Treaty on European Union, is worded as follows: The provisions of the Treaty establishing the European Community, the Treaty establishing the European Coal and Steel Community and the Treaty establishing the European Atomic Energy Community concerning the powers of the Court of Justice of the European Communities and the exercise of those powers shall apply only to the following provisions of this Treaty: (b) provisions of Title VI, under the conditions provided for by Article 35; . 8 The first paragraph of Article 12 EC provides: Within the scope of application of this Treaty, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited. 9 The first paragraph of Article 230 EC is worded as follows: The Court of Justice shall review the legality of acts adopted jointly by the European Parliament and the Council, of acts of the Council, of the Commission and of the ECB, other than recommendations and opinions, and of acts of the European Parliament intended to produce legal effects vis--vis third parties. 10 Article 236 EC provides that the Court of Justice shall have jurisdiction in any dispute between the Community and its servants within the limits and under the conditions laid down in the Staff Regulations or the Conditions of Employment. 11
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Article 1 of Regulation No 1 of the Council of 15 April 1958 determining the languages to be used by the European Economic Community (OJ, English Special Edition 1952-1958, p. 59), as amended by the Act concerning the conditions of accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden and the adjustments to the Treaties on which the European Union is founded (OJ 1994 C 241, p. 21, and OJ 1995 L 1, p. 1), is worded as follows: The official languages and the working languages of the institutions of the Union shall be Danish, Dutch, English, Finnish, French, German, Greek, Italian, Portuguese, Spanish and Swedish. 12 Council Decision 2002/187/JHA of 28 February 2002 setting up Eurojust with a view to reinforcing the fight against serious crime (OJ 2002 L 63, p. 1, the Decision) is based on the Treaty on European Union, and in particular Articles 31 EU and 34(2)(c) EU. It provides in Article 1 that Eurojust is to be a body of the Union with legal personality. 13 Under Article 2 of that decision, Eurojust is to be composed of one national member seconded by each Member State in accordance with its legal system, being a prosecutor, judge or police officer of equivalent competence. 14 The objectives of Eurojust, described in Article 3 of the Decision, are to stimulate and improve the coordination, between the competent authorities of the Member States, of investigations and prosecutions in those States, to improve cooperation between those authorities, in particular by facilitating the execution of international mutual legal assistance and the implementation of extradition requests, and to support those authorities in order to render their investigations and prosecutions more effective. As appropriate, Eurojust may also assist investigations and prosecutions concerning a Member State and a non-member State, or a Member State and the Community. 15 Article 30 of the Decision, headed Staff, provides: 1. Eurojust staff shall be subject to the rules and regulations applicable to the officials and other servants of the European Communities, particularly as regards their recruitment and status. 2. Eurojust staff shall consist of staff recruited according to the rules and regulations referred to in paragraph 1, taking into account all the criteria referred to in Article 27 of the Staff Regulations of Officials of the European Communities laid down by Regulation (EEC, Euratom, ECSC) No 259/68 , including their geographical distribution. 3. Under the authority of the College, the staff shall carry out its tasks bearing in mind the objectives and mandate of Eurojust . 16 Article 31 of that decision, headed Assistance with interpreting and translation, provides: 1. The official linguistic arrangements of the Union shall apply to Eurojust proceedings [In the Spanish text: El rgimen lingstico de las instituciones de la Comunidad Europea ser aplicable a Eurojust]. 2. The annual report to the Council, referred to in the second subparagraph of Article 32(1), shall be drawn up in the official languages of the Union institutions. 17

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Articles 12 to 15 of the Conditions of employment of other servants of the European Communities (the CEOS) concern the conditions of engagement of the latter. Article 12 provides: 1. The engagement of temporary staff shall be directed to securing for the institution the services of persons of the highest standard of ability, efficiency and integrity, recruited on the broadest possible geographical basis from among nationals of Member States of the Communities. 2. A member of the temporary staff may be engaged only on condition that: (e) he produces evidence of a thorough knowledge of one of the languages of the Communities and of a satisfactory knowledge of another language of the Communities to the extent necessary for the performance of his duties. 18 Article 91 of the Staff Regulations of Officials of the European Communities (the Staff Regulations), which is applicable to temporary staff by reason of Article 73 of the CEOS, which refers to the provisions of Title VII of the Staff Regulations relating to appeals, sets out the conditions governing the admissibility of appeals brought by officials before the Court. It is settled case-law that that remedy is available to candidates in open competitions or selection procedures, whether or not they are servants of the Communities (see, to that effect, Case 23/64 Vandevyvere v Parliament [1965] ECR 157, 163). 19 On 13 February 2003, the contested calls for applications were published in the Official Journal of the European Union. In those calls for applications, the requirements relating to knowledge of languages are the following: for the position of Data-protection Officer (OJ 2003 C 34 A, p. 1), excellent knowledge of English and French. Ability to work in other European Community languages would be an asset; for the position of Accounting Officer (OJ 2003 C 34 A, p. 4), thorough knowledge of one official language of the European Union and a satisfactory knowledge of another language of the Union, including a satisfactory knowledge of English; for the position of IT-informatics expert (webmaster) of the European judicial network (OJ 2003 C 34 A, p. 6), a good knowledge of English is essential. Capacity to communicate in at least two other official languages of the European Communities, including French, will definitely be considered an asset; for the position of Legal Officer (OJ 2003 C 34 A, p. 11), excellent knowledge of English and French. Ability to work in other European Community languages would be an asset; for the position of Librarian/Archivist (OJ 2003 C 34 A, p. 13), no particular requirements; for the position of Press Officer (OJ 2003 C 34 A, p. 16), capacity to communicate in at least English and French. Knowledge of other official languages of the European Communities will be an asset;
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 for the position of Secretary to the General Administration (OJ 2003 C 34 A, p. 18), a thorough knowledge of English and French. A satisfactory knowledge of other Community languages would definitely be considered an asset. 20 Those calls for applications state that the application form must be completed by candidates in their own language and in English. In addition, that form must be accompanied by a letter of motivation and a curriculum vitae, drawn up in English only. Pleas in law 21 The Kingdom of Spain puts forward three pleas in law in support of its action. 22 The first plea alleges infringement of Article 12(2)(e) of the CEOS, which provides that candidates may be required to have a thorough knowledge only of one language, namely, in principle, their mother tongue, and a satisfactory knowledge of another language, the choice of which is left to candidates. 23 The second plea alleges infringement of the rules governing the linguistic arrangements applicable to Eurojust, as laid down in Article 31 of the Decision. Those arrangements are defined by Regulation No 1, Article 1 of which specifies the official languages and the working languages of the institutions. Since no provision of the Decision states that the working languages of Eurojust are to be English and French, all the official languages of the Union may be used by the members of Eurojust and the staff of the secretariat of that body. Consequently, the calls for applications infringe the linguistic arrangements applicable to Eurojust. 24 The third plea alleges breach of the principle of the prohibition of discrimination set out in Article 12 EC and of the obligation to state reasons. The Kingdom of Spain submits in that regard that requiring candidates to complete certain documents in English and the conditions in the calls for applications relating to knowledge of English and French constitute manifest discrimination on grounds of nationality, since it favours candidates whose mother tongue is English or French. The more favourable treatment of those two languages is neither justified nor even explained, which constitutes a breach of the obligation to state reasons referred to in Article 253 EC. Findings of the Court 35 First of all, it must be pointed out that it is for the applicant to choose the legal basis of its action and not for the Community judicature itself to choose the most appropriate legal basis (see, to that effect, Case 175/73 Union syndicaleand Others v Council [1974] ECR 917, and the order of the Court of First Instance in Case T-148/97 Keeling v OHIM [1998] ECR II-2217). It is clear from the examination of the action that the applicant brought it under Article 230 EC. The admissibility of that action must therefore be examined in the light of that provision. 36 As is clear from Article 230 EC, the Court shall review the legality of acts adopted jointly by the European Parliament and the Council, of acts of the Council, of the Commission and of

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the ECB, other than recommendations and opinions, and of acts of the European Parliament intended to produce legal effects vis--vis third parties. 37 Clearly, the acts contested in the present action are not included in the list of acts the legality of which the Court may review under that article. 38 Moreover, Article 41 EU does not provide that Article 230 EC is to apply to the provisions on police and judicial cooperation in criminal matters in Title VI of the Treaty on European Union, the jurisdiction of the Court in such matters being defined in Article 35 EU, to which Article 46(b) EU refers. 39 In any event, the Kingdom of Spain has not denied that the contested calls for applications are to be regarded as acts adopted under Title VI of the Treaty on European Union. 40 It follows that the action brought under Article 230 EC cannot be declared admissible. 41 As regards the right to effective judicial protection in a community based on the rule of law which, in the view of the Kingdom of Spain, requires that all decisions of a body with legal personality subject to Community law be amenable to judicial review, it must be observed that the acts contested in this case are not exempt from judicial review. 42 As is clear from Article 30 of the Decision, Eurojust staff are to be subject to the rules and regulations applicable to officials and other servants of the European Communities. It follows that, in accordance with the consistent case-law, the main parties concerned, namely the candidates for the various positions in the contested calls for applications, had access to the Community Courts under the conditions laid down in Article 91 of the Staff Regulations (to that effect, see Vandevyvere v European Parliament, cited above, 163). 43 In the event of such an action, Member States would be entitled to intervene in the proceedings in accordance with Article 40 of the Statute of the Court of Justice and could, where appropriate, as is clear from the second and third paragraphs of Article 56 of that Statute, appeal against the judgment of the Court of First Instance. 44 It follows from all those considerations that the application is inadmissible. On those grounds, the Court (Grand Chamber) hereby: 1. Declares that the application is inadmissible; 2. Orders the Kingdom of Spain to pay the costs; 3. Orders the Republic of Finland to bear its own costs

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Soering v United Kingdom (ECtHR) Soering v United Kingdom App No 14038/88 (ECtHR, 7 July 1989)

COURT (PLENARY)

CASE OF SOERING v. THE UNITED KINGDOM

(Application no. 14038/88)

JUDGMENT

STRASBOURG 07 July 1989

AS TO THE FACTS I. PARTICULAR CIRCUMSTANCES OF THE CASE 11. The applicant, Mr Jens Soering, was born on 1 August 1966 and is a German national. He is currently detained in prison in England pending extradition to the United States of America to face charges of murder in the Commonwealth of Virginia.
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12. The homicides in question were committed in Bedford County, Virginia, in March 1985. The victims, William Reginald Haysom (aged 72) and Nancy Astor Haysom (aged 53), were the parents of the applicants girlfriend, Elizabeth Haysom, who is a Canadian national. Death in each case was the result of multiple and massive stab and slash wounds to the neck, throat and body. At the time the applicant and Elizabeth Haysom, aged 18 and 20 respectively, were students at the University of Virginia. They disappeared together from Virginia in October 1985, but were arrested in England in April 1986 in connection with cheque fraud. 13. The applicant was interviewed in England between 5 and 8 June 1986 by a police investigator from the Sheriffs Department of Bedford County. In a sworn affidavit dated 24 July 1986 the investigator recorded the applicant as having admitted the killings in his presence and in that of two United Kingdom police officers. The applicant had stated that he was in love with Miss Haysom but that her parents were opposed to the relationship. He and Miss Haysom had therefore planned to kill them. They rented a car in Charlottesville and travelled to Washington where they set up an alibi. The applicant then went to the parents house, discussed the relationship with them and, when they told him that they would do anything to prevent it, a row developed during which he killed them with a knife. On 13 June 1986 a grand jury of the Circuit Court of Bedford County indicted him on charges of murdering the Haysom parents. The charges alleged capital murder of both of them and the separate non-capital murders of each. 14. On 11 August 1986 the Government of the United States of America requested the applicants and Miss Haysoms extradition under the terms of the Extradition Treaty of 1972 between the United States and the United Kingdom (see paragraph 30 below). On 12 September a Magistrate at Bow Street Magistrates Court was required by the Secretary of State for Home Affairs to issue a warrant for the applicants arrest under the provisions of section 8 of the Extradition Act 1870 (see paragraph 32 below). The applicant was subsequently arrested on 30 December at HM Prison Chelmsford after serving a prison sentence for cheque fraud. 15. On 29 October 1986 the British Embassy in Washington addressed a request to the United States authorities in the following terms: "Because the death penalty has been abolished in Great Britain, the Embassy has been instructed to seek an assurance, in accordance with the terms of ... the Extradition Treaty, that, in the event of Mr Soering being surrendered and being convicted of the crimes for which he has been indicted ..., the death penalty, if imposed, will not be carried out. Should it not be possible on constitutional grounds for the United States Government to give such an assurance, the United Kingdom authorities ask that the United States Government undertake to recommend to the appropriate authorities that the death penalty should not be imposed or, if imposed, should not be executed." 16. On 30 December 1986 the applicant was interviewed in prison by a German prosecutor (Staatsanwalt) from Bonn. In a sworn witness statement the prosecutor recorded the applicant as having said, inter alia, that "he had never had the intention of killing Mr and Mrs Haysom and ... he could only remember having inflicted wounds at the neck on Mr and Mrs Haysom which must have had something to do with their dying later"; and that in the immediately preceding days "there had been no talk whatsoever [between him and Elizabeth Haysom] about killing Elizabeths parents". The prosecutor also referred to documents which had been put at his disposal, for example the statements made by the applicant to the American police
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investigator, the autopsy reports and two psychiatric reports on the applicant (see paragraph 21 below). On 11 February 1987 the local court in Bonn issued a warrant for the applicants arrest in respect of the alleged murders. On 11 March the Government of the Federal Republic of Germany requested his extradition to the Federal Republic under the Extradition Treaty of 1872 between the Federal Republic and the United Kingdom (see paragraph 31 below). The Secretary of State was then advised by the Director of Public Prosecutions that, although the German request contained proof that German courts had jurisdiction to try the applicant, the evidence submitted, since it consisted solely of the admissions made by the applicant to the Bonn prosecutor in the absence of a caution, did not amount to a prima facie case against him and that a magistrate would not be able under the Extradition Act 1870 (see paragraph 32 below) to commit him to await extradition to Germany on the strength of admissions obtained in such circumstances. 17. In a letter dated 20 April 1987 to the Director of the Office of International Affairs, Criminal Division, United States Department of Justice, the Attorney for Bedford County, Virginia (Mr James W. Updike Jr) stated that, on the assumption that the applicant could not be tried in Germany on the basis of admissions alone, there was no means of compelling witnesses from the United States to appear in a criminal court in Germany. On 23 April the United States, by diplomatic note, requested the applicants extradition to the United States in preference to the Federal Republic of Germany. 18. On 8 May 1987 Elizabeth Haysom was surrendered for extradition to the United States. After pleading guilty on 22 August as an accessory to the murder of her parents, she was sentenced on 6 October to 90 years imprisonment (45 years on each count of murder). 19. On 20 May 1987 the United Kingdom Government informed the Federal Republic of Germany that the United States had earlier "submitted a request, supported by prima facie evidence, for the extradition of Mr Soering". The United Kingdom Government notified the Federal Republic that they had "concluded that, having regard to all the circumstances of the case, the court should continue to consider in the normal way the United States request". They further indicated that they had sought an assurance from the United States authorities on the question of the death penalty and that "in the event that the court commits Mr Soering, his surrender to the United States authorities would be subject to the receipt of satisfactory assurances on this matter". 20. On 1 June 1987 Mr Updike swore an affidavit in his capacity as Attorney for Bedford County, in which he certified as follows: "I hereby certify that should Jens Soering be convicted of the offence of capital murder as charged in Bedford County, Virginia ... a representation will be made in the name of the United Kingdom to the judge at the time of sentencing that it is the wish of the United Kingdom that the death penalty should not be imposed or carried out." This assurance was transmitted to the United Kingdom Government under cover of a diplomatic note on 8 June. It was repeated in the same terms in a further affidavit from Mr Updike sworn on 16 February 1988 and forwarded to the United Kingdom by diplomatic note on 17 May 1988. In the same note the Federal Government of the United States undertook to ensure that the commitment of the appropriate authorities of the Commonwealth of Virginia to make representations on behalf of the United Kingdom would be honoured. During the course of the present proceedings the Virginia authorities informed the United Kingdom Government that Mr Updike was not planning to provide any further assurances

