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O)indexsqlite_autoindex_conclusioncase_1conclusioncase R !!otableconclusionconclusion CREATE TABLE "conclusion" ("id" INTEGER NOT NULL PRIMARY KEY, "article" VARCHAR(255), "base_article" VARCHAR(255), "element" VARCHAR(255) NOT NULL, "type" VARCHAR(255) NOT NULL)f1!indexattachment_case_idattachment CREATE INDEX "attachment_case_id" ON "attachment" ("case_id")O!!itableattachmentattachmentCREATE TABLE "attachment" ("tag" VARCHAR(255) NOT NULL, "case_id" VARCHAR(255) NOT NULL, PRIMARY KEY ("tag", "case_id"), FOREIGN KEY ("case_id") REFERENCES "case" ("itemid"))3G!indexsqlite_autoindex_attachment_1attachmentY+{indexarticle_case_idarticleCREATE INDEX "article_case_id" ON "article" ("case_id")KmtablearticlearticleCREATE TABLE "article" ("id" INTEGER NOT NULL PRIMARY KEY, "title" VARCHAR(255) NOT NULL, "case_id" VARCHAR(255) NOT NULL, FOREIGN KEY ("case_id") REFERENCES "case" ("itemid"))Kqindexcase_eclicaseCREATE UNIQUE INDEX "case_ecli" ON "case" ("ecli")pCtablecasecaseCREATE TABLE "case" ("itemid" VARCHAR(255) NOT NULL PRIMARY KEY, "docname" VARCHAR(255) NOT NULL, "doctypebranch" VARCHAR(255) NOT NULL, "ecli" VARCHAR(255) NOT NULL, "importance" INTEGER NOT NULL, "applicability" VARCHAR(255) NOT NULL, "appno" VARCHAR(255) NOT NULL, "decisiondate" DATETIME, "introductiondate" DATETIME, "judgementdate" DATETIME, "kpdate" DATETIME, "languageisocode" VARCHAR(255) NOT NULL, "originatingbody_name" VARCHAR(255) NOT NULL, "originatingbody_type" VARCHAR(255) NOT NULL, "rank" VARCHAR(255) NOT NULL, "respondent" VARCHAR(255) NOT NULL, "respondentOrderEng" VARCHAR(255) NOT NULL, "separateopinion" INTEGER NOT NULL, "sharepointid" INTEGER NOT NULL, "typedescription" INTEGER NOT NULL, "judgment" JSON)';indexsqlite_autoindex_case_1case԰|vpjd^XRLF@:4.(" ztnhb\VPJD=6/(!  y r k d ] V O H A : 3 , %     } v o h a Z S L E > 7 0 ) "    z s l e ^ W P I B ; 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'   xqjc\UNG@92+$|ung`YRKD=6/(! yrkd]VOHA:3,% }vohaZSLE>70)" Үk"ͫX1 DAtƳ%ĊU\3UcNB~r5"ㅞPX~-z] 8Wg"GCv&V4sdKCsO#˄R9τ.K^=n)PKz+i] >܄n7}EM{z/x]vuĄ>tSnrqYLp|nV,lg]jׄ h=fnecMa?|_+][\& Z~<XmW)UMTQ~R儻.P\N M9KiJGHExD *Bb[@ ?79=\i;Մ9LG7ʄw5g&4$V20ф6.e-+F* v(&'dS%$/3# c!Brn$ R@0`/>҃n  N ~ .\P =n OЃ}'-b\ <k+JS{+퓃Y ?7蛃fF,t%CUޗZ5̓ckA֢qԻ!QǃЄ/郺_~ASr̓"ȃR©1`փ?oქN&~-⃠\< у:?j탚Jhz* Z  8uh烍჋Jy烈*tZꃅ u9iHv%iW5f7˂Es~}"}U{"y6wfv-ttCrspĂ$o=Sml4jIdhgCeupcaO`p^0]G_[yY^?WǂnUSLQĂ}O,M]K݂ JA=HmF{DLC|A}+?ǂ[= <::k896J5|y3(2Y/݂-7,g+)ƂH(^x&'$X#Q!7 hxI#y*?\h <Ȃk H _w 傁&V95e{+Erށ!S݁1W_Q?-oBNV}ف-鄁] ց=Jn㦁L{t+\C ˁ<m?ӥM}r.[̷ ܁<DlŔK!{`*݁X끸q7g8F#u%hUځ58d/DvI&W(8hၙ'F)ú%U.3'b၌AOpOӁH/` d/~aR|v{py>xGbvPt)s@Kq7ooWm8lZ^jim%gIfndb5`Y_s~\"[IYmX^V6T3\RP$OGLkJH7FZDCj$BI@k><׺3:bZ86%4K2p1/x9-H]+*#(\G&l$@"5!"X |Z!ΛCmfʘ 0UzʏA ;g h0ֈS؆wͅك?؁d n!S001-179232h: m"001-90343\; [ 6 [4= F / v ZR"##tablejudgejudge&CREATE TABLE "judge" ("name" VARCHAR(255) NOT NULL PRIMARY KEY, "full_name" VARCHAR(255) NOT NULL, "start" INTEGER NOT NULL, "end" INTEGER) +Q"'sindexissue_case_idissue%CREATE INDEX "issue_case_id" ON "issue" ("case_id")D!gtableissueissue$CREATE TABLE "issue" ("id" INTEGER NOT NULL PRIMARY KEY, "name" VARCHAR(255) NOT NULL, "case_id" VARCHAR(255) NOT NULL, FOREIGN KEY ("case_id") REFERENCES "case" ("itemid"))n 5%indexextractedapp_case_idextractedapp#CREATE INDEX "extractedapp_case_id" ON "extractedapp" ("case_id")t%%+tableextractedappextractedapp"CREATE TABLE "extractedapp" ("id" INTEGER NOT NULL PRIMARY KEY, "name" VARCHAR(255) NOT NULL, "isechr" INTEGER NOT NULL, "case_id" VARCHAR(255) NOT NULL, FOREIGN KEY ("case_id") REFERENCES "case" ("itemid"))v9)indexexternalsource_case_idexternalsource!CREATE INDEX "externalsource_case_id" ON "externalsource" ("case_id")_))ytableexternalsourceexternalsource CREATE TABLE "externalsource" ("id" INTEGER NOT NULL PRIMARY KEY, "name" VARCHAR(255) NOT NULL, "case_id" VARCHAR(255) NOT NULL, FOREIGN KEY ("case_id") REFERENCES "case" ("itemid"))E5/indexdocumentcollectionid_case_iddocumentcollectionidCREATE INDEX "documentcollectionid_case_id" ON "documentcollectionid" ("case_id")q55tabledocumentcollectioniddocumentcollectionidCREATE TABLE "documentcollectionid" ("id" INTEGER NOT NULL PRIMARY KEY, "name" VARCHAR(255) NOT NULL, "case_id" VARCHAR(255) NOT NULL, FOREIGN KEY ("case_id") REFERENCES "case" ("itemid"))~=-indexdecisionbodycase_case_iddecisionbodycaseCREATE INDEX "decisionbodycase_case_id" ON "decisionbodycase" ("case_id")A-'indexdecisionbodycase_member_iddecisionbodycaseCREATE INDEX "decisionbodycase_member_id" ON "decisionbodycase" ("member_id")?S-indexsqlite_autoindex_decisionbodycase_1decisionbodycase*--tabledecisionbodycasedecisionbodycaseCREATE TABLE "decisionbodycase" ("member_id" INTEGER NOT NULL, "case_id" VARCHAR(255) NOT NULL, PRIMARY KEY ("member_id", "case_id"), FOREIGN KEY ("member_id") REFERENCES "decisionbodymember" ("id"), FOREIGN KEY ("case_id") REFERENCES "case" ("itemid")))11}tabledecisionbodymemberdecisionbodymemberCREATE TABLE "decisionbodymember" ("id" INTEGER NOT NULL PRIMARY KEY, "name" VARCHAR(255) NOT NULL, "role" VARCHAR(255))K/;indexconclusionmention_conclusion_idconclusionmentionCREATE INDEX "conclusionmention_conclusion_id" ON "conclusionmention" ("conclusion_id") E//indexconclusionmention_mention_idconclusionmentionCREATE INDEX "conclusionmention_mention_id" ON "conclusionmention" ("mention_id")*//tableconclusionmentionconclusionmentionCREATE TABLE "conclusionmention" ("id" INTEGER NOT NULL PRIMARY KEY, "mention_id" INTEGER NOT NULL, "conclusion_id" INTEGER NOT NULL, FOREIGN KEY ("mention_id") REFERENCES "mention" ("id"), FOREIGN KEY ("conclusion_id") REFERENCES "conclusion" ("id"))vCtablementionmentionCREATE TABLE "mention" ("id" INTEGER NOT NULL PRIMARY KEY, "mention" VARCHAR(255) NOT NULL)XHv ;?k_S =1% / Kvj^SG A v j ^{o G < 0 $     3 u i ] R : # '  W w k _ S S = 1 %   w l ` T I = 1 &    c y m a V K @ 5 *   znbWLA5(znb GL@5)sgZM4'-:RGBUB^E5w:,ׅ*:Pzf#<ӣ.MGJK @o>I!(7B[0'?g!&Rʧ$-ya5I w×(7Ze/u%v@TSP1P+N(M(M~ݲڴ{Ӊz#ĪzBoysy(w9%wbv3uu>t"tP H rZp }ok3nn2Em }l'|l7kӿki(i hhpH`g/f 4bf%9e_!Jd c>wcIb5BaG`)_+_b{-^W^q];$J]] Z$!{XVPU2uW"T_ S)]S;RQAxQkF^PI0OeJN!M:1]LVuK-1iKzX<pJGPJPIZoI0If7HWdH(7G˿DG HF I $'F DbD(CTBdFBanB`AA_A'RaAcA"=@A><@Q":#f;q&;y;~J;EG:2\):;:cku: E 8/65 }‘44h" 239+321g1 0k09U-/ gy/:_/gQX.R..<A. 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I  ]k:4\-Q8'sindextable_case_idtabletus, amounted to a violation of Article 14 taken together with Article 8 of the Convention.","elements":[]},{"content":"4.\u00a0\u00a0On 20 September 2007 the Court decided to give notice of the application to the Government. Under the provisions of Article 29 \u00a7 3 of the Convention, it also decided to examine the merits of the application at the same time as its admissibility.","elements":[]}],"section_name":"procedure"},{"content":"THE FACTS","elements":[{"content":"THE CIRCUMSTANCES OF THE CASE","elements":[{"content":"5.\u00a0\u00a0The first applicant (\u201cthe applicant\u201d), was born in 1974 and lives in . The second and the third applicant, D\u00e1niel Weller and M\u00e1t\u00e9 Weller, the applicant\u2019s twin sons, were born in 2005 and live in .","elements":[]},{"content":"A.\u00a0\u00a0The circumstances of the case","elements":[{"content":"6.\u00a0\u00a0The facts of the case, as submitted by the parties, may be summarised as follows.","elements":[]},{"content":"7.\u00a0\u00a0In 2000 the first applicant married a Romanian citizen, who currently lives in . The couple are raising four children from the previous marriage of the wife and they have successfully claimed numerous allowances on their behalf. On 30 June 2005 the wife gave birth to the second and third applicants. Both of them acquired Hungarian nationality by birth, through their father. At the material time, the mother held a residence permit (tart\u00f3zkod\u00e1si enged\u00e9ly). She was granted a settlement permit (leteleped\u00e9si enged\u00e9ly) in May 2007.","elements":[]},{"content":"8.\u00a0\u00a0On 7 September 2005 the first applicant requested maternity benefit (anyas\u00e1gi t\u00e1mogat\u00e1s) amounting to 148,000 Hungarian forints (HUF) from the and Pest County Regional Directorate of the Hungarian Treasury in his own name and on behalf of his children.","elements":[]},{"content":"9.\u00a0\u00a0On 8 September 2005 the Regional Directorate refused the applicant\u2019s claim. It pointed out that, in the light of the relevant provisions of Act no.\u00a084 of 1998 on Family Support (\u201cthe Act\u201d), only mothers, adoptive parents and guardians were entitled to the benefit in question. It also noted that the natural father might only apply for such an allowance if the mother were deceased. The first applicant appealed.","elements":[]},{"content":"10.\u00a0\u00a0On 20 January 2006 the Hungarian Treasury dismissed his appeal. The Treasury established that, pursuant to the Act, only mothers with Hungarian citizenship might apply for maternity benefit. It further observed that the Act applies only to those non-Hungarian citizens who have obtained settlement permits (leteleped\u00e9si enged\u00e9ly), being either refugees or citizens of another of the European Union. It concluded that, since the applicant\u2019s wife did not fall into either of these categories, the claim had to be rejected, since the natural father was not entitled to such benefits.","elements":[]},{"content":"11.\u00a0\u00a0On 6 March 2006 the first applicant sought judicial review before the . He argued that the legal background of the institution of maternity benefit, as well as the decisions of the competent Hungarian authorities, were discriminatory and contravened the Hungarian Constitution and Article 14 of the Convention.","elements":[]},{"content":"12.\u00a0\u00a0On 5 July 2005 the , finding that the administrative authorities\u2019 decisions had been in compliance with the law, dismissed the applicant\u2019s claim. It held, inter alia, that the purpose of maternity benefit was to support the mother and not the entire family or the children, therefore the latter could not be considered to have suffered discrimination.","elements":[]},{"content":"13.\u00a0\u00a0On 7 August 2006 the applicant lodged a constitutional complaint with the . These proceedings are apparently still pending.","elements":[]}]},{"content":"B.\u00a0\u00a0Relevant domestic law","elements":[{"content":"Act no. 84 of 1998 on Family Support","elements":[{"content":"Section 2","elements":?[]},{"content":"The scope of the Act","elements":[]},{"content":"\u201cThe Act shall be applied \u2013 unless an international treaty regulates otherwise \u2013 to those living on the territory of the , who","elements":[]},{"content":"a) are Hungarian nationals,","elements":[]},{"content":"b) have obtained an immigration or settlement permit, and to those who have been recognised as refugees by the Hungarian authorities,","elements":[]},{"content":"c) fall under the scope of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community and \u2013 with the exception of the maternity benefit (Chapter IV of the Act) \u2013 of the Regulation (EEC) No. 140//71 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, provided that such persons \u2013 with the exception of frontier workers \u2013 at the time of requesting the allowance have obtained a valid residence permit.\u201d","elements":[]},{"content":"Section 29","elements":[]},{"content":"\u201c(1) Persons entitled to maternity benefit after giving birth are:","elements":[]},{"content":"a) women who, during pregnancy, attended at least four times \u2013 in case of premature birth, once \u2013 prenatal care;","elements":[]},{"content":"b) adoptive parents, if the adoption was finally authorised within 180 days of the birth;","elements":[]},{"content":"c) the guardian, if the child \u2013 based on a final decision \u2013 was taken into his/her custody within 180 days of the birth.\u201d","elements":[]},{"content":"Section 30","elements":[]},{"content":"\u201cIf the woman entitled to maternity benefit dies before it is paid, then it shall be paid to the father living under the same roof or, in the absence of such a person, to the guardian of the child.\u201d","elements":[]},{"content":"Section 32","elements":[]},{"content":"\u201cA request for maternity benefit may be submitted within 180 days of giving birth.\u201d","elements":[]}]}]}]}],"section_name":"facts"},{"content":"THE LAW","elements":[{"content":"I.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION READ IN CONJUNCTION WITH ARTICLE 8 OF THE CONVENTION","elements":[{"content":"14.\u00a0\u00a0The applicants maintained that, when claiming maternity benefit, they had suffered discrimination because of the nationality of the mother of the second and the third applicants as well as the first applicant\u2019s parental status. They relied on Article 14 of the Convention, read in conjunction with Article 8, which provide insofar as relevant as follows:","elements":[]},{"content":"Article 14 of the Convention","elements":[]},{"content":"\u201cThe enjoyment of the rights and freedoms set forth in [the] 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.\u201d","elements":[]},{"content":"Article 8 of the Convention","elements":[]},{"content":"\u201c1.\u00a0\u00a0Everyone has the right to respect for his private and family life, ...","elements":[]},{"content":"2.\u00a0\u00a0There 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 ... the economic well-being of the country, ... for the protection of health or morals, or for the protection of the rights and freedoms of others.\u201d","elements":[]},{"content":"A.\u00a0\u00a0Admissibility","elements":[{"content":"15.\u00a0\u00a0The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 \u00a7 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.","elements":[]}]},{"content":"B.\u00a0\u00a0Merits","elements":[{"content":"1.\u00a0\u00a0The parties\u2019 submissions","elements":[]}]},{"con@tent":"(a) The Government","elements":[{"content":"16.\u00a0\u00a0The Government submitted that the Contracting States enjoy a wide margin of appreciation in respect of welfare policy. Moreover, they pointed out that there was a substantial diversity of social security schemes in the Member States of the Council of Europe, particularly in the regulation of maternity allowances.","elements":[]},{"content":"17.\u00a0\u00a0The Government maintained that the aim of maternity allowances was primarily to facilitate the development of the foetus and for the mother to maintain a healthy life. Had it only been pecuniary assistance, it would have been sufficient to connect such a grant to the birth of the child. This was not the case, since future mothers had to participate in courses on parental care regularly in order to be entitled to the allowance. It is true that in the absence of natural parents, as a subsidiary rule, guardians may be entitled to the allowance, but this special requirement was not met in the present circumstances.","elements":[]},{"content":"18.\u00a0\u00a0Moreover, the Government drew attention to the fact that the mother in the present case had only obtained authorisation to reside in , but not a settlement permit since she most probably did not fulfil the requirements of the latter at the material time. Exclusion from the benefit served the purpose of reducing the number of marriages of convenience and establishing a verifiable allowance system. By acting in this way, the did not overstep the limits of its margin of appreciation.","elements":[]},{"content":"19.\u00a0\u00a0Lastly, the Government underlined that from 1 January 2008 onwards all citizens of the European Union residing in for more than three months are entitled to a maternity allowance under the same conditions as Hungarian citizens. In sum, the Government were of the view that the exclusion of the natural father from the benefit was not an unjustifiable difference in treatment.","elements":[]}]},{"content":"(b) The applicants","elements":[{"content":"20.\u00a0\u00a0The applicants submitted that the maternity benefit \u2013 although its name was misleading \u2013 did not aim at reducing the hardship of giving birth but at promoting the social security of families and diminishing the financial burdens ensuing from bringing up children, since not only mothers but adoptive parents and guardians were entitled to it. In their view, the primarily financial character of the allowance was also supported by the fact that it could only be claimed within 180 days of the birth.","elements":[]},{"content":"21.\u00a0\u00a0The applicants drew attention to the fact that the benefit was payable after birth when the responsibilities of the father and mother concerning the child became equal. The first applicant\u2019s exclusion from the benefit therefore constituted an unjustifiable difference in treatment on the ground of his parental status.","elements":[]},{"content":"22.\u00a0\u00a0The applicants also submitted that section 29 of the Act was in itself discriminatory against all fathers, taking into consideration Article 5 of Protocol No. 7 to the Convention, since men with foreign spouses were treated less favourably in the enjoyment of the benefit than those with Hungarian wives. The applicants also maintained that any reluctance on the part of the mother to participate in the obligatory courses on parental care may justify different treatment in respect of her alone, but not in respect of the father, who may have shown that he cared for the unborn child in many other ways. In any event, the applicant\u2019s wife attended the parental care courses, accompanied and assisted by the first applicant. Therefore the aim of protecting the foetus could not serve as a basis for the refusal to grant the allowance in the present case.","elements":[]},{"content":"23.\u00a0\u00a0Moreover, the applicants were of the view that the argument of Government concerning the legitimate aim of protecting the system of social welfare from abuse by immigrants was irrelevant,A since all three of them have Hungarian citizenship. They drew attention to the fact, in this connection, that the mother had four children from her previous marriage and that the first applicant could claim, since the couple were also raising these children together, various social allowances on their behalf. The did not raise the issue of abuse concerning those benefits; therefore it was illogical to use this argument in connection with maternity benefit, the amount of which was in any event rather small.","elements":[]},{"content":"24.\u00a0\u00a0The applicants also pointed out that, although it is true that the Member States enjoy a certain margin of appreciation when regulating such matters, the equality of the sexes is a major goal of Council of Europe. Therefore, there must be a compelling reason advanced before a difference in treatment on grounds of sex could be regarded as being compatible with the Convention. In their view, the Government had failed to put forward such an argument.","elements":[]},{"content":"25.\u00a0\u00a0Lastly, they argued that the exclusion of the second and third applicants from the benefit, although both of them were Hungarian nationals by birth, on account of their mother\u2019s foreign nationality constituted an unjustified difference in treatment compared with other Hungarian children. In sum, they concluded that they had suffered discrimination in breach of Article 14 read in conjunction with Article 8 of the Convention.","elements":[]},{"content":"2.\u00a0\u00a0The Court\u2019s assessment","elements":[]}]},{"content":"(a) General principles","elements":[{"content":"27.\u00a0\u00a0The Court has also held that not every difference in treatment will amount to a violation of Article 14. It must be established that other persons in an analogous or relevantly similar situation enjoy preferential treatment and that this distinction is discriminatory (Unal Tekeli v. Turkey, no.\u00a029865/96, \u00a7 49, 16 November 2004). A difference in treatment is discriminatory within the meaning of Article 14 if it has no objective and reasonable justification. The existence of such a justification must be assessed in relation to the principles which normally prevail in democratic societies. A difference in treatment in the exercise of a right laid down by the Convention must not only pursue a legitimate aim: Article 14 is likewise violated when it is clearly established that there is no \u201creasonable relationship of proportionality between the means employed and the aim sought to be realised\u201d (see, for example, Petrovic, cited above, \u00a7\u00a030, and Lithgow and Others v.\u00a0the United Kingdom, judgment of 8\u00a0July\u00a01986, Series\u00a0A no.\u00a0102, \u00a7\u00a0177).","elements":[]},{"content":"28.\u00a0\u00a0The Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a difference in treatment (Gaygusuz v. Austria, judgment of 16\u00a0September 1996, Reports 1996IV, \u00a7\u00a042). The scope of the margin of appreciation will vary according to the circumstances, the subject matter and its background (see Rasmussen v.\u00a0Denmark, judgment of 28\u00a0November 1984, Series\u00a0A no.\u00a087, \u00a7\u00a040, and Inze v.\u00a0Austria, judgment of 28\u00a0October 1987, Series\u00a0A no.\u00a0126, \u00a7\u00a041), but the final decision as to observance of the Convention\u2019s requirements rests with the Court. Since the Convention is first and foremost a system for the protection of human rights, the Court must however have regard to the changing conditions in Contracting States and respond, for example, to any emerging consensus as to the standards to be achieved (see Unal Tekeli, judgment cited above, \u00a7 54, and, mutatis mutandis, Stafford v.\u00a0the United Kingdom [GC], no.\u00a046295/99, \u00a7 68, ECHR 2002IV).","elements":[]}]},{"content":"(b) Application of these principles to the present case","elements":[{"content":"29.\u00a0\u00a0The Court observes at the outset that itB was not disputed between the parties that the applicant could rely on Article 14 of the Convention. Since, by granting the allowances in question, the Hungarian State was supporting the right to respect for family life within the meaning of Article 8 (see Petrovic, cited above, \u00a7 29), the Court sees no reason to hold otherwise. Moreover, it was not disputed that the applicants\u2019 exclusion from the benefit amounted to a difference in treatment on grounds of the first applicant\u2019s parental status and the nationality of the mother of the second and the third applicants. However, the Government argued that these differences pursued a legitimate aim and have been applied in a proportionate manner.","elements":[]},{"content":"30.\u00a0\u00a0The starting point of the Court\u2019s assessment is the nature of the maternity benefit, since it is the key element when defining the group with which the applicants\u2019 situation should be compared. The Court observes that this allowance related to the period after giving birth. For the Court, the primarily financial character of the benefit is well shown by the fact that adoptive parents and guardians and, in special circumstances, fathers may also claim it.","elements":[]},{"content":"31.\u00a0\u00a0The Court is of the view that this wide range of entitled persons proves that the allowance is aimed at supporting newborn children and the whole family raising them, and not only at reducing the hardship of giving birth sustained by the mother. The Government\u2019s counter-argument, namely that the entitlement to the benefit was conditional on participation in parental care courses, cannot be decisive, since this requirement had to be fulfilled only by the mother. Adoptive parents or guardians were obviously exempt from that requirement.","elements":[]},{"content":"32.\u00a0\u00a0The applicants\u2019 situation can therefore be compared to those families and their members enjoying maternity benefits.","elements":[]},{"content":"33.\u00a0\u00a0The Court reiterates that, while differences may exist between mother and father in their relationship with the child, both parents are \u201csimilarly placed\u201d in taking care of the unborn child (see Petrovic, cited above, \u00a7\u00a036). It further draws attention to the fact that not only mothers but also adoptive parents and guardians were entitled to the benefit in dispute, while the first applicant was not. He was therefore differently treated on the grounds of his parental status compared with other persons who are similarly responsible for bringing up newborn children. However, the Court is of the view that this difference in treatment is not connected to the applicant\u2019s sex, since adoptive parents or guardians, irrespective of their sex, were not excluded from the benefit.","elements":[]},{"content":"34.\u00a0\u00a0The Court recognises that the Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify different treatment under the law. Moreover, the Court notes that widely different social security systems exist in the Member States. However, the lack of a common standard does not absolve those States which adopt family allowance schemes from making such grants without discrimination.","elements":[]},{"content":"35.\u00a0\u00a0The Court observes that neither the domestic authorities nor the Government have put forward any objective and reasonable ground to justify the general exclusion of natural fathers from a benefit aimed at supporting all those who are raising newborn children, when mothers, adoptive parents and guardians are entitled to it. It therefore concludes that the first applicant suffered discrimination on the ground of his parental status in the exercise of his right to respect his family life.","elements":[]},{"content":"36.\u00a0\u00a0Concerning the second and the third applicants, the Court notes that there is no indication in the case file that the applicants\u2019 mother abused or at least intended to miCsuse the Hungarian social security system. It is true that at the time of the events she only had a residence permit, but later she received a settlement permit (see paragraph 7), which shows that her situation in was lawful and fully regulated by the authorities.","elements":[]},{"content":"37.\u00a0\u00a0The Court observes that, flowing from the relevant provisions of the Act, a family with children of a Hungarian mother and a foreign father are entitled to maternity benefits. However, this was not the situation of the second and the third applicants as their father is Hungarian and their mother a foreigner. They were therefore prevented from benefitting from such an allowance on the basis of this difference.","elements":[]},{"content":"38.\u00a0\u00a0The Court finds no reasonable justification for this practice. It considers that the entitlement to an allowance due to a family under sections\u00a01 and 2 of the Act cannot be dependent on which of the two biological parents of the children is a Hungarian national. The Court would add that it is irrelevant that, as of 1 January 2008, the applicants\u2019 mother became entitled to the allowance under the same conditions as Hungarian nationals, because by then she was barred from claiming it as the request had to be made within 180 days of the children\u2019s birth and could not be made retroactively.","elements":[]},{"content":"39.\u00a0\u00a0In sum, since the Government have failed to put forward any convincing argument to justify the second and third applicants\u2019 exclusion from the benefit of the allowance in question, the Court concludes that this difference in treatment amounted to discrimination.","elements":[]},{"content":"40.\u00a0\u00a0Having regard to the above considerations, the Court concludes that there has been a violation in the instant case of Article 14 of the Convention, read in conjunction with Article 8, as regards each of the applicants.","elements":[]}]}]},{"content":"II.\u00a0\u00a0APPLICATION OF ARTICLE 41 OF THE CONVENTION","elements":[{"content":"41.\u00a0\u00a0Article 41 of the Convention provides:","elements":[]},{"content":"\u201cIf 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.\u201d","elements":[]},{"content":"A.\u00a0\u00a0Damage","elements":[{"content":"42.\u00a0\u00a0The applicants claimed, jointly, HUF 179,719 (approximately EUR\u00a0720) in pecuniary damages, which sum corresponds to the actual loss originating from the refusal of maternity benefits, plus interest. Moreover, they claimed 4,000 euros (EUR), jointly, in respect of non-pecuniary damage.","elements":[]},{"content":"43.\u00a0\u00a0The Government considered the applicants\u2019 claim excessive.","elements":[]},{"content":"44.\u00a0\u00a0The Court finds that the applicants have sustained pecuniary damage from the refusal to grant them this allowance. The Court therefore awards the applicants the entirety of the sum requested under this head. The Court also considers that the applicants can reasonably be deemed to have suffered some non-pecuniary damage in the circumstances. Making its assessment on an equitable basis, the Court finds it reasonable to award them, jointly, EUR 1,500 under this head.","elements":[]}]},{"content":"B.