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and intended to seek the death penalty in Mr Soerings case because the evidence, in his determination, supported such action. 21. On 16 June 1987 at the Bow Street Magistrates Court committal proceedings took place before the Chief Stipendiary Magistrate. The Government of the United States adduced evidence that on the night of 30 March 1985 the applicant killed William and Nancy Haysom at their home in Bedford County, Virginia. In particular, evidence was given of the applicants own admissions as recorded in the affidavit of the Bedford County police investigator (see paragraph 13 above). On behalf of the applicant psychiatric evidence was adduced from a consultant forensic psychiatrist (report dated 15 December 1986 by Dr Henrietta Bullard) that he was immature and inexperienced and had lost his personal identity in a symbiotic relationship with his girlfriend - a powerful, persuasive and disturbed young woman. The psychiatric report concluded: "There existed between Miss Haysom and Soering a folie deux, in which the most disturbed partner was Miss Haysom. ... At the time of the offence, it is my opinion that Jens Soering was suffering from [such] an abnormality of mind due to inherent causes as substantially impaired his mental responsibility for his acts. The psychiatric syndrome referred to as folie deux is a well-recognised state of mind where one partner is suggestible to the extent that he or she believes in the psychotic delusions of the other. The degree of disturbance of Miss Haysom borders on the psychotic and, over the course of many months, she was able to persuade Soering that he might have to kill her parents for she and him to survive as a couple. ... Miss Haysom had a stupefying and mesmeric effect on Soering which led to an abnormal psychological state in which he became unable to think rationally or question the absurdities in Miss Haysoms view of her life and the influence of her parents. ... In conclusion, it is my opinion that, at the time of the offences, Soering was suffering from an abnormality of mind which, in this country, would constitute a defence of not guilty to murder but guilty of manslaughter." Dr Bullards conclusions were substantially the same as those contained in an earlier psychiatric report (dated 11 December 1986 by Dr John R. Hamilton, Medical Director of Broadmoor Hospital), which was not however put before the Magistrates Court. The Chief Magistrate found that the evidence of Dr Bullard was not relevant to any issue that he had to decide and committed the applicant to await the Secretary of States order for his return to the United States. 22. On 29 June 1987 Mr Soering applied to the Divisional Court for a writ of habeas corpus in respect of his committal and for leave to apply for judicial review. On 11 December both applications were refused by the Divisional Court (Lord Justice Lloyd and Mr Justice Macpherson). In support of his application for leave to apply for judicial review, Mr Soering had submitted that the assurance received from the United States authorities was so worthless that no reasonable Secretary of State could regard it as satisfactory under Article IV of the Extradition Treaty between the United Kingdom and the United States (see paragraph 36 below). In his judgment Lord Justice Lloyd agreed that "the assurance leaves something to be desired": "Article IV of the Treaty contemplates an assurance that the death penalty will not be carried out. That must presumably mean an assurance by or on behalf of the Executive Branch of
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Government, which in this case would be the Governor of the Commonwealth of Virginia. The certificate sworn by Mr Updike, far from being an assurance on behalf of the Executive, is nothing more than an undertaking to make representations on behalf of the United Kingdom to the judge. I cannot believe that this is what was intended when the Treaty was signed. But I can understand that there may well be difficulties in obtaining more by way of assurance in view of the federal nature of the United States Constitution." Leave to apply for judicial review was refused because the claim was premature. Lord Justice Lloyd stated: "The Secretary of State has not yet decided whether to accept the assurance as satisfactory and he has certainly not yet decided whether or not to issue a warrant for Soerings surrender. Other factors may well intervene between now and then. This court will never allow itself to be put in the position of reviewing an administrative decision before the decision has been made." As a supplementary reason, he added: "Secondly, even if a decision to regard the assurance as satisfactory had already been made by the Secretary of State, then on the evidence currently before us I am far from being persuaded that such a decision would have been irrational in the Wednesbury sense." (As to "irrationality" in the Wednesbury sense, see paragraph 35 below.) 23. On 30 June 1988 the House of Lords rejected the applicants petition for leave to appeal against the decision of the Divisional Court. 24. On 14 July 1988 the applicant petitioned the Secretary of State, requesting him to exercise his discretion not to make an order for the applicants surrender under section 11 of the Extradition Act 1870 (see paragraph 34 below). This request was rejected, and on 3 August 1988 the Secretary of State signed a warrant ordering the applicants surrender to the United States authorities. However, the applicant has not been transferred to the United States by virtue of the interim measures indicated in the present proceedings firstly by the European Commission and then by the European Court (see paragraphs 4 above and 77 below). 25. On 5 August 1988 the applicant was transferred to a prison hospital where he remained until early November 1988 under the special regime applied to suicide-risk prisoners. According to psychiatric evidence adduced on behalf of the applicant (report dated 16 March 1989 by Dr D. Somekh), the applicants dread of extreme physical violence and homosexual abuse from other inmates in death row in Virginia is in particular having a profound psychological effect on him. The psychiatrists report records a mounting desperation in the applicant, together with objective fears that he may seek to take his own life. 26. By a declaration dated 20 March 1989 submitted to this Court, the applicant stated that should the United Kingdom Government require that he be deported to the Federal Republic of Germany he would consent to such requirement and would present no factual or legal opposition against the making or execution of an order to that effect. AS TO THE LAW I. ALLEGED BREACH OF ARTICLE 3 (art. 3) 80. The applicant alleged that the decision by the Secretary of State for the Home Department to surrender him to the authorities of the United States of America would, if
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implemented, give rise to a breach by the United Kingdom of Article 3 (art. 3) of the Convention, which provides: "No one shall be subjected to torture or to inhuman or degrading treatment or punishment." A. Applicability of Article 3 (art. 3) in cases of extradition 81. The alleged breach derives from the applicants exposure to the so-called "death row phenomenon". This phenomenon may be described as consisting in a combination of circumstances to which the applicant would be exposed if, after having been extradited to Virginia to face a capital murder charge, he were sentenced to death. 82. In its report (at paragraph 94) the Commission reaffirmed "its case-law that a persons deportation or extradition may give rise to an issue under Article 3 (art. 3) of the Convention where there are serious reasons to believe that the individual will be subjected, in the receiving State, to treatment contrary to that Article (art. 3)". The Government of the Federal Republic of Germany supported the approach of the Commission, pointing to a similar approach in the case-law of the German courts. The applicant likewise submitted that Article 3 (art. 3) not only prohibits the Contracting States from causing inhuman or degrading treatment or punishment to occur within their jurisdiction but also embodies an associated obligation not to put a person in a position where he will or may suffer such treatment or punishment at the hands of other States. For the applicant, at least as far as Article 3 (art. 3) is concerned, an individual may not be surrendered out of the protective zone of the Convention without the certainty that the safeguards which he would enjoy are as effective as the Convention standard. 83. The United Kingdom Government, on the other hand, contended that Article 3 (art. 3) should not be interpreted so as to impose responsibility on a Contracting State for acts which occur outside its jurisdiction. In particular, in their submission, extradition does not involve the responsibility of the extraditing State for inhuman or degrading treatment or punishment which the extradited person may suffer outside the States jurisdiction. To begin with, they maintained, it would be straining the language of Article 3 (art. 3) intolerably to hold that by surrendering a fugitive criminal the extraditing State has "subjected" him to any treatment or punishment that he will receive following conviction and sentence in the receiving State. Further arguments advanced against the approach of the Commission were that it interferes with international treaty rights; it leads to a conflict with the norms of international judicial process, in that it in effect involves adjudication on the internal affairs of foreign States not Parties to the Convention or to the proceedings before the Convention institutions; it entails grave difficulties of evaluation and proof in requiring the examination of alien systems of law and of conditions in foreign States; the practice of national courts and the international community cannot reasonably be invoked to support it; it causes a serious risk of harm in the Contracting State which is obliged to harbour the protected person, and leaves criminals untried, at large and unpunished. In the alternative, the United Kingdom Government submitted that the application of Article 3 (art. 3) in extradition cases should be limited to those occasions in which the treatment or punishment abroad is certain, imminent and serious. In their view, the fact that by definition the matters complained of are only anticipated, together with the common and legitimate interest of all States in bringing fugitive criminals to justice, requires a very high degree of risk, proved beyond reasonable doubt, that ill-treatment will actually occur. 84. The Court will approach the matter on the basis of the following considerations.
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85. As results from Article 5 1 (f) (art. 5-1-f), which permits "the lawful ... detention of a person against whom action is being taken with a view to ... extradition", no right not to be extradited is as such protected by the Convention. Nevertheless, in so far as a measure of extradition has consequences adversely affecting the enjoyment of a Convention right, it may, assuming that the consequences are not too remote, attract the obligations of a Contracting State under the relevant Convention guarantee (see, mutatis mutandis, the Abdulaziz, Cabales and Balkandali judgment of 25 May 1985, Series A no. 94, pp. 31-32, 59-60 - in relation to rights in the field of immigration). What is at issue in the present case is whether Article 3 (art. 3) can be applicable when the adverse consequences of extradition are, or may be, suffered outside the jurisdiction of the extraditing State as a result of treatment or punishment administered in the receiving State. 86. Article 1 (art. 1) of the Convention, which provides that "the High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I", sets a limit, notably territorial, on the reach of the Convention. In particular, the engagement undertaken by a Contracting State is confined to "securing" ("reconnatre" in the French text) the listed rights and freedoms to persons within its own "jurisdiction". Further, the Convention does not govern the actions of States not Parties to it, nor does it purport to be a means of requiring the Contracting States to impose Convention standards on other States. Article 1 (art. 1) cannot be read as justifying a general principle to the effect that, notwithstanding its extradition obligations, a Contracting State may not surrender an individual unless satisfied that the conditions awaiting him in the country of destination are in full accord with each of the safeguards of the Convention. Indeed, as the United Kingdom Government stressed, the beneficial purpose of extradition in preventing fugitive offenders from evading justice cannot be ignored in determining the scope of application of the Convention and of Article 3 (art. 3) in particular. In the instant case it is common ground that the United Kingdom has no power over the practices and arrangements of the Virginia authorities which are the subject of the applicants complaints. It is also true that in other international instruments cited by the United Kingdom Government - for example the 1951 United Nations Convention relating to the Status of Refugees (Article 33), the 1957 European Convention on Extradition (Article 11) and the 1984 United Nations Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (Article 3) - the problems of removing a person to another jurisdiction where unwanted consequences may follow are addressed expressly and specifically. These considerations cannot, however, absolve the Contracting Parties from responsibility under Article 3 (art. 3) for all and any foreseeable consequences of extradition suffered outside their jurisdiction. 87. In interpreting the Convention regard must be had to its special character as a treaty for the collective enforcement of human rights and fundamental freedoms (see the Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, p. 90, 239). Thus, the object and purpose of the Convention as an instrument for the protection of individual human beings require that its provisions be interpreted and applied so as to make its safeguards practical and effective (see, inter alia, the Artico judgment of 13 May 1980, Series A no. 37, p. 16, 33). In addition, any interpretation of the rights and freedoms guaranteed has to be consistent with "the general spirit of the Convention, an instrument designed to maintain and promote the ideals and values of a democratic society" (see the Kjeldsen, Busk Madsen and Pedersen judgment of 7 December 1976, Series A no. 23, p. 27, 53).