\u00a0\u00a0Costs and expenses","elements":[{"content":"45.\u00a0\u00a0The applicant claimed, jointly, EUR 1,500 plus 20% VAT, for the legal fees incurred before the domestic courts and the Court. They submitted the agreement concluded with their lawyer, according to which they would only be billed if the case ended successfully.","elements":[]},{"content":"46.\u00a0\u00a0According to the Court\u2019s case-law, an applicant is entitled to reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court finds it reasonable to award the sum claimed in its entirety, less the sum of EUR 850 which the applicants have already been paid under the legal-aid scheme of the Council of Europe, making an overall award of EUR 950 (including provision for 20% VAT).","elements":[]}]},{"content":"C.\u00a0\u00a0Default interest","elements":[{"content":"47.\u00a0\u00a0The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.","elements":[]}]}]}],"section_name":"law"},{"content":"FOR THESE REASONS, THE COURT UNANIMOUSLY","elements":[{"content":"1.\u00a0\u00a0Declares the application admissible;","elements":[]},{"content":"2.\u00a0\u00a0Holds that there has been a violation of Article\u00a014 of the Convention read in conjunction with Article 8 of the Convention;","elements":[]},{"content":"3.\u00a0\u00a0Holds","elements":[]},{"content":"(b)\u00a0\u00a0that 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.","elements":[]},{"content":"Done in English, and notified in writing on 31 March 2009, pursuant to Rule 77 \u00a7\u00a7 2 and 3 of the Rules of Court.","elements":[]},{"content":"In accordance with Article 45 \u00a7 2 of the Convention and Rule 74 \u00a7 2 of the Rules of Court, the concurring opinion of Judge Tulkens is annexed to this judgment.","elements":[]},{"content":"I fully agree with the absolute necessity and Convention obligation of abolishing all forms of discrimination, including on grounds of sex, in the enjoyment of the rights guaranteed by the Convention. However, in the present case the relatively artificial nature of the application troubles me for two reasons.","elements":[]},{"content":"Firstly, as the benefit in question is expressly called maternity benefit, the main purpose of which is to allow mothers to recover after pregnancy and giving birth and to breastfeed their child, I think that the mother is the first \u201cvictim\u201d of the refusal to award the benefit. The situation we have here is therefore not the same, it appears to me, as the one in Petrovic v. Austria of 27 March 1998, which concerned parental leave and in which the benefit in question, the provision for which was made under the unemployment insurance scheme, compensated the loss of salary. What was at stake in that case was the financial assistance for young parents that allowed them to take time out from work in order to look after their newborn child and in respect of which, in my view, there is no justification for treating fathers and mothers differently (see the joint dissenting opinion of Judges Bernhardt and Spielmann).","elements":[]},{"content":"Secondly, if the children\u2019s mother had herself lodged an application with the Court, the refusal to award her maternity benefit on the basis of nationality could certainly have been challenged, on the basis of our case-law, as being contrary to Article 14 of the Convention taken together with Article 8, construed, inter alia, in the light of Article\u00a012\u00a0\u00a7\u00a04 of the European Social Charter, which provides that domestic law cannot reserve social-security rights to their own nationals.","elements":[]},{"content":"Secondly, if the children\u2019s mother had herself lodged an application with the Court, the refusal to award her maternity benefit on the basis of nationality could certainly have been challenged, on the basis of our case-law, as being contrary to Article 14 of the Convention taken together with Article 8, construed, inter alia, in the light of Article\u00a012\u00a0\u00a7\u00a04 of the European Social Charter, which provides that domestic law cannot reserve social-security rights to their own nationals.","elements":[]}],"section_name":"conclusion"}]E born in 1986 and lives in .","elements":[]},{"content":"6.\u00a0\u00a0On 13 March 2007 between 2 and 3.30 a.m. in Ve\u017eica, a residential neighbourhood of , three murders, an armed robbery and an arson attack were committed.","elements":[]},{"content":"7.\u00a0\u00a0During the same day, a number of people from Ve\u017eica were brought in for questioning at the Rijeka Third Police Station of the Primorsko-Goranska Police Department (Policijska uprava Primorsko-goranska, Tre\u0107a policijska postaja Rijeka; hereinafter \u201cRijeka Police Station\u201d).","elements":[]},{"content":"8.\u00a0\u00a0Around 1.00 p.m. the same day, the applicant was brought to the Rijeka Police Station for an interview. Blood samples were taken from him for DNA analysis and the police searched his flat and mobile phone and seized a number of his personal items.","elements":[]},{"content":"9.\u00a0\u00a0The applicant was kept at Rijeka Police Station until his arrest on 14\u00a0March 2007 at 9.50 a.m. in connection with the above offences.","elements":[]},{"content":"10.\u00a0\u00a0According to the applicant, from the moment he was brought to Rijeka Police Station, he was put in a windowless cell with no light and kept without food and water until about 6 p.m. on 14 March 2007.","elements":[]},{"content":"11.\u00a0\u00a0According to the Government, the applicant had been kept in a detention room, although he had spent most of the time in an interview room. The detention room had been under video surveillance. In the interview room the applicant had been under the constant guard of a police officer and therefore could have asked for food or drink or to go to the toilet at any time. The detention room had been equipped with sanitary facilities and artificial light, but it had also had a window which had been secured with metal bars. There had also been a bed and a number of blankets to ensure rest. The applicant had been provided with hot meals and drinks and the Government submitted receipts for orders made in that respect.","elements":[]},{"content":"12.\u00a0\u00a0Meanwhile, on 14 March 2007 the applicant\u2019s parents hired a lawyer, G.M., to represent the applicant. However, the police denied him access to the applicant (see paragraph 21 below).","elements":[]},{"content":"13.\u00a0\u00a0On the same date at 6 p.m. the applicant agreed to be represented by a lawyer, M.R. who arrived at Rijeka Police Station at around 7.45 p.m. The questioning of the applicant began at 8.10 p.m. According to the record of the applicant\u2019s questioning, the police warned him of his right not to incriminate himself and to remain silent and he expressly stated that his lawyer was M.R.","elements":[]},{"content":"14.\u00a0\u00a0In the presence of M.R., three police officers and the Rijeka County State Attorney (\u017dupanijski dr\u017eavni odvjetnik u Rijeci), the applicant confessed that he had, together with L.O. and R.L.J., gone to \u0110.V.\u2019s flat in Ve\u017eica on the night of 13 March 2007, where he had taken a certain amount of money from \u0110.V. and had then shot and killed him, his girlfriend and his father, after which he had set their flat on fire in order to destroy any trace of him having been there. He also stated that he had promised L.O. and R.LJ. that he would confess to the crimes and take the blame on him if they would be arrested. The applicant further stated that he had confessed to the crimes of his own free will and that he had not been under any form of pressure or coercion. By signing the record of the statement he also attested that he had been warned of his right not to incriminate himself. The questioning of the applicant ended at 11 p.m., with a short break in between in which the applicant had used the toilet.","elements":[]},{"content":"15.\u00a0\u00a0The lawyer hired by the applicant\u2019s parents, G.M., lodged an action in the (\u017dupanijski sud u Rijeci) on 15 March 2007 asking that he be allowed to contact the applicant.","elements":[]},{"content":"16.\u00a0\u00a0On 15 March 2007 the Rijeka Police lodged a cFriminal complaint against the applicant and L.O. and R.L.J. with the Rijeka County State Attorney\u2019s Office (\u017dupanijsko dr\u017eavno odvjetni\u0161tvo u Rijeci) concerning the above-mentioned three murders, armed robbery, and arson.","elements":[]},{"content":"17.\u00a0\u00a0On the same date, the applicant was brought before an investigating judge of the Rijeka County Court. When asked by the investigating judge whether his lawyer was M.R., who had been present during his police questioning, or G.M., who had a power of attorney signed by the applicant\u2019s parents, the applicant stated that he was revoking the power of attorney to M.R. and granting it to G.M. by signing it himself.","elements":[]},{"content":"18.\u00a0\u00a0During questioning before the investigating judge the applicant complained that he had never hired M.R. and that he had expressly asked the police officers to call lawyer G.M. However, he had never been informed that G.M. had come to the police station. He also complained that he had been deprived of food until after he had given his statement and that during arrest he had been under the influence of drugs and alcohol.","elements":[]},{"content":"19.\u00a0\u00a0On 16 March 2007 the Rijeka County State Attorney\u2019s Office asked the investigating judge of the Rijeka County Court to open an investigation against the applicant, L.O. and R.L.J., on the suspicion that on 13 March 2007 they had committed three aggravated murders and arson in Ve\u017eica.","elements":[]},{"content":"20.\u00a0\u00a0The investigating judge again heard the applicant on 16 March 2007 in the presence of G.M. The applicant remained silent and refused to answer any questions put to him by the investigating judge or the prosecution.","elements":[]},{"content":"21.\u00a0\u00a0On the same date, G.M. lodged a request for disqualification of the Rijeka County State Attorney and all his Deputies with the investigating judge. The investigating judge forwarded the request to the Rijeka County State Attorney\u2019s Office. The relevant part of the request reads:","elements":[]},{"content":"\u201cAbout thirty minutes ago the defence lawyer learned that the Rijeka County State Attorney, D.H., had been present during the questioning of Ivan Dvorski as a suspect by police officers of Rijeka Police Station on 14 March 2007 at around 7 p.m., and in presence of \u2018defence lawyer\u2019 M.R.","elements":[]},{"content":"On the same date at around 10.40 a.m. the mother of Ivan Dvorski, L.J.D., who lives and works in Italy, called [G.M.] and asked him to defend her son Ivan, who was suspected of the offence of aggravated murder. Around 10.45 a.m. the defence lawyer came to Rijeka Police Station but the police officers refused to let him see Ivan Dvorski and they also did not tell [Ivan Dvorski] that his mother had hired a lawyer. The defence lawyer stayed in Rijeka Police Station until 12.00 p.m. He wanted to file a criminal complaint against an unknown person for abuse of power and extracting a confession, but the police officers refused to take his complaint on the grounds that he had no power of attorney and pushed him out of the police station. The defence lawyer immediately informed the Rijeka Attorneys, D.K. and I.B., about the incident and they made an official note in their case file.","elements":[]},{"content":"Therefore, at around 12.30 p.m. the Rijeka State Attorney already knew that [G.M.] had been hired by [Ivan Dvorski\u2019s] mother and that he could not contact his client.","elements":[]},{"content":"The [] County Court was also immediately informed.","elements":[]},{"content":"At around 1.30 p.m. Ivan Dvorski\u2019s father signed a power of attorney for the defence of his son. A legal trainee, B.P., [then] tried to submit this power of attorney to the police but was told to \u2018fuck off with that power of attorney\u2019 and therefore it was not submitted.","elements":[]},{"content":"At around 3.00-3.30 p.m. defence lawyer [G.] M. again tried to contact his client in Rijeka Police Station but was denied access to Ghim ... However, the defendant was never informed that a defence lawyer had been hired and that he had come to Rijeka Police Station.","elements":[]},{"content":"Around 3.30 p.m. the defence lawyer informed the Chief of the Primorsko-Goranska Police Department ... Mr. V., who apparently made an official note concerning their conversation. However, the defendant was never informed that a defence lawyer had been hired and also never asked whether he wanted to be represented by the lawyer hired by his family.","elements":[]},{"content":"Besides that, ever since he was brought to Rijeka Police Station [Ivan Dvorski] asked on a number of occasions that [G.M.] be called but was told by the police officers that they had tried but there had been no answer. When he was brought to the police station, blood samples were taken from the defendant. They show that he had a high level of alcohol and drugs in his blood.","elements":[]},{"content":"Between 1.00 p.m. on 13 March 2007 and around 7.00 p.m. on 14 March 2007 (these time periods are only known to the defence lawyer from informal sources because he had no access to the Rijeka County State Attorney\u2019s case file) the defendant was never given any food.","elements":[]},{"content":"It is clear that although all these facts were known to the Rijeka State Attorney, D.H., he disregarded them and, although personally present, allowed the defendant to be questioned in presence of a lawyer who had [neither been requested by him] nor [...] hired by his family. This amounts to extracting a confession contrary to Article 225 \u00a7 8 of the Code of Criminal Procedure. Namely, the State Attorney, since about 12.30 p.m. [on 14 March 2007], knew who the defence lawyer was.","elements":[]},{"content":"On the same date the defence lawyer sent the power of attorney to the Primorsko-Goranska Police Department and written complaints were also sent to the Supreme Court of the Republic of Croatia, the State Attorney General of the Republic of Croatia, the Rijeka County State Attorney\u2019s Office, the Croatian Bar Association, the Ministry of Justice, the Ministry of the Interior, the Chief of the Primorsko-Goranska Police Department and the Rijeka County Court. ...\u201d","elements":[]},{"content":"22.\u00a0\u00a0On 16 March 2007 an investigation was opened in respect of the applicant, L.O. and R.L.J. on the suspicion that on 13 March 2007 they had committed the three aggravated murders and arson in Ve\u017eica.","elements":[]},{"content":"23.\u00a0\u00a0On 23 March 2007 the State Attorney General of the (Glavni dr\u017eavni odvjetnik Republike Hrvatske) dismissed G.M.\u2019s request for disqualification of the Rijeka County State Attorney on the grounds that there were no reasons for his disqualification. On 26 March 2007 the Rijeka County State Attorney dismissed the request for disqualification of his Deputies on the same basis.","elements":[]},{"content":"24.\u00a0\u00a0On 28 March 2007 G.M. informed the that he would no longer represent the applicant and on 30 March 2007 the President of the appointed a legal aid lawyer, S.M.\u010c., to represent the applicant.","elements":[]},{"content":"25.\u00a0\u00a0During the investigation a number of witnesses were heard, and a report on the inspection of the crime scene and search and seizure, as well as medical, fire and ballistic expert reports, were obtained by the investigating judge.","elements":[]},{"content":"26.\u00a0\u00a0On 12 July 2007 the Rijeka County State Attorney\u2019s Office indicted the applicant, L.O. and R.L.J. in the Rijeka County Court on three counts of aggravated murder and one count of arson committed on 13 March 2007 in Ve\u017eica.","elements":[]},{"content":"27.\u00a0\u00a0The applicant, represented by lawyer S.M.\u010c., lodged an objection against the indictment with the Rijeka County Court on 24 July 2007 on the grounds that it had contained numerous substantive and procedural flaws. He also argued that he had given his statement to the police under the influence of alcohol and drugs.","elements":[]},{"content"H:"28.\u00a0\u00a0The applicant\u2019s objection against the indictment was dismissed as ill-founded by a three-judge panel of the Rijeka County Court on 28 August 2007.","elements":[]},{"content":"29.\u00a0\u00a0On 9 October 2007, the first day of the trial, the applicant and the other accused pleaded not guilty to all charges and the trial court heard evidence from seven witnesses.","elements":[]},{"content":"30.\u00a0\u00a0Another hearing was held on 11 October 2007, at which the trial court examined video recordings of the crime scene investigation and the autopsy of the victims.","elements":[]},{"content":"31.\u00a0\u00a0Further hearings were held on 12 November 2007 and 11\u00a0January 2008, at which the trial court heard evidence from nine witnesses.","elements":[]},{"content":"32.\u00a0\u00a0At a hearing on 14 January 2008 two toxicological experts, a fingerprint expert, a ballistics expert and a DNA expert gave evidence. The defence made no objection in respect of their evidence. At the same hearing four other witnesses gave evidence.","elements":[]},{"content":"33.\u00a0\u00a0At a hearing held on 15 January 2008 the trial court heard another toxicological expert and a pathologist, as well as thirteen other witnesses. The defence made no objections in respect of the evidence of the expert witnesses but asked the trial court to commission a psychiatric report concerning the applicant.","elements":[]},{"content":"34.\u00a0\u00a0At the same hearing the defence lawyer asked that a handwriting expert\u2019s report be commissioned in respect of the applicant\u2019s signature on the record of his statement given to the police on 14 March 2007. She argued that the applicant had not signed any record during his questioning by the police.","elements":[]},{"content":"35.\u00a0\u00a0The trial court considered for the time being not necessary to commission a psychiatric report and thus dismissed the applicant\u2019s request in that regard. However, it commissioned a handwriting expert\u2019s report in respect of the signature on the record of the applicant\u2019s statement given to the police.","elements":[]},{"content":"36.\u00a0\u00a0On 23 January 2008 the handwriting expert submitted her report. She found that the applicant had signed the record of his statement given to the police on 14 March 2007.","elements":[]},{"content":"37.\u00a0\u00a0Another hearing was held on 12 March 2008, at which a medical expert, fire expert witnesses and one other witness gave evidence. The handwriting expert also gave oral evidence confirming her previous findings. The applicant\u2019s lawyer challenged the veracity of these findings and motioned to have another report commissioned, but the motion was dismissed by the trial court. At the same hearing, the trial court commissioned a psychiatric report in respect of the applicant and the other accused.","elements":[]},{"content":"38.\u00a0\u00a0On 2 April 2008 the applicant asked the Rijeka County Court to call lawyer G.M. as a witness in connection with the alleged unlawful extraction of his confession by the police. He pointed out that G.M. had not been allowed to see him while he had been in police custody and stated that he had been forced by the police officers to confess.","elements":[]},{"content":"39.\u00a0\u00a0On 24 April 2008 the two psychiatric experts submitted their report to the Rijeka County Court. They found that the applicant suffered from borderline personality disorder and addictions to heroin and alcohol. However, they found no distinctive mental disorder or illness. They concluded that, even assuming that he had been intoxicated at the time when the murders had been committed, he had retained the mental capacity to understand the nature of his acts, although it had been diminished to a degree. As to his mental capacity concerning the charge of arson, they concluded that, at the time when the offence had been committed, the applicant had been able to understand the nature of his acts and to control his actions.","elements":[]},{"content":"40.\u00a0\u00a0At a hearing oIn 26 June 2008 the psychiatric experts confirmed their findings and the parties made no objections to their evidence. The trial court also dismissed the applicant\u2019s request that lawyer G.M. be heard as a witness on the grounds that all relevant facts had already been established.","elements":[]},{"content":"41.\u00a0\u00a0At the same hearing one of the accused, R.L.J., confirmed the course of the events as described by the applicant in his statement given to the police on 14 March 2007. R.L.J., however, claimed that he had not personally participated in the killings because he had panicked and had left the flat when he had heard fighting.","elements":[]},{"content":"42.\u00a0\u00a0After R.L.J. gave his statement, the Deputy County State Attorney amended the indictment. The applicant was charged with three aggravated murders, armed robbery and arson, and L.O. and R.LJ. were charged with armed robbery and aiding and abetting the perpetrator of an offence. The applicant and the other accused pleaded not guilty to the charges listed in the amended indictment.","elements":[]},{"content":"43.\u00a0\u00a0On 27 June 2008 L.O. gave oral evidence confirming the course of the events as described by R.L.J. He stated that after the applicant had gotten into a fight with \u0110.V., he had heard gunshots, after which he had panicked and had left the flat.","elements":[]},{"content":"44.\u00a0\u00a0At the same hearing the parties made their closing arguments. The applicant\u2019s defence lawyer argued that it had not been proven that the applicant had committed the offences he was charged with. She pointed out, however, that if the trial court considered differently, then the applicant\u2019s confession to the police and his sincere regret had to be taken into consideration in sentencing him.","elements":[]},{"content":"45.\u00a0\u00a0On 30 June 2008 the Rijeka County Court found the applicant guilty of the three charges of aggravated murder and of the charges of armed robbery and arson and sentenced him to forty years\u2019 imprisonment. The trial court firstly examined the applicant\u2019s confession against the confession of the other co-accused and found that his confession was essentially consistent with the evidence provided by his co-accused, L.O. and R.L.J. When finding the applicant guilty the trial court took into account his confession and examined it against the evidence from the case file.","elements":[]},{"content":"46.\u00a0\u00a0The trial court in particular relied on the search and seizure records and the photographs depicting the accused L.O. holding the same type of handgun as was used for the murders. Based on the witness statements, and the recording of a nearby video surveillance, the trial court concluded that the applicant and the other co-accused had come to the flat of \u0110.V. on the critical date. Furthermore, the ballistic reports and the crime scene reports indicated that the details of the statements of the applicant and his co-accused were accurate, and the course of the events was ascertained based on the fire, ballistic and toxicological reports and the DNA report. The trial court also found that the statements of the accused as to the manner in which the murders had been carried out were supported by the autopsy report, the evidence of the pathologist provided at the trial, the crime scene report and the witness statements about the gunshots that had been heard in the flat of \u0110.V. Furthermore, as to the arson charges, the trial court examined the materials from the crime scene investigation and the evidence from the fire expert report, as well as medical records and damage reports submitted by the victims, and the statements of a number of residents in the building where the fire occurred.","elements":[]},{"content":"47.\u00a0\u00a0As regards the request made by the defence to hear lawyer G.M. (see paragraphs 38 and 40 above), the Rijeka County Court noted:","elements":[]},{"content":"\u201cThe request made by the [Ivan Dvorski\u2019s] defence to hear lawyer G.M. as a witness ... was disJmissed as irrelevant. Namely, the documents from the case file do not reveal that there was any extraction of a confession by the police, but only [a record of] the time that lawyer [M.]R. came [to the police station], whereupon the questioning of [Ivan Dvorski] in presence of the lawyer to whom he had signed a power of attorney started ... Nobody, including [Ivan Dvorski\u2019s] defence lawyer who was present during the police questioning \u2013 lawyer [M.]R., has alleged any extraction of a confession and there is no indication of that in the record of Ivan Dvorski\u2019s statement, [who] at the time [was] only a suspect.\u201d","elements":[]},{"content":"48.\u00a0\u00a0The applicant lodged an appeal against the first-instance judgment with the Supreme Court (Vrhovni sud Republike Hrvatske) on 6\u00a0November 2008. He complained, inter alia, that the conviction had been based on his confession to the police, which had not been given in presence of a lawyer of his own choosing, namely G.M., but in the presence of a lawyer, M.R., who had been offered to him by the police. The applicant also referred to the request for disqualification of the Rijeka County State Attorney and all his Deputies lodged by G.M. on 16 March 2007, highlighting the part of that request which stated that he had been denied food during his police detention.","elements":[]},{"content":"49.\u00a0\u00a0On 8 April 2009 the Supreme Court dismissed the applicant\u2019s appeal as ill-founded. As regards his complaints concerning his statement given to the police, that court noted:","elements":[]},{"content":"\u201c... The lawfulness of [the statement given to the police] was not put into doubt by the appellant\u2019s complaints that lawyer M.R. had not been his lawyer and that his lawyer had been G.M., who had been hired by his father and mother on the same day, nor was its lawfulness put into doubt by the complaints that the appellant had been denied food in the period between 1.00 p.m. on 13 March 2007 and 7.00 p.m. on 14\u00a0March 2007 until he had agreed to hire lawyer M.R., since according to the record of his arrest (pages ...) the appellant had been arrested at 9.50 a.m. on 14 March 2007 and lawyer M.R. had arrived [at the police station] at 6.45 p.m. on the same day.\u201d","elements":[]},{"content":"50.\u00a0\u00a0The applicant lodged a further appeal against the appellate judgment with the Supreme Court on 14 September 2009 reiterating his previous arguments.","elements":[]},{"content":"51.\u00a0\u00a0On 17 December 2009 the Supreme Court, acting as the court of final appeal, dismissed the applicant\u2019s appeal as ill-founded. That court stressed that the record of the applicant\u2019s statement suggested that the applicant had chosen lawyer M.R. to represent him during the police questioning and that lawyer M.R. had provided him adequate legal advice. The Supreme Court also noted that nothing in the case file indicated that the applicant had been ill-treated or forced to confess.","elements":[]},{"content":"52.\u00a0\u00a0The applicant lodged a constitutional complaint with the (Ustavni sud Republike Hrvatske) on 11 March 2010. He complained, inter alia, that he had been ill-treated during his police detention and that he had been forced to confess. He also complained that he had been denied the chance to have a lawyer of his own choosing conduct his defence.","elements":[]},{"content":"53.\u00a0\u00a0On 16 September 2010 the dismissed the applicant\u2019s constitutional complaint. The Constitutional Court, endorsing the reasoning of the Supreme Court, noted that the proceedings as a whole had been fair and that there was no evidence in the case file that the applicant had been ill-treated during his police detention.","elements":[]}]},{"content":"II.\u00a0\u00a0RELEVANT LAW","elements":[{"content":"A.\u00a0\u00a0Domestic law","elements":[{"content":"54.\u00a0\u00a0The relevant provisions of the Constitution of the (Ustav Republike Hrvatske, Official Gazette no. 56/1990, 135/1997, 113/2000, 28/2001, 76/2010) read as follows:","elementKs":[]},{"content":"Article 23","elements":[]},{"content":"\u201cNo one shall be subjected to any form of ill-treatment ...\u201d","elements":[]},{"content":"Article 29","elements":[]},{"content":"\u201cIn the determination of his rights and obligations or of any criminal charge against him, everyone is entitled to a fair hearing within a reasonable time by an independent and impartial court established by law.","elements":[]},{"content":"In the case of suspicion of a criminal offence or criminal charges [being brought], the suspect, defendant or accused shall have the right:","elements":[]},{"content":"...","elements":[]},{"content":"- to defend himself in person or with the assistance of a defence lawyer of his own choosing, and if he does not have sufficient means to pay for legal assistance, to be given it free as provided by law,","elements":[]},{"content":"...\u201d","elements":[]},{"content":"55.\u00a0\u00a0The relevant provisions of the Criminal Code (Kazneni zakon, Official Gazette nos. 110/1997, 27/1998, 129/2000, 51/2001, 105/2004, 84/2005, 71/2006) provide:","elements":[]},{"content":"AGGRAVATED MURDER","elements":[]},{"content":"Article 91","elements":[]},{"content":"\u201cA sentence of imprisonment of not less than ten years or long-term imprisonment shall be imposed on anyone who:","elements":[]},{"content":"...","elements":[]},{"content":"6. murders another in order to commit or to cover up another criminal offence,","elements":[]},{"content":"...\u201d","elements":[]},{"content":"ROBBERY","elements":[]},{"content":"Article 218","elements":[]},{"content":"\u201c(1) Whoever, by use of force against a person or using threats of a direct attack on a person\u2019s life or limb, takes away movable property from another with intent to unlawfully appropriate it shall be punished by imprisonment for one to ten years.","elements":[]},{"content":"(2) If the perpetrator commits the robbery as a member of a group or a criminal organisation, or if, during the robbery, a weapon or dangerous instrument is used, the perpetrator shall be punished by imprisonment for three to fifteen years.\u201d","elements":[]},{"content":"ENDANGERING LIFE AND PROPERTY BY DANGEROUS ACT OR MEANS","elements":[]},{"content":"Article 263","elements":[]},{"content":"\u201c(1) Whoever endangers the life or limb of others or property of considerable value by [setting a] fire ... shall be punished by imprisonment for six months to five years.\u201d","elements":[]},{"content":"...","elements":[]},{"content":"(3) If the criminal offences referred to in paragraphs 1 and 2 of this Article are committed at a place where a number of people are gathered ... the perpetrator shall be punished by imprisonment for one to eight years.","elements":[]},{"content":"...\u201d","elements":[]},{"content":"AGGRAVATED CRIMINAL OFFENCES AGAINST PUBLIC SAFETY","elements":[]},{"content":"Article 271","elements":[]},{"content":"\u201c(1) If by the criminal offence referred to in Article 263, paragraph 1 ... of this Code the serious bodily injury of another or extensive material damage was caused, the perpetrator shall be punished by imprisonment for one to eight years.\u201d","elements":[]},{"content":"56.\u00a0\u00a0The relevant provisions of the Code of Criminal Procedure (Zakon o\u00a0kaznenom postupku, Official Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002, 143/2002 and 62/2003) provide as follows:","elements":[]},{"content":"Article 62","elements":[]},{"content":"\u201c(1) A defendant may be represented by a lawyer at any stage of the proceedings, as well as before their commencement when prescribed by this Act. ...","elements":[]},{"content":"...","elements":[]},{"content":"(4) The defendant\u2019s legal guardian, spouse or common-law spouse, linear blood relative, adoptive parent or adopted child, sibling or foster parent may hire a lawyer for the defendant, unless the defendant expressly refuses it.","elements":[]},{"content":"...","elements":[]},{"content":"(6) A defence lawyer must present his power of attorney to the authorities conducting theL proceedings. The defendant may also grant a power of attorney to a lawyer orally before the authority conducting the proceedings, in which case it must be entered into the record.\u201d","elements":[]},{"content":"Article 177","elements":[]},{"content":"\u201c ...","elements":[]},{"content":"(5) In the course of the investigation the police authorities shall inform the suspect pursuant to Article 237 paragraph 2 of this Code. Upon the request of the suspect, the police authorities shall allow him to hire a lawyer and for that purpose they shall stop interviewing the suspect until the lawyer appears or at the latest three hours from the moment the suspect asked to appoint the lawyer. ... If the circumstances show that the chosen lawyer will not be able to appear within this period of time, the police authorities shall allow the suspect to appoint a lawyer from the list of lawyers on duty provided to the competent police authority by the county branches of the Croatian Bar Association ... If the suspect does not hire a lawyer or if the requested lawyer fails to appear within the time period provided, the police authorities may resume interviewing the suspect ... The State Attorney has the right to be present during the questioning. The record of [any] statement given by the defendant to the police authorities in presence of a lawyer may be used as evidence in the criminal proceedings.","elements":[]},{"content":"...\u201d","elements":[]}]},{"content":"B.\u00a0\u00a0Relevant international law materials","elements":[{"content":"Right of access to a lawyer of own choosing during police custody","elements":[]}]},{"content":"(a)\u00a0\u00a0Council of Europe","elements":[{"content":"57.\u00a0\u00a0Rule 93 of the Standard Minimum Rules for the Treatment of Prisoners (Resolution (73)5 of the Committee of Ministers of the Council of Europe) provides: \u201cAn untried prisoner shall be entitled, as soon as he is imprisoned, to choose his legal representation ... and to receive visits from his legal adviser with a view to his defence and to prepare and hand to him and to receive, confidential instructions. At his request, he shall be given all necessary facilities for this purpose. ... Interviews between the prisoner and his legal adviser may be within sight but not within hearing, either direct or indirect, of a police or institution official.\u201d","elements":[]},{"content":"58.\u00a0\u00a0Furthermore, the recommendation of the Committee of Ministers to Member States of the Council of Europe on the European Prison Rules (Rec\u00a0(2006)2), adopted on 11 January 2006 at the 952nd meeting of the Ministers\u2019 Deputies, in so far as relevant, reads as follows:","elements":[]},{"content":"\u201cLegal advice","elements":[]},{"content":"23.1\tAll prisoners are entitled to legal advice, and the prison authorities shall provide them with reasonable facilities for gaining access to such advice.","elements":[]},{"content":"23.2\tPrisoners may consult on any legal matter with a legal adviser of their own choice and at their own expense.","elements":[]},{"content":"...","elements":[]},{"content":"23.5\tA judicial authority may in exceptional circumstances authorise restrictions on such confidentiality to prevent serious crime or major breaches of prison safety and security.\u201d","elements":[]}]},{"content":"(b)\u00a0\u00a0United Nations","elements":[{"content":"59.\u00a0\u00a0Article 14 \u00a7 3 (b) of the International Covenant on Civil and Political Rights (ICCPR) provides that everyone charged with a criminal offence is to be entitled \u201c[t]o have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing\u201d.","elements":[]}]}]}],"section_name":"facts"},{"content":"THE LAW","elements":[{"content":"I.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION","elements":[{"content":"60.\u00a0\u00a0The applicant complained that he had been ill-treated during his police detention. He relied on Article 3 of the Convention, which reads as follows:","elements":[]},{"contenMt":"\u201cNo one shall be subjected to torture or to inhuman or degrading treatment or punishment.\u201d","elements":[]},{"content":"Admissibility","elements":[{"content":"1.\u00a0\u00a0The parties\u2019 arguments","elements":[{"content":"61.\u00a0\u00a0The applicant submitted that between 1 p.m. on 13 March 2007 and 7 p.m. on 14 March 2007 he had been kept in police detention in a windowless cell with no light and without food and water and that the domestic authorities had failed to respond appropriately to his complaints in this respect.","elements":[]},{"content":"62.\u00a0\u00a0The Government argued that the applicant had failed to exhaust domestic remedies in respect of his Article 3 complaints, as he had not brought a criminal complaint against the police officers or a civil action for damages against the State. They further argued that he had submitted his application to the Court outside the six-month time-limit, as his complaints concerned his police detention on 14 March 2007 and his application had been lodged with the Court on 16 April 2011.","elements":[]},{"content":"63.\u00a0\u00a0In any event, the Government considered that the applicant had failed to substantiate his complaints of ill-treatment during his police detention. In this respect, the Government provided photographs of the detention facilities in Rijeka Police Station and service orders for food and drinks during the police operation in which the applicant had been arrested. They pointed out that the photographs showed that the applicant had been kept in appropriate conditions with all necessary facilities and that the food service orders showed that food and drink had been given to the applicant during his police detention. The Government further submitted that only about twenty police officers had taken part in the police operation, while significant amounts of food had been ordered in the period of the applicant\u2019s arrest and detention.","elements":[]}]},{"content":"2.\u00a0\u00a0The Court\u2019s assessment","elements":[{"content":"64.\u00a0\u00a0The Court finds that it is not necessary to address all of the Government\u2019s objections, as the complaint under Article 3 of the Convention is in any event inadmissible for the following reasons.","elements":[]},{"content":"65.\u00a0\u00a0The Court reiterates that Article 3 of the Convention enshrines one of the most fundamental values of a democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim\u2019s behaviour (see Labita v.\u00a0Italy [GC], no. 26772/95, \u00a7 119, ECHR 2000-IV).","elements":[]},{"content":"66.\u00a0\u00a0According to the Court\u2019s settled 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 level of severity 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 Kud\u0142a v.\u00a0Poland [GC], no.\u00a030210/96, \u00a7 91, ECHR 2000-XI, and Peers v.\u00a0Greece, no.\u00a028524/95, \u00a7\u00a067, ECHR\u00a02001-III).","elements":[]},{"content":"67.\u00a0\u00a0In order for a punishment or treatment associated with it to be \u201cinhuman\u201d or \u201cdegrading\u201d, 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 Labita, cited above, \u00a7 120).","elements":[]},{"content":"68.\u00a0\u00a0Measures depriving a person of his liberty may often involve such an element. Nevertheless, the State must 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, giNven the practical demands of imprisonment, his health and well-being are adequately secured by, among other things, providing him with the requisite medical assistance (see Kud\u0142a, cited above, \u00a7\u00a7 93-94, and Riviere v.\u00a0France, no. 33834/03, \u00a7 62, 11\u00a0July 2006).","elements":[]},{"content":"69.\u00a0\u00a0Allegations of ill-treatment must be supported by appropriate evidence (see Labita, cited above, \u00a7 121). The Court has held on many occasions that in assessing evidence it has generally applied the standard of proof \u201cbeyond reasonable doubt\u201d, but adds that such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Ireland v. the United Kingdom, 18\u00a0January 1978, \u00a7 161, Series A no. 25).","elements":[]},{"content":"70.\u00a0\u00a0The Court notes that there is no dispute between the parties that the applicant was placed in the detention facilities of Rijeka Police Station which are depicted on the photographs provided by the Government. These photographs show that the detention room is equipped with appropriate sanitary facilities and a bed, as well as an artificial light and a window allowing daylight to come into the room. There is no reason for the Court to consider that these facilities differed in any respect during the applicant\u2019s detention, and the Court does not consider that placing the applicant there when he was not being interrogated discloses any appearance of treatment contrary to Article 3 of the Convention.","elements":[]},{"content":"71.\u00a0\u00a0As regards the applicant\u2019s complaints that he was not given food or water during police detention, the Court observes that the receipts for food and drink service orders provided by the Government show that on 13\u00a0March 2007 the police ordered seventy hot meals with the purpose of facilitating the investigation in the present case. On 14 March 2007, the day of the applicant\u2019s police detention, as well as that of two other co-suspects, an additional thirty-five hot meals and thirty-six soft drinks were ordered.","elements":[]},{"content":"72.\u00a0\u00a0Whereas this does not necessary show that the applicant received any of the food or drink ordered, it does indicate that the number of hot meals ordered significantly exceeded the number required by the police officers themselves. In this respect it is also to be noted that none of the applicant\u2019s co-accused ever complained that they had been denied food or water during police detention. In these circumstances, the Court cannot consider the applicant\u2019s mere assertion that he was not given any food or water during police detention sufficiently substantiated.","elements":[]},{"content":"73.\u00a0\u00a0Thus, as the applicant\u2019s submissions have not otherwise in any way substantiated his allegations of ill-treatment during the police questioning on 13 and 14 March 2007, the Court finds that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 \u00a7\u00a7 3 (a) and 4 of the Convention.","elements":[]}]}]}]},{"content":"II.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION","elements":[{"content":"74.\u00a0\u00a0The applicant complained that he had not had a fair trial. In support of his complaint the applicant argued that following his arrest he had not been allowed to be represented by a lawyer of his choice; that the services of the lawyer who had represented him had fallen short of the requirements of a good defence; that he had been questioned in a coercive environment; that he had been forced to incriminate himself without the benefit of legal advice from a lawyer of his own choosing and that his conviction was based on the statements made while unrepresented by the lawyer of his choice.","elements":[]},{"content":"He relied on Article 6 \u00a7\u00a7 1 and 3 (c) of the Convention, which, in so far as relevant, read as follows:","elements":[]},{"content":"\u201c1. In the determination of .O.. any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...","elements":[]},{"content":"...","elements":[]},{"content":"3.\u00a0\u00a0Everyone charged with a criminal offence has the following minimum rights:","elements":[]},{"content":"...","elements":[]},{"content":"(c)\u00a0\u00a0to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;","elements":[]},{"content":"... \u201c","elements":[]},{"content":"A.\u00a0\u00a0Admissibility","elements":[{"content":"1.\u00a0\u00a0The parties\u2019 submissions","elements":[{"content":"75.\u00a0\u00a0The Government submitted that the power of attorney of 16\u00a0April 2011, which the applicant\u2019s representative had provided to the Court, had not been signed by the applicant. In their view, the applicant\u2019s signature on the power of attorney did not correspond to his actual signature. They also pointed out that during 2011 the applicant had neither met nor communicated with the lawyer representing him in the proceedings before the Court. The lawyer had, however, visited him in September 2010, but at that time the had still not served its decision on the applicant so there had been no reason for him to sign a power of attorney to be represented in proceedings before the Court. Therefore, the Government requested that the application be struck out from the list of cases.","elements":[]},{"content":"76.\u00a0\u00a0The applicant argued that he had given the power of attorney to his representative in September 2010. He had given her a power of attorney before the decision of the had been served on him because, having in mind the public pressure that had been put on the authorities to secure a conviction in his case, he had expected that the would dismiss his constitutional complaint. Since the prison in which he had been serving his prison sentence was some distance from , where his lawyer had her office, they had arranged to take all necessary steps, including the power of attorney, for lodging an application with the Court in September 2010. The exact date on the power of attorney granted by him had been filled in later with the applicant\u2019s knowledge and consent. Besides that, he had been in constant contact with his representative \u2013 either through his mother, who had been visiting him regularly, or by telephone.","elements":[]}]},{"content":"2.\u00a0\u00a0The Court\u2019s assessment","elements":[{"content":"77.\u00a0\u00a0The Court reiterates at the outset that the representative of the applicant must produce a \u201cpower of attorney or a written authority to act\u201d (see Hirsi Jamaa and Others v. [GC], no. 27765/09, \u00a7 52, ECHR 2012). Therefore, a simple written authority would be valid for the purposes of the proceedings before the Court, in so far as it has not been shown that it was made without the applicant\u2019s understanding and consent (see Velikova v.\u00a0Bulgaria, no. 41488/98, \u00a7 50, ECHR 2000-VI).","elements":[]},{"content":"78.\u00a0\u00a0Furthermore, neither the Convention nor the Rules of Court impose any specific requirements on the manner in which the form of authority must be drafted or require any form of certification of that document by any national authority. What is important for the Court is that the form of authority should clearly indicate that the applicant has entrusted his or her representation before the Court to a representative and that the representative has accepted that commission (see Ryabov v.\u00a0Russia, no.\u00a03896/04, \u00a7\u00a7 40 and 43, 31 January 2008).","elements":[]},{"content":"79.\u00a0\u00a0The Court notes in the present case that the power of attorney, dated 16 April 2011, included in the case file bears the applicant\u2019s name and is signed in handwriting. The Court is unable by mere observation, and in the absence of direct and convincing evidence to the contrary, to doubt that the signature on the pPower of attorney is the applicant\u2019s.","elements":[]},{"content":"80.\u00a0\u00a0The Court also notes that the applicant provided detailed information concerning his contacts with his representative which do not appear unreasonable and unconvincing. Moreover, there is nothing in the case file that could call into question the lawyer\u2019s account or her exchange of information concerning the applicant with the Court (see Hirsi Jamaa and Others, cited above, \u00a7 55).","elements":[]},{"content":"81.\u00a0\u00a0In these circumstances, the Court has no reason to doubt the validity of the power of attorney. Consequently, it rejects the Government\u2019s objection. The Court further considers that this part of the application is not manifestly ill-founded within the meaning of Article 35 \u00a7 3 (a) of the Convention and notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.","elements":[]}]}]},{"content":"B.\u00a0\u00a0Merits","elements":[{"content":"1.\u00a0\u00a0The parties\u2019 submissions","elements":[{"content":"82.\u00a0\u00a0The applicant submitted that throughout his detention in Rijeka Police Station the lawyer hired by his parents, G.M., had been unable to contact him. G.M. had therefore filed numerous complaints with various domestic authorities, including a request for disqualification of the Rijeka State Attorney and all his Deputies, by which he had sought to cease that illegal situation. Instead, the police had only allowed lawyer M.R., notably the former chief of the Primorsko-Goranska Police Department, to contact the applicant in order for the applicant to make a self-incriminating statement. Lawyer M.R. had been called by the police officers and not by the applicant as he had been a person whom the police officers could trust to make the applicant confess to the crimes he had been suspected of. The fact that lawyer M.R. had never asked the applicant to pay for legal representation proved that he had been cooperating with the police.","elements":[]},{"content":"83.\u00a0\u00a0The representation of the applicant by M.R. had fallen short of the requirements of a good defence. They had only had twenty-five minutes to discuss the case, which had been disproportionate to the severity of the crimes the applicant had been accused of and the fact that he had been questioned for almost three hours. This, together with the fact that the applicant had been starved and kept in inhumane conditions and that he had been under the influence of drugs and alcohol, had made the applicant confess to the crimes. Furthermore, the applicant complained that the trial court had relied on his statement given to the police and dismissed his request to hear certain witnesses, including lawyer G.M., which would have allowed it to elucidate the circumstances of the applicant\u2019s questioning at the police station and the accusations held against him. Therefore, he had not had a fair trial.","elements":[]},{"content":"84.\u00a0\u00a0The Government argued that the applicant had had the benefit of all the guarantees of a fair trial during the criminal proceedings against him and that the proceedings, taken as a whole, had been fair. Throughout the proceedings the applicant had been represented by a qualified lawyer and he had effectively participated at the trial having had every opportunity to question witnesses and to make all his comments. Furthermore, the applicant\u2019s case had been examined at three instances including the . The first-instance judgment had been based on his confession but also on a number of other evidence from the case file. As to the applicant\u2019s right not to incriminate himself, the Government submitted that it had not been infringed in any respect, since he had confessed to the crimes of his own free will and conscience, after consulting a lawyer. In this respect they pointed out that the applicant had signed his statement by which he had expressly confirmed that he had not been coerced or pressured to make the statement. The circumstances of the casQe revealed that there had been no reason for the police officers to question his mental ability to understand the circumstances in which he had found himself and to make a fully conscience statement.","elements":[]},{"content":"85.\u00a0\u00a0The applicant had been given sufficient time, according to the record of his questioning approximately two hours, in which to consult with his lawyer and had given his statement thereafter. Lawyer M.R. had been chosen by the applicant from a list of lawyers provided in every police station and the applicant had granted him a power of attorney. In the presence of that lawyer, he had given a statement to the police which had been made without any pressure or coercion. The fact that the applicant had been represented by another lawyer in later stages of the proceedings was irrelevant to the fact that M.R. had been his chosen lawyer who had represented him in accordance with their agreement and defence strategy at that stage.","elements":[]}]},{"content":"2.\u00a0\u00a0The Court\u2019s assessment","elements":[]}]},{"content":"(a)\u00a0\u00a0General principles","elements":[{"content":"86.\u00a0\u00a0The applicant alleged that he did not have a fair trial and complained of a violation of Article 6 \u00a7\u00a7 1 and 3 (c). The Court first notes that the guarantees in paragraph 3 of Article 6 are specific aspects of the right to a fair trial in criminal proceedings as set forth in paragraph 1 of the same Article. Accordingly, the applicant\u2019s complaint will be examined under these provisions taken together (see, among other authorities, Poitrimol v.\u00a0France, 23 November 1993, \u00a7 29, Series A no. 277A; Benham v.\u00a0the United Kingdom, 10 June 1996, \u00a7 52, Reports of Judgments and Decisions 1996III; Krombach v. , no. 29731/96, \u00a7 82, ECHR 2001II; Kulikowski v. Poland, no. 18353/03, \u00a7 55, 19 May 2009; Sakhnovskiy v.\u00a0Russia [GC], no. 21272/03, \u00a7 94, 2 November 2010; Zagorodniy v.\u00a0Ukraine, no. 27004/06, \u00a7 52, 24 November 2011; and Neziraj v.\u00a0Germany, no. 30804/07, \u00a7 45, 8 November 2012).","elements":[]},{"content":"87.\u00a0\u00a0In this context, the Court reiterates that Article 6 of the Convention, read as a whole, guarantees the right of an accused to participate effectively in a criminal trial (see Rowe and Davis v.\u00a0the\u00a0United Kingdom [GC], no.\u00a028901/95, \u00a7 60, ECHR 2000-II).\u00a0In particular, the accused must have the opportunity to organise his defence in an appropriate way and without restriction as to the opportunity to put all relevant defence arguments before the trial court and thus to influence the outcome of the proceedings (see Luchaninova v. , no. 16347/02, \u00a7 62, 9 June 2011).","elements":[]},{"content":"88.\u00a0\u00a0In order to exercise his right of defence, the accused should normally be allowed to effectively benefit from the assistance of a lawyer from the initial stages of the proceedings (see Salduz v. [GC], no. 36391/02, \u00a7\u00a052, 27 November 2008). The right of everyone charged with a criminal offence to be effectively defended by a lawyer is one of the fundamental features of a fair trial (see Krombach v. France, cited above, \u00a7 89).","elements":[]},{"content":"89.\u00a0\u00a0A person charged with a criminal offence who does not wish to defend himself in person must be able to have recourse to legal assistance of his own choosing (see Campbell and Fell v.\u00a0the United Kingdom, 28\u00a0June 1984, \u00a7 99, Series\u00a0A no.\u00a080; Pakelli v. Germany, 25 April 1983, \u00a7\u00a031, Series\u00a0A no. 64; and Whitfield and Others v. the United Kingdom, nos. 46387/99, 48906/99, 57410/00 and 57419/00, \u00a7 48, 12 April 2005). Notwithstanding the importance of a relationship of confidence between lawyer and client, this right cannot be considered to be absolute (see Prehn v. Germany (dec.), no. 40451/06, 24 August 2010). The national authorities may override the defendant\u2019s wish relating to legal representation when there are relevant and sufficient grounds for holdiRng that this is necessary in the interests of justice (see Croissant v. Germany, 25 September 1992, \u00a7\u00a7\u00a029 and 30, Series A no.\u00a0237-B, and Pavlenko v. , no. 42371/02, \u00a7 98, 1 April 2010).","elements":[]},{"content":"90.\u00a0\u00a0The Court further reiterates its established case-law according to which the State cannot normally be held responsible for the actions or decisions of an accused person\u2019s lawyer (see Stanford v. the United Kingdom, 23\u00a0February 1994, \u00a7 28, Series A no. 282A) because the conduct of the defence is essentially a matter between the defendant and his counsel, whether appointed under a legal aid scheme or privately financed (see Czekalla v. , no.\u00a038830/97, \u00a7\u00a060, ECHR 2002VIII; see also Bogumil v. , no. 35228/03, \u00a7\u00a046, 7\u00a0October 2008). Nevertheless, in the case of a manifest failure by counsel appointed under the legal aid scheme, or in certain circumstances a privately paid lawyer, to provide effective representation, Article 6\u00a0\u00a7\u00a03 (c) of the Convention requires the national authorities to intervene (see G\u00fcve\u00e7 v. , no. 70337/01, \u00a7\u00a7\u00a0130-131, ECHR 2009).","elements":[]},{"content":"91.