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88. Article 3 (art. 3) makes no provision for exceptions and no derogation from it is permissible under Article 15 (art. 15) in time of war or other national emergency. This absolute prohibition of torture and of inhuman or degrading treatment or punishment under the terms of the Convention shows that Article 3 (art. 3) enshrines one of the fundamental values of the democratic societies making up the Council of Europe. It is also to be found in similar terms in other international instruments such as the 1966 International Covenant on Civil and Political Rights and the 1969 American Convention on Human Rights and is generally recognised as an internationally accepted standard. The question remains whether the extradition of a fugitive to another State where he would be subjected or be likely to be subjected to torture or to inhuman or degrading treatment or punishment would itself engage the responsibility of a Contracting State under Article 3 (art. 3). That the abhorrence of torture has such implications is recognised in Article 3 of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which provides that "no State Party shall ... extradite a person where there are substantial grounds for believing that he would be in danger of being subjected to torture". The fact that a specialised treaty should spell out in detail a specific obligation attaching to the prohibition of torture does not mean that an essentially similar obligation is not already inherent in the general terms of Article 3 (art. 3) of the European Convention. It would hardly be compatible with the underlying values of the Convention, that "common heritage of political traditions, ideals, freedom and the rule of law" to which the Preamble refers, were a Contracting State knowingly to surrender a fugitive to another State where there were substantial grounds for believing that he would be in danger of being subjected to torture, however heinous the crime allegedly committed. Extradition in such circumstances, while not explicitly referred to in the brief and general wording of Article 3 (art. 3), would plainly be contrary to the spirit and intendment of the Article, and in the Courts view this inherent obligation not to extradite also extends to cases in which the fugitive would be faced in the receiving State by a real risk of exposure to inhuman or degrading treatment or punishment proscribed by that Article (art. 3). 89. What amounts to "inhuman or degrading treatment or punishment" depends on all the circumstances of the case (see paragraph 100 below). Furthermore, inherent in the whole of the Convention is a search for a fair balance between the demands of the general interest of the community and the requirements of the protection of the individuals fundamental rights. As movement about the world becomes easier and crime takes on a larger international dimension, it is increasingly in the interest of all nations that suspected offenders who flee abroad should be brought to justice. Conversely, the establishment of safe havens for fugitives would not only result in danger for the State obliged to harbour the protected person but also tend to undermine the foundations of extradition. These considerations must also be included among the factors to be taken into account in the interpretation and application of the notions of inhuman and degrading treatment or punishment in extradition cases. 90. It is not normally for the Convention institutions to pronounce on the existence or otherwise of potential violations of the Convention. However, where an applicant claims that a decision to extradite him would, if implemented, be contrary to Article 3 (art. 3) by reason of its foreseeable consequences in the requesting country, a departure from this principle is necessary, in view of the serious and irreparable nature of the alleged suffering risked, in order to ensure the effectiveness of the safeguard provided by that Article (art. 3) (see paragraph 87 above). 91. In sum, the decision by a Contracting State to extradite a fugitive may give rise to an issue under Article 3 (art. 3), and hence engage the responsibility of that State under the
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Convention, where substantial grounds have been shown for believing that the person concerned, if extradited, faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment in the requesting country. The establishment of such responsibility inevitably involves an assessment of conditions in the requesting country against the standards of Article 3 (art. 3) of the Convention. Nonetheless, there is no question of adjudicating on or establishing the responsibility of the receiving country, whether under general international law, under the Convention or otherwise. In so far as any liability under the Convention is or may be incurred, it is liability incurred by the extraditing Contracting State by reason of its having taken action which has as a direct consequence the exposure of an individual to proscribed ill-treatment. B. Application of Article 3 (art. 3) in the particular circumstances of the present case 92. The extradition procedure against the applicant in the United Kingdom has been completed, the Secretary of State having signed a warrant ordering his surrender to the United States authorities (see paragraph 24 above); this decision, albeit as yet not implemented, directly affects him. It therefore has to be determined on the above principles whether the foreseeable consequences of Mr Soerings return to the United States are such as to attract the application of Article 3 (art. 3). This inquiry must concentrate firstly on whether Mr Soering runs a real risk of being sentenced to death in Virginia, since the source of the alleged inhuman and degrading treatment or punishment, namely the "death row phenomenon", lies in the imposition of the death penalty. Only in the event of an affirmative answer to this question need the Court examine whether exposure to the "death row phenomenon" in the circumstances of the applicants case would involve treatment or punishment incompatible with Article 3 (art. 3). 1. Whether the applicant runs a real risk of a death sentence and hence of exposure to the "death row phenomenon" 93. The United Kingdom Government, contrary to the Government of the Federal Republic of Germany, the Commission and the applicant, did not accept that the risk of a death sentence attains a sufficient level of likelihood to bring Article 3 (art. 3) into play. Their reasons were fourfold. Firstly, as illustrated by his interview with the German prosecutor where he appeared to deny any intention to kill (see paragraph 16 above), the applicant has not acknowledged his guilt of capital murder as such. Secondly, only a prima facie case has so far been made out against him. In particular, in the United Kingdom Governments view the psychiatric evidence (see paragraph 21 above) is equivocal as to whether Mr Soering was suffering from a disease of the mind sufficient to amount to a defence of insanity under Virginia law (as to which, see paragraph 50 above). Thirdly, even if Mr Soering is convicted of capital murder, it cannot be assumed that in the general exercise of their discretion the jury will recommend, the judge will confirm and the Supreme Court of Virginia will uphold the imposition of the death penalty (see paragraphs 42-47 and 52 above). The United Kingdom Government referred to the presence of important mitigating factors, such as the applicants age and mental condition at the time of commission of the offence and his lack of previous criminal activity, which would have to be taken into account by the jury and then by the judge in the separate sentencing proceedings (see paragraphs 44-47 and 51 above).
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Fourthly, the assurance received from the United States must at the very least significantly reduce the risk of a capital sentence either being imposed or carried out (see paragraphs 20, 37 and 69 above). At the public hearing the Attorney General nevertheless made clear his Governments understanding that if Mr Soering were extradited to the United States there was "some risk", which was "more than merely negligible", that the death penalty would be imposed. 94. As the applicant himself pointed out, he has made to American and British police officers and to two psychiatrists admissions of his participation in the killings of the Haysom parents, although he appeared to retract those admissions somewhat when questioned by the German prosecutor (see paragraphs 13, 16 and 21 above). It is not for the European Court to usurp the function of the Virginia courts by ruling that a defence of insanity would or would not be available on the psychiatric evidence as it stands. The United Kingdom Government are justified in their assertion that no assumption can be made that Mr Soering would certainly or even probably be convicted of capital murder as charged (see paragraphs 13 in fine and 40 above). Nevertheless, as the Attorney General conceded on their behalf at the public hearing, there is "a significant risk" that the applicant would be so convicted. 95. Under Virginia law, before a death sentence can be returned the prosecution must prove beyond reasonable doubt the existence of at least one of the two statutory aggravating circumstances, namely future dangerousness or vileness (see paragraph 43 above). In this connection, the horrible and brutal circumstances of the killings (see paragraph 12 above) would presumably tell against the applicant, regard being had to the case-law on the grounds for establishing the "vileness" of the crime (see paragraph 43 above). Admittedly, taken on their own the mitigating factors do reduce the likelihood of the death sentence being imposed. No less than four of the five facts in mitigation expressly mentioned in the Code of Virginia could arguably apply to Mr Soerings case. These are a defendants lack of any previous criminal history, the fact that the offence was committed while a defendant was under extreme mental or emotional disturbance, the fact that at the time of commission of the offence the capacity of a defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was significantly diminished, and a defendants age (see paragraph 45 above). 96. These various elements arguing for or against the imposition of a death sentence have to be viewed in the light of the attitude of the prosecuting authorities. 97. The Commonwealths Attorney for Bedford County, Mr Updike, who is responsible for conducting the prosecution against the applicant, has certified that "should Jens Soering be convicted of the offence of capital murder as charged ... a representation will be made in the name of the United Kingdom to the judge at the time of sentencing that it is the wish of the United Kingdom that the death penalty should not be imposed or carried out" (see paragraph 20 above). The Court notes, like Lord Justice Lloyd in the Divisional Court (see paragraph 22 above), that this undertaking is far from reflecting the wording of Article IV of the 1972 Extradition Treaty between the United Kingdom and the United States, which speaks of "assurances satisfactory to the requested Party that the death penalty will not be carried out" (see paragraph 36 above). However, the offence charged, being a State and not a Federal offence, comes within the jurisdiction of the Commonwealth of Virginia; it appears as a consequence that no direction could or can be given to the Commonwealths Attorney by any State or Federal authority to promise more; the Virginia courts as judicial bodies cannot bind themselves in advance as to what decisions they may arrive at on the evidence; and the Governor of Virginia does not, as a matter of policy, promise that he will later exercise his executive power to commute a death penalty (see paragraphs 58-60 above).
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This being so, Mr Updikes undertaking may well have been the best "assurance" that the United Kingdom could have obtained from the United States Federal Government in the particular circumstances. According to the statement made to Parliament in 1987 by a Home Office Minister, acceptance of undertakings in such terms "means that the United Kingdom authorities render up a fugitive or are prepared to send a citizen to face an American court on the clear understanding that the death penalty will not be carried out ... It would be a fundamental blow to the extradition arrangements between our two countries if the death penalty were carried out on an individual who had been returned under those circumstances" (see paragraph 37 above). Nonetheless, the effectiveness of such an undertaking has not yet been put to the test. 98. The applicant contended that representations concerning the wishes of a foreign government would not be admissible as a matter of law under the Virginia Code or, if admissible, of any influence on the sentencing judge. Whatever the position under Virginia law and practice (as to which, see paragraphs 42, 46, 47 and 69 above), and notwithstanding the diplomatic context of the extradition relations between the United Kingdom and the United States, objectively it cannot be said that the undertaking to inform the judge at the sentencing stage of the wishes of the United Kingdom eliminates the risk of the death penalty being imposed. In the independent exercise of his discretion the Commonwealths Attorney has himself decided to seek and to persist in seeking the death penalty because the evidence, in his determination, supports such action (see paragraph 20 in fine above). If the national authority with responsibility for prosecuting the offence takes such a firm stance, it is hardly open to the Court to hold that there are no substantial grounds for believing that the applicant faces a real risk of being sentenced to death and hence experiencing the "death row phenomenon". 99. The Courts conclusion is therefore that the likelihood of the feared exposure of the applicant to the "death row phenomenon" has been shown to be such as to bring Article 3 (art. 3) into play. 2. Whether in the circumstances the risk of exposure to the "death row phenomenon" would make extradition a breach of Article 3 (art. 3) (a) General considerations 100. As is established in the Courts case-law, ill-treatment, including punishment, must attain a minimum level of severity if it is to fall within the scope of Article 3 (art. 3). The assessment of this minimum is, in the nature of things, relative; it depends on all the circumstances of the case, such as the nature and context of the treatment or punishment, the manner and method of its execution, its duration, its physical or mental effects and, in some instances, the sex, age and state of health of the victim (see the above-mentioned Ireland v. the United Kingdom judgment, Series A no. 25, p. 65, 162; and the Tyrer judgment of 25 April 1978, Series A no. 26, pp. 14-15, 29 and 30). Treatment has been held by the Court to be both "inhuman" because it was premeditated, was applied for hours at a stretch and "caused, if not actual bodily injury, at least intense physical and mental suffering", and also "degrading" because it was "such as to arouse in [its] victims feelings of fear, anguish and inferiority capable of humiliating and debasing them and possibly breaking their physical or moral resistance" (see the above-mentioned Ireland v. the United Kingdom judgment, p. 66, 167). In order for a punishment or treatment associated with it to be "inhuman" or "degrading", the suffering or humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given
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form of legitimate punishment (see the Tyrer judgment, loc. cit.). In this connection, account is to be taken not only of the physical pain experienced but also, where there is a considerable delay before execution of the punishment, of the sentenced persons mental anguish of anticipating the violence he is to have inflicted on him. 101. Capital punishment is permitted under certain conditions by Article 2 1 (art. 2-1) of the Convention, which reads: "Everyones right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law." In view of this wording, the applicant did not suggest that the death penalty per se violated Article 3 (art. 3). He, like the two Government Parties, agreed with the Commission that the extradition of a person to a country where he risks the death penalty does not in itself raise an issue under either Article 2 (art. 2) or Article 3 (art. 3). On the other hand, Amnesty International in their written comments (see paragraph 8 above) argued that the evolving standards in Western Europe regarding the existence and use of the death penalty required that the death penalty should now be considered as an inhuman and degrading punishment within the meaning of Article 3 (art. 3). 102. Certainly, "the Convention is a living instrument which ... must be interpreted in the light of present-day conditions"; and, in assessing whether a given treatment or punishment is to be regarded as inhuman or degrading for the purposes of Article 3 (art. 3), "the Court cannot but be influenced by the developments and commonly accepted standards in the penal policy of the member States of the Council of Europe in this field" (see the above-mentioned Tyrer judgment, Series A no. 26, pp. 15-16, 31). De facto the death penalty no longer exists in time of peace in the Contracting States to the Convention. In the few Contracting States which retain the death penalty in law for some peacetime offences, death sentences, if ever imposed, are nowadays not carried out. This "virtual consensus in Western European legal systems that the death penalty is, under current circumstances, no longer consistent with regional standards of justice", to use the words of Amnesty International, is reflected in Protocol No. 6 (P6) to the Convention, which provides for the abolition of the death penalty in time of peace. Protocol No. 6 (P6) was opened for signature in April 1983, which in the practice of the Council of Europe indicates the absence of objection on the part of any of the Member States of the Organisation; it came into force in March 1985 and to date has been ratified by thirteen Contracting States to the Convention, not however including the United Kingdom. Whether these marked changes have the effect of bringing the death penalty per se within the prohibition of ill-treatment under Article 3 (art. 3) must be determined on the principles governing the interpretation of the Convention. 103. The Convention is to be read as a whole and Article 3 (art. 3) should therefore be construed in harmony with the provisions of Article 2 (art. 2) (see, mutatis mutandis, the Klass and Others judgment of 6 September 1978, Series A no. 28, p. 31, 68). On this basis Article 3 (art. 3) evidently cannot have been intended by the drafters of the Convention to include a general prohibition of the death penalty since that would nullify the clear wording of Article 2 1 (art. 2-1). Subsequent practice in national penal policy, in the form of a generalised abolition of capital punishment, could be taken as establishing the agreement of the Contracting States to abrogate the exception provided for under Article 2 1 (art. 2-1) and hence to remove a textual limit on the scope for evolutive interpretation of Article 3 (art. 3). However, Protocol
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No. 6 (P6), as a subsequent written agreement, shows that the intention of the Contracting Parties as recently as 1983 was to adopt the normal method of amendment of the text in order to introduce a new obligation to abolish capital punishment in time of peace and, what is more, to do so by an optional instrument allowing each State to choose the moment when to undertake such an engagement. In these conditions, notwithstanding the special character of the Convention (see paragraph 87 above), Article 3 (art. 3) cannot be interpreted as generally prohibiting the death penalty. 104. That does not mean however that circumstances relating to a death sentence can never give rise to an issue under Article 3 (art. 3). The manner in which it is imposed or executed, the personal circumstances of the condemned person and a disproportionality to the gravity of the crime committed, as well as the conditions of detention awaiting execution, are examples of factors capable of bringing the treatment or punishment received by the condemned person within the proscription under Article 3 (art. 3). Present-day attitudes in the Contracting States to capital punishment are relevant for the assessment whether the acceptable threshold of suffering or degradation has been exceeded. (b) The particular circumstances 105. The applicant submitted that the circumstances to which he would be exposed as a consequence of the implementation of the Secretary of States decision to return him to the United States, namely the "death row phenomenon", cumulatively constituted such serious treatment that his extradition would be contrary to Article 3 (art. 3). He cited in particular the delays in the appeal and review procedures following a death sentence, during which time he would be subject to increasing tension and psychological trauma; the fact, so he said, that the judge or jury in determining sentence is not obliged to take into account the defendants age and mental state at the time of the offence; the extreme conditions of his future detention on "death row" in Mecklenburg Correctional Center, where he expects to be the victim of violence and sexual abuse because of his age, colour and nationality; and the constant spectre of the execution itself, including the ritual of execution. He also relied on the possibility of extradition or deportation, which he would not oppose, to the Federal Republic of Germany as accentuating the disproportionality of the Secretary of States decision. The Government of the Federal Republic of Germany took the view that, taking all the circumstances together, the treatment awaiting the applicant in Virginia would go so far beyond treatment inevitably connected with the imposition and execution of a death penalty as to be "inhuman" within the meaning of Article 3 (art. 3). On the other hand, the conclusion expressed by the Commission was that the degree of severity contemplated by Article 3 (art. 3) would not be attained. The United Kingdom Government shared this opinion. In particular, they disputed many of the applicants factual allegations as to the conditions on death row in Mecklenburg and his expected fate there. i. Length of detention prior to execution 106. The period that a condemned prisoner can expect to spend on death row in Virginia before being executed is on average six to eight years (see paragraph 56 above). This length of time awaiting death is, as the Commission and the United Kingdom Government noted, in a sense largely of the prisoners own making in that he takes advantage of all avenues of appeal which are offered to him by Virginia law. The automatic appeal to the Supreme Court of Virginia normally takes no more than six months (see paragraph 52 above). The remaining time is accounted for by collateral attacks mounted by the prisoner himself in habeas corpus
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proceedings before both the State and Federal courts and in applications to the Supreme Court of the United States for certiorari review, the prisoner at each stage being able to seek a stay of execution (see paragraphs 53-54 above). The remedies available under Virginia law serve the purpose of ensuring that the ultimate sanction of death is not unlawfully or arbitrarily imposed. Nevertheless, just as some lapse of time between sentence and execution is inevitable if appeal safeguards are to be provided to the condemned person, so it is equally part of human nature that the person will cling to life by exploiting those safeguards to the full. However well-intentioned and even potentially beneficial is the provision of the complex of postsentence procedures in Virginia, the consequence is that the condemned prisoner has to endure for many years the conditions on death row and the anguish and mounting tension of living in the ever-present shadow of death. ii. Conditions on death row 107. As to conditions in Mecklenburg Correctional Center, where the applicant could expect to be held if sentenced to death, the Court bases itself on the facts which were uncontested by the United Kingdom Government, without finding it necessary to determine the reliability of the additional evidence adduced by the applicant, notably as to the risk of homosexual abuse and physical attack undergone by prisoners on death row (see paragraph 64 above). The stringency of the custodial regime in Mecklenburg, as well as the services (medical, legal and social) and the controls (legislative, judicial and administrative) provided for inmates, are described in some detail above (see paragraphs 61-63 and 65-68). In this connection, the United Kingdom Government drew attention to the necessary requirement of extra security for the safe custody of prisoners condemned to death for murder. Whilst it might thus well be justifiable in principle, the severity of a special regime such as that operated on death row in Mecklenburg is compounded by the fact of inmates being subject to it for a protracted period lasting on average six to eight years. iii. The applicants age and mental state 108. At the time of the killings, the applicant was only 18 years old and there is some psychiatric evidence, which was not contested as such, that he "was suffering from [such] an abnormality of mind ... as substantially impaired his mental responsibility for his acts" (see paragraphs 11, 12 and 21 above). Unlike Article 2 (art. 2) of the Convention, Article 6 of the 1966 International Covenant on Civil and Political Rights and Article 4 of the 1969 American Convention on Human Rights expressly prohibit the death penalty from being imposed on persons aged less than 18 at the time of commission of the offence. Whether or not such a prohibition be inherent in the brief and general language of Article 2 (art. 2) of the European Convention, its explicit enunciation in other, later international instruments, the former of which has been ratified by a large number of States Parties to the European Convention, at the very least indicates that as a general principle the youth of the person concerned is a circumstance which is liable, with others, to put in question the compatibility with Article 3 (art. 3) of measures connected with a death sentence. It is in line with the Courts case-law (as summarised above at paragraph 100) to treat disturbed mental health as having the same effect for the application of Article 3 (art. 3). 109. Virginia law, as the United Kingdom Government and the Commission emphasised, certainly does not ignore these two factors. Under the Virginia Code account has to be taken of mental disturbance in a defendant, either as an absolute bar to conviction if it is judged to
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be sufficient to amount to insanity or, like age, as a fact in mitigation at the sentencing stage (see paragraphs 44-47 and 50-51 above). Additionally, indigent capital murder defendants are entitled to the appointment of a qualified mental health expert to assist in the preparation of their submissions at the separate sentencing proceedings (see paragraph 51 above). These provisions in the Virginia Code undoubtedly serve, as the American courts have stated, to prevent the arbitrary or capricious imposition of the death penalty and narrowly to channel the sentencers discretion (see paragraph 48 above). They do not however remove the relevance of age and mental condition in relation to the acceptability, under Article 3 (art. 3), of the "death row phenomenon" for a given individual once condemned to death. Although it is not for this Court to prejudge issues of criminal responsibility and appropriate sentence, the applicants youth at the time of the offence and his then mental state, on the psychiatric evidence as it stands, are therefore to be taken into consideration as contributory factors tending, in his case, to bring the treatment on death row within the terms of Article 3 (art. 3). iv. Possibility of extradition to the Federal Republic of Germany 110. For the United Kingdom Government and the majority of the Commission, the possibility of extraditing or deporting the applicant to face trial in the Federal Republic of Germany (see paragraphs 16, 19, 26, 38 and 71-74 above), where the death penalty has been abolished under the Constitution (see paragraph 72 above), is not material for the present purposes. Any other approach, the United Kingdom Government submitted, would lead to a "dual standard" affording the protection of the Convention to extraditable persons fortunate enough to have such an alternative destination available but refusing it to others not so fortunate. This argument is not without weight. Furthermore, the Court cannot overlook either the horrible nature of the murders with which Mr Soering is charged or the legitimate and beneficial role of extradition arrangements in combating crime. The purpose for which his removal to the United States was sought, in accordance with the Extradition Treaty between the United Kingdom and the United States, is undoubtedly a legitimate one. However, sending Mr Soering to be tried in his own country would remove the danger of a fugitive criminal going unpunished as well as the risk of intense and protracted suffering on death row. It is therefore a circumstance of relevance for the overall assessment under Article 3 (art. 3) in that it goes to the search for the requisite fair balance of interests and to the proportionality of the contested extradition decision in the particular case (see paragraphs 89 and 104 above). (c) Conclusion 111. For any prisoner condemned to death, some element of delay between imposition and execution of the sentence and the experience of severe stress in conditions necessary for strict incarceration are inevitable. The democratic character of the Virginia legal system in general and the positive features of Virginia trial, sentencing and appeal procedures in particular are beyond doubt. The Court agrees with the Commission that the machinery of justice to which the applicant would be subject in the United States is in itself neither arbitrary nor unreasonable, but, rather, respects the rule of law and affords not inconsiderable procedural safeguards to the defendant in a capital trial. Facilities are available on death row for the assistance of inmates, notably through provision of psychological and psychiatric services (see paragraph 65 above).
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However, in the Courts view, having regard to the very long period of time spent on death row in such extreme conditions, with the ever present and mounting anguish of awaiting execution of the death penalty, and to the personal circumstances of the applicant, especially his age and mental state at the time of the offence, the applicants extradition to the United States would expose him to a real risk of treatment going beyond the threshold set by Article 3 (art. 3). A further consideration of relevance is that in the particular instance the legitimate purpose of extradition could be achieved by another means which would not involve suffering of such exceptional intensity or duration. Accordingly, the Secretary of States decision to extradite the applicant to the United States would, if implemented, give rise to a breach of Article 3 (art. 3). This finding in no way puts in question the good faith of the United Kingdom Government, who have from the outset of the present proceedings demonstrated their desire to abide by their Convention obligations, firstly by staying the applicants surrender to the United States authorities in accord with the interim measures indicated by the Convention institutions and secondly by themselves referring the case to the Court for a judicial ruling (see paragraphs 1, 4, 24 and 77 above). FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Holds that, in the event of the Secretary of States decision to extradite the applicant to the United States of America being implemented, there would be a violation of Article 3 (art. 3); 2. Holds that, in the same event, there would be no violation of Article 6 3 (c) (art. 6-3-c); 3. Holds that it has no jurisdiction to entertain the complaint under Article 6 1 and 3 (d) (art. 6-1, art. 6-3-d); 4. Holds that there is no violation of Article 13 (art. 13); 5. Holds that the United Kingdom is to pay to the applicant, in respect of legal costs and expenses, the sum of 26,752.80 (twenty-six thousand seven hundred and fifty-two pounds sterling and eighty pence) and 5,030.60 FF (five thousand and thirty French francs and sixty centimes), together with any value-added tax that may be chargeable; 6. Rejects the remainder of the claim for just satisfaction.