\u00a0\u00a0As regards the privilege against self-incrimination and the right to remain silent, the Court reiterates that these are generally recognised international standards which lie at the heart of a fair procedure. Their aim is to provide an accused person with protection against improper compulsion by the authorities and thus to avoid miscarriages of justice and secure the aims of Article 6 of the Convention. The right not to incriminate oneself is primarily concerned with respecting the will of an accused person to remain silent and presupposes that the prosecution in a criminal case will seek to prove the case against the accused without resorting to evidence obtained through methods of coercion or oppression in defiance of the will of the accused. In examining whether a procedure has impaired the very essence of the privilege against self-incrimination, the Court must examine the nature and degree of any compulsion, the existence of any relevant safeguards in the procedure and the use to which any material so obtained is put (see Bykov v. [GC], no. 4378/02, \u00a7 92, 10 March 2009).","elements":[]},{"content":"92.\u00a0\u00a0The Court underlines the importance of the investigation stage for the preparation of the criminal proceedings, as the evidence obtained during this stage determines the framework in which the offence charged will be considered at the trial (see Salduz, cited above, \u00a7 54). At the same time, an accused often finds himself in a particularly vulnerable position at that stage of the proceedings, the effect of which is amplified by the fact that legislation on criminal procedure has tended to become increasingly complex, notably with respect to the rules governing the gathering and use of evidence. In most cases, this particular vulnerability can only be properly compensated for by the assistance of a lawyer whose task is, among other things, to help to ensure that the right of an accused not to incriminate himself is respected (see Pavlenko, cited above, \u00a7 101).","elements":[]}]},{"content":"(b)\u00a0\u00a0Application of these principles to the present case","elements":[{"content":"93.\u00a0\u00a0The Court considers, in view of the applicant\u2019s complaints, that the central issue raised in this case is the applicant\u2019s right to retain counsel of his own choice; and whether as a result of not having that opportunity, he was prevailed upon in a coercive environment to incriminate himself without the benefit of effective legal advice.","elements":[]},{"content":"94.\u00a0\u00a0The Court notes at the outset that the present case does not concern a situation in which the applicant was provided with a legal aid lawyer by the police, but rather a situation in which he was offered a choice of lawyer provided by the police, whose services the applicant had to pay for from hisS own funds. Therefore, the following wording of Article 6 \u00a7 3 (c) is applicable in the present case: \u201cEveryone charged with a criminal offence has the following minimum rights: ... to defend himself ... through legal assistance of his own choosing ...\u201d. Thus, the Court considers that, in principle, an accused in criminal proceedings who is bearing the costs of his or her legal representation has the right to choose his or her defence lawyer, save for in exceptional circumstances where it is necessary to override this right in the interests of justice or where this is associated with justifiable and significant obstacles (see Pavlenko, cited above, \u00a7 98, and Klimentyev v.\u00a0Russia, no. 46503/99, \u00a7\u00a7 116-119, 16 November 2006).","elements":[]},{"content":"95.\u00a0\u00a0The Court notes that when the applicant was arrested by the police, his family contacted lawyer G.M. to represent him. G.M., according to his account of the events (see paragraph 21 above), which the Government did not dispute, arrived at Rijeka Police Station on 14 March 2007 at around 10.45 a.m., before the questioning of the applicant by the police commenced. At that time G.M. did not have the power of attorney. The police did not allow him to see the applicant, neither did they tell the applicant that G.M. had been hired as his defence lawyer by his parents.","elements":[]},{"content":"96.\u00a0\u00a0Later on the same date, at around 1.30 p.m., a legal trainee in G.M.\u2019s office tried to contact the applicant at Rijeka Police Station, submitting a power of attorney signed by the applicant\u2019s father authorising G.M. to represent the applicant, but was again denied access without the applicant being told that G.M. was trying to contact him. At the same time, G.M. informed other relevant domestic authorities about the conduct of the police officers refusing him access to the applicant.","elements":[]},{"content":"97.\u00a0\u00a0The Court notes that the documents in the criminal case file against the applicant do not reveal any good reasons for not allowing the lawyer G.M. to provide legal assistance to the applicant during police questioning, and neither the national courts nor the Government have provided any arguments in respect of the matter. The applicant, when brought before the investigating judge on 15 March 2007, the day after his arrest, expressly stated that he wished to be represented by lawyer G.M. (see paragraph\u00a017 above), to whom the police officers had denied access without providing any relevant reasons. Instead, without having told the applicant that G.M. had been hired as his defence lawyer by his parents, the police officers, according to the Government (see paragraph 85 above), offered the applicant a list of lawyers in accordance with Article 177 \u00a7 5 of the Code of Criminal Procedure (see paragraph 56 above) in order for him to choose one to represent him during police questioning, and from this list of lawyers, M.R. was hired to represent the applicant.","elements":[]},{"content":"98.\u00a0\u00a0The Court observes that the Government never provided the list of lawyers which was allegedly presented to the applicant. The Court also notes that the Government did not dispute that M.R. had been the former chief of the Rijeka Police and that this lawyer had never charged the applicant for his services, which would normally be expected of a privately hired lawyer. In these circumstances, the Court has serious doubts as to whether the police acted in good faith and whether M.R. was a lawyer who would actually have been chosen by the applicant if he knew that his parents had engaged services of lawyer G.M. The fact that the applicant signed a power of attorney in favour of this lawyer authorising him to be present during his police questioning, in the circumstances of the present case, has no bearing on this finding, since it is the Court\u2019s well-established principle that the Convention is intended to guarantee rights that are practical and effective and not theoretical and illusory (seTe Airey v. , 9\u00a0October 1979, \u00a7 24, Series A no. 32; Imbrioscia v. Switzerland, 24 November 1993, \u00a7\u00a038, Series A no. 275; and Salduz, cited above, \u00a7 55).","elements":[]},{"content":"99.\u00a0\u00a0Therefore, the Court excludes any possibility that by merely signing the power of attorney and providing a statement to the police, the applicant explicitly and unequivocally waived his right to retain G.M. as the lawyer of his own choosing and instead consented to be represented by M.R. This is because the right to counsel, being a fundamental right among those which constitute the notion of a fair trial and ensuring the effectiveness of the rest of the guarantees laid down in Article 6 of the Convention, is a prime example of those rights which require the special protection of the \u201cknowing and intelligent waiver\u201d standard established in the Court\u2019s case-law (see Pishchalnikov v. , no. 7025/04, \u00a7\u00a7 77-79, 24 September 2009).","elements":[]},{"content":"100.\u00a0\u00a0The foregoing considerations raise serious concerns as to the manner in which the domestic authorities acted and as to the applicant\u2019s representation by a lawyer of his own choosing during the pre-trial interrogation by the police, guaranteed under Article 6 \u00a7 3 (c) of the Convention. It consequently calls for the Court\u2019s careful scrutiny in assessing whether the proceedings as a whole fall short of the requirements of a fair trial as required under Article 6 of the Convention.","elements":[]},{"content":"101.\u00a0\u00a0In this respect the Court notes that during the criminal proceedings the applicant never complained that the lawyer M.R. had failed to provide him with adequate legal advice. The record of the applicant\u2019s statement to the police does not reveal any deficiencies in the advice given to the applicant concerning his rights. His statement was given over the course of several hours, during which time the applicant never refused to provide further information, and at the end of the questioning he acknowledged the accuracy of the information provided by signing the record of the statement.","elements":[]},{"content":"102.\u00a0\u00a0Furthermore, the Court observes that it has found that the applicant failed to substantiate his allegations that he was subjected to ill-treatment or that the conditions of his police detention were inadequate (see paragraph 73 above). Accordingly, there are no grounds to believe that any pressure was exerted on him or that there was any defiance of his will.","elements":[]},{"content":"103.\u00a0\u00a0Equally, the Court notes that the psychiatric report commissioned during the trial found that the applicant was able to understand the nature of his acts and to control his actions at the time when the offences were committed, which was only one day before he made the incriminating statements (see paragraph 39 above). Moreover, although the applicant claimed that he was under the influence of drugs and alcohol during police questioning, there is no concrete evidence in the case file to support such an assertion or to suggest that the degree of his addiction was such as to prevent him from understanding the nature and purpose of his questioning.","elements":[]},{"content":"104.\u00a0\u00a0During the trial before the the applicant was given an opportunity to put forward all his arguments concerning the circumstances in which he had given his statement, and after he had raised the argument that he had never signed the record of the statement, he was afforded an effective opportunity to challenge the authenticity of his signature. However, the evidence adduced, namely the handwriting expert\u2019s report, conclusively confirmed that the applicant had signed the statement by which he had given his confession to the police (see paragraph\u00a036 above). Therefore, it cannot be said that the applicant\u2019s objections regarding the admissibility of his statement as evidence were ignored by the trial court (see, by contrast, Desde v. , no. 23909/03, \u00a7 130, U1 February 2011).","elements":[]},{"content":"105.\u00a0\u00a0Throughout the court proceedings the applicant had the benefit of effective legal advice, and the trial court afforded him an adequate opportunity to participate in the proceedings and to put forward his arguments in respect of the charges and all the relevant evidence adduced; his arguments were duly taken into account. The Court also notes that in his closing arguments at the trial the applicant, through his representative, presented the confession he had given to the police while represented by the lawyer M.R. as a proof of his sincere regret for the crimes committed in order for it to be taken into account as a mitigating factor in the sentencing procedure (see paragraph 44 above).","elements":[]},{"content":"106.\u00a0\u00a0Furthermore, the Court notes that the applicant\u2019s confession was not the central platform of the prosecution\u2019s case (see, by contrast, Magee v.\u00a0the United Kingdom, no. 28135/95, \u00a7 45, ECHR 2000VI), and that the trial court relied on his statement interpreting it in the light of a complex body of evidence assessed by the court (compare Bykov, cited above, \u00a7\u00a0103). Specifically, when convicting the applicant, the trial court relied on the statements of a number of witnesses cross-examined during the trial, numerous expert reports and the records of the crime-scene investigation and searches and seizures, as well as relevant photographs and other physical evidence (see paragraphs 29-43 and 45-46 above). In addition, the trial court had at its disposal the confessions made by the applicant\u2019s co-accused at the trial and neither the applicant nor his co-accused ever argued that any of their rights had been infringed when they had made those statements.","elements":[]},{"content":"107.\u00a0\u00a0Therefore, although the applicant was not represented by a lawyer selected on the basis of a fully informed choice during the police questioning, the Court does not consider that this rendered the proceedings as a whole unfair (compare O\u2019Kane v.\u00a0the (dec.), no.\u00a030550/96, 6 July 1999), since all the applicant\u2019s rights were adequately secured during the trial and his confession was not the sole, let alone the decisive, evidence in the case and as such did not call into question his conviction and sentence (compare G\u00e4fgen v. [GC], no. 22978/05, \u00a7\u00a0187, ECHR 2010; and, by contrast, Martin v. Estonia, no. 35985/09, \u00a7\u00a095-96, 30 May 2013).","elements":[]},{"content":"108.\u00a0\u00a0Against the above background, and in view of the principle that the requirements of Article 6 \u00a7 3 are to be seen as particular aspects of the right to a fair trial guaranteed by Article\u00a06 \u00a7 1 of the Convention (see, for example, Zagorodniy, cited above, \u00a7 51) and the requirement for the Court to evaluate the fairness of the criminal proceedings as a whole (see Al-Khawaja and Tahery v. the [GC], nos.\u00a026766/05 and 22228/06, \u00a7 118, ECHR 2011), the Court considers that it has not been shown that the applicant\u2019s defence rights have been irretrievably prejudiced or that his right to a fair trial under Article 6 has been adversely affected (see, mutatis mutandis, Mama\u00e7 and Others v. , nos. 29486/95, 29487/95 and 29853/96, \u00a7 48, 20 April 2004, and Sar\u0131kaya v. Turkey, no.\u00a036115/97, \u00a7 67, 22 April 2004; and, by contrast, Martin, cited above, \u00a7\u00a097).","elements":[]},{"content":"109.\u00a0\u00a0Accordingly, in the light of these considerations, given the particular circumstances of the present case, the Court concludes that there has been no violation of Article 6 \u00a7 1 read in conjunction with \u00a7 3 (c) of the Convention.","elements":[]}]}]},{"content":"III.\u00a0\u00a0OTHER ALLEGED VIOLATIONS OF THE CONVENTION","elements":[{"content":"110.\u00a0\u00a0Lastly, the applicant complained that his requests to hear certain witnesses had been denied without good reason.","elements":[]},{"content":"111.\u00a0\u00a0In the light of all the maVterial in its possession, and in so far as the matters complained of are within its competence, the Court considers that this complaint does not disclose any appearance of a violation of the Convention. It follows that it is inadmissible under Article\u00a035 \u00a7 3 as manifestly ill-founded and must be rejected pursuant to Article\u00a035 \u00a7\u00a04 of the Convention.","elements":[]}]}],"section_name":"law"},{"content":"FOR THESE REASONS, THE COURT","elements":[{"content":"1.\u00a0\u00a0Declares unanimously the complaint concerning the applicant\u2019s right to a fair trial admissible and the remainder of the application inadmissible;","elements":[]},{"content":"2.\u00a0\u00a0Holds by five votes to two that there has been no violation of Article 6 \u00a7\u00a7 1 and 3 (c) of the Convention.","elements":[]},{"content":"Done in English, and notified in writing on 28 November 2013, pursuant to Rule 77 \u00a7\u00a7 2 and 3 of the Rules of Court.","elements":[]},{"content":"In accordance with Article 45 \u00a7 2 of the Convention and Rule 74 \u00a7 2 of the Rules of Court, the separate opinion of Judges I. Berro-Lef\u00e8vre and J.\u00a0Laffranque is annexed to this judgment.","elements":[]},{"content":"Unfortunately we are unable to follow the majority in finding no violation of Article 6 \u00a7 1 read in conjunction with Article 6 \u00a7 3 (c) of the Convention. We consider that there was a violation of Article 6 \u00a7\u00a7 1 and 3\u00a0(c), for the following reasons.","elements":[]},{"content":"Central issue of this case and previous case-law of the Court","elements":[]},{"content":"The central issue of this present case is the applicant\u2019s right under Article\u00a06 \u00a7 3 (c) of the Convention to defend himself through legal assistance of his own choosing. As a result of his not having had this opportunity, it cannot be excluded that the applicant was prevailed upon in a coercive environment to incriminate himself. The foregoing affected the entire trial, made it unfair and led to a violation of Article 6 \u00a7 1.","elements":[]},{"content":"Recently the Court dealt with a similar issue in the case of Martin v. Estonia, no. 35985/09, 30 May 2013, where it found a violation because the counsel of the applicant\u2019s own choosing was denied access to him. The Court pointed out in this connection that the guarantees in Article 6 \u00a7\u00a03 (c) are specific aspects of the right to a fair hearing set forth in paragraph 1 of that provision, which must be taken into account in any assessment of the fairness of proceedings. In addition, the Court\u2019s primary concern under Article 6 \u00a7 1 is to evaluate the overall fairness of the criminal proceedings. The Court also had regard to the subsequent use of statements made by the applicant during the preliminary investigation in breach of his defence rights. It is unfortunate that in the present case the majority did not follow the approach adopted unanimously in Martin v. Estonia.","elements":[]},{"content":"Violation of the right to be represented by counsel of one\u2019s own choosing","elements":[]},{"content":"In the present case, when the applicant was arrested by the police his family engaged the services of lawyer G.M. to represent him. However, the police denied G.M. access to the applicant without giving any valid reason. Furthermore, the applicant had never been informed that G.M. had come to the police station, even though he had expressly stated that he wished to be represented by G.M. Instead, according to the Government, the police offered the applicant a list of lawyers from which to choose one to represent him during police questioning, the Government failed to produce that list before the Court.","elements":[]},{"content":"We are concerned that in \u00a7 94 of the judgment, without any explanation, the majority use the expression \u201clegal aid lawyer provided by the police\u201d and \u201cchoice of lawyer provided by the police\u201d as if they somehow considered it normal, or even legitimate, that the police should provide a lawyer for Wa suspect. This does not exactly correspond to the relevant national law cited in \u00a7 56 of the judgment: Article 177 \u00a7 5 of the Code of Criminal Procedure of Croatia provides for the police authorities to allow the suspect to appoint a lawyer from the list of lawyers on duty provided to the competent police authority by the county branches of the Croatian Bar Association.","elements":[]},{"content":"We fail to see the meaning of the distinction made by the majority in \u00a7\u00a094 of the judgment between a situation where the applicant is \u201cprovided with a legal aid lawyer by the police\u201d and a situation where he \u201cwas offered a choice of lawyer provided by the police, whose services the applicant had to pay for from his own funds\u201d. To us the question of payment in this connection is irrelevant, since in many legal systems even the legal aid lawyers\u2019 fees need to be paid subsequently by the accused. How the lawyer is paid should not, as such, be a criterion in establishing whether there is \u201clegal assistance of one\u2019s own choosing\u201d or not. In the present case it is rather the fact that the lawyer M.R. did not charge the applicant for his services that raises questions about the good faith of the police.","elements":[]},{"content":"The Government do not dispute that the appointed lawyer, M.R., was a former chief of Rijeka Police and that when acting as his lawyer he never charged the applicant for his services.","elements":[]},{"content":"The Court has constantly held that a person charged with a criminal offence who does not wish to defend himself in person must be able to have recourse to legal assistance of his own choosing (see Campbell and Fell v. the United Kingdom, 28 June 1984, \u00a7 99, Series A no. 80). It is true that notwithstanding the importance of a relationship of confidence between lawyer and client, this right cannot be considered to be absolute, but the national authorities may override the defendant\u2019s wish relating to legal representation only when there are relevant and sufficient grounds for holding that this is necessary in the interests of justice (Pavlenko v. Russia, no. 42371/02, \u00a7 98, 1 April 2010).","elements":[]},{"content":"We are unable to accept the actions of the police in preventing lawyer G.M. from contacting the applicant, and failing to inform the applicant of G.M.\u2019s presence in the police station despite applicant\u2019s wish to be represented by him, or the way the lawyer M.R. was involved in the case. Contrary to the principles cited above, the documents in the criminal case file against the applicant do not reveal any good \u2013 let alone relevant and sufficient \u2013 reasons for not allowing lawyer G.M to assist the applicant during the police questioning, and neither the national courts nor the Government have produced any arguments in that respect.","elements":[]},{"content":"In the circumstances M.R.\u2019s background and the fact that he did not charge the applicant are also relevant and worrying. To our mind there was no waiver on the part of the applicant of his right to retain G.M., since the applicant had not been informed of G.M.\u2019s arrival at the police station when he signed the power of attorney with M.R.","elements":[]},{"content":"It is noteworthy that the majority also had serious doubts as to whether the police acted in good faith and whether M.R. was a lawyer the applicant would actually have chosen had he known about the other lawyer, G.M., hired by his parents (\u00a7 98 of the judgment). The majority also acknowledge that the mere signature by the applicant of the power of attorney with M.R. did not constitute a \u201cknowing and intelligent waiver\u201d of his right to retain G.M. as lawyer. Therefore it is even more striking that, despite having serious concerns as to the manner in which the domestic authorities acted (see \u00a7\u00a0100 of the judgment) and the failure to allow the applicant to be represented by a lawyer of his own choosing during the pre-trial interrogation \u2013 a crucial moment in the criminal proceedings \u2013, the majority found no violation of Article 6 \u00a7 3 (c). For us these serious concerns, including the manner in which M.R.\u2019s services were proposed to the applicant by the police are valid grounds for a finding of a violation.","elements":[]},{"content":"Possible pressure by the police to confess","elements":[]},{"content":"Furthermore, the applicant consistently maintained that his statement was obtained in a coercive environment. Since it is established that the police and the Rijeka County State Attorney questioned the applicant while at the same time preventing him from meeting lawyer G.M., and suggested that he choose another lawyer proposed by them, the applicant\u2019s allegations of pressure exerted by the authorities do not appear completely misplaced.","elements":[]},{"content":"Therefore the finding of the majority in \u00a7 106 of the judgment that the applicant never argued that any of his rights had been infringed when he made his statement seems to be in contradiction with the statement of facts in \u00a7 38 of the judgment, which reads: \u201cOn 2 April 2008 the applicant asked the Rijeka County Court to call lawyer G.M. as a witness in connection with the alleged unlawful extraction of his confession by the police. He pointed out that G.M. had not been allowed to see him while he had been in police custody and stated that he had been forced by the police officers to confess.\u201d","elements":[]},{"content":"In addition, we fail to adhere to the conclusion made by the majority in \u00a7\u00a0105 of the judgment: \u201cThe Court also notes that in his closing arguments at the trial the applicant, through his representative, presented the confession he had given to the police while represented by the lawyer M.R. as a proof of his sincere regret for the crimes committed in order for it to be taken into account as a mitigating factor in the sentencing procedure.\u201d In \u00a7\u00a042 of the judgment it is stated that the applicant pleaded not guilty to the charges and in \u00a7\u00a044 it is said that during the closing arguments: \u201cThe applicant\u2019s defence lawyer argued that it had not been proven that the applicant had committed the offences he was charged with. She pointed out, however, that if the trial court considered differently, then the applicant\u2019s confession to the police and his sincere regret had to be taken into consideration in sentencing him.\u201d Thus the lawyer used a common tactic of alternative pleadings and used the confession, in the event of sentencing, as a mitigating circumstance, which is by no means the same as maintaining the confession the applicant had given to the police while represented by the lawyer M.R.","elements":[]},{"content":"Confession as evidence and overall fairness of the criminal proceedings","elements":[]},{"content":"Although the applicant had the benefit of adversarial proceedings in which he was represented by a lawyer, the detriment he suffered because of the breach of due process at the pre-trial stage of the proceedings was not remedied by the subsequent proceedings. We think that the serious shortcomings in respect of legal assistance at such an important stage of pre-trial events seriously undermined the position of the applicant\u2019s defence at the trial as well. In these subsequent proceedings his confession was held to be admissible as evidence, and even though other evidence was adduced and the confession was not the sole evidence, it nevertheless played a decisive role, without any importance being attached to the circumstances in which the confession had been made (see Panovits v. Cyprus, no. 4268/04, \u00a7 75, 11 December 2008).","elements":[]},{"content":"For all these reasons we conclude that there has been a violation of Article 6 \u00a7\u00a7 1 and 3(c) of the Convention on account of the infringement of the applicant\u2019s right to defend himself through legal assistance of his own choosing.","elements":[]},{"content":"","elements":[]}],"section_name":"conclusion"}]Y to rule on the admissibility and merits of the application at the same time.","elements":[]}],"section_name":"procedure"},{"content":"THE FACTS","elements":[{"content":"THE CIRCUMSTANCES OF THE CASE","elements":[{"content":"4.\u00a0\u00a0In 1972 the State Treasury transferred to the applicants a property situated in Krosno. There was no adequate access by road to the property at that time, but the State authorities declared that an access road would soon be constructed. However, the authorities did not undertake any action to ensure proper access to the applicants' property. In particular, a right of way through neighbouring properties was never created.","elements":[]},{"content":"5.\u00a0\u00a0In 1983 the applicants brought a civil action to have a right of way established by way of a judicial decision. On 31\u00a0December 1986 the Krosno District Court allowed their request. Their neighbours appealed.","elements":[]},{"content":"6.\u00a0\u00a0On 27\u00a0October 1987 the quashed the judgment of the firstinstance court and remitted the case for reexamination, finding that the first-instance court had failed to assess the evidence properly.","elements":[]},{"content":"7.\u00a0\u00a0By a judgment of 23 October 1990 the Krosno District Court again granted a right of way to the applicants. The neighbours brought a new appeal. On 20\u00a0June 1991 the quashed the contested judgment and again remitted the case for re-examination.","elements":[]},{"content":"8.\u00a0\u00a0On 3\u00a0November 1997 the Krosno District Court allowed the applicants' claim. The dismissed the neighbours' appeal on 6\u00a0October 1998. The neighbours brought a cassation appeal before the Supreme Court.","elements":[]},{"content":"9.\u00a0\u00a0The Supreme Court refused to entertain their appeal on 22\u00a0June 2001. This decision was served on the applicants on 13\u00a0September 2001.","elements":[]}]},{"content":"II.\u00a0\u00a0RELEVANT DOMESTIC LAW AND PRACTICE","elements":[{"content":"10.\u00a0\u00a0The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings, in particular the applicable provisions of the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w post\u0119powaniu s\u0105dowym bez nieuzasadnionej zw\u0142oki) (\u201cthe 2004 Act\u201d), are stated in the Court's decisions in the cases of Charzy\u0144ski v.\u00a0Poland no.\u00a015212/03 (dec.), \u00a7\u00a7\u00a01223, ECHR 2005V and Ratajczyk v.\u00a0Poland no.\u00a011215/02 (dec.), ECHR 2005VIII and the judgment in the case of Krasuski v.\u00a0Poland, no.\u00a061444/00, \u00a7\u00a7\u00a03446, ECHR 2005V.","elements":[]},{"content":"11.\u00a0\u00a0In particular, section 18 of the 2004 Act lays down the following transitional rules in relation to applications already pending before the Court:","elements":[]},{"content":"\u201c1.\u00a0\u00a0Within six months after the date of entry into force of this law persons who, before that date, had lodged a complaint with the European Court of Human Rights ... complaining of a breach of the right to a trial within a reasonable time guaranteed by Article 6 (1) of the Convention for the Protection of Human Rights and Fundamental Freedoms ..., may lodge a complaint about the unreasonable length of the proceedings on the basis of the provisions of this law if their complaint to the Court had been lodged in the course of the impugned proceedings and if the Court has not adopted a decision concerning the admissibility of their case.","elements":[]},{"content":"2.\u00a0\u00a0A complaint lodged under subsection 1 shall indicate the date on which the application was lodged with the Court.","elements":[]},{"content":"3.\u00a0\u00a0The relevant court shall immediately inform the Minister of Foreign Affairs of any complaints lodged under subsection 1.\u201d","elements":[]}]}],"section_name":"facts"},{"content":"THE LAW","elements":[{"content":"I.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 6 \u00a7Z 1 OF THE CONVENTION","elements":[{"content":"12.\u00a0\u00a0The applicants complained that the length of the proceedings had been incompatible with the \u201creasonable time\u201d requirement, laid down in Article\u00a06 \u00a7\u00a01 of the Convention, which reads as follows:","elements":[]},{"content":"\u201cIn the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...\u201d","elements":[]},{"content":"13.\u00a0\u00a0The Government contested that argument.","elements":[]},{"content":"14.\u00a0\u00a0Although the applicants had filed their claim in 1983, the period to be taken into consideration began only on 1\u00a0May 1993, when the recognition by of the right of individual petition took effect. However, in assessing the reasonableness of the time that elapsed after that date, account must be taken of the state of proceedings at the time.","elements":[]},{"content":"15.\u00a0\u00a0 The period to be assessed ended on 13\u00a0September 2001, when the applicants were served with the final decision of the Supreme Court. It thus lasted eight years and four months for three levels of jurisdiction.","elements":[]},{"content":"A.\u00a0\u00a0Admissibility","elements":[{"content":"16.\u00a0\u00a0The Government raised a preliminary objection that the applicants had not exhausted domestic remedies available to them under Polish law, as required by Article\u00a035 \u00a7\u00a01 of the Convention. They maintained that under section 18 of the 2004 Act, within six months after the entry into force of the Act, that is, from 17 September 2004, anyone who had lodged an application with the European Court of Human Rights in due time complaining of a violation of the \u201creasonable-time\u201d requirement contained in Article 6 \u00a7 1 of the Convention was entitled to lodge a length of proceedings complaint provided for by the Act, if the application to the Court had been lodged when the proceedings were still pending and if it had not yet been declared admissible by the European Court.","elements":[]},{"content":"17.\u00a0\u00a0The applicants did not address this point.","elements":[]},{"content":"18.\u00a0\u00a0The Court considers that the applicants did not have at their disposal any effective remedy for the excessive length of the proceedings (Ratajczyk v.\u00a0Poland (dec.), no.\u00a011215/02). This was because the 2004 Act was not applicable to these proceedings as they had ended on 13\u00a0September 2001, before the 2004 Act came into force. The application was lodged with the Court after the proceedings had ended. As a result, the Court finds that section\u00a018 of the 2004 Act was not applicable to the applicants' situation.","elements":[]},{"content":"It follows that the Government's plea of inadmissibility on the ground of nonexhaustion of domestic remedies must be dismissed.","elements":[]},{"content":"19.\u00a0\u00a0The Court further notes that this complaint is not manifestly illfounded within the meaning of Article 35 \u00a7 3 of the Convention. It also notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.","elements":[]}]},{"content":"B.\u00a0\u00a0Merits","elements":[{"content":"20.\u00a0\u00a0The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicants in the dispute (see, among many other authorities, Frydlender v.\u00a0France [GC], no.\u00a030979/96, \u00a7\u00a043, ECHR 2000VII).","elements":[]},{"content":"21.\u00a0\u00a0The Court has frequently found violations of Article\u00a06 \u00a7\u00a01 of the Convention in cases raising issues similar to the one in the present case (see Frydlender, cited above).","elements":[]},{"content":"22.\u00a0\u00a0Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Having regard to its caselaw on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the \u201creasonable time\u201d requirement.","elements":[]},{"content":"23.\u00a0\u00a0There has accordingly been a breach of Article\u00a06 \u00a7\u00a01.","elements":[]}]}]},{"content":"II.\u00a0\u00a0APPLICATION OF ARTICLE 41 OF THE CONVENTION","elements":[{"content":"24.\u00a0\u00a0Article 41 of the Convention provides:","elements":[]},{"content":"\u201cIf 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.\u201d","elements":[]},{"content":"A.\u00a0\u00a0Damage","elements":[{"content":"25.\u00a0\u00a0The applicants claimed 285,000 zlotys (PLN) in respect of pecuniary and non-pecuniary damage.","elements":[]},{"content":"26.\u00a0\u00a0 The Government contested the claim.","elements":[]},{"content":"27.\u00a0\u00a0The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it awards the applicants 2,400 euros (EUR) in respect of nonpecuniary damage.","elements":[]}]},{"content":"B.\u00a0\u00a0Costs and expenses","elements":[{"content":"28.\u00a0\u00a0The applicants also claimed 19,423 zlotys (PLN) for the costs and expenses incurred before the domestic courts.","elements":[]},{"content":"29.\u00a0\u00a0 The Government contested the claim.","elements":[]},{"content":"30.\u00a0\u00a0According to the Court's caselaw, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the information in its possession, the Court considers it reasonable to award the applicants the sum of EUR 100 for the costs and expenses incurred in the Convention proceedings.","elements":[]}]},{"content":"C.\u00a0\u00a0Default interest","elements":[{"content":"31.\u00a0\u00a0The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.","elements":[]}]}]}],"section_name":"law"},{"content":"FOR THESE REASONS, THE COURT UNANIMOUSLY","elements":[{"content":"1.\u00a0\u00a0Declares the application admissible;","elements":[]},{"content":"2.\u00a0\u00a0Holds that there has been a violation of Article\u00a06 \u00a7\u00a01 of the Convention;","elements":[]},{"content":"3.\u00a0\u00a0Holds","elements":[]},{"content":"(a)\u00a0\u00a0that the respondent State is to pay the applicants jointly, within three months from the date on which the judgment becomes final in accordance with Article\u00a044\u00a0\u00a7\u00a02 of the Convention, the following amounts, to be converted into Polish zlotys at the rate applicable at the date of settlement, plus any tax that may be chargeable:","elements":[]},{"content":"(i)\tEUR 2,400 (two thousand four hundred euros) in respect of non-pecuniary damage;","elements":[]},{"content":"(ii) EUR 100 (one hundred euros) in respect of costs and expenses;","elements":[]},{"content":"(b)\u00a0\u00a0that 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;","elements":[]},{"content":"4.\u00a0\u00a0Dismisses the remainder of the applicants' claim for just satisfaction.","elements":[]},{"content":"Done in English, and notified in writing on 3 July 2007, pursuant to Rule 77 \u00a7\u00a7 2 and 3 of the Rules of Court.","elements":[]}],"section_name":"conclusion"}]ion in poor conditions. The details of the applicants\u2019 detention are indicated in the appended table. The Court refers to the principles established in its caselaw regarding inadequate conditions of detention (see, for instance, Mur\u0161i\u0107\u00a0v.\u00a0Croatia [GC], no.\u00a07334/13, \u00a7\u00a7\u00a096101, ECHR 2016). It reiterates in particular that a serious lack of space in a prison cell weighs heavily as a factor to be taken into account for the purpose of establishing whether the detention conditions described are \u201cdegrading\u201d from the point of view of Article\u00a03 and may disclose a violation, both alone or taken together with other shortcomings (see Mur\u0161i\u0107, cited above, \u00a7\u00a7\u00a0122\u00a0141, and Ananyev and Others v. Russia, nos.\u00a042525/07 and 60800/08, \u00a7\u00a7\u00a0149159, 10\u00a0January\u00a02012).","elements":[]},{"content":"8.\u00a0\u00a0In the leading cases of Melnik v. Ukraine, no. 72286/01, 28\u00a0March\u00a02006 and Sukachov v. Ukraine, no. 14057/17, 30 January 2020, the Court already found a violation in respect of issues similar to those in the present case.","elements":[]},{"content":"9.\u00a0\u00a0Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints. Having regard to its case-law on the subject, the Court considers that in the instant case the applicants\u2019 conditions of detention were inadequate.","elements":[]},{"content":"10.\u00a0\u00a0The Court further notes that the applicants did not have at their disposal an effective remedy in respect of these complaints.","elements":[]},{"content":"11.\u00a0\u00a0These complaints are therefore admissible and disclose a breach of Articles 3 and 13 of the Convention.","elements":[]}]},{"content":"APPLICATION OF ARTICLE\u00a041 OF THE CONVENTION","elements":[{"content":"12.\u00a0\u00a0Article\u00a041 of the Convention provides:","elements":[]},{"content":"\u201cIf 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.\u201d","elements":[]},{"content":"13.\u00a0\u00a0Regard being had to the documents in its possession and to its caselaw (see, in particular, Sukachov, cited above), the Court considers it reasonable to award the sums indicated in the appended table.","elements":[]},{"content":"14.\u00a0\u00a0The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.","elements":[]}]}],"section_name":"law"},{"content":"FOR THESE REASONS, THE COURT, UNANIMOUSLY,","elements":[{"content":"Decides to join the applications;","elements":[]},{"content":"Declares the applications admissible;","elements":[]},{"content":"Holds that these applications disclose a breach of Articles\u00a03 and 13 of the Convention concerning the inadequate conditions of detention and lack of an effective domestic remedy in this regard;","elements":[]},{"content":"Holds","elements":[]},{"content":"that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;","elements":[]},{"content":"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.","elements":[]},{"content":"Done in English, and notified in writing on 10 June 2021, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and\u00a03 of the Rules of Court.","elements":[]},{"content":"","elements":[]}],"section_name":"conclusion"}]  ^ $=Q 33)- W001-81366CASE OF WILUSZ v. POLANDCHAMBERECLI:CE:ECHR:2007:0703JUD0001363021363/022007-07-03 00:00:002007-07-03 00:00:00ENGFourth SectionCourt14.1129503250122POL35#C[{"content":"PROCEDURE","elements":[{"content":"1.\u00a0\u00a0The case originated in an application (no.\u00a01363/02) against the lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) on 10 December 2001 by Ms Halina Wilusz and Mr\u00a0Marian Wilusz (\u201cthe applicants\u201d).","elements":[]},{"content":"2.\u00a0\u00a0The Polish Government (\u201cthe Government\u201d) were represented by their Agent, Mr J. Wo\u0142\u0105siewicz of the Ministry of Foreign Affairs.","elements":[]},{"content":"3.\u00a0\u00a0On 25 August 2004 the Court decided to give notice of the application to the Government. Applying Article 29 \u00a7 3 of the Convention, it decidedX/!AQ 33'- i001-138579CASE OF DVORSKI v. CROATIACHAMBERECLI:CE:ECHR:2013:1128JUD00257031125703/112013-11-28 00:00:002013-11-28 00:00:00ENGFirst SectionCourt15.1129503250122HRV9[{"content":"PROCEDURE","elements":[{"content":"1.\u00a0\u00a0The case originated in an application (no. 25703/11) against the lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) by a Croatian national, Mr Ivan Dvorski (\u201cthe applicant\u201d), on 16 April 2011.","elements":[]},{"content":"2.\u00a0\u00a0The applicant was represented by Ms S. Maro\u0161evac \u010capko, a lawyer practising in . The Croatian Government (\u201cthe Government\u201d) were represented by their Agent, Ms \u0160. Sta\u017enik.","elements":[]},{"content":"3.\u00a0\u00a0The applicant in particular alleged that his right to a fair trial including the right to legal assistance of his own choosing and his right not to incriminate himself, under Article 6 \u00a7\u00a7 1 and 3 (c) of the Convention, had been violated.","elements":[]},{"content":"4.\u00a0\u00a0On 28 June 2011 the applicant\u2019s complaints were communicated to the Government.","elements":[]}],"section_name":"procedure"},{"content":"THE FACTS","elements":[{"content":"I.\u00a0\u00a0THE CIRCUMSTANCES OF THE CASE","elements":[{"content":"5.\u00a0\u00a0The applicant wasD~?Q 33)- 001-91993CASE OF WELLER v. HUNGARYCHAMBERECLI:CE:ECHR:2009:0331JUD00443990544399/052009-03-31 00:00:002009-03-31 00:00:00ENGSecond SectionCourt15.1129503250122HUN20S[{"content":"PROCEDURE","elements":[{"content":"1.\u00a0\u00a0The case originated in an application (no. 44399/05) against the lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) by three Hungarian nationals, Mr Lajos Weller and his twin sons, D\u00e1niel and M\u00e1t\u00e9 Weller (\u201cthe applicants\u201d), on 6 December 2005.","elements":[]},{"content":"2.\u00a0\u00a0The applicants, who had been granted legal aid, were represented by Mr T. K\u0151r\u00f6si, a lawyer practising in Cegl\u00e9d. The Hungarian Government (\u201cthe Government\u201d) were represented by Mr L. H\u00f6ltzl, Agent, Ministry of Justice and Law Enforcement.","elements":[]},{"content":"3.\u00a0\u00a0The applicants alleged that their exclusion from \u201cmaternity benefit\u201d, on the ground of the nationality of the mother of the second and third applicants and the first applicant\u2019s parental sta= WW![Q A339- s001-210340CASE OF KUZNETSOV AND OTHERS v. UKRAINECOMMITTEEECLI:CE:ECHR:2021:0610JUD00561231956123/19;22608/20;23586/202021-06-10 00:00:002021-06-10 00:00:00ENGFith Section CommitteeCourt11.7306823730469UKR48[{"content":"PROCEDURE","elements":[{"content":"1.\u00a0\u00a0The case originated in applications against Ukraine lodged with the Court under Article\u00a034 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) on the various dates indicated in the appended table.","elements":[]},{"content":"2.\u00a0\u00a0The Ukrainian Government (\u201cthe\u00a0Government\u201d) were given notice of the applications.","elements":[]}],"section_name":"procedure"},{"content":"THE FACTS","elements":[{"content":"3.\u00a0\u00a0The list of applicants and the relevant details of the applications are set out in the appended table.","elements":[]},{"content":"4.\u00a0\u00a0The applicants complained of the inadequate conditions of their detention and of the lack of any effective remedy in domestic law.","elements":[]}],"section_name":"facts"},{"content":"THE LAW","elements":[{"content":"JOINDER OF THE APPLICATIONS","elements":[{"content":"5.\u00a0\u00a0Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.","elements":[]}]},{"content":"ALLEGED VIOLATION OF ARTICLES\u00a03 AND\u00a013 OF THE CONVENTION","elements":[{"content":"6.\u00a0\u00a0The applicants complained of the inadequate conditions of their detention and that they had no effective remedy in this connection. They relied on Articles\u00a03 and\u00a013 of the Convention, which read as follows:","elements":[]},{"content":"Article 3","elements":[]},{"content":"\u201cNo one shall be subjected to torture or to inhuman or degrading treatment or punishment.\u201d","elements":[]},{"content":"Article 13","elements":[]},{"content":"\u201cEveryone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority ...\u201d","elements":[]},{"content":"7.\u00a0\u00a0The Court notes that the applicants were kept in detent[ilar to those in the present case.","elements":[]},{"content":"9.\u00a0\u00a0Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion as to the admissibility and merits of these complaints. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the \u201creasonable time\u201d requirement.","elements":[]},{"content":"10.\u00a0\u00a0These complaints are therefore admissible and disclose a breach of Article 6 \u00a7\u00a01 of the Convention.","elements":[]}]},{"content":"III.\u00a0REMAINING COMPLAINTS","elements":[{"content":"11.\u00a0\u00a0Some applicants also raised other complaints under various Articles of the Convention.","elements":[]},{"content":"12.\u00a0\u00a0The Court has examined the applications listed in the appended table and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, these complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or the Protocols thereto.","elements":[]},{"content":"It follows that this part of the applications is manifestly ill-founded and must be rejected in accordance with Article 35 \u00a7\u00a7 3 and 4 of the Convention.","elements":[]}]},{"content":"IV.\u00a0APPLICATION OF ARTICLE 41 OF THE CONVENTION","elements":[{"content":"13.\u00a0\u00a0Article 41 of the Convention provides:","elements":[]},{"content":"\u201cIf 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.\u201d","elements":[]},{"content":"14.\u00a0\u00a0Regard being had to the documents in its possession and to its caselaw (see Vlad and Others v. Romania, cited above, \u00a7\u00a7 166-173), the Court considers it reasonable to award the sums indicated in the appended table.","elements":[]},{"content":"15.\u00a0\u00a0The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.","elements":[]}]}],"section_name":"law"},{"content":"FOR THESE REASONS, THE COURT, UNANIMOUSLY,","elements":[{"content":"1.\u00a0\u00a0Decides to join the applications;","elements":[]},{"content":"2.\u00a0\u00a0Declares the complaints concerning the excessive length of criminal proceedings, as set out in the appended table, admissible and the remainder of the applications inadmissible;","elements":[]},{"content":"3.\u00a0\u00a0Holds that these applications disclose a breach of Article\u00a06 \u00a7 1 of the Convention concerning the excessive length of criminal proceedings;","elements":[]},{"content":"4.\u00a0\u00a0Holds","elements":[]},{"content":"(a)\u00a0\u00a0that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;","elements":[]},{"content":"(b)\u00a0\u00a0that 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.","elements":[]},{"content":"Done in English, and notified in writing on 22 October 2015, pursuant to Rule 77 \u00a7\u00a7 2 and 3 of the Rules of Court.","elements":[]},{"content":"APPENDIX","elements":[]},{"content":"List of applications raising complaints under Article 6 \u00a7 1 of the Convention","elements":[]},{"content":"(excessive length of criminal proceedings)","elements":[]},{"content":"table-0","elements":[],"type":"table"},{"content":"","elements":[]}],"section_name":"conclusion"}]   !CQ 33)- 001-114098CASE OF P. AND S. v. POLANDCHAMBERECLI:CE:ECHR:2012:1030JUD00573750857375/082012-10-30 00:00:002012-10-30 00:00:00ENGFourth SectionCourt15.1129503250122POL35[{"content":"PROCEDURE","elements":[{"content":"1.\u00a0\u00a0The case originated in an application (no.\u00a057375/08) against the lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) by Polish nationals, Ms P. (\u201cthe first applicant\u201d) and Ms\u00a0S. (\u201cthe second applicant\u201d), on 18\u00a0November 2008. The VicePresident of the Section acceded to the applicants\u2019 request not to have their names disclosed (Rule 47 \u00a7 3 of the Rules of Court).","elements"b[!cQ 33;- 001-158177CASE OF IULIAN MOCANU AND OTHERS v. ROMANIACOMMITTEEECLI:CE:ECHR:2015:1022JUD00206710420671/04;41747/08;861/09;9811/12;24755/13;26433/13;55369/132015-10-22 00:00:002015-10-22 00:00:00ENGThird Section CommitteeCourt12.1129503250122ROU37{[{"content":"PROCEDURE","elements":[{"content":"1.\u00a0\u00a0The case originated in applications against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) on the various dates indicated in the appended table.","elements":[]},{"content":"2.\u00a0\u00a0The applications were communicated to the Romanian Government (\u201cthe Government\u201d).","elements":[]}],"section_name":"procedure"},{"content":"THE FACTS","elements":[{"content":"THE CIRCUMSTANCES OF THE CASE","elements":[{"content":"3.\u00a0\u00a0The list of applicants and the relevant details of the applications are set out in the appended table.","elements":[]},{"content":"4.\u00a0\u00a0The applicants complained of the excessive length of criminal proceedings. In some of the applications, the applicants also raised complaints under other provisions of the Convention.","elements":[]}]}],"section_name":"facts"},{"content":"THE LAW","elements":[{"content":"I.\u00a0\u00a0JOINDER OF THE APPLICATIONS","elements":[{"content":"5.\u00a0\u00a0Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.","elements":[]}]},{"content":"II.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 6 \u00a7 1 OF THE CONVENTION","elements":[{"content":"6.\u00a0\u00a0The applicants complained that the length of the criminal proceedings in question had been incompatible with the \u201creasonable time\u201d requirement. They relied on Article 6 \u00a7 1 of the Convention, which reads as follows:","elements":[]},{"content":"\u201cIn the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a\u00a0reasonable time by [a] ... tribunal ...\u201d","elements":[]},{"content":"7.\u00a0\u00a0The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicants and the relevant authorities and what was at stake for the applicants in the dispute (see, among many other authorities, P\u00e9lissier and Sassi v. France [GC], no. 25444/94, \u00a7 67, ECHR 1999-II).","elements":[]},{"content":"8.\u00a0\u00a0In the leading case of Vlad and Others v. Romania, nos. 40756/06, 41508/07 and 50806/07, 26 November 2013, the Court already found a violation in respect of issues sim^ =![table-0001-210340[{"Amount awarded for pecuniary and non-pecuniary damage and costs and expenses per applicant (in euros)":"7,500","Applicant\u2019s name Year of birth":"Denys Yuriyovych KUZNETSOV 1980","Application no. Date of introduction":"56123/19 13/10/2019","Facility Start and end date Duration":"Dnipro Penitentiary Facility no. 4 07/11/2014 pending More than 6\u00a0years and 5 months and 21\u00a0days","No.":"","Representative\u2019s name and location":"Pustyntsev Andriy Vitaliyovych Dnipro","Specific grievances":"lack of fresh air, passive smoking, infestation of cell with insects/rodents, mouldy or dirty cell, lack of or inadequate hygienic facilities, lack of toiletries, lack of privacy for toilet, overcrowding, lack of or poor quality of bedding and bed linen, poor quality of food, lack or insufficient quantity of food, no or restricted access to shower","Sq. m per inmate":"8 inmates 2,7 m\u00b2"},{"Amount awarded for pecuniary and non-pecuniary damage and costs and expenses per applicant (in euros)":"7,300","Applicant\u2019s name Year of birth":"Artem Dmytrovych STYOPKIN 1996","Application no. Date of introduction":"22608/20 12/05/2020","Facility Start and end date Duration":"Cherkasy Pre-Trial Detention Facility 15/01/2018 pending More than 3\u00a0years and 3 months and 13\u00a0days","No.":"","Representative\u2019s name and location":"Vavrenyuk Oleksandr Volodymyrovych Pyatykhatky","Specific grievances":"lack of fresh air, lack of or poor quality of bedding and bed linen, poor quality of food, no or restricted access to shower, lack of or inadequate hygienic facilities, lack of or insufficient electric light, lack of or insufficient natural light, lack of toiletries, lack or insufficient quantity of food","Sq. m per inmate":"2.5-3.7 m\u00b2"},{"Amount awarded for pecuniary and non-pecuniary damage and costs and expenses per applicant (in euros)":"7,500","Applicant\u2019s name Year of birth":"Sergiy Sergiyovych PINKAS 1983","Application no. Date of introduction":"23586/20 12/05/2020","Facility Start and end date Duration":"Cherkasy Pre-Trial Detention Facility 20/09/2015 to 12/12/2020 5 years and 2\u00a0months and 23\u00a0days","No.":"","Representative\u2019s name and location":"Pustyntsev Andriy Vitaliyovych Dnipro","Specific grievances":"lack of privacy for toilet, overcrowding, infestation of cell with insects/rodents, lack of or poor quality of bedding and bed linen, lack of toiletries, lack or insufficient quantity of food, mouldy or dirty cell, passive smoking, no or restricted access to shower, lack of fresh air","Sq. m per inmate":"2 m\u00b2"}] x!Qtable-0001-158177[{"Amount awarded for costs and expenses per application (in euros)":"-","Amount awarded for non-pecuniary damage per applicant / household (in euros)":"500","Applicant name Date of birth":"Iulian MOCANU 14/09/1964","Application no. Date of introduction":"20671/04 21/04/2004","End of proceedings":"09/10/2001 21/01/2010","No.":"","Representative name and location":"-","Start of proceedings":"30/09/1999 09/12/2005","Total length Levels of jurisdiction":"6 years and 1 month 3 levels of jurisdiction"},{"Amount awarded for costs and expenses per application (in euros)":"320","Amount awarded for non-pecuniary damage per applicant / household (in euros)":"840","Applicant name Date of birth":"B\u0103nic\u0103 CAZAC 04/01/1972","Application no. Date of introduction":"41747/08 26/08/2008","End of proceedings":"14/03/2008","No.":"","Representative name and location":"Irina Maria PETER Bucharest","Start of proceedings":"05/10/1999","Total length Levels of jurisdiction":"8 years and 5 months 3 levels of jurisdiction"},{"Amount awarded for costs and expenses per application (in euros)":"-","Amount awarded for non-pecuniary damage per applicant / household (in euros)":"1,200","Applicant name Date of birth":"Rudolf Marius BASSETTI 19/05/1957","Application no. Date of introduction":"861/09 22/12/2008","End of proceedings":"26/06/2008","No.":"","Representative name and location":"Olga Vasilisia PETCU Cluj-Napoca","Start of proceedings":"07/12/2000","Total length Levels of jurisdiction":"7 years and 7 months 3 levels of jurisdiction"},{"Amount awarded for costs and expenses per application (in euros)":"230","Amount awarded for non-pecuniary damage per applicant / household (in euros)":"2,400","Applicant name Date of birth":"Flaviu Mircea MOLDOVAN 09/09/1946","Application no. Date of introduction":"9811/12 21/09/2011","End of proceedings":"24/03/2011","No.":"","Representative name and location":"Mihaela Elena BURZO Cluj-Napoca","Start of proceedings":"25/11/2000","Total length Levels of jurisdiction":"10 years and 4 months 3 levels of jurisdiction"},{"Amount awarded for costs and expenses per application (in euros)":"-","Amount awarded for non-pecuniary damage per applicant / household (in euros)":"1,200","Applicant name Date of birth":"Household Adrian Constantin GONTARU 23/05/1983 Stej\u0103rel GONTARU 26/07/1968","Application no. Date of introduction":"24755/13 01/04/2013","End of proceedings":"28/09/2012","No.":"","Representative name and location":"-","Start of proceedings":"22/10/2007","Total length Levels of jurisdiction":"4 years and 11 months 2 levels of jurisdiction"},{"Amount awarded for costs and expenses per application (in euros)":"-","Amount awarded for non-pecuniary damage per applicant / household (in euros)":"1,800","Applicant name Date of birth":"Gheorghe IFTODI 18/02/1973 Petru Marian VOINA 05/05/1973","Application no. Date of introduction":"26433/13 08/04/2013","End of proceedings":"15/04/2004 28/11/2012","No.":"","Representative name and location":"- Gabriela DIMA Bra\u0219ov","Start of proceedings":"09/02/2000 08/05/2008","Total length Levels of jurisdiction":"8 years and 10 months 3 levels of jurisdiction"},{"Amount awarded for costs and expenses per application (in euros)":"-","Amount awarded for non-pecuniary damage per applicant / household (in euros)":"500","Applicant name Date of birth":"Alexandru M\u00ceNDRU\u021a 03/01/1953","Application no. Date of introduction":"55369/13 23/08/2013","End of proceedings":"26/02/2013","No.":"","Representative name and location":"Gheorghe DRAGOMIR Bucharest","Start of proceedings":"27/02/2007","Total length Levels of jurisdiction":"6 years 3 levels of jurisdiction"}]c:[]},{"content":"2.