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Sramek v Austria (ECtHR) Sramek v Austria App No 8790/79 (ECtHR, 22 October 1984)

COURT (PLENARY)

CASE OF SRAMEK v. AUSTRIA

(Application no. 8790/79)

JUDGMENT

STRASBOURG

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22 October 1984 AS TO THE FACTS I. PARTICULAR CIRCUMSTANCES OF THE CASE 8. The applicant, who is a United States citizen, lives in Munich in the Federal Republic of Germany. Wishing to build a holiday residence in Hopfgarten, a village in the Austrian Tyrol, she approached, with the assistance of municipal officials, the owners of a plot of land which had until then been used for agricultural purposes. Sale negotiations began in 1971 and apparently led, in 1973, to an initial contract. One year later, Mrs. Sramek paid to the vendors the greater part of the agreed price. However, the definitive contract was not drawn up until 13 January 1977. 9. Under section 3 of the Tyrolean Real Property Transactions Act (Grundverkehrsgesetz) 1970, as amended by, inter alia, an Act of 28 November 1973 which came into force on 1 January 1974 ("the 1970/1973 Act"), the contract could not take effect unless it were approved by the local Real Property Transactions Authority (Grundverkehrsbehrde); in fact, it contained a clause which so provided. The 1970/1973 Act applies to agricultural and forestry land and also to any land over which rights are acquired by, in particular, a natural person who does not possess Austrian nationality (section 1(1) and (2)). 10. The local Real Property Transactions Authority for Hopfgarten at the office of the Kitzbhel District Administration (Bezirkshauptmannschaft), to which the contract had been submitted, approved it on 7 March 1977; the decision (Bescheid) was dated 31 March. 11. On 6 April, the Real Property Transactions Officer (Landesgrundverkehrsreferent, "the Transactions Officer", see paragraph 23 below) at the Government Office of the Tyrol (Amt der Landesregierung) in Innsbruck exercised his right of appeal (Berufung) to the Regional Real Property Transactions Authority (Landesgrundverkehrsbehrde; section 13(3) of the 1970/1973 Act and see paragraphs 22-23 below). In his view, the contract fell foul of section 4(2) of the 1970/1973 Act. Under that sub-section, where the purchaser of real property is a foreigner a contract of the kind in question can be approved only "if the acquisition of rights (Rechtserwerb) is not contrary to political (staatspolitisch), economic, social (sozialpolitisch) or cultural interests; such a conflict (Widerspruch) is deemed to exist, in particular, where, (a) having regard to the extent of existing foreign ownership or to the number of foreign owners, there is a risk of foreign domination (Uberfremdung) in the municipality or locality concerned, (b) ... ." In the submission of the Transactions Officer, there were, in fact, already 110 foreign landowners in Hopfgarten and it could be seen from a series of decisions of the Regional Authority that this municipality was one of those where the danger of foreign domination was imminent. The contract in question was therefore contrary to social and economic interests within the meaning of the above-mentioned Act. The applicant received a copy of the appeal but did not file any observations in reply.

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12. The Government Office of the Tyrol was organised in a number of "groups" and each group comprised several "divisions". In the present case, the Transactions Officer was the director of group III; his secretariat was provided by one of the seven divisions in that group, namely division III b. 2. 13. On 3 June 1977, the Regional Real Property Transactions Authority at the Government Office of the Tyrol held a hearing. The Regional Authority sat in camera but the parties, namely the Transactions Officer and Mrs. Sramek, were present. The latter appeared in person, without the assistance of a lawyer. In accordance with section 13(4), no. 1, of the 1970/1973 Act (see paragraph 24 below), the Regional Authority was composed as follows: the elected mayor of a municipality in the Tyrol, who was a farmer experienced in real estate matters, as chairman; a judge of the Innsbruck Court of Appeal; a civil servant from division III b. 3 - one of the seven divisions in group III - of the Government Office, as rapporteur; the head of group III d; the director of the Regional Forestry Service, being the head of group III f; a farmer; and a lawyer. The secretariat was provided by division III b. 3, to which the rapporteur belonged. 14. According to the minutes of the hearing, the rapporteur presented the facts and read out the expert opinions and observations received during the course of the investigation; the latter concerned, inter alia, the percentage of the parcels of land in Hopfgarten which was in foreign hands. The Transactions Officer then requested the Authority to uphold his appeal on the ground that as there was already a risk of foreign domination in Hopfgarten, the acquisition of the land in question would be contrary to social and political interests. The applicant stated that she had signed the initial contract (Erstvertrag), which could not then be found, on 13 March 1973. As early as 23 January 1971, she had reached an agreement to purchase (Vertragsabsprachen) and had received assurances that all would go well. Since that time, she had come to Austria several times each year to settle the matter. Her husband was living with the family in Munich, where he worked, but would be retiring shortly. She declared that she herself was prepared to apply for Austrian nationality. Their permit to reside in the Federal Republic was temporary and she did not wish to return to the United States. She added that she had already made a first payment of 111,591 schillings. In conclusion, she requested that the contract be approved. 15. On the same day, that is 3 June 1977, the Regional Authority upheld the appeal: referring to the above-mentioned section 4(2)(a) of the 1970/1973 Act, it refused to approve the transfer of title. Its decision (Bescheid) was dated 16 June. The Authority noted firstly that according to a statement from the municipality of Hopfgarten, which had not been challenged at the hearing, there were 110 foreign landowners in Hopfgarten, owning 5.6 hectares of land. There were 4,800 inhabitants and 1,100 families in the locality, though not all of them were landowners. The proportion of non-Austrian owners already exceeded 10 per cent and the extent of their holdings revealed a tendency towards foreign domination. The Authority then recalled that for some years past it had been refusing to approve the transfer of land in Hopfgarten to foreigners since it had concluded that there was a risk of foreign domination in the area. It had to take account, inter alia, of the effects of its decision on third parties. According to the Authority, experience showed that the approval of a contract between a landowner and a foreigner led to an influx of other foreigners who also wished to buy land in the locality. This caused prices to rise substantially, making it very difficult, if not impossible, for the indigenous population to find housing for themselves. For these reasons and in view of the scarcity of building plots in the Tyrol, very strict legal (gesetzlich) control had to be exercised: sales and purchases could normally be approved only
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if they contributed to the establishment or maintenance of an effective (leistungsfhig) agricultural population or if they served to satisfy domestic land needs (inlndischer Bodenbedarf) for any kind of public or social purposes. However, Mrs. Sramek was intending to use the land in question - at least for some time for the construction of a holiday residence. Such an objective could easily be satisfied by the local hotel trade which, furthermore, was losing potential customers as a result of the construction of villas by foreigners. The acquisition contemplated was therefore prejudicial to economic and social interests and thus fell foul of, in particular, section 4(2)(a) of the 1970/1973 Act. Lastly, the Regional Authority rejected the applicants argument that she had already concluded a contract in 1973, that is at a time when American citizens were treated on an equal footing with Austrians by virtue of a bilateral treaty dating from 1928. The Authority emphasised firstly that it had to base itself on the factual and legal situation obtaining at the time when the decision had to be taken. In its view, the 1928 treaty had not established any equality between citizens of the two States in the area concerned. In the case in question, the transfer of ownership contemplated fell under Article 1 para. 2, as interpreted by the Ministry of Foreign Affairs in a 1973 memorandum which stated that the general regulations with regard to foreigners were applicable. Even if this interpretation had not been known at the time when the initial contract had allegedly been concluded (13 March 1973, see paragraph 14 above) - though this was not the case, since the above-mentioned memorandum dated from early 1973 -, Mrs. Sramek could not claim that she had acted in good faith: she was obliged under section 15 of the 1970/1973 Act to seek approval of the contract within two months and she alone bore the responsibility for not having done so. 16. On 22 August 1977, the applicant appealed to the Constitutional Court (Verfassungsgerichtshof) against the decision of the Regional Authority. She claimed that her right to inviolability of property and her right to a decision by the legally competent court (gesetzlicher Richter) had been infringed and relied on Article 5 of the Basic Law (Staatsgrundgesetz), Article 83 para. 2 of the Federal Constitution (BundesVerfassungsgesetz) and Article 6 (art. 6) of the Convention. As concerns the first complaint, Mrs. Sramek alleged that the Regional Authority had applied section 4(2)(a) of the 1970/1973 Act in a misconceived (denkunmglich) manner by adopting an illogical approach; amongst other things, it had concluded that there was a danger of foreign domination in Hopfgarten without being in possession of detailed documentation, without defining the risk in question and without enquiring into the actual position in Hopfgarten regarding real property ownership. She further contended that the Regional Authority was not an "independent tribunal" within the meaning of Article 6 (art. 6) of the Convention. On these grounds, she requested the Constitutional Court to annul the decision under appeal or, in the alternative, to refer the case to the Administrative Court (Verwaltungsgerichtshof). Mrs. Sramek supplemented her grounds of appeal on 9 March 1978. She asserted that her lawyer had not been able to consult the minutes of the Regional Authoritys deliberations. She had, in fact, learnt that the Authority had not given its ruling on 3 June 1977, immediately after the closure of the hearing. She inferred from this that the decision complained of had not been taken by the legally competent court. She requested the Constitutional Court to provide her lawyer with an opportunity of reading the above-mentioned minutes.

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17. The Constitutional Court dismissed the appeal on 3 March 1979 (Erkenntnisse und Beschlsse des Verfassungsgerichtshofes, 1979, vol. 44, no. 8501). It took the view that the Regional Authority was indeed a "tribunal" within the meaning of Article 6 (art. 6) of the Convention. It gave decisions which the executive could neither annul nor vary. As regards its members - who included a judge -, they had a degree of independence equal to that of judges. They were not bound by any instructions in the exercise of their functions and they could not be removed during their three-year term of office, except for reasons which would have precluded their appointment or if they were permanently prevented from carrying out their duties. The Constitutional Court accordingly held that Article 6 (art. 6) had not been violated. The applicants other ground of appeal was also rejected. Recalling that it had already held in another case, in 1974, that it was not misconceived to conclude that there was a danger of foreign domination in Hopfgarten, the Constitutional Court stated that it saw no reason to change its opinion in the instant case. As regards the facts noted by the Regional Authority, they had not been the subject of any dispute during the administrative proceedings. The Constitutional Court sat in camera and gave judgment without holding a hearing. 18. Even before the above-mentioned judgment had been delivered, the plot in question was sold to an Austrian who, according to the Government, turned it back into grazing-land. The Regional Authority had taken the view that it could examine the new contract, provided that its decision was held in abeyance pending the outcome of the Constitutional Courts proceedings. 19. The Government stated that during the last ten years or so the Regional Authority had not approved any acquisition of real property in Hopfgarten by a foreigner. They supplied a list of thirteen refusals in the period between July 1973 and February 1983; according to the applicant, the list was insufficiently detailed to be conclusive. AS TO THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1) 33. Article 6 para. 1 (art. 6-1) of the Convention reads as follows: "In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice." In the submission of the applicant, the Regional Real Property Transactions Authority was not an "independent and impartial tribunal"; in addition, it had not afforded her a "fair" and "public" hearing. The Government disputed all these contentions; the Commission, for its part, upheld them in so far as they related to an absence of independence and impartiality.

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A. Applicability of Article 6 para. 1 (art. 6-1) 34. Having purchased a plot of land, Mrs. Sramek was entitled to have the sale contract approved if, as she maintained, it satisfied the statutory conditions. An unfavourable decision in the matter would - and did - mean that the transaction was null and void. Accordingly, the outcome of the proceedings at issue was "decisive for private rights and obligations" (see the Ringeisen judgment of 16 July 1971, Series A no. 13, p. 39, para. 94), with the result that Article 6 para. 1 (art. 6-1) was applicable in the present case; this was, in fact, accepted by the Government. 35. Mrs. Srameks case came before three bodies, namely the District Real Property Transactions Authority for Hopfgarten, then the Regional Real Property Transactions Authority and finally the Constitutional Court. The Hopfgarten District Authority is not relevant for the present purposes: it had approved the contract and was not the subject of any complaint on the part of the applicant. The Constitutional Court was not called upon to determine the actual merits of the dispute ("contestation"), but solely to review the Regional Authoritys decision for conformity with constitutional law (see, mutatis mutandis, the Buchholz judgment of 6 May 1981, Series A no. 42, p. 15, para. 48). The question which has to be decided, therefore, is whether the requirements of Article 6 para. 1 (art. 6-1) of the Convention were met by the Regional Authority. B. Compliance with Article 6 para. 1 (art. 6-1) 1. "Tribunal established by law" 36. Under Austrian law, the Regional Authority is not classified as one of the courts of the respondent State. For the purposes of Article 6 (art. 6), however, it comes within the concept of a "tribunal" in the substantive sense of this expression: its function is to determine matters within its competence on the basis of rules of law, following proceedings conducted in a prescribed manner (see paragraph 71 of the Commissions report and, mutatis mutandis, the Campbell and Fell judgment of 28 June 1984, Series A no. 80, p. 39, para. 76). The Regional Authority is also a tribunal "established by law", that is to say, by the 1970/1973 Act. 2. "Independent and impartial tribunal" 37. In addition to the foregoing, it has to be shown that the Regional Authority exhibits the independence and impartiality which are required by Article 6 para. 1 (art. 6-1). In the submission of Mrs. Sramek, this condition was not satisfied on account, inter alia, of the composition of the Authority and the manner of appointment of its members; of the position of the Transactions Officer - representing the Land Government, in their capacity as a party to the case - vis--vis the civil-servant members; of the brevity of the members term of office (three years); and of the three-fold fact that the Authority has its headquarters in the Office of the Land Government, that the Land Government lays down the Authoritys rules of procedure and that the Land Government remunerates the Authoritys members. The Government compared the Tyrolean Regional Authority with the Upper Austrian Regional Real Property Transactions Commission. They contended that the independence of the former was even more extensive than that of the latter, a body which had been recognised by the Court to be independent in its above-mentioned Ringeisen judgment (Series A no. 13,
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p. 39, para. 95). According to the Government, this was shown by the composition of the Authority; by the length of its members term of office; by the fact that they cannot be removed, save for reasons laid down by statute; by the rules expressly forbidding the giving of instructions to the members; and by the absence of any "functional and organisational link" between the Transactions Officer and the civil-servant members. In the Commissions view, the present case gave rise to more issues of principle than did the Ringeisen case. The Commission considered that certain of the factors relied on by the Government were not without relevance, but nevertheless did not ensure full independence and impartiality of the members of the Regional Authority. In particular, the composition of the Regional Authority and the position of the Transactions Officer vis--vis the rapporteur prevented the Regional Authority from being regarded as sufficiently independent of the executive and of the appellant. 38. In the opinion of the Court, the Tyrolean Act, as modified following a judgment by the Constitutional Court (see paragraphs 25-26 above), satisfies the requirements of Article 6 (art. 6) as regards the length of the term of office of the members of the Regional Authority and the - limited - possibility of removing them. Again, the procedure applicable under the General Administrative Procedure Act 1950 involves the participation of both parties (revt un caractre contradictoire) (see paragraph 27 above). Although the power of appointing the members - other than the judge - is conferred on the Land Government, this does not suffice, of itself, to give cause to doubt the members independence and impartiality: they are appointed to sit in an individual capacity and the law prohibits their being given instructions by the executive (see paragraph 26 above). 39. As far as the membership of the "tribunal" was concerned, the Regional Authority was composed of a farmer, who was the mayor - elected by universal suffrage - of a municipality in the Tyrol, as chairman; a judge of the Innsbruck Court of Appeal; another farmer, sitting as an agricultural expert; a lawyer; and three civil servants from the Office of the Land Government, one of whom acted as rapporteur (see paragraphs 13 and 24 above). 40. No question arises as to the independence and impartiality of the judge. The same applies to the agricultural expert. As for the lawyer, the applicant argued that he might on occasion have received instructions from the Land Government if he had been engaged to represent them in legal proceedings. However, even if he had - an eventuality that can in fact be discounted since it does not appear to have materialised in the present case -, his impartiality could not be called in question on that score alone. Neither is there any problem as regards the fact that the person who, by reason of his experience in real estate matters, acted as chairman of the Regional Authority happened to be a mayor. It is true that the municipalities in Austria exercise their powers - whether in their own right or under delegation - subject to the supervision of the Land or the Federation (see Articles 119 and 119 (a) of the Constitution and paragraph 77 in fine of the Commissions report); however, it cannot be concluded from this that their mayors do not act independently in matters which - like those involved here - fall outside the ambit of those powers. 41. There remain the three civil servants from the Office of the Land Government who, in accordance with the 1970/1973 Act (see paragraph 24 above), were, and had to be, included amongst the members of the Regional Authority. In considering their position, it has to be recalled that it was held in the above-mentioned Ringeisen judgment that the presence of civil servants on the Upper Austrian Regional Commission was compatible with the Convention (Series A no. 13, pp. 39-40, paras. 95-97). Furthermore, in proceedings of the kind at issue the Government of the Tyrol are prevented by law from giving their civil servants instructions on carrying out their judicial functions.
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However, the present case is distinguishable from the Ringeisen case in that the Land Government, represented by the Transactions Officer, acquired the status of a party when they appealed to the Regional Authority against the first-instance decision in Mrs. Srameks favour, and in that one of the three civil servants in question had the Transactions Officer as his hierarchical superior (see paragraph 12 above). That civil servant occupied a key position within the Authority: as rapporteur, he had to set out and comment on the results of the investigation and then to present conclusions; the secretariat was provided by his department, namely division III b. 3 (see paragraphs 13 in fine, 14 and 28 in fine above). As was pointed out by the Government, the Transactions Officer could not take advantage of his hierarchical position to give to the rapporteur instructions to be followed in the handling of cases (see paragraph 26 above), and there is nothing to indicate that he did so on the present occasion. 42. Nonetheless, the Court cannot confine itself to looking at the consequences which the subordinate status of the rapporteur vis--vis the Transactions Officer might have had as a matter of fact. In order to determine whether a tribunal can be considered to be independent as required by Article 6 (art. 6), appearances may also be of importance (see, mutatis mutandis, the above-mentioned Campbell and Fell judgment, Series A no. 80, pp. 39-40, para. 78, and the Piersack judgment of 1 October 1982, Series A no. 53, pp. 14-15, para. 30). Where, as in the present case, a tribunals members include a person who is in a subordinate position, in terms of his duties and the organisation of his service, vis--vis one of the parties, litigants may entertain a legitimate doubt about that persons independence. Such a situation seriously affects the confidence which the courts must inspire in a democratic society (see, mutatis mutandis, the above-mentioned Piersack judgment, Series A no. 53, pp. 14-15, para. 30). There was accordingly a violation of Article 6 para. 1 (art. 6-1). 3. Fair and public trial 43. The applicant further contended that she did not receive a fair hearing and objected to the fact that the proceedings were not conducted in public. The conclusion in the preceding paragraph renders it unnecessary for the Court to rule on these complaints (see paragraph 83 of the Commissions report and, mutatis mutandis, the above-mentioned Piersack judgment, p. 16, para. 33).

FOR THESE REASONS, THE COURT 1. Holds by thirteen votes to two that there has been a violation of Article 6 para. 1 (art. 6-1); 2. Holds unanimously that the respondent State is to pay to the applicant one hundred thousand (100,000) schillings for costs and expenses; 3. Rejects by fourteen votes to one the remainder of the claim for just satisfaction. Done in English and in French, and delivered at a public hearing at the Human Rights Building, Strasbourg, on 22 October 1984.