\u00a0\u00a0The applicants were represented by Ms\u00a0M.\u00a0G\u0105siorowska and Ms\u00a0I.\u00a0Kotiuk, lawyers practising in Warszawa. They were assisted by Ms\u00a0Christina Zampas who was later replaced by Ms\u00a0J. Westeson, both of the Center for Reproductive Rights. The Polish Government (\u201cthe Government\u201d) were represented by their Agent, Mr J. Wo\u0142\u0105siewicz, succeeded by\u00a0Ms\u00a0J.\u00a0Chrzanowska, of the Ministry of Foreign Affairs.","elements":[]},{"content":"3.\u00a0\u00a0The applicants alleged, in particular, that the circumstances of their case had given rise to violations of Articles\u00a08, 3 and 5 of the Convention.","elements":[]},{"content":"4.\u00a0\u00a0On 29 September 2011 the application was communicated to the Government. The Court also decided to rule on the admissibility and merits of the application at the same time (Article\u00a029 \u00a7\u00a01).","elements":[]}],"section_name":"procedure"},{"content":"THE FACTS","elements":[{"content":"I.\u00a0\u00a0THE CIRCUMSTANCES OF THE CASE","elements":[{"content":"5.\u00a0\u00a0The applicants were born in 1993 and 1974 respectively and live in .","elements":[]},{"content":"6.\u00a0\u00a0On 9 April 2008 the first applicant went with a friend to the Public University Health Care Unit in . She said that she had been raped on 8 April 2008 by a boy of her own age. The medical staff told her that they could neither examine her nor provide medical assistance because she was a minor and the consent of her legal guardian was necessary. Dr E.D. reported the case to the police and notified the first applicant\u2019s parents.","elements":[]},{"content":"7.\u00a0\u00a0Later that day, after reporting that an offence of rape had been committed, the applicants attended at Public University Hospital no.\u00a04 in , accompanied by a female police officer. The second applicant gave her consent for an examination of her daughter to be carried out. The first applicant was in a state of emotional shock. At the hospital, psychological help was offered to her. Bruises on her body were confirmed by a family doctor several days after the alleged event took place, between 9 and 14\u00a0April 2008.","elements":[]},{"content":"8.\u00a0\u00a0The rape resulted in pregnancy. The applicants decided together that an abortion would be the best option, considering that the first applicant was a very young minor, that the pregnancy was the result of forced intercourse, and that she wanted to pursue her education.","elements":[]},{"content":"9.\u00a0\u00a0On 19 May 2008 the first applicant was questioned by the police. Her mother and the alleged perpetrator\u2019s defence lawyer were present during the questioning. The first applicant stated that the perpetrator had used force to hold her down and to overcome her resistance.","elements":[]},{"content":"10.\u00a0\u00a0On 20 May 2008 the District Prosecutor, referring to section\u00a04\u00a0(a) item 5 in fine of the Law on Family Planning (Protection of the Human Foetus and Conditions Permitting Pregnancy Termination) (\u201cthe 1993 Act\u201d) (see paragraph 54 below) issued a certificate stating that the first applicant\u2019s pregnancy had resulted from unlawful sexual intercourse with a minor under 15\u00a0years of age.","elements":[]},{"content":"A.\u00a0\u00a0Attempts to obtain an abortion in hospitals","elements":[{"content":"11.\u00a0\u00a0The second applicant went to the Ministry of Internal Affairs and Administration Hospital in to ask for a referral for an abortion. She was advised there to contact Dr O., the regional consultant for gynecology and obstetrics. Other doctors whom the second applicant contacted privately were also of the view that a referral from the regional consultant was necessary.","elements":[]},{"content":"12.\u00a0\u00a0The second applicant also went to another public hospital in (the Jan Bo\u017cy hospital) and contacted a chief physician there, Dr W.S., who suggested that the applicants meet with a Catholic priest. The second applicant refused.","elements"d:[]},{"content":"13.\u00a0\u00a0The second applicant then contacted Dr O. He told her that he was not obliged to issue a referral and advised the second applicant to \u201cget her daughter married\u201d. She left his office, but returned shortly afterwards as she was afraid that without the doctor\u2019s referral it would not be possible to obtain an abortion. He told her to report to the Jan Bo\u017cy hospital.","elements":[]},{"content":"14.\u00a0\u00a0On 26 May 2008 the applicants reported to that hospital. They were received by the acting chief physician. They clearly stated their intention to have the pregnancy terminated. They were told that they would have to wait until the head of the gynecological ward, Dr W.S., returned from holiday. They were told that it would be best for the first applicant to be hospitalised, with a view to blood and urine tests and an ultrasound scan being carried out. On the same day the first applicant was admitted to that hospital.","elements":[]},{"content":"15.\u00a0\u00a0On 30 May 2008 Dr W.S. returned from holiday and told the applicants that she needed time to make a decision. She asked them to return on 2\u00a0June. She then called the second applicant separately to her office and asked her to sign the following statement: \u201cI am agreeing to the procedure of abortion and I understand that this procedure could lead to my daughter\u2019s death.\u201d On the same day the first applicant was discharged from the hospital for the weekend.","elements":[]},{"content":"16.\u00a0\u00a0On the morning of 2 June 2008 the first applicant returned to the hospital alone as her mother was working.","elements":[]},{"content":"17.\u00a0\u00a0The applicants submitted that Dr W.S. took the first applicant for a talk with a Catholic priest, K.P. The first applicant was not asked what her faith was or whether she wished to see a priest. During the conversation it transpired that the priest had already been informed about the pregnancy and about the circumstances surrounding it.","elements":[]},{"content":"18.\u00a0\u00a0The Government disagreed with the above account by the applicants. They stated that the girl had wished to see the priest.","elements":[]},{"content":"19.\u00a0\u00a0During the conversation the priest tried to convince the first applicant that she should carry the pregnancy to term. The first applicant told him that she could not make the decision herself and that she relied on her parents in the matter. The priest asked her to give him her mobile phone number, which she did. She was given a statement written by Dr W.S. to the effect that she wanted to continue with the pregnancy and she signed it. The applicants submitted that she had signed it as she had not wanted to be impolite to the doctor and priest.","elements":[]},{"content":"20.\u00a0\u00a0When the second applicant arrived later, the priest spoke to her. She told him that it was the family\u2019s decision to terminate the pregnancy. Dr\u00a0W.S. told the second applicant that she was a bad mother. She presented her with the document signed by the first applicant and told her that the first applicant had decided to continue with the pregnancy. An argument took place between the doctor and the second applicant. The first applicant, who was present in the room, started to cry. The doctor said that she would adopt both the first applicant and the baby.","elements":[]},{"content":"21.\u00a0\u00a0Subsequently, Dr W.S. told the applicants that she would not perform the abortion, that under communism when abortion had been freely available no one had made her perform abortions, and that no doctor would have given permission for an abortion to be performed. According to the applicants, she also implied that none of the other doctors in the hospital would perform an abortion.","elements":[]},{"content":"22.\u00a0\u00a0The applicants left the hospital. The second applicant contacted the Federation for Women and Family Planning (Federacja na rzecz Kobiet i\u00a0Planowania Rodziny - hereinafter, \u201cthe Federation\u201d) in Warsawe for help, as after their experience in she was afraid that no one in that town would perform an abortion.","elements":[]},{"content":"23.\u00a0\u00a0On an unspecified date the Jan Bo\u017cy hospital issued a press release to the effect that it would not perform an abortion in the applicants\u2019 case. Journalists who contacted the hospital were informed of the circumstances of the case.","elements":[]},{"content":"24.\u00a0\u00a0The case became national news. A number of articles were published by various local and national newspapers. It was also the subject of various publications and discussions on the internet.","elements":[]}]},{"content":"B.\u00a0\u00a0Attempts to obtain an abortion in","elements":[{"content":"25.\u00a0\u00a0On 3 June 2008 the applicants went to and contacted a doctor recommended by the Federation. They were informed about the procedure and about the available options. In the afternoon the first applicant was admitted to a hospital in . She submitted to the hospital the certificate issued by the prosecutor (see paragraph\u00a010 above), and a medical certificate issued by the national consultant in gynecology to the effect that she had a\u00a0right to a lawful abortion. She signed a consent form to undergo an abortion and her parents also gave their written consent. Shortly afterwards the deputy head of the gynecological ward informed the applicants that he had received information from the hospital that the first applicant did not wish to have an abortion.","elements":[]},{"content":"26.\u00a0\u00a0On 4 June 2004 the applicants were told that the first applicant was obliged by law to wait another three days before having an abortion. On the same day the first applicant received a text message from Catholic priest K.P. that he was working on her case and that people from all over the country were praying for her. She also received numerous text messages along the same lines from a number of unknown third parties. The priest came to the hospital later in the day together with Ms\u00a0H.W., an\u00a0antiabortion activist. They were allowed to see the first applicant. They talked to her in her mother\u2019s absence and tried to persuade her to change her mind. In the evening an unidentified woman came to her room and tried to convince her to continue with the pregnancy. The first applicant was upset about this and about the fact that the hospital apparently had no control over who could approach her.","elements":[]},{"content":"27.\u00a0\u00a0On the same day the first applicant\u2019s father came to the hospital, apparently as he had been informed that his consent to the abortion was also necessary. A psychologist spoke with the first applicant\u2019s parents and then with the applicant. She apparently prepared an opinion on the case. The first applicant\u2019s parents were not given access to it. The doctor who had admitted the first applicant to the hospital told her that a lot of pressure had been put on the hospital with a view to discouraging it from performing the abortion, and that the hospital was receiving numerous e-mails from persons criticising the applicants for having decided to allow the first applicant to have an abortion.","elements":[]},{"content":"28.\u00a0\u00a0On 5 June 2008, feeling manipulated and helpless, the applicants decided to leave the hospital. As they were leaving, they were harassed by Ms\u00a0H.W. and Mr M.N.-K., anti-choice activists waiting at the hospital entrance. The mother stopped a taxi but the activists told the driver that her parental rights had been taken away and that she was trying to kidnap the first applicant. The driver refused to take them. Ms H.W. called the police. The police arrived promptly and took both applicants to the police station.","elements":[]}]},{"content":"C.\u00a0\u00a0The first applicant\u2019s placement in a juvenile shelter","elements":[{"content":"29.\u00a0\u00a0At the police station the applicants were questioned on the same day, from approximately 4\u00a0p.m. until 10 p.m. No food was offered to them. The officers showedf the applicants the family court decision which the police had received by fax at about 7 p.m. from the hospital. That decision, given by the Lublin Family Court, restricted the second applicant\u2019s parental rights and ordered the first applicant to be placed in a juvenile shelter immediately (see paragraph 34 below).","elements":[]},{"content":"30.\u00a0\u00a0Subsequently the police took the first applicant to a car. She was driven around in search of a juvenile shelter that would accept her. The second applicant was not permitted to accompany her daughter. As no place was found in Warsaw, the police drove the girl to , where she was placed in a shelter at approximately 4 a.m. on 6 June 2008. She was put in a locked room and her mobile phone was taken from her. On 6\u00a0June 2008 priest K.P. visited her there and told her that he would lodge an application with the court requesting it to transfer her to a single mother\u2019s home run by the Catholic church.","elements":[]},{"content":"31.\u00a0\u00a0A psychologist and an education specialist talked to her. She summarised the conversation thus:","elements":[]},{"content":"\u201cThey wanted to know the entire story and the Assistant Principal was present. I told them again about the entire affair with the hospitals and the abortion. They said that it would be better for me to give birth. They did not ask me about my view. I stayed locked in the room all day. I felt as though I was in a correctional facility, I had bars on the window and a locked door, it was not very pleasant.\u201d","elements":[]},{"content":"32.\u00a0\u00a0Later in the morning of that day the first applicant felt pain and experienced bleeding. In the late afternoon she was taken to the Jan Bo\u017cy hospital in . She was admitted to the maternity ward. A number of journalists came to see her and tried to talk to her.","elements":[]}]},{"content":"D.\u00a0\u00a0Proceedings before the Family and","elements":[{"content":"33.\u00a0\u00a0On 3 June 2008, acting upon a letter from the Lublin III Police Station and two letters from the headmaster of the school attended by the first applicant dated 26 and 27 May, and a note drawn up by a nonidentified authority, apparently a court supervisor (kurator), also on 3\u00a0June 2008, the Lublin Family and Custody Court instituted proceedings to divest the second applicant of her parental rights.","elements":[]},{"content":"In these letters the headmaster referred to a text message sent to a friend of the first applicant in which the first applicant had expressed serious distress and said that she could not count on her mother\u2019s assistance as she saw abortion as the only solution, and to a conversation between the first applicant and one of her teachers in which she had said that she wished to carry the pregnancy to term. She had also been concerned about the consequences, including psychological ones, that an abortion might have. The headmaster was of the view, relying on a conversation he had had with the class teacher and with the school social pedagogue, that the first applicant might be under pressure from her family. He was concerned that the second applicant had not sought psychological assistance for her daughter, who, it had been suggested by the school, might have suicidal tendencies. The second applicant had been requested to attend at the school; she had been shown the text message and told to make an appointment with a psychologist immediately and given all the necessary information for contacting a therapist.","elements":[]},{"content":"Enclosed with the letter was a print-out of a chat between the first applicant and her friend dated 7 May 2008. It transpired therefrom that in reaction to the news about the minor\u2019s pregnancy her father had become violent and had told her that if she wanted to keep her baby she would have to move out of the house; she also said that she did not know what to do and wanted her friend to help and the school to intervene.","elements":[]},{"content":"34.\u00a0\u00a0On the same date that court, sitting in cgamera, ordered the first applicant\u2019s placement in a juvenile shelter as an interim measure. In its decision the court stated that the documents referred to above demonstrated that the first applicant\u2019s parents did not take appropriate care of their daughter. She was pregnant; she had been admitted to the Lublin Jan Bo\u017cy hospital, which had refused to carry out an abortion having regard to the first applicant\u2019s statement that she did not wish to have recourse to it. The court had regard to text messages she had sent to her friend. Doctor W.S. had informed her about the consequences of an abortion. It was reported that the first applicant had travelled to with her mother in order to have an abortion performed there. The first applicant was under pressure from her mother and was unable to take a decision independently. Her hospital stays and the atmosphere in the family were harmful to her. She had to be separated from her family in her own interest. The court relied on Article\u00a0109 para\u00a01 (5) of the Family Code.","elements":[]},{"content":"35.\u00a0\u00a0On 6 June 2008 the second applicant appealed against that decision. On 9\u00a0June 2008 she filed with the court a written consent to her daughter\u2019s abortion, which she also submitted to the hospital. On 10\u00a0June 2008 she submitted a declaration by the first applicant stating that she wanted to have an abortion and that she was not being coerced into it.","elements":[]},{"content":"36.\u00a0\u00a0On 13 June 2008 the first applicant was questioned at the hospital by a criminal judge in the presence of a prosecutor and a psychologist, in the context of proceedings concerning allegations of coercion with a view to making her terminate her pregnancy. The first applicant testified that she had been forced into a sexual act which had resulted in pregnancy and that her mother had not forced her to make the decision to have a termination. The questioning started at 7.30 p.m. and lasted for three hours. The first applicant\u2019s parents were not permitted to be present. The first applicant did not have legal assistance or any other adult present to represent her as a minor. Later the same day the court allowed the second applicant to take her home. On 14\u00a0June 2008 she was discharged from the hospital.","elements":[]},{"content":"37.\u00a0\u00a0On 18 June 2008 the Lublin Family Court quashed its decision concerning the first applicant\u2019s placement in the shelter.","elements":[]},{"content":"38.\u00a0\u00a0On 18 February 2009 the Lublin Family and , relying mainly on an expert opinion prepared by the Family Diagnostic and Consultation Centre, held that there were no grounds on which to divest the first applicant\u2019s parents of their parental rights. It discontinued the proceedings.","elements":[]}]},{"content":"E.\u00a0\u00a0The applicants\u2019 contact with the Ministry of Health","elements":[{"content":"39.\u00a0\u00a0Between 9 and 13 June 2008 the second applicant filed a complaint with the Office for Patients\u2019 Rights of the Ministry of Health asking them to help her daughter obtain a lawful abortion, and submitted relevant documents, in particular the prosecutor\u2019s certificate. An official of the Ministry, K.U., informed the second applicant that her daughter\u2019s statement consenting to an abortion would have to be witnessed by three persons. When the second applicant informed him that the statement had in fact been signed in the presence of three witnesses, he told her that the witnesses\u2019 identification numbers were required and that the faxed copy had to be notarised.","elements":[]},{"content":"40.\u00a0\u00a0On 16 June 2008 the second applicant was informed by telephone by a Ministry official that the issue had been resolved and that her daughter could undergo an abortion. She was notified that she would have to go to Gda\u0144sk, in northern Poland, approximately 500 kilometers from their home in .","elements":[]},{"content":"41.\u00a0\u00a0On 17 June 2008 the Ministry of Health sent a car for the applhicants and they were driven to . The first applicant had an abortion in a public hospital there. The applicants submitted that the trip to and the abortion were carried out in a clandestine manner, despite the termination being lawful. When the applicants came back home, they realised that information about their journey to Gda\u0144sk had been put on the Internet by the Catholic Information Agency that day at 9 a.m.","elements":[]}]},{"content":"F.\u00a0\u00a0Various sets of criminal proceedings","elements":[{"content":"1.\u00a0\u00a0Against the first applicant","elements":[{"content":"42.\u00a0\u00a0On 1 July 2008 the Lublin District Court instituted proceedings against the first applicant on suspicion that she had committed a criminal offence punishable under Article 200 \u00a7 1 of the Criminal Code (sexual intercourse with a minor under 15 years of age). The first applicant was summoned to appear in court for questioning on 25\u00a0September 2008.","elements":[]},{"content":"43.\u00a0\u00a0On 20 November 2008 the proceedings were discontinued. The court held that the first applicant could only be considered the victim of a criminal offence, not the perpetrator.","elements":[]}]},{"content":"2.\u00a0\u00a0Against the perpetrator of the alleged rape","elements":[{"content":"44.\u00a0\u00a0On 28 August 2008 the second applicant informed the prosecutor that her daughter had been raped. According to her submissions, she was not aware that reporting the rape to the prosecuting authorities in May was not sufficient for an investigation to be instituted. The investigation against the perpetrator of the alleged rape was ultimately discontinued on 10\u00a0June 2011.","elements":[]}]},{"content":"3.\u00a0\u00a0Against the second applicant, the first applicant\u2019s father and two other persons","elements":[{"content":"45.\u00a0\u00a0 On 14 July 2008 the Warsaw-\u015ar\u00f3dmie\u015bcie District Prosecutor discontinued proceedings against the second applicant, the first applicant\u2019s father, Mrs\u00a0W.\u00a0N., and K.K., who worked for the Federation for Women and Family Planning, concerning a suspicion that the first applicant had been coerced into having an abortion against her will. The prosecutor found that they had no case to answer and observed that it was not open to doubt, in the light of the documents submitted by the applicants to the hospital, that she had a right to a lawful abortion.","elements":[]}]},{"content":"4.\u00a0\u00a0Against other persons","elements":[{"content":"46.\u00a0\u00a0 A second set of proceedings, discontinued on the same date, concerned a suspicion that unknown persons, including doctors from Lublin and , Catholic priests and members of anti-abortion organisations, had exerted pressure on the first applicant to dissuade her from having an abortion. The prosecutor found that there was no case to answer, because the criminal law did not penalise attempts to persuade a pregnant woman to carry the pregnancy to term as long as no physical violence was used.","elements":[]},{"content":"47.\u00a0\u00a0The second applicant appealed against that decision.","elements":[]}]},{"content":"5.\u00a0\u00a0Against Ms H.W. and Mr M.N.-K.","elements":[{"content":"48.\u00a0\u00a0On 21 November 2008 the Warsaw-\u015ar\u00f3dmie\u015bcie District Prosecutor discontinued proceedings that had been instituted against Ms H.W. and Mr\u00a0M.N.-K., finding that they had accosted the applicants when they were leaving the hospital in on 4 June 2008, but that they had no case to answer because no physical violence had been involved. On 19\u00a0September 2009 the Warsaw\u015ar\u00f3dmie\u015bcie District Court dismissed the applicants\u2019 appeal.","elements":[]}]},{"content":"6.\u00a0\u00a0Against the police officers","elements":[{"content":"49.\u00a0\u00a0On 17 September 2009 the Warsaw-\u015ar\u00f3dmie\u015bcie District Court dismissed the first applicant\u2019s appeal against a decision given on 26\u00a0May 2009 by the Warsaw-Sr\u00f3dmie\u015bcie District Prosecutor to discontinue criminal proceedings agaiinst the police officers who had detained her at the police station on the basis of the placement order. The prosecutor and the court found that the police officers had no case to answer.","elements":[]}]},{"content":"7.\u00a0Against various persons on charges of disclosure of confidential information","elements":[{"content":"50.\u00a0 On 31 October 2008 the LublinP\u00f3\u0142noc District Prosecutor upheld a decision given on an unspecified date by the police to discontinue an investigation into charges of unlawful disclosure of the applicants\u2019 personal data, finding that no criminal offence against the protection of personal data had been committed. No written grounds were prepared for these decisions as the law did not make it mandatory. The applicants appealed, submitting that when the first applicant had been in the hospital, information about her real name, condition and predicament was available and discussed on many internet fora. This caused considerable stress to the applicants. The medical data were particularly sensitive and their disclosure to the general public was unlawful. It was therefore necessary to establish the identity of the persons who had leaked the information to the public. On 31\u00a0March 2009 the dismissed the appeal, finding that the prosecutor\u2019s decision was lawful and correct.","elements":[]},{"content":"51.\u00a0\u00a0On 12 November 2008 the LublinP\u00f3\u0142noc District Prosecutor upheld a decision given on an unspecified date by the police to discontinue an investigation into charges of disclosure of information protected by law, an punishable under Article 266 of the Criminal Code committed by Dr W.S., possibly also by other doctors working at that hospital, \u00b2by the director of the hospital who had spoken to the press about the applicants\u2019 case and by priest K.P. The applicants appealed submitting that information about the applicants\u2019 situation had been disclosed to the general public.","elements":[]},{"content":"On 5 February 2009 the Lublin District Court dismissed the complaint, holding that the first applicant had not objected to the proposal to speak to the priest; that prior to her admission to the hospital information about her pregnancy was known in her school and to her friends and that the first applicant had not obliged the priest not to disclose information about her predicament to third parties. The court was of the view that it was well known that cases of teenage pregnancy gave rise to controversy and were normally widely discussed by third parties, social and church organisations engaged in the debate about such cases.","elements":[]}]}]}]},{"content":"II.\u00a0\u00a0RELEVANT DOMESTIC LAW AND PRACTICE","elements":[{"content":"52.\u00a0\u00a0The applicable provisions of domestic law are extensively summarised in the judgments of Tysi\u0105c v.\u00a0Poland, no.\u00a05410/03, 20\u00a0March 2007, and R.R. v. Poland, no.\u00a027617/04, 26 May 2011.","elements":[]},{"content":"53.\u00a0\u00a0In particular, the Law on Family Planning (Protection of the Human Foetus and Conditions Permitting Pregnancy Termination), which is still in force, was passed by Parliament in 1993. Section\u00a01 provided at that time: \u201cevery human being shall have an inherent right to life from the moment of conception\u201d.","elements":[]},{"content":"54.\u00a0\u00a0Section 4(a) of the 1993 Act reads, in its relevant part:","elements":[]},{"content":"\u201c1.\u00a0\u00a0An abortion can be carried out only by a physician and where","elements":[]},{"content":"1)\u00a0\u00a0pregnancy endangers the mother\u2019s life or health;","elements":[]},{"content":"2)\u00a0\u00a0prenatal tests or other medical findings indicate a high risk that the foetus will be severely and irreversibly damaged or suffer from an incurable lifethreatening ailment;","elements":[]},{"content":"3)\u00a0\u00a0there are strong grounds for believing that the pregnancy is the result of a criminal act.","elements":[]},{"content":"2.