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Tyrer v United Kingdom (ECtHR)

Tyrer v United Kingdom App No 5856/72 (ECtHR, 25 April 1978)

COURT (CHAMBER)

CASE OF TYRER v. THE UNITED KINGDOM

(Application no. 5856/72)

JUDGMENT

STRASBOURG 25 April 1978

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AS TO THE FACTS A. The applicants punishment 9. Mr. Anthony M. Tyrer, a citizen of the United Kingdom born on 21 September 1956, is resident in Castletown, Isle of Man. On 7 March 1972, being then aged 15 and of previous good character, he pleaded guilty before the local juvenile court to unlawful assault occasioning actual bodily harm to a senior pupil at his school. The assault, committed by the applicant in company with three other boys, was apparently motivated by the fact that the victim had reported the boys for taking beer into the school, as a result of which they had been caned. The applicant was sentenced on the same day to three strokes of the birch in accordance with the relevant legislation (see paragraph 11 below). He appealed against sentence to the Staff of Government Division of the High Court of Justice of the Isle of Man. The appeal was heard and dismissed on the afternoon of 28 April 1972; the court considered that an unprovoked assault occasioning actual bodily harm was always very serious and that there were no reasons for interfering with the sentence. The court had ordered the applicant to be medically examined in the morning of the same day and had before it a doctors report that the applicant was fit to receive the punishment. 10. After waiting in a police station for a considerable time for a doctor to arrive, Mr. Tyrer was birched late in the afternoon of the same day. His father and a doctor were present. The applicant was made to take down his trousers and underpants and bend over a table; he was held by two policemen whilst a third administered the punishment, pieces of the birch breaking at the first stroke. The applicants father lost his self-control and after the third stroke "went for" one of the policemen and had to be restrained. The birching raised, but did not cut, the applicants skin and he was sore for about a week and a half afterwards. 11. The applicant was sentenced pursuant to section 56 (1) of the Petty Sessions and Summary Jurisdiction Act 1927 (as amended by section 8 of the Summary Jurisdiction Act 1960) whereby: "Any person who shall (a) unlawfully assault or beat any other person; (b) make use of provoking language or behaviour tending to a breach of the peace, shall be liable on summary conviction to a fine not exceeding thirty pounds or to be imprisoned for a term not exceeding six months and, in addition to, or instead of, either such punishment, if the offender is a male child or male young person, to be whipped." The expressions "child" and "young person" mean, respectively, an individual of or over the age 10 and under 14 and an individual of or over the age of 14 and under 17. 12. Execution of the sentence was governed by the following provisions: B. General background 13. The Isle of Man is not a part of the United Kingdom but a dependency of the Crown with its own government, legislature and courts and its own administrative, fiscal and legal systems. The Crown is ultimately responsible for the good government of the Island and acts in this respect through the Privy Council on the recommendation of Ministers of the United
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Kingdom Government in their capacity as Privy Counsellors. In that capacity, the Home Secretary is charged with prime responsibility for Isle of Man affairs. Prior to October 1950, the United Kingdom Government regarded international treaties applicable to the United Kingdom as extending, in the absence of contrary provision, to the Isle of Man. Thereafter, they no longer so regarded such treaties unless there were an express inclusion and they treated the Island as a territory for whose international relations they were responsible. In fact, by letter dated 23 October 1953 addressed to the Secretary-General of the Council of Europe, the Government of the United Kingdom declared, in accordance with Article 63 (art. 63) of the Convention, that the Convention should extend to a number of such territories, including the Isle of Man. The Islands parliament, the Court of Tynwald, is one of the oldest in Europe. It consists of a Lieutenant-Governor appointed by and representing the Crown, an Upper House (the Legislative Council) and a Lower House (the House of Keys). Tynwald legislates in domestic matters, the laws it adopts requiring ratification by the Queen in Council; the Home Secretary is responsible for advising the Privy Council whether or not to recommend that the Royal Assent be given. In strict law, the United Kingdom Parliament has full power to pass laws applicable to the Isle of Man but, by constitutional convention, does not in the ordinary course legislate on the Islands domestic affairs, such as penal policy, without its consent. This convention would be followed unless it were overridden by some other consideration, an example of which would be an international treaty obligation. 14. Judicial corporal punishment of adults and juveniles was abolished in England, Wales and Scotland in 1948 and in Northern Ireland in 1968. That abolition followed upon the recommendations of the Departmental Committee on Corporal Punishment (known as the Cadogan Committee) which issued its report in 1938. The standing Advisory Council on the Treatment of Offenders, in its report of 1960 (known as the Barry report), endorsed the findings of the Cadogan Committee and concluded that corporal punishment should not be reintroduced as a judicial penalty in respect of any categories of offencers or of offenders. 15. The punishment remained in existence in the Isle of Man. When Tynwald examined the question in 1963 and 1965, it decided to retain judicial corporal punishment, which was considered a deterrent to hooligans visiting the Island as tourists and, more generally, a means of preserving law and order. In May 1977, by thirty-one votes for and only one against, Tynwald passed a resolution, inter alia, "that the retention of the use of judicial corporal punishment for crimes of violence to the person is a desirable safeguard in the control of law and order in this Island and Tynwald hereby re-affirms its policy to retain the use of judicial corporal punishment for violent crimes to the person committed by males under the age of 21". At the hearing on 17 January 1978, the Attorney-General for the Isle of Man informed the Court that recently a privately organised petition in favour of the retention of judicial corporal punishment had obtained 31,000 signatures from amongst the approximate total of 45,000 persons entitled to vote on the Island. 16. While under various provisions judicial corporal punishment could be imposed on males for a number of offences, since 1969 its application has apparently been restricted in practice to offences of violence. During his address to the Court, the Attorney-General for the Isle of Man indicated that the Manx legislature would shortly be considering the Criminal Law Bill 1978 which contained a proposal to limit the use of judicial corporal punishment to young males for certain specified offences only, on the whole the more serious offences of violence. The
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offence with which the applicant was charged had been omitted from the specified list of offences. 17. The name and address of a juvenile sentenced in the Isle of Man, whether to corporal punishment or otherwise, are not published. 18. According to figures cited before the Court by the Attorney- General for the Isle of Man, judicial corporal punishment was inflicted in 2 cases in 1966, in 4 cases in 1967, in 1 case in 1968, in 7 cases in 1969, in 3 cases in 1970, in 0 cases in 1971, in 4 cases in 1972, in 0 cases in 1973, in 2 cases in 1974, in 1 case in 1975, in 1 case in 1976 and in 0 cases in 1977. The average number of crimes of violence to the person per annum was: between 1966 and 1968 - 35; between 1969 and 1971 - 52; between 1972 and 1974 - 59; and between 1975 and 1977 - 56. In 1975 there were 65 crimes of violence to the person, in 1976 58 and in 1977 approximately 46. In the three years 1975 to 1977, only one young male was convicted of a crime of violence. At the 1976 census, the Islands population stood at 60,496. II. ON ARTICLE 3 (art. 3) 28. The applicant claimed before the Commission that the facts of his case constituted a breach of Article 3 (art. 3) of the Convention which provides: "No one shall be subjected to torture or to inhuman or degrading treatment or punishment." He alleged that there had been torture or inhuman or degrading treatment or punishment, or any combination thereof. In its report, the Commission expressed the opinion that judicial corporal punishment, being degrading, constituted a breach of Article 3 (art. 3) and that, consequently, its infliction on the applicant was in violation of that provision. 29. The Court shares the Commissions view that Mr. Tyrers punishment did not amount to "torture" within the meaning of Article 3 (art. 3). The Court does not consider that the facts of this particular case reveal that the applicant underwent suffering of the level inherent in this notion as it was interpreted and applied by the Court in its judgment of 18 January 1978 (Ireland v. the United Kingdom, Series A no. 25, pp. 66-67 and 68, paras. 167 and 174). That judgment also contains various indications concerning the notions of "inhuman treatment" and "degrading treatment" but it deliberately left aside the notions of "inhuman punishment" and "degrading punishment" which alone are relevant in the present case (ibid., p. 65, para. 164). Those indications accordingly cannot, as such, serve here. Nevertheless, it remains true that the suffering occasioned must attain a particular level before a punishment can be classified as "inhuman" within the meaning of Article 3 (art. 3). Here again, the Court does not consider on the facts of the case that that level was attained and it therefore concurs with the Commission that the penalty imposed on Mr. Tyrer was not "inhuman punishment" within the meaning of Article 3 (art. 3). Accordingly, the only question for decision is whether he was subjected to a "degrading punishment" contrary to that Article (art. 3). 30. The Court notes first of all that a person may be humiliated by the mere fact of being criminally convicted. However, what is relevant for the purposes of Article 3 (art. 3) is that he should be humiliated not simply by his conviction but by the execution of the punishment which is imposed on him. In fact, in most if not all cases this may be one of the effects of judicial punishment, involving as it does unwilling subjection to the demands of the penal system.

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However, as the Court pointed out in its judgment of 18 January 1978 in the case of Ireland v. the United Kingdom (Series A no. 25, p. 65, para. 163), the prohibition contained in Article 3 (art. 3) of the Convention is absolute: no provision is made for exceptions and, under Article 15 (2) (art. 15-2) there can be no derogation from Article 3 (art. 3). It would be absurd to hold that judicial punishment generally, by reason of its usual and perhaps almost inevitable element of humiliation, is "degrading" within the meaning of Article 3 (art. 3). Some further criterion must be read into the text. Indeed, Article 3 (art. 3), by expressly prohibiting "inhuman" and "degrading" punishment, implies that there is a distinction between such punishment and punishment in general. In the Courts view, in order for a punishment to be "degrading" and in breach of Article 3 (art. 3), the humiliation or debasement involved must attain a particular level and must in any event be other than that usual element of humiliation referred to in the preceding subparagraph. The assessment is, in the nature of things, relative: it depends on all the circumstances of the case and, in particular, on the nature and context of the punishment itself and the manner and method of its execution. 31. The Attorney-General for the Isle of Man argued that the judicial corporal punishment at issue in this case was not in breach of the Convention since it did not outrage public opinion in the Island. However, even assuming that local public opinion can have an incidence on the interpretation of the concept of "degrading punishment" appearing in Article 3 (art. 3), the Court does not regard it as established that judicial corporal punishment is not considered degrading by those members of the Manx population who favour its retention: it might well be that one of the reasons why they view the penalty as an effective deterrent is precisely the element of degradation which it involves. As regards their belief that judicial corporal punishment deters criminals, it must be pointed out that a punishment does not lose its degrading character just because it is believed to be, or actually is, an effective deterrent or aid to crime control. Above all, as the Court must emphasise, it is never permissible to have recourse to punishments which are contrary to Article 3 (art. 3), whatever their deterrent effect may be. The Court must also recall that the Convention is a living instrument which, as the Commission rightly stressed, must be interpreted in the light of present-day conditions. In the case now before it the Court cannot but be influenced by the developments and commonly accepted standards in the penal policy of the member States of the Council of Europe in this field. Indeed, the Attorney-General for the Isle of Man mentioned that, for many years, the provisions of Manx legislation concerning judicial corporal punishment had been under review. 32. As regards the manner and method of execution of the birching inflicted on Mr. Tyrer, the Attorney-General for the Isle of Man drew particular attention to the fact that the punishment was carried out in private and without publication of the name of the offender. Publicity may be a relevant factor in assessing whether a punishment is "degrading" within the meaning of Article 3 (art. 3), but the Court does not consider that absence of publicity will necessarily prevent a given punishment from falling into that category: it may well suffice that the victim is humiliated in his own eyes, even if not in the eyes of others. The Court notes that the relevant Isle of Man legislation, as well as giving the offender a right of appeal against sentence, provides for certain safeguards. Thus, there is a prior medical examination; the number of strokes and dimensions of the birch are regulated in detail; a doctor is present and may order the punishment to be stopped; in the case of a child or young person, the parent may attend if he so desires; the birching is carried out by a police constable in the presence of a more senior colleague.

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33. Nevertheless, the Court must consider whether the other circumstances of the applicants punishment were such as to make it "degrading" within the meaning of Article 3 (art. 3). The very nature of judicial corporal punishment is that it involves one human being inflicting physical violence on another human being. Furthermore, it is institutionalised violence that is in the present case violence permitted by the law, ordered by the judicial authorities of the State and carried out by the police authorities of the State (see paragraph 10 above). Thus, although the applicant did not suffer any severe or long-lasting physical effects, his punishment - whereby he was treated as an object in the power of the authorities constituted an assault on precisely that which it is one of the main purposes of Article 3 (art. 3) to protect, namely a persons dignity and physical integrity. Neither can it be excluded that the punishment may have had adverse psychological effects. The institutionalised character of this violence is further compounded by the whole aura of official procedure attending the punishment and by the fact that those inflicting it were total strangers to the offender. Admittedly, the relevant legislation provides that in any event birching shall not take place later than six months after the passing of sentence. However, this does not alter the fact that there had been an interval of several weeks since the applicants conviction by the juvenile court and a considerable delay in the police station where the punishment was carried out. Accordingly, in addition to the physical pain he experienced, Mr. Tyrer was subjected to the mental anguish of anticipating the violence he was to have inflicted on him. 34. In the present case, the Court does not consider it relevant that the sentence of judicial corporal punishment was imposed on the applicant for an offence of violence. Neither does it consider it relevant that, for Mr. Tyrer, birching was an alternative to a period of detention: the fact that one penalty may be preferable to, or have less adverse effects or be less serious than, another penalty does not of itself mean that the first penalty is not "degrading" within the meaning of Article 3 (art. 3). 35. Accordingly, viewing these circumstances as a whole, the Court finds that the applicant was subjected to a punishment in which the element of humiliation attained the level inherent in the notion of "degrading punishment" as explained at paragraph 30 above. The indignity of having the punishment administered over the bare posterior aggravated to some extent the degrading character of the applicants punishment but it was not the only or determining factor. The Court therefore concludes that the judicial corporal punishment inflicted on the applicant amounted to degrading punishment within the meaning of Article 3 (art. 3) of the Convention. III. ON ARTICLE 63 (art. 63) 36. The Court must now consider whether its above conclusion is affected by certain arguments advanced under Article 63 of the Convention, paragraphs 1 and 3 whereof (art. 631, art. 63-3) read as follows: "1. Any State may at the time of its ratification or at any time thereafter declare by notification addressed to the Secretary-General of the Council of Europe that the present Convention shall extend to all or any of the territories for whose international relations it is responsible. ... 3. The provisions of this Convention shall be applied in such territories with due regard, however, to local requirements."
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37. In respect of Article 63 (3) (art. 63-3), the Attorney-General for the Isle of Man submitted to the Court: "firstly that judicial corporal punishment as practised in the Isle of Man in the case of the applicant is not a degrading punishment and that the United Kingdom is not in breach of the Convention by virtue of Article 63 (3) (art. 63-3); secondly ... that, having due regard to the local circumstances in the Island ... the continued use of judicial corporal punishment on a limited scale is justified as a deterrent and consequently the United Kingdom would not be in breach of the Convention." The Attorney-General relied in particular on the state of opinion in the Island and referred, inter alia, to a recent debate in the Manx legislature and a recent petition both of which had indicated that there was a large majority in favour of retention of judicial corporal punishment in specified circumstances (see paragraph 15 above). That majority, he said, not only did not consider this penalty to be degrading but also saw it as an effective deterrent and as a desirable safeguard in the control of law and order. He also cited statistics in support of these views (see paragraph 18 above). The principal delegate of the Commission submitted, as regards local conditions in the Isle of Man, that it was difficult to conceive that any local characteristics could be put forward to justify a breach of Article 3 (art. 3). He pointed out that no specific local conditions had been pleaded save the belief of many people in the Isle of Man that judicial corporal punishment is an effective deterrent and added that, even assuming that such a belief could constitute a local condition, the Commission did not consider that if affected its conclusion of a violation of Article 3 (art. 3). Finally, he stated that the Commissions view that there were no significant social or cultural differences between the Isle of Man and the United Kingdom which could be relevant to the application of Article 3 (art. 3) in this case amounted to saying that Article 63 (3) (art. 63-3) in fact cannot be called in aid as regards territories with such close ties and affinities as in the case of the Isle of Man and the United Kingdom. 38. The question therefore is to decide whether there are in the Isle of Man local requirements within the meaning of Article 63 (3) (art. 63-3) such that the penalty in question, in spite of its degrading character (see paragraph 35 above), does not entail a breach of Article 3 (art. 3). The Court notes firstly that the Attorney-General for the Isle of Man spoke more of circumstances and conditions than of requirements in the Island. The undoubtedly sincere beliefs on the part of members of the local population afford some indication that judicial corporal punishment is considered necessary in the Isle of Man as a deterrent and to maintain law and order. However, for the application of Article 63 (3) (art. 63-3), more would be needed: there would have to be positive and conclusive proof of a requirement and the Court could not regard beliefs and local public opinion on their own as constituting such proof. Moreover, even assuming that judicial corporal punishment did possess those advantages which are attributed to it by local public opinion, there is no evidence before the Court to show that law and order in the Isle of Man could not be maintained without recourse to that punishment. In this connection, it is noteworthy that, in the great majority of the member States of the Council of Europe, judicial corporal punishment is not, it appears, used and, indeed, in some of them, has never existed in modern times; in the Isle of Man itself, as already mentioned, the relevant legislation has been under review for many years. If nothing else, this casts doubt on whether the availability of this penalty is a requirement for the maintenance of law and order in a European country. The Isle of Man not only enjoys longestablished and highly-developed political, social and cultural traditions but is an up-to-date society. Historically, geographically and culturally, the Island has always been included in the European family of nations and must be regarded as sharing fully that "common heritage
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of political traditions, ideals, freedom and the rule of law" to which the Preamble to the Convention refers. The Court notes, in this connection, that the system established by Article 63 (art. 63) was primarily designed to meet the fact that, when the Convention was drafted, there were still certain colonial territories whose state of civilisation did not, it was thought, permit the full application of the Convention. Finally and above all, even if law and order in the Isle of Man could not be maintained without recourse to judicial corporal punishment, this would not render its use compatible with the Convention. As the Court has already recalled, the prohibition contained in Article 3 (art. 3) is absolute and, under Article 15 (2) (art. 15-2), the Contracting States may not derogate from Article 3 (art. 3) even in the event of war or other public emergency threatening the life of the nation. Likewise, in the Courts view, no local requirement relative to the maintenance of law and order would entitle any of those States, under Article 63 (art. 63), to make use of a punishment contrary to Article 3 (art. 3). 39. For these reasons, the Court finds that there are no local requirements affecting the application of Article 3 (art. 3) in the Isle of Man and, accordingly, that the applicants judicial corporal punishment constituted a violation of that Article. 40. In view of its above conclusion, the Court does not consider it necessary to examine, in connection with Article 63 (1) (art. 63-1), the question of the constitutional status of the Isle of Man in relation to the United Kingdom.

FOR THESE REASONS, THE COURT 1. decides unanimously not to strike the case out of its list; 2. holds by six votes to one that the judicial corporal punishment inflicted on Mr. Tyrer amounted to degrading punishment within the meaning of Article 3 (art. 3); 3. holds unanimously that in the present case there are no local requirements within the meaning of Article 63 para. 3 (art. 63-3) which could affect the application of Article 3 (art. 3); 4. holds by six votes to one that the said punishment accordingly violated Article 3 (art. 3); 5. holds unanimously that it is not necessary to examine the question of a possible violation of Article 3 taken together with Article 14 (art. 14+3);

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Van der Ven v Netherlands (ECtHR)

Van der Ven v Netherlands App No 50901/994 (ECtHR, 4 February 2003)

CONSEIL DE LEUROPE

COUNCIL OF EUROPE

COUR EUROPENNE DES DROITS DE LHOMME EUROPEAN COURT OF HUMAN RIGHTS

FORMER FIRST SECTION CASE OF VAN DER VEN v. THE NETHERLANDS (Application no. 50901/99) JUDGMENT STRASBOURG 4 February 2003

FINAL 04/05/2003

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THE FACTS

I. THE CIRCUMSTANCES OF THE CASE 9. The applicant was born in 1949 and is currently detained in Maastricht. 10. The applicant was detained on remand ( voorlopige hechtenis) on 11 September 1995. The criminal proceedings against him, in which he stood accused of a number of offences including murder, manslaughter/grievous bodily harm, rape and narcotics offences, came to an end on 26 March 2002, when the Supreme Court (Hoge Raad) confirmed the judgment of the sHertogenbosch Court of Appeal ( gerechtshof) of 6 March 2001 in which the applicant had been sentenced to fifteen years imprisonment. In imposing that sentence, the Court of Appeal had taken into account the fact that the applicant had spent much of his pre-trial detention in maximum security. In addition, the Court of Appeal had imposed a TBS order (placement at the disposal of the Government terbeschikkingstelling) with confinement in a secure institution ( met bevel tot verpleging van overheidswege). 11. The applicant was initially detained in ordinary remand institutions (huizen van bewaring). In a letter dated 7 October 1997 to the governor of the remand institution where the applicant was detained at that time, the National Public Prosecutor stated: ... I wish to inform you that a seriously increased safety risk exists in relation to [the applicant]. The Detainee Intelligence Information Service [ Gedetineerde Recherche Informatie Punt GRIP] has obtained information which has been examined by myself and which I have found to be sufficiently relevant, reliable and concrete but which should be protected for reasons of security to the effect that [the applicant] is intending to escape from detention and to that purpose is managing to make contacts outside the penitentiary. An escape or breakout is liable to be accompanied by assistance from the outside and violence directed at others. I would further draw your attention to the fact that it also appears from the aforementioned information that [the applicant] has approached persons, or has had them approached on his behalf, in a threatening and intimidating manner. I advise you to take the appropriate measures to ensure the uninterrupted continuation of the [applicants] detention as well as appropriate measures to prevent any damage, and in particular damage to persons, occurring outside the penitentiary. 12. On 14 October 1997 the governor of the remand institution where the applicant was detained proposed to the special selection board of the maximum-security institution (Extra Beveiligde Inrichting EBI) that the applicant be placed in the EBI which is part of the Nieuw Vosseveld Penitentiary Complex in Vught. At a meeting of the selection board on 24 October 1997 the applicant was selected for placement. He was transferred to the EBI on 29 October 1997. 13. In a letter of 4 November 1997 the Minister of Justice confirmed the applicants placement and informed him of the reasons which had led to that decision having been taken. Reference was made to the letter (referred to as the official report (ambtsbericht)) of 7
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October 1997. In respect of the threats and intimidation, the Minister of Justice wrote that these had not only been brought to bear on fellow inmates but also on persons outside the remand institution. The applicant was further informed that his escape would pose an unacceptable risk to society. The Minister had also decided that the so-called A regime should apply to the applicant in view of the latters threat that he would commit suicide if placed in the EBI. 14. In January and March 1998 the applicant lodged two requests for a transfer to an ordinary remand institution with the s-Hertogenbosch Court of Appeal. The first request was declared inadmissible and the second was rejected. The Court of Appeal based its second decision on the information obtained by GRIP, which had been further elucidated to the court, in confidence, by the Procurator-General at a hearing on 26 March 1998. Neither the applicant nor his counsel were allowed to hear what the Procurator-General had told the Court of Appeal. After the applicant and counsel had once again been admitted to the hearing, the Court of Appeal very briefly provided them with some information of what it had been told by the Procurator-General but this did not contain anything about the provenance of the information obtained by GRIP or the dates on which this information had been provided to GRIP. 15. On 29 October 1998 the Minister of Justice decided that the applicants placement in the EBI should be continued. The wording of that decision was almost identical to that of the decision of 4 November 1997. However, the Minister decided that the applicant should no longer be subjected to the A regime. 16. On 17 December 1998 the applicant again requested the s-Hertogenbosch Court of Appeal to order that he be transferred to an ordinary remand institution, arguing that his placement in the EBI had been unlawful. The applicant explicitly relied on Article 8 of the Convention. He submitted that his placement in the EBI had had serious consequences for his possibilities of enjoying private and family life within the meaning of Article 8 of the Convention: both privacy and contact with the outside world were severely limited in the EBI. Thus, EBI inmates were only allowed visits from spouses, parents and children without a glass partition between the inmate and the visitor once a month, on which occasions the only physical contact allowed was a handshake at the beginning and end of the visit. Visits from other relatives (including siblings) were only allowed with such a partition in place. In addition, it was only possible to contact relatives by telephone twice a week for ten minutes at a time. 17. At the hearing which took place on 18 February 1999 before the Court of Appeal in camera, the applicant also submitted that the conditions of his detention in the EBI constituted inhuman treatment contrary to Article 3 of the Convention. In this connection he referred to the findings of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT see below). 18. The Court of Appeal in camera rejected the request in a decision dated 16 March 1999. The Court of Appeal held that the reasons set out in the Ministers decision of 29 October 1998 justified the applicants continued placement in the EBI. It further held that the conditions of detention in the EBI did not breach Article 3 since the EBI regime had a basis in law and the treatment of the applicant under this regime could not be regarded as amounting to torture or inhuman or degrading treatment or punishment. As regards Article 8, finally, the Court of Appeal held that the interferences with the applicants rights under that provision were justified as they were in accordance with the law and necessary in the interests of, inter alia, public safety.
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19. When the applicants placement in the EBI was once again extended, in a decision of 10 November 2000, he lodged an appeal with the Appeals Board (beroepscommissie) of the Central Council for the Administration of Criminal Justice (Centrale Raad voor Strafrechtstoepassing). On 12 February 2001 the Appeals Board dismissed the appeal. Although it held that he could no longer be considered extremely likely to attempt to escape, it did find that the applicant, in the event of an escape, would pose an unacceptable risk to society in view of the nature of the offences of which he stood accused and of the effects on society and public opinion. 20. In May 2001 the applicant was transferred to a prison with an ordinary regime in Maastricht. 21. The applicant submitted that during his stay in the EBI he had been confronted with feelings of disempowerment and depression. The applicants psychological condition was examined by the Penitentiary Selection Centre (Penitentiair Selectie Centrum the PSC) on a number of occasions, prior to a decision on the prolongation of his placement in the EBI. The following paragraphs contain excerpts from reports of a number of these examinations, drawn up by Mr V., the head of the Psychological Department of the PSC. 22. Report of 28 October 1999: The PSC most recently issued an advisory opinion relating to [the applicant] on 21 April 1999 ... The conclusion reached at that time was the following: Having regard to [the applicants] personality and the course of his detention, [the applicant] should be deemed capable of acts of desperation. Within the EBI, such acts will almost certainly (have to) be directed against himself. Under a less strict regime, he could vent his emotions on others. For the time being, extra attention remains a necessity. The question arises whether in the long run, despite all the efforts made, the EBI is capable of offering the care required. If the risk of escape no longer necessitates keeping [the applicant] in the EBI, a transfer to a Special Individual Care Unit [bijzondere individuele begeleidingsafdeling BIBA] might be considered. The report of the last six months confirms this picture of [the applicant]. His psychological condition displays ups and downs. There has been a period of depression. A number of factors have a part to play in these psychological low points, such as the fact that [the applicant] misses his family (his detention in the EBI certainly contributes to this), the continuing strain of the appeal on points of law (after all, a great deal is at stake for [the applicant]), his relatively poorly integrated personality (his psychological stability is low), as well as his cognitive capacities, which are not judged to be very high. [The applicant] has been residing in the EBI for two years now and he obviously has difficulties coping. Added to this, a number of personal characteristics and the insecurity about his fate in detention place a heavy demand on [the applicants] limited strength. I would prefer placement in a BIBA but this is unfortunately not feasible given that [the applicant] is detained on remand. As far as the present prolongation is concerned, I advise that when the decision about continued detention in the EBI is made, the aforementioned aspects will weigh relatively heavily in relation to current information about a possible risk of his escaping. 23. Report of 13 April 2000:
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It appears from reports of the course of [the applicants] detention that prior to his placement in the EBI he was seen as a dominant man familiar with the daily routine in detention. There were regular signs that he exerted much (negative) influence, involving, inter alia, threats. These signs resulted in frequent transfers. Ever since he has been staying in the EBI, a more unstable, downcast side of [the applicant] has become much more apparent. [The applicant] is described by the prisons medical and health care team as a vulnerable man tending to depression, who takes medication for these complaints. A number of reasons may explain the contrast between [the applicants] behaviour in detention prior to his placement in the EBI and his current behaviour. In the first place there is of course the threat of being sentenced to imprisonment (for life). The fact that his appeal on points of law was upheld caused a strong resurgence of hope, but after he had again been sentenced to life imprisonment, [the applicant] was extremely upset. According to the members of the medical and health care team, he is beginning to recover. In the second place, there is the EBI regime itself which [the applicant] has difficulties coping with. [The applicant] used to be a person who was not constrained by any moral code of behaviour and who did not consider the rights of others. In the EBI, there are clearly defined limits and dependence. [The applicant] finds this loss of control over his own life difficult to accept and it looks as if this is a contributing factor to the development and continuation of the complaints linked to depression. Another relevant factor is contact with his family; personnel in the EBI have the impression that this is deteriorating and that increasingly a distance is beginning to develop. The report of the last six months confirms this picture of [the applicant]. His psychological condition displays highs and lows. There has been a period of complaints linked to depression. These lows are often mainly reactive in nature (bad news, problems with other detainees, the loss of a mate within the unit, etc.). There is still the continuing strain relating to the outcome of the criminal proceedings (after all, a great deal is at stake for [the applicant]), and this should be seen against the background of the relatively poorly integrated personality of [the applicant] (his psychological stability is low) and his cognitive capacities, not judged to be very high. In view of all his problems, regular attention is paid to [the applicant] by the medical and health care team. There is regular contact with the psychiatrist, the psychologist and social workers. Albeit somewhat intermittently, [the applicant] is prepared to take medication, which does have a positive effect on his mood. The fact remains that [the applicant] is having a hard time and that he has difficulties coping with the constraints of the EBI. If information about the risk of his escaping and the associated unacceptability of the risk to society is deemed such that it is no longer strictly necessary to detain [the applicant] in the EBI, there should be an alternative available in a secure facility which offers the possibility of creating a certain space in relation to the setting of limits. A BIBA would be suitable but, given that [the applicant] is detained on remand, placement there is not yet possible. I am nevertheless of the opinion that the unavailability of the most ideal detention facility where [the applicant] should be placed next should not be a decisive factor in the decision-making process on whether or not to prolong his placement in the EBI. 24. Report of 18 April 2001: The most serious problems which [the applicant] says he is experiencing in the EBI are the
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conditions under which visits take place and the fact that he is not seeing some of his children. [The applicant] becomes visibly emotional when talking about this. He complains of eating a lot, listlessness, being worried and sleeplessness. As confirmed by earlier reports, [the applicant] gives the impression of a vulnerable man who yearns for contact and tends towards gloominess, and who has difficulties coping with his detention. There is no appearance of serious psychopathology such as psychosis, severe depression or severe anxiety. Only mild to moderate depressive symptoms and an unstable affect are visible. It appears from the reports drawn up by the staff at the secure unit over the past six months that [the applicant] has functioned well. He enjoys contact with certain co-detainees. Judged by his own standards, he has participated to a reasonable degree in the programme on offer. He is, however, perceived as someone who complains a lot and who likes to lodge complaints about all manner of things. The conclusion is drawn that in the period under review [the applicant] appears to have found his feet. The medical and health care team reports that [the applicant] has regular contact with the social worker. Having regard to all of the above, [the applicant] has thus functioned well in the past six months. The imposition of a fifteen-year prison sentence and a TBS order, which, as opposed to life imprisonment, offer a certain perspective, has certainly contributed to the improved level of functioning. ... Whether or not his placement in the EBI should be extended is determined in the first place by the level of risk of [the applicant] escaping. ... Although [the applicant] has difficulties coping with his placement in the EBI, the findings are not of such a nature as to constitute strong contraindications militating against a prolongation of his placement. 25. At the request of the investigating judge in the criminal proceedings against the applicant, a report was drawn up concerning the applicants mental faculties by a psychologist and a psychiatrist on 21 November 2000, following a period during which the applicant was held in a psychiatric observation clinic. The following excerpt has been taken from the chapter of the report describing the applicants meetings with the psychiatrist. It is remarkable that soon after his admission to the psychiatric observation clinic, [the applicants] appearance seems a lot more presentable: with his hair cut short, cleanshaven and wearing fresh clothes, he gives an altogether different impression from that at the first meeting. [The applicant] says the regime in the EBI did not encourage him to look after himself properly: sometimes days would go by without him speaking to anybody, he found the continuous strip-searching humiliating, and as a result he preferred not to go to the hairdressers or to get showered. [The applicant] describes his treatment in the psychiatric observation clinic as heaven compared to his treatment in the EBI, and he says that as a result he feels a lot better in the psychiatric observation clinic. THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 36. The applicant alleged that his detention in the EBI constituted a breach of Article
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3 of the Convention, which provides: No one shall be subjected to torture or to inhuman or degrading treatment or punishment. A. The parties submissions 1. The applicant 37. The applicant submitted that in the light of the very critical comments expressed by the CPT on various aspects of the EBI regime there could be no doubt that this regime must be regarded as inhuman. 38. To illustrate that the CPTs findings also specifically applied to him, the applicant pointed to a number of aspects concerning his individual situation. He argued in the first place that his detention in the EBI had lasted longer than the two years which, as submitted by the Government in various domestic proceedings, was the average length of placement. Secondly, the psychological effects of the EBI regime on the applicant had been enormous: he had become extremely weighed down by the regime, and this had manifested itself in a variety of psychological and physical complaints. The tenor of most of the reports drawn up by Mr V. of the Psychological Department of the Penitentiary Selection Centre confirmed that placement in the EBI was taking its toll on the applicant and that he was not considered suited to placement in such a regime. In their last conversation, which had resulted in the report of 18 April 2001 (see paragraph 24 above), Mr V. had admitted to the applicant that he was aware of the serious mental harm the regime was causing the applicant. The applicant regretted that Mr V. had not seen fit to consign this view to paper. 39. Contacts with the institution doctor, psychologist and psychiatrist had not resulted in any notable improvement of his situation. Such improvement would in any event have been unlikely since the major source of his tension and frustration was the regime which had created a situation of sensory deprivation and social isolation. None of the social workers and doctors in the EBI had ever expressed genuine understanding of his mental problems and it was exactly this underestimation of the effects which the regime was having on him that had left him feeling even more powerless and lonely. In addition, contacts with these professionals had to take place behind glass, which was hardly conducive to the creation of a setting of confidentiality. 40. Two aspects of the regime had been particularly onerous for the applicant, without being strictly necessary from a security point of view. Firstly, the applicant had been subjected to strip-searches including anal inspections on a weekly basis, and often more frequently, for three and a half years and, when carried out at the same time as the weekly cell- inspection, regardless of whether he had had any contact with the outside world or had left his cell. The strip-search, which he found humiliating, involved his having to undress completely, being inspected and touched, and being made to adopt positions he found embarrassing. Secondly, as a result of the visiting regulations the applicant had been denied normal human contact, including physical contact, with his immediate family. The applicant submitted that the Government had failed to strike a fair balance between security considerations and his justified wish for physical contact, given that there had never been any concrete, tangible indications that he harboured any plans to escape. Moreover, in
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view of the strict security arrangements surrounding visits it was impossible for any dangerous objects to be smuggled into the institution unobserved. Even if such were the case, it would be discovered during the strip-search following the visit. 41. The applicant thus maintained his claims that he had been treated in an inhuman or, at the very least, degrading manner. 2. The Government 42. The Government explained that the need for a maximum-security prison had arisen after a large number of breakouts from prisons in the Netherlands had occurred in the 1980s and early 1990s, often involving the use of firearms, knives or similar weapons and the taking of hostages. The public had responded with growing alarm, while prison staff had begun to fear for their safety. 43. Although the Government did not deny that the EBI regime imposed severe restrictions and for this reason, as few people as possible were placed there they were of the opinion that the conditions in the EBI were neither inhuman nor degrading. Each of the strict security measures applying in the EBI was justified in view of the serious risks that less stringent measures would entail. The Government submitted that they were very aware of their obligation to minimise any risk to prison staff and of their duty to do all they could to protect the public by preventing people convicted of serious crimes from returning to the community before completing their lawful sentences. 44. In the view of the Government, the CPTs comment that the regime could be considered to amount to inhuman treatment did not mean that it actually was inhuman, since it was impossible to say how the regime affected detainees in general; this rather depended on the individuals personality, character and other personal factors. In the present case, there was no evidence that the applicants mental health had seriously suffered as a result of his detention in the EBI. He had enjoyed contact with fellow inmates, had been allowed to receive visits from relatives and friends, and had had ample opportunity to make telephone calls and to take part in a wide variety of activities. His physical and mental well-being had been under close surveillance: as recognised in the report Care in and around the Maximum Security Prison, an operational system of psychological and psychiatric care was in place in the EBI, which made it unlikely that any serious harm to the mental health of detainees would go unnoticed. Finally, Mr V.s report of 18 April 2001 (see paragraph 24 above) showed that, although the applicant had displayed symptoms of mild to moderate depression, he had no serious psychopathology and had in fact been functioning well in the period under review. 45. In conclusion, the Government held the view that the applicant had failed to demonstrate beyond reasonable doubt that his detention in the EBI should be described as inhuman treatment within the meaning of Article 3 of the Convention. B. The Courts assessment 1. General principles VAN DER VEN v. THE NETHERLANDS JUDGMENT 19