\u00a0\u00a0In the cases listed above under 2), an abortion can be pjerformed until such time as the foetus is capable of surviving outside the mother\u2019s body; and in cases listed under 3) above, until the end of the twelfth week of pregnancy.","elements":[]},{"content":"3.\u00a0\u00a0In the cases listed under 1) and 2) above, the abortion shall be carried out by a physician working in a hospital.","elements":[]},{"content":"...","elements":[]},{"content":"5.\u00a0\u00a0The circumstances in which abortion is permitted under paragraph 1, sub-paragraphs 1) and 2) above shall be certified by a physician other than the one who is to perform the abortion, unless the pregnancy entails a direct threat to the woman\u2019s life. The circumstances specified in paragraph 1, subparagraph 3) above shall be certified by a prosecutor. .\u201d","elements":[]}]}],"section_name":"facts"},{"content":"THE LAW","elements":[{"content":"I.\u00a0\u00a0THIRD PARTIES\u2019 SUBMISSIONS","elements":[{"content":"55.\u00a0\u00a0The Court will first set out the submissions received from the third parties who were granted leave to intervene in the case. It will then examine the admissibility and merits of the applicants\u2019 complaints under Articles\u00a03 and 8 of the Convention.","elements":[]},{"content":"A.\u00a0\u00a0The Polish Foundation for Human Rights","elements":[{"content":"56.\u00a0\u00a0In cases of sexual violence against women and girls, distress suffered by the victims is exacerbated by the risk of unwanted pregnancy or by actual pregnancy resulting from rape. A denial of timely access to necessary medical treatment for female victims of sexual assault, including legal abortion, exposes them to additional suffering and may constitute an act of inhuman or degrading treatment. The distress of a female victim of rape may also be amplified by the unauthorised release of confidential information concerning a rape-induced pregnancy.","elements":[]},{"content":"57.\u00a0\u00a0In the intervenor\u2019s view, it is the State\u2019s obligation, stemming from Article 3 of the Convention, to adopt detailed guidelines for the criminal justice system and health-care practitioners in order to prevent additional suffering for the victim. Therefore, developing a specialised procedure regulating conduct towards victims of sexual abuse would not only assist in collecting the necessary evidence but also, more importantly, validate and address sexual assault patients\u2019 concerns, minimise the trauma they may experience and promote their healing.","elements":[]},{"content":"58.\u00a0\u00a0In theory, the 1993 Act grants women a broad array of reproductive health services, for instance, medical, social and legal assistance, easy access to information and pre-natal testing, methods of family planning and oral contraceptives, and the possibility to terminate a pregnancy. However, despite the statutory wording, Polish women and girls face significant barriers when seeking these medical services in practice. Problems with effective access to legal abortion are reflected in governmental statistics on the execution of the Act: the official number of legal abortions carried out in is very low. In 2009 there were only 538 procedures of legal abortion nationwide. In 510 of those cases the termination was caused by embryopathological factors; 27 procedures were conducted in order to protect the life and health of the pregnant woman, and only 1 abortion was carried out on grounds of the registered pregnancy having been caused by a criminal act. No comprehensive analysis has been presented to explain such a small number of abortions. The third party considers the data collected by the Government highly unreliable and doubts whether they reflect the real situation. The data should be seen against the background of police statistics to the effect that 1,816 cases of rape were reported in 2009. The low figures for lawful abortions in connection with the enforcement of the 1993 Act prove only that women find it less complicated to terminate pregnancies illegally than under the provisions of that statute.","elements":[]},{"content"k:"59.\u00a0\u00a0Furthermore, in practice the \u201cconscience\u201d clause is often misused. Apart from being used by individual doctors, who fail to refer the patient to another hospital, it is also invoked by entire healthcare facilities, including public ones. Although the problem of such abuse is widely recognised, no effective monitoring mechanism has been put in place to ensure that women\u2019s right to abortion is respected.","elements":[]}]},{"content":"B.\u00a0\u00a0The Rule of Law Institute,","elements":[{"content":"60.\u00a0\u00a0Issues involving the legal definition of and protection of human life, the determination of the conditions for its acceptable termination, and the understanding of privacy and freedom of conscience are issues of fundamental importance deeply rooted in the culture of each society. The definition of the temporal limits of human life falls within the margin of appreciation of the States Parties. It is not the Court\u2019s task to question the doctors\u2019 and State authorities\u2019 decisions on the acceptability of abortion. It has been acknowledged in the Court\u2019s case-law that the acceptance of termination of pregnancy should be left to decisions given by the democratically elected national authorities. This approach is based on the values underpinning the Convention, such as respect for individual freedom and dignity. Understanding of notions of life and parenthood is so strongly linked to personal freedom and dignity and also to the spiritual values common to the nation that their protection cannot be taken out of the national sphere. In the examination of any case the Court should also have regard to the social and cultural specificity of .","elements":[]},{"content":"61.\u00a0\u00a0The notion of private life within the meaning of Article\u00a08 of the Convention is not unlimited. Termination of pregnancy cannot be said to belong exclusively to the sphere of the mother\u2019s private life. When a woman becomes pregnant her life becomes closely bound up with the developing child. It is not open to doubt that each decision on abortion is seriously harmful to the mother. It has long-lasting effects on her body and psyche. A\u00a0woman who has decided to have an abortion for whatever dramatic reason must be treated with the utmost care and protection so as to avoid her dignity being threatened any further. This obligation of assistance rests in particular on the State officials responsible for handling such cases.","elements":[]}]},{"content":"C.\u00a0\u00a0The Coram Children\u2019s Legal Centre, London","elements":[{"content":"62.\u00a0\u00a0The unique, special position of children has been expressly recognised in many international human rights instruments. The best interests of the child shall be a primary consideration in proceedings touching on its situation. The best interests of the child can only be assessed properly by reference to the views, wishes and feelings of the child. Failure to establish the child\u2019s views may render any decision as to what those best interests are, and how they are best met, unsafe and unlawful. This principle applies irrespective of the type of decision or subject matter of the decision to be taken and is applicable to judicial decision-making and to administrative proceedings. The United Nations Committee on the Rights of the Child (CRC) has emphasised the need to provide appropriate child-sensitive procedural accommodation to enable children to take part in decision-making and legal proceedings.","elements":[]},{"content":"63.\u00a0\u00a0The rights protected by Article 8 of the Convention encompass protection of health and other personal information. Children are entitled to the same, if not higher, protection against nonconsensual disclosure of their health and other personal information to third parties, in view of their vulnerability. The CRC observed that confidential medical information concerning adolescents may only be disclosed with the consent of the person concerned or in the same situation applied to adults. Confidentialilty is essential to promote the use of health services by adolescents. Other international bodies have consistently recognised the need to respect children\u2019s privacy in matters of health as well as when they are victims of crime.","elements":[]},{"content":"64.\u00a0\u00a0Separation by public authorities amounts to an interference with the family\u2019s rights. While authorities enjoy a wide margin of appreciation in assessing the need to take a child into care, the court must still be satisfied that genuine emergency circumstances existed justifying a child\u2019s abrupt removal from her parents\u2019 care without consultation. The State has the burden of demonstrating that it has engaged in a careful assessment of the impact of the separation on the family and of the available alternatives.","elements":[]},{"content":"65.\u00a0\u00a0In the context of a child\u2019s placement in a juvenile centre there must be a relationship between the ground of permitted deprivation of liberty relied on and the conditions of detention. A care order resulting in placing a child in a locked room in a juvenile shelter can only be made when the child is in such danger that it is impossible for him or her to remain in the family environment. Care orders do not fall into the exhaustive list of permitted deprivations of liberty set out in Article 5 \u00a7 1 of the Convention.","elements":[]}]},{"content":"D.\u00a0\u00a0European Centre for Law and Justice,","elements":[{"content":"66.\u00a0\u00a0The principle of the sanctity of life has been recognised by the Court. The right to life is an inalienable attribute of human beings and forms the supreme value in the hierarchy of human rights. Life is not merely a private good and right; it is also a public good, which explains why it should by protected by criminal law. Moreover, pregnancy does not concern merely the mother\u2019s private life.","elements":[]},{"content":"67.\u00a0\u00a0The Convention does not formulate any limitations as to the temporal scope of the protection of the right to life; it protects \u201ceveryone\u201d. Every human life forms a continuum which begins at conception and advances towards death. Developments in in vitro fertilisation, abortion and euthanasia give rise to situations where the legal protection of life does not coincide with the natural temporal limits of life. The Court has accepted, referring to their margin of appreciation, that States are entitled to determine the moment from which that protection is accorded to a foetus. The Court has also accepted that a foetus belongs to the human race and should be protected as such.","elements":[]},{"content":"68.\u00a0\u00a0Abortion amounts to an exception or derogation from the principle that human life should be protected. There is no right to abortion as such; it must be regarded only as an exception to the rule. The Convention itself does not guarantee a right to abortion. Its Article 8 does not confer such a right on women. The Convention and its Protocols must be interpreted in the light of present-day conditions; however, the Court cannot, by means of an evolutive interpretation, derive from these instruments a right that was not included therein at the outset. This is particularly so here, where the omission was deliberate.","elements":[]},{"content":"69.\u00a0\u00a0Where a State allows for legal abortion, it remains under a positive obligation to protect life and to strike a balance between competing interests. Such legitimate interests must be taken into account adequately and in accordance with the obligations deriving from the Convention. Making abortion lawful does not exempt the State from its responsibility to limit recourse to it and to restrict its consequences for the exercise of fundamental rights. The fundamental rights to life and to health cannot be put on the same footing as the alleged right to abortion. These rights cannot be balanced against each other. The obligation of the State is even stronger where vulnerable persons are concerned who need to be protected against pressure exermted on them, including by their own family environment. The State should be obliged to help pregnant women respect and nurture life. When a pregnant woman envisages abortion, it is the responsibility of the State to ensure that such a decision has not been taken as a result of external pressure.","elements":[]},{"content":"70.\u00a0\u00a0Medical professionals are entitled to refuse to provide medical services. This entitlement originates in their moral obligation to refuse to carry out immoral orders. The Court in its case-law has confirmed the supremacy of moral sense over positive law. Respect for the life of a human being underpins the right to conscientious objection in the medical sphere. Medical practitioners should not be obliged to perform abortion, euthanasia or in vitro fertilisation against their will and against their principles. A possible solution for this dilemma would be to establish a register of physicians qualified and willing to perform lawful abortions.","elements":[]}]},{"content":"E.\u00a0\u00a0Amnesty International","elements":[{"content":"71.\u00a0\u00a0The United Nations Committee on the Rights of the Child has emphasised most strongly that the term \u201cviolence\u201d must not be interpreted in such a way as to minimise the impact of, and the need to address, nonphysical and/or non-intentional forms of harm, such as, inter alia, neglect and psychological maltreatment. That Committee defined inhuman or degrading treatment as \u201cviolence in all its forms against children in order to extract a confession, [or] to extrajudicially punish children for unlawful or unwanted behaviours\u201d. Unwanted behaviour in this regard may be understood broadly to include a child\u2019s desire to terminate an unwanted pregnancy and to exercise the right to freedom of conscience.","elements":[]},{"content":"72.\u00a0\u00a0The Inter-American Commission on Human Rights has remarked that victims of sexual violence cannot fully exercise their human rights unless they have access to comprehensive health-care services and information. Providing such care to victims of sexual violence should be treated as a policy priority.","elements":[]},{"content":"73.\u00a0\u00a0The United Nations Special Rapporteur on Violence against Women has noted that certain violations entail different harms for men and women and therefore require different reparation regimes to remedy the wrongdoing. Unwanted pregnancies are part of this gender-specific harm. Where States fail to take a comprehensive and gender-based approach to remedying sexual violence, this may cause additional suffering.","elements":[]},{"content":"74.\u00a0\u00a0The United Nations Committee on the Elimination of Discrimination against Women has recommended that States take measures to prevent coercion in regard to fertility and reproduction and to ensure that women are not forced to seek unsafe medical procedures such as illegal abortion because of a lack of appropriate services in regard to fertility control. Denial of available and legal means to prevent or terminate an unwanted pregnancy would constitute coercion.","elements":[]},{"content":"75.\u00a0\u00a0The Human Rights Committee has pointed out that the extent to which a State provides rape victims with access to safe abortion is of particular relevance to an assessment of that State\u2019s compliance with the prohibition of cruel, inhuman and degrading treatment. Given the fact that the mental distress caused by unwanted pregnancy is likely to grow over time, substantial delay in the provision of voluntary abortion services after rape may cause severe suffering. It is not enough for the State to decriminalise abortion on paper; adequate procedures must be put in place to ensure the provision of legal medical services so that both law and practice are in conformity with the international legal obligations of the State under the UN Convention against Torture.","elements":[]},{"content":"76.\u00a0\u00a0Unauthorised release of confidential information about patient care and health violates the patient\u2019s rnight to privacy. It may, in addition, deter women from seeking advice and treatment they need, thereby adversely affecting their health and well-being. The United Nations Committee on the Elimination of Discrimination against Women has held that breaches of confidentiality are particularly likely to render women \u201cless willing to seek medical care ... for incomplete abortion and in cases where they have suffered sexual or physical violence\u201d. Indeed, the general stigma attached to abortion and to sexual violence has been shown to deter women from seeking medical care, causing much distress and suffering, both physically and mentally.","elements":[]},{"content":"77.\u00a0\u00a0States have an obligation to ensure that their policies favour the best interests of the child, and to give due weight to the views of the child in all matters affecting him or her, in accordance with the age and maturity of the child. The United Nations Committee on the Rights of the Child has clarified that children\u2019s rights to be heard and to have their views given due weight must be respected systematically in all decision-making processes, and their empowerment and participation should be central to child caregiving and protection.","elements":[]},{"content":"When medical personnel subjects a child to sustained and aggravated harassment with a view to getting her to continue an unwanted pregnancy she has already and repeatedly asked to terminate, this constitutes mental violence, applied by persons who have power over the child, for the purposes of forcing her to engage in an activity against her will and, potentially, punishing her for unwanted behaviour.","elements":[]}]}]},{"content":"II.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION AS REGARDS THE DETERMINATION OF ACCESS TO LAWFUL ABORTION","elements":[{"content":"78.\u00a0\u00a0The applicants complained that the facts of the case gave rise to a breach of Article 8 of the Convention. They submitted that their right to due respect for their private and family life and for the first applicant\u2019s physical and moral integrity had been violated by the absence of a comprehensive legal framework guaranteeing her timely and unhindered access to abortion under the conditions set out by the applicable laws.","elements":[]},{"content":"Article 8 of the Convention, in so far as relevant, reads as follows:","elements":[]},{"content":"\u201c1.\u00a0\u00a0Everyone has the right to respect for his private ... life ...","elements":[]},{"content":"2.\u00a0\u00a0There 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.\u201d","elements":[]},{"content":"A.\u00a0\u00a0Admissibility","elements":[{"content":"1.\u00a0\u00a0The first applicant\u2019s status as a victim","elements":[{"content":"79.\u00a0\u00a0The Government submitted that the first applicant could not claim to be the victim of a breach of the Convention. The national authorities had fulfilled their positive obligation of not only ensuring a legal framework for carrying out an abortion, but, first and foremost, of guaranteeing effective measures leading to the implementation of that right. Therefore, the procedures applied by the national authorities had to be recognised as guaranteeing rights which were not only theoretical or illusory, but also practical and effective, and thus met the standards laid down in the Convention and the Court\u2019s caselaw.","elements":[]},{"content":"80.\u00a0\u00a0The applicants submitted that the first applicant remained a victim of a\u00a0breach of Article 8 of the Convention, despite ultimately, after long and protracted efforts, having undergone an abortion. The applicants had never claimed that the first applicant\u2019s rights had beeon violated because she had not been allowed access to an abortion. The core of her complaint was that the State\u2019s actions and systemic failures in connection with the circumstances concerning the determination of her access to abortion, seen as a whole, as well as the clandestine nature of the abortion, had resulted in a\u00a0violation of Article\u00a08.","elements":[]},{"content":"81.\u00a0\u00a0The unwillingness of numerous doctors to provide a referral for abortion or to carry out the lawful abortion as such constituted evidence of the State\u2019s failure to enforce its own laws and to regulate the practice of conscientious objection. Both applicants had been misled by the doctors and the authorities as to the applicable procedure and requirements for lawful abortion. The first applicant had been given unwanted counselling by a priest, harassed by doctors and bullied by persons informed of her situation by the doctors and the priest. She had also been unlawfully torn from her mother\u2019s custody and put into detention. When she had finally been allowed to obtain the abortion that she lawfully sought, that abortion had been performed in a clandestine manner, in a hospital five hundred kilometres from her home town.","elements":[]},{"content":"82.\u00a0\u00a0The State had failed to take appropriate measures to address the systemic and deliberate violations which had breached the applicants\u2019 right to respect for their private life. The set of circumstances surrounding the applicants\u2019 efforts to secure a lawful abortion for the first applicant had not been remedied by the fact that she had ultimately obtained it. The first applicant had not lost her victim status because the State had not acknowledged any of the alleged violations, nor had it provided redress.","elements":[]},{"content":"83.\u00a0\u00a0The Court observes that the scope of the present complaint is not limited to the mere question of access to abortion: the applicants neither challenged the Polish abortion legislation as such nor complained that the first applicant had been denied access to an abortion. Rather, the Court\u2019s task is to examine the issues arising in connection with the procedural and practical modalities for the determination of the lawfulness of such access and, in particular, whether due regard for the applicants\u2019 right to respect for their private and family life was had by the authorities throughout the events concerned. The fact that the first applicant ultimately obtained access to an abortion does not, by itself, deprive the applicants of their status of victims of the alleged breach of the Convention. To that extent the Government\u2019s preliminary objection must therefore be dismissed.","elements":[]},{"content":"84.\u00a0\u00a0The Court considers that the issue of the applicants\u2019 status as victims of the alleged violation of the Convention is closely linked to the substance of their complaint under Article 8 of the Convention, and should be joined to the merits of the case.","elements":[]}]},{"content":"2.\u00a0\u00a0Exhaustion of domestic remedies","elements":[{"content":"85.\u00a0\u00a0The Government submitted that the applicants had failed to exhaust relevant domestic remedies. The Polish legal system provided for legal avenues which made it possible by means of civil compensation claims under Articles\u00a0417, 444 and 448 of the Civil Code, or Articles\u00a023 and 24 of that Code, to establish liability on the part of the doctors concerned for any damage caused by medical malpractice. The Government referred to judgments given by the Supreme Court in the cases of V\u00a0CK\u00a0167/03 and\u00a0V\u00a0CJ\u00a0\u00a0161/05, given on 21\u00a0November 2003 and 13 October 2005 respectively.","elements":[]},{"content":"86.\u00a0\u00a0The applicants submitted that they had had no legal means at their disposal in order to challenge the individual doctors or the decisions made by the hospital. Likewise, no remedy had been available to them in order to contest the failure to provide them with appropripate information in respect of the determination of access to abortion. The applicants had exhausted all possible effective domestic criminal-law remedies. Given the intentional nature of the acts and omissions by the State in this case, and the resulting serious impact on the applicants\u2019 personal integrity and fundamental values, the remedy most appropriate in the circumstances of this case was a\u00a0criminallaw remedy (see M.C. v.\u00a0Bulgaria, no.\u00a039272/98,\u00a0\u00a7\u00a7\u00a014853, ECHR\u00a02003-XII, and X and Y v.\u00a0the Netherlands, cited above, \u00a7\u00a7\u00a023-24).","elements":[]},{"content":"87.\u00a0\u00a0The first applicant submitted that civil proceedings in this case would not have provided her with sufficient and effective remedies to vindicate her right to respect for her private life. She was a young and vulnerable rape victim, whose identity would have been disclosed to the public during civil proceedings. This would have resulted in double victimisation. She had been in a weak position and completely dependent on the doctors. The Court in M.C. v. Bulgaria stressed that \u201c[children and other vulnerable individuals, in particular, are entitled to effective [criminal-law] protection.\u201d (M.C. v.\u00a0Bulgaria, cited above, \u00a7\u00a0150). Applicants should therefore not be required, in the absence of a successful criminal prosecution, to obtain redress by bringing a civil action for damages.","elements":[]},{"content":"88.\u00a0\u00a0The Court considers that the Government\u2019s objection concerning the alleged failure to exhaust domestic remedies by way of pursuing a compensation claim before the civil courts in respect of this part of the application is closely linked to the substance of the applicants\u2019 complaints under Article\u00a08 of the Convention, and should therefore be joined to the merits of the case.","elements":[]},{"content":"89.\u00a0\u00a0The Court further notes that this part of the application is not manifestly illfounded within the meaning of Article\u00a035 \u00a7\u00a03 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.","elements":[]}]}]},{"content":"B.\u00a0\u00a0Merits","elements":[{"content":"1.\u00a0\u00a0The parties\u2019 submissions","elements":[{"content":"90.\u00a0\u00a0The Government submitted that decisions concerning the carrying out of abortions belonged to the sphere of private, not family, life. Hence, solely women were able to make the relevant decisions, within the limits set by the national legal framework. They referred to the case of Boso v. Italy, where the Court had held that Article\u00a08 of the Convention did not give a potential father any right to participate in the decision-making as to whether or not to carry out an abortion (see Boso v.\u00a0Italy (dec.), no.\u00a050490/99, 5\u00a0September 2002). Therefore this provision could not be regarded as conferring such a right on the mother of the woman seeking an abortion.","elements":[]},{"content":"91.\u00a0\u00a0The fact that at the material time the first applicant was a minor did not confer on her mother, the second applicant, any rights under Article\u00a08 of the Convention. While parental authority was a necessary element of family life, the scope and imperative nature of parental authority changed as the child developed and the functioning of the family had to be subordinated to the child\u2019s interests. Therefore, there had been no violation of the second applicant\u2019s rights guaranteed by Article 8 of the Convention.","elements":[]},{"content":"92.\u00a0\u00a0As regards the second applicant, the Government argued that the instant case differed fundamentally from the case of Tysi\u0105c v. Poland, because ultimately the applicant had had access to an abortion within the timelimit provided for by the statute. The legal conditions for a lawful abortion had existed in the present case and there had never been any dispute between the first applicant and the doctors whether the condqitions for a legal abortion obtained. The refusal to perform an abortion at the hospital had resulted from the statutory right of a doctor to refrain from performing medical services contrary to his or her conscience, the so-called \u201cconscience clause\u201d provided for under Article\u00a039 of the Doctor and Dentist Professions Act. That Act obliged a doctor to refer the patient to another physician. The doctors in that hospital had failed to refer the applicants to another medical practitioner, but that had not been to the first applicant\u2019s detriment because she had ultimately obtained access to an abortion in a public hospital within the time limit provided for by law. Hence, it could not be said that in the circumstances of the present case there had been no procedural mechanism available with a view to determining access to a lawful abortion.","elements":[]},{"content":"93.