46. The Court reiterates at the outset that Article 3 of the Convention enshrines one of the most fundamental values of democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and
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the victims behaviour (see, for example, Labita v. Italy [GC], no. 26772/95, 119, ECHR 2000-IV). 47. The Court further reiterates that, according to its case-law, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see, among other authorities, Ireland v. the United Kingdom, judgment of 18 January 1978, Series A no. 25, p. 65, 162). 48. Treatment has been held by the Court to be inhuman because, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical and mental suffering, and also degrading because it was such as to arouse in the victims feeling of fear, anguish and inferiority capable of humiliating and debasing them (see, for example, Kuda v. Poland [GC], no. 30210/96, 92, ECHR 2000-XI). In order for a punishment or treatment associated with it to be inhuman or degrading, the suffering or humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment (see V. v. the United Kingdom [GC], no. 24888/94, 71, ECHR 1999-IX). The question whether the purpose of the treatment was to humiliate or debase the victim is a further factor to be taken into account, but the absence of any such purpose cannot conclusively rule out a violation of Article 3 (see, for example, Peers v. Greece, no. 28524/95, 74, ECHR 2001-III, and Kalashnikov v. Russia, no. 47095/99, 101, ECHR 2002-VI). 49. Conditions of detention may sometimes amount to inhuman or degrading treatment (see Peers, cited above, 75). When assessing conditions of detention, account has to be taken of the cumulative effects of those conditions, as well as the specific allegations made by the applicant (see Dougoz v. Greece, no. 40907/98, 46, ECHR 2001II). 50. While measures depriving a person of his liberty often involve an element of suffering or humiliation, it cannot be said that detention in a high-security prison facility, be it on remand or following a criminal conviction, in itself raises an issue under Article 3 of the Convention. The Courts task is limited to examining the personal situation of the applicant who has been affected by the regime concerned (see Aerts v. Belgium, judgment of 30 July 1998, Reports of Judgments and Decisions 1998-V, pp. 1958-59, 34-37). In this connection the Court emphasises that, although publicorder considerations may lead States to introduce highsecurity prisons for particular categories of detainees, Article 3 nevertheless requires those States to ensure that a person is detained in conditions which are compatible with respect for his human dignity, that the manner and method of the execution of the measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured (see Kuda, cited above, 92-94). 51. In this context, the Court has previously held that complete sensory isolation, coupled with total social isolation, can destroy the personality and constitutes a form of inhuman treatment which cannot be justified by the requirements of security or any other reason. On the other hand, the removal from association with other prisoners for security, disciplinary or protective reasons does not in itself amount to inhuman treatment or
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degrading punishment (see Messina v. Italy (no. 2) (dec.), no. 25498/94, ECHR 1999-V). In assessing whether such a measure may fall within the ambit of Article 3 in a given case, regard must be had to the particular conditions, the stringency of the measure, its duration, the objective pursued and its effects on the person concerned (see Dhoest v. Belgium, no. 10448/83, Commissions report of 14 May 1987, Decisions and Reports (DR) 55, pp. 20-21, 117-18, and McFeeley and Others v. the United Kingdom, no. 8317/78, Commission decision of 15 May 1980, DR 20, p. 44). 2. Application to the present case 52. Turning to the circumstances of the present case, the Court observes first of all that the applicants complaints about the conditions of his detention do not concern the material conditions within the EBI but rather the regime to which he was subjected. To this extent the case may be compared to a series of applications lodged against Italy where the applicants alleged that the special prison regime to which they were subjected pursuant to section 41 bis of the Prison Administration Act resulted in conditions which violated Article 3 of the Convention (see, for instance, Messina (no. 2) (decision cited above); Indelicato v. Italy (dec.), no. 31143/96, 6 July 2000; Ganci v. Italy (dec.), no. 41576/98, 20 September 2001; and Bonura v. Italy (dec.), no. 57360/00, 30 May 2002). 53. The Court notes that paragraphs 62 to 66 of the CPT report quoted above (paragraph 32) contain a detailed description, drawn up following a visit to the facility, of the conditions obtaining in the EBI. Since neither party has argued that this description is factually incorrect, the Court accepts that it adequately reflects the situation in the EBI. However, the question whether or not the applicant was subjected to inhuman or degrading treatment within the meaning of Article 3 of the Convention depends on an assessment of the extent to which he was personally affected (see paragraph 50 above). 54. It is not in dispute that, throughout his detention in the EBI, the applicant was subjected to very stringent security measures. The Court further considers that the applicants social contacts were strictly limited, taking into account the fact that he was prevented from having contact with more than three fellow inmates at a time, that direct contact with prison staff was limited, and that, apart from once a month in the case of visits from members of his immediate family, he could only meet visitors behind a glass partition. However, as in the cases against Italy referred to in paragraph 52 above, the Court is unable to find that the applicant was subjected either to sensory isolation or to total social isolation. As a matter of fact, the Italian special regime was significantly more restrictive both as regards association with other prisoners and as regards frequency of visits: association with other prisoners was entirely prohibited and only family members were allowed to visit, once a month and for one hour (see Messina v. Italy (no. 2), no. 25498/94, 13, ECHR 2000-X). 55. The applicant was placed in the EBI because he was considered extremely likely to attempt to escape from detention facilities with a less strict regime and, if he were to escape, he was deemed to pose an unacceptable risk to society in terms of committing further serious violent crimes (see paragraph 27 above). At a later stage, the risk of the applicants escaping was held to be less high; however, in the event of an escape he was still considered to pose an unacceptable risk to society in view of the nature of the
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offences of which he stood accused and of the effects on society and public opinion (see paragraph 19 above). Although the applicant denied that he harboured any such intentions, it is not for the Court to examine the validity of the assessment carried out by the domestic authorities. Having regard to the very serious offences of which the applicant stood accused and was subsequently convicted (see paragraph 10 above), the Court accepts the assessment made by the domestic authorities. 56. In support of his claim that the EBI regime had such serious damaging effects on his mental health as to bring it within the scope of Article 3 of the Convention, the applicant submitted a number of reports drawn up by Mr V. of the Psychological Department of the Penitentiary Selection Centre (see paragraphs 22-24 above). Several of these reports indeed confirm that for much of his stay in the EBI the applicant was having a hard time and that he had difficulties coping with the constraints of the EBI. Depressive symptoms were observed. At the same time, the Court observes the fact that the applicant was missing his family and the strain caused by the criminal proceedings against him were also named as contributing factors. 57. The Court does not diverge from the view expressed by the CPT that the situation in the EBI is problematic and gives cause for concern. This must be even more so if detainees are subjected to the EBI regime for protracted periods of time.

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58. The applicant also submitted that, if not inhuman, the treatment to which he had been subjected was at the very least degrading. In this connection the Court observes that, pursuant to the EBI house rules, the applicant was strip-searched prior to and following an open visit as well as after visits to the clinic, the dentists surgery or the hairdressers. In addition to this, for a period of three and a half years he was also obliged to submit to a stripsearch, including an anal inspection, at the time of the weekly cell inspection (see paragraph 31 above), even if in the week preceding that inspection he had had no contact with the outside world (see paragraph 65 of the CPT report) and despite the fact that he would already have been strip-searched had he received an open visit or visited the clinic, dentist or hairdressers. Thus, this weekly strip-search was carried out as a matter of routine and was not based on any concrete security need or the applicants behaviour. The strip-search as practised in the EBI obliged the applicant to undress in the presence of prison staff and to have his rectum inspected, which required him to adopt embarrassing positions. 59. For the applicant, this was one of the features of the regime which was hardest to endure, but the Government maintained that the strip-searches were necessary and justified. 60. The Court has previously found that strip-searches may be necessary on occasion to ensure prison security or to prevent disorder or crime (see Valainas v. Lithuania, no. 44558/98, 117, ECHR 2001-VIII; Iwaczuk v. Poland, no. 25196/94, 59, 15 November 2001; and McFeeley and Others, cited above, 60-61). In Valainas and Iwaczuk one occasion of strip-search was at issue, whereas in McFeeley and Others so-called close body searches, including anal inspections, were carried out at intervals of seven to ten days, before and after visits and before prisoners were transferred to a new wing of the Maze Prison in Northern Ireland, where dangerous objects had in the past been found concealed in the recta of protesting prisoners. 61. In the present case, the Court is struck by the fact that the applicant was subjected to the weekly strip-search in addition to all the other strict security measures within the EBI. In view of the fact that the domestic authorities, through the reports drawn up by the Psychological Department of their Penitentiary Selection Centre, were well aware that the applicant was experiencing serious difficulties coping with the regime, and bearing in mind that at no time during the applicants stay in the EBI did it appear that anything untoward was found in the course of a strip-search, the Court is of the view that the systematic strip-searching of the applicant required more justification than has been put forward by the Government in the present case.

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