\u00a0\u00a0The applicants submitted that the absence of a comprehensive legal framework governing the practice of conscientious objection and ensuring access to lawful termination of pregnancy in medical facilities had allowed the doctors to deny the first applicant her right to terminate her pregnancy in a respectful, dignified and timely manner. The applicants had been given contradictory and inaccurate information about the legal conditions that had to be met to obtain a lawful abortion (the waiting time, the necessary documents, the formal requirements which such documents had to meet, the necessity for parental consent by both parents). They had thus been hindered in taking a free decision on the matter of an abortion.","elements":[]}]},{"content":"2.\u00a0\u00a0The Court\u2019s assessment","elements":[]}]},{"content":"(a)\u00a0\u00a0General principles","elements":[{"content":"94.\u00a0\u00a0The essential object of Article 8 is to protect the individual against arbitrary interference by public authorities. Any interference under the first paragraph of Article\u00a08 must be justified in terms of the second paragraph as being \u201cin accordance with the law\u201d and \u201cnecessary in a democratic society\u201d for one or more of the legitimate aims listed therein. According to the Court\u2019s settled case-law, the notion of necessity implies that the interference corresponds to a pressing social need and, in particular, that it is proportionate to one of the legitimate aims pursued by the authorities (see, among other authorities, Olsson v.\u00a0Sweden (No.\u00a01), 24\u00a0March 1988, \u00a7\u00a067, Series A no.\u00a0130).","elements":[]},{"content":"95.\u00a0\u00a0In addition, there may also be positive obligations inherent in effective \u201crespect\u201d for private life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of relations between individuals, including both the provision of a regulatory framework of adjudicatory and enforcement machinery protecting individuals\u2019 rights, and the implementation, where appropriate, of specific measures (see, among other authorities, X and Y v.\u00a0the Netherlands, 26\u00a0March 1985, \u00a7\u00a023, Series\u00a0A no.\u00a091).","elements":[]},{"content":"96.\u00a0\u00a0The Court has previously found States to be under a positive obligation to secure to their citizens the right to effective respect for their physical and psychological integrity (see, among many other authorities, Glass v.\u00a0the United Kingdom, no.\u00a061827/00, \u00a7\u00a7\u00a074-83, ECHR 2004II; Sentges v.\u00a0the Netherlands (dec.), no.\u00a027677/02, 8\u00a0July 2003; Pentiacova and Others v.\u00a0Moldova (dec.), no.\u00a014462/03, ECHR 2005-...; Carlo Dossi and others v.\u00a0Italy, (dec.), no.\u00a026053/07, 12\u00a0October 2010; Yard\u0131mc\u0131 v.\u00a0Turkey, no.\u00a025266/05, 5 January 2010\u00a0; \u00a7\u00a7\u00a055-56; Geceku\u015fu v.\u00a0Turkey (dec.), no.\u00a028870/05, 25\u00a0May 2010). These obligations may involve the adoption of measures including the provision of an effective and accessible means of protectinrg the right to respect for private life (see, among other authorities, McGinley and Egan v.\u00a0the United Kingdom, 9\u00a0June 1998, \u00a7\u00a0101, Reports of Judgments and Decisions 1998III; and Roche v. the United Kingdom [GC], no.\u00a032555/96, \u00a7\u00a0162, ECHR 2005X).","elements":[]},{"content":"While the Court has held that Article 8 cannot be interpreted as conferring a right to abortion, it has found that the prohibition of abortion when sought for reasons of health and/or wellbeing falls within the scope of the right to respect for one\u2019s private life and accordingly of Article\u00a08 (see A, B and C v. Ireland [GC], no.\u00a025579/05, \u00a7\u00a0245, 16\u00a0December 2010, \u00a7\u00a0214). In particular, the Court held in this context that the State\u2019s obligations include both the provision of a regulatory framework of adjudicatory and enforcement machinery protecting individuals\u2019 rights, and the implementation, where appropriate, of specific measures (Tysi\u0105c v.\u00a0Poland, cited above, \u00a7\u00a0110; A, B and C v.\u00a0 [GC], cited above, \u00a7\u00a0245; and R.R. v. Poland, cited above, \u00a7\u00a0184).","elements":[]},{"content":"97.\u00a0\u00a0The Court has already found that there is indeed a consensus amongst a substantial majority of the Contracting States of the Council of Europe towards allowing abortion and that most Contracting Parties have in their legislation resolved the conflicting rights of the foetus and the mother in favour of greater access to abortion (see (A, B and C v. Ireland [GC], cited above, \u00a7\u00a7\u00a0235 and 237). In the absence of such a common approach regarding the beginning of life, the examination of national legal solutions as applied to the circumstances of individual cases is of particular importance for the assessment of whether a fair balance between individual rights and the public interest has been maintained (see also, for such an approach, A, B and C v.\u00a0Ireland, cited above, \u00a7\u00a0229-241).","elements":[]},{"content":"98.\u00a0\u00a0Since the nature of the right to decide on the termination of a pregnancy is not absolute, the Court is of the view that the circumstances of the present case are more appropriately examined from the standpoint of the respondent State\u2019s positive obligations arising under Article\u00a08 of the Convention (see, mutatis mutandis, Tysi\u0105c v.\u00a0Poland, cited above, \u00a7\u00a0108).","elements":[]},{"content":"99.\u00a0\u00a0Finally, the Court reiterates that in the assessment of the present case it should be borne in mind that the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective (see Airey v.\u00a0Ireland, 9\u00a0October 1979, \u00a7\u00a024, Series A no.\u00a032). The Court has already found in the context of similar cases against Poland that once the State, acting within its limits of appreciation, adopts statutory regulations allowing abortion in some situations, it must not structure its legal framework in a way which would limit real possibilities to obtain an abortion. In particular, the State is under a positive obligation to create a procedural framework enabling a pregnant woman to effectively exercise her right of access to lawful abortion (Tysi\u0105c v. Poland, cited above, \u00a7\u00a0116124, R.R. v.\u00a0Poland, cited above, \u00a7\u00a0200). The legal framework devised for the purposes of the determination of the conditions for lawful abortion should be \u201cshaped in a coherent manner which allows the different legitimate interests involved to be taken into account adequately and in accordance with the obligations deriving from the Convention\u201d (A, B and C v.\u00a0 [GC], cited above, \u00a7\u00a0249). Whilst Article\u00a08 contains no explicit procedural requirements, it is important for the effective enjoyment of the rights guaranteed by that provision that the relevant decisionmaking process is fair and such as to afford due respect for the interests safeguarded by it. What has to bes determined is whether, having regard to the particular circumstances of the case, and notably the nature of the decisions to be taken, an individual has been involved in the decision-making process, seen as a whole, to a degree sufficient to provide her or him with the requisite protection of their interests (see, mutatis mutandis, W. v. the United Kingdom, 8\u00a0July 1987, \u00a7\u00a7\u00a062 and\u00a064, Series A no.\u00a0121). The Court has already held that in the context of access to abortion the relevant procedure should guarantee to a pregnant woman at least the possibility to be heard in person and to have her views considered. The competent body or person should also issue written grounds for its decision (see Tysi\u0105c v. Poland, cited above, \u00a7\u00a0117).","elements":[]}]},{"content":"(b)\u00a0\u00a0Application of the principles to the circumstances of the present case","elements":[{"content":"100.\u00a0\u00a0The Court first notes that the 1993 Act provides for the possibility of lawful abortion in certain narrowly defined situations. In its judgments referred to above the Court has already highlighted the importance of procedural safeguards in the context of the implementation of the 1993 Act when it comes to determining whether the conditions for lawful abortion provided for by that Act obtain. It held that Polish law did not contain any effective procedural mechanisms capable of determining whether these conditions were fulfilled in an individual case, either in the context of a dispute between a pregnant woman and doctors as to whether the conditions for lawful abortion on grounds of a threat to the woman\u2019s health were met (see Tysi\u0105c v.\u00a0Poland, cited above, \u00a7\u00a7\u00a0119\u2013124), or in the context of possible foetal malformation confirmed by an initial diagnosis (see R.R. v.\u00a0Poland, cited above, \u00a7\u00a0200 and 207).","elements":[]},{"content":"The present case differs from those two cases in that it concerns an unwanted pregnancy resulting from rape. Under Article\u00a04 (a)\u00a01 (5) of the 1993 Act abortion can lawfully be carried out where there are strong grounds for believing that the pregnancy was the result of a criminal act, certified by a prosecutor.","elements":[]},{"content":"101.\u00a0\u00a0The Court now has to examine how the legal framework was applied to the applicants\u2019 case.","elements":[]},{"content":"102.\u00a0\u00a0In this connection, the Court observes that the first applicant received from the public prosecutor the certificate referred to above (see paragraph 10 above). However, the applicants contacted public hospitals in considerable difficulties arose in obtaining access to an abortion. They received contradictory information as to whether they needed a referral in addition to the certificate from the prosecutor, as to who could perform the abortion, who could make a decision, whether there was any waiting time prescribed by law, and what other conditions, if any, had to be complied with. Ultimately, after an argument with the second applicant, a head of the gynaecological ward at the Lublin Jan Bo\u017cy hospital refused to allow the abortion to be performed in her ward, relying on her personal views. The Court notes that the second applicant was requested to sign a consent form to the first applicant\u2019s abortion which warned that the abortion could lead to her daughter\u2019s death (see paragraph\u00a015 above). No cogent reasons have been advanced to show that there were special grounds on which in the circumstances of the case an abortion could entail such danger.","elements":[]},{"content":"103.\u00a0\u00a0The applicants subsequently travelled to , where the first applicant was admitted to another hospital. She was told there that she could have an abortion on the basis of the certificate issued by the prosecutor (see paragraph\u00a010 above) and a medical certificate issued by the national consultant in gynaecology to the effect that she had a right to an abortion. However, the applicants were told that the first applticant was obliged by law to wait another three days before having an abortion. A psychologist spoke with the first applicant\u2019s parents and with the first applicant. She apparently prepared an opinion on the case, to which the second applicant was not allowed access. The doctor who had admitted the first applicant to the hospital told her that a lot of pressure had been put on the hospital with a view to discouraging it from performing the abortion, and that the hospital had received numerous e-mails from persons criticising the applicants for the decision to have an abortion.","elements":[]},{"content":"104.\u00a0\u00a0Further, when the second applicant filed a complaint with the Office for Patients\u2019 Rights of the Ministry of Health asking them to help her daughter obtain a lawful abortion, a Ministry official told her that the daughter\u2019s statement consenting to an abortion would have to be witnessed by three persons. When the second applicant told him that that statement had in fact been signed in the presence of three witnesses, he informed her that the witnesses\u2019 identification numbers were required and that the faxed copy had to be notarised.","elements":[]},{"content":"105.\u00a0\u00a0Ultimately, the applicants were notified by the Ministry of Health that to have an abortion the first applicant would have to go to a public hospital in . The Court notes that that hospital was approximately 500 kilometres from the applicant\u2019s home. The Court fails to see any justification for such an arrangement in respect of the provision of a lawful medical service. It has not been argued, let alone shown, that such a service was not available in a medical establishment closer to the applicants\u2019 normal address.","elements":[]},{"content":"106.\u00a0\u00a0In so far as the Government referred in their submissions to the right of physicians to refuse certain services on grounds of conscience, relying on Article 9 of the Convention, the Court reiterates that the word \u201cpractice\u201d used in Article 9 \u00a7 1 does not denote each and every act or form of behaviour motivated or inspired by a religion or a belief (see, among many other authorities, Pichon and Sajous v.\u00a0France (dec.), no.\u00a049853/99, ECHR 2001-X). For the Court, States are obliged to organise their health service system in such a way as to ensure that the effective exercise of freedom of conscience by health professionals in a professional context does not prevent patients from obtaining access to services to which they are entitled under the applicable legislation (see R.R. v.\u00a0Poland, cited above, no.\u00a027617/04, \u00a7\u00a0206).","elements":[]},{"content":"107.\u00a0\u00a0In this connection, the Court notes that Polish law has acknowledged the need to ensure that doctors are not obliged to carry out services to which they object, and put in place a mechanism by which such a refusal can be expressed. This mechanism also includes elements allowing the right to conscientious objection to be reconciled with the patient\u2019s interests, by making it mandatory for such refusals to be made in writing and included in the patient\u2019s medical record and, above all, by imposing on the doctor an obligation to refer the patient to another physician competent to carry out the same service. However, it has not been shown that these procedural requirements were complied with in the present case or that the applicable laws governing the exercise of medical professions were duly respected.","elements":[]},{"content":"108.\u00a0\u00a0On the whole, the Court finds that the staff involved in the applicants\u2019 case did not consider themselves obliged to carry out the abortion expressly requested by the applicants on the strength of the certificate issued by the prosecutor.\u00a0\u00a0The events surrounding the determination of the first applicant\u2019s access to legal abortion were marred by procrastination and confusion. The applicants were given misleading and contradictory information. They did not receive appropriate and objeuctive medical counselling which would have due regard to their own views and wishes. No set procedure was available to them under which they could have their views heard and properly taken into consideration with a modicum of procedural fairness.","elements":[]},{"content":"109.\u00a0\u00a0As to the second applicant, the Court is fully aware that the issues involved for her in the case were different from those of the first applicant. The Court acknowledges that in a situation of unwanted pregnancy the mother of a minor girl is not affected in the same way. It is of the view that legal guardianship cannot be considered to automatically confer on the parents of a minor the right to take decisions concerning the minor\u2019s reproductive choices, because proper regard must be had to the minor\u2019s personal autonomy in this sphere. This consideration applies also in a situation where abortion is envisaged as a possible option. However, it cannot be overlooked that the interests and life prospects of the mother of a pregnant minor girl are also involved in the decision whether to carry the pregnancy to term or not. Likewise, it can be reasonably expected that the emotional family bond makes it natural for the mother to feel deeply concerned by issues arising out of reproductive dilemmas and choices to be made by the daughter. Hence, the difference in the situation of a pregnant minor and that of her parents does not obviate the need for a procedure for the determination of access to a lawful abortion whereby both parties can be heard and their views fully and objectively considered, including, if necessary, the provision of a mechanism for counselling and reconciling conflicting views in favour of the best interest of the minor. It has not been shown that the legal setting in allowed for the second applicant\u2019s concerns to be properly addressed in a way that would respect her views and attitudes and to balance them in a fair and respectful manner against the interests of her pregnant daughter in the determination of such access.","elements":[]},{"content":"110.\u00a0\u00a0 In so far as the Government relied on the instruments of civil law as capable of addressing the applicants\u2019 situation, the Court has already held, in the context of the case of Tysi\u0105c v.\u00a0Poland, cited above, that the provisions of the civil law as applied by the Polish courts did not make available a procedural instrument by which a pregnant woman seeking an abortion could fully vindicate her right to respect for her private life. The civillaw remedy was solely of a retroactive and compensatory character. The Court was of the view that such retrospective measures alone were not sufficient to provide appropriate protection of the personal rights of a pregnant woman in the context of a controversy concerning the determination of access to lawful abortion, and emphasised the vulnerability of the woman\u2019s position in such circumstances (see Tysi\u0105c v.\u00a0Poland, no.\u00a05410/03, \u00a7\u00a0125, ECHR 2007IV, and R.R. v. Poland, cited above, \u00a7\u00a0209, ECHR 2011 (extracts)). Given the retrospective nature of compensatory civil law, the Court fails to see any grounds on which to reach a different conclusion in the present case.","elements":[]},{"content":"The Court is fully aware of examples from the caselaw of the Polish civil courts where damages in tort were awarded to women complaining of a breach of their personal rights in various situations connected with unwanted pregnancies and access to abortion (see R.R. v.\u00a0Poland, cited above, \u00a7\u00a079-80, see also paragraph\u00a052 above). However, in those cases the damage had arisen out of facts posterior to the refusal of abortion. No\u00a0examples of caselaw have been adduced before the Court whereby the civil courts acknowledged and redressed damage caused to a pregnant woman by the anguish, anxiety and suffering entailed by her efforts to obtain access to abortion.","elements":[]},{"content":"The Court finds that in the present case civil litigation did notv constitute an effective and accessible procedure allowing the applicants to vindicate their rights in the context of the determination of access to a lawful abortion. The Court therefore dismisses the Government\u2019s preliminary objection concerning civil litigation as an effective remedy.","elements":[]},{"content":"111.\u00a0\u00a0The Court is of the view that effective access to reliable information on the conditions for the availability of lawful abortion, and the relevant procedures to be followed, is directly relevant for the exercise of personal autonomy. It reiterates that the notion of private life within the meaning of Article\u00a08 applies both to decisions to become and not to become a parent (Evans v. the United Kingdom [GC], no.\u00a06339/05, \u00a7\u00a071, ECHR\u00a02007I; R.R. v.\u00a0, cited above, \u00a7\u00a0180). The nature of the issues involved in a woman\u2019s decision to terminate a pregnancy or not is such that the time factor is of critical importance. The procedures in place should therefore ensure that such decisions are taken in good time. The uncertainty which arose in the present case despite a background of circumstances in which under Article\u00a04\u00a0(a)\u00a01.5 of\u00a0the 1993\u00a0Family Planning Act there was a right to lawful abortion resulted in a striking discordance between the theoretical right to such an abortion on the grounds referred to in that provision and the reality of its practical implementation (Christine Goodwin v.\u00a0the\u00a0United Kingdom [GC], cited above, \u00a7\u00a7\u00a077-78; S.H. and Others v.\u00a0Austria, cited above, \u00a7\u00a074, mutatis mutandis; and A, B and C v.\u00a0Ireland [GC], cited above).","elements":[]},{"content":"112.\u00a0\u00a0Having regard to the circumstances of the case, the Court concludes that the authorities failed to comply with their positive obligation to secure to the applicants effective respect for their private life. There has therefore been a breach of Article\u00a08 of the Convention.","elements":[]}]}]},{"content":"III.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION AS REGARDS THE DISCLOSURE OF THE APPLICANTS\u2019 PERSONAL AND MEDICAL DATA","elements":[{"content":"113.\u00a0\u00a0The applicants complained that there had been a breach of Article\u00a08 of the Convention as a result of the disclosure of information concerning their case to the general public.","elements":[]},{"content":"A.\u00a0\u00a0Admissibility","elements":[{"content":"114.\u00a0\u00a0The Government submitted that the applicants should have had recourse to civil litigation against the persons involved in their case, claiming a breach of their personal rights within the meaning of Articles\u00a023 and 24 of the Civil Code.","elements":[]},{"content":"115.\u00a0\u00a0The applicants argued that there were no effective remedies in for the violations complained of. Where criminal law could be used, such measures had been resorted to in the present case, but to no avail. Civil litigation would have led to the subsequent disclosure of the applicants\u2019 identities and to further victimisation. It should not be overlooked that all the criminal proceedings instituted at the applicants\u2019 request against various persons had eventually been discontinued. In any event, the applicants had not known the identity and addresses of the perpetrators of certain of the offences concerned. As under the Polish law names and addresses of defendants were necessary in order to bring a civil case before the civil court, the applicants had not been in a position to pursue civil litigation. As a result, the applicants\u2019 rights could not be vindicated under the civil law. It was the responsibility of the State to establish the identity of the perpetrators of any criminal offences.","elements":[]},{"content":"116.\u00a0\u00a0The aim of the rule of exhaustion of domestic remedies referred to in Article 35 \u00a7 1 is to afford Contracting States an opportunity to put matters right through their own legal system before having to answer before an winternational body for their acts (see, among many other authorities, Egmez v.\u00a0Cyprus, no.\u00a030873/96, \u00a7\u00a064, ECHR 2000-XII). Where there is a choice of remedies, the exhaustion requirement must be applied to reflect the practical realities of the applicant\u2019s position so as to ensure the effective protection of the rights and freedoms guaranteed by the Convention (see, among many other authorities, Wiktorko v.\u00a0Poland, no.\u00a014612/02, \u00a7\u00a036, 31\u00a0March 2009, and Krumpel and Krumpelov\u00e1 v.\u00a0Slovakia, no.\u00a056195/00, \u00a7\u00a043, 5\u00a0July 2005). Moreover, an applicant who has used a remedy which is apparently effective and sufficient cannot be required also to have tried others that were also available but probably no more likely to be successful (see, among many other authorities, Assenov and Others v.\u00a0Bulgaria, 28\u00a0October 1998, \u00a7\u00a086, Reports 1998-VIII; Aquilina v.\u00a0Malta [GC], no.\u00a025642/94, \u00a7 39, ECHR 1999-III; and G\u00fcnaydin v.\u00a0Turkey (dec.), no.\u00a027526/95, 25\u00a0April 2002).","elements":[]},{"content":"117.\u00a0\u00a0The Court notes that the applicants complained to the prosecution authorities, which opened criminal investigations into a number of alleged offences, including two sets of investigations concerning specifically the allegations of disclosure of information about the case to the general public (see paragraphs 5051 above). The Court does not find the applicants\u2019 choice of procedure unreasonable. The applicants tried to have the persons they believed to be guilty of criminal conduct towards them identified and punished. The authorities found that the persons concerned had no case to answer. In particular, the Lublin District Court considered it normal that cases of teenage pregnancy gave rise to controversy and were normally widely discussed by third parties, social and church organisations (see paragraph\u00a051 above). Having regard to the fact that the applicants\u2019 efforts to have the disclosure of their personal information examined in criminal proceedings were unsuccessful, the Court considers that the applicants could not be required to embark on civil proceedings which, in the light of the findings made by the authorities, did not offer good prospects of the authorities finding that the conduct complained of was unlawful within the civil sense of that term.","elements":[]},{"content":"118.\u00a0\u00a0Accordingly, the Court dismisses the Government\u2019s preliminary objection as to the non-exhaustion of domestic remedies.","elements":[]},{"content":"119.\u00a0\u00a0The Court also considers that this part of the application is not manifestly illfounded within the meaning of Article\u00a035 \u00a7\u00a03\u00a0(a) of the Convention. It further finds that it is not inadmissible on any other grounds. It must therefore be declared admissible.","elements":[]}]},{"content":"B.\u00a0\u00a0Merits","elements":[{"content":"1.\u00a0\u00a0The parties\u2019 submissions","elements":[{"content":"120.\u00a0\u00a0The Government were of the view that the applicants\u2019 complaint about the disclosure of information concerning their situation, their personal data and their whereabouts had been examined in a number of domestic investigations, including the investigations initiated by the second applicant. However, the authorities had ultimately found that no criminal offence had been committed (see paragraphs 5051 above).","elements":[]},{"content":"121.\u00a0\u00a0The Government further submitted that the information concerning the case had been made public by the first applicant. She had informed her friend of her predicament by way of a text message sent to her friend during the night of 25\u00a0May 2008 and by instant messaging, asking for assistance and also thanking her for informing the school. Later on, the Family Court, when deciding on the first applicant\u2019s deprivation of liberty, had had regard to correspondence from the first applicant\u2019s school referring to this evidence (see paragraxph\u00a034 above). In the Government\u2019s submission, this correspondence confirmed that she had taken the initiative and voluntarily provided information about her private life and her intention to have an abortion. Information made available voluntarily by the persons concerned was not subject to protection under Article 8 of the Convention (see N.F. v.\u00a0Italy, no.\u00a037119/97, \u00a7\u00a039, 2\u00a0August 2001).","elements":[]},{"content":"122.\u00a0\u00a0The Government argued that actions taken by the medical staff of the Jan Bo\u017cy hospital in had constituted a part of their routine functions. The first applicant had requested to see a priest and he had talked to her in the exercise of his ministry. The medical staff had not initiated any action with a view to making her change her mind as to the abortion. The hospital had not disclosed information about the first applicant\u2019s stay, her family situation, her health, or about her personal details. That information had not been provided to the hospital in .","elements":[]},{"content":"123.\u00a0\u00a0The Government further argued that the press release issued by the director of the Jan Bo\u017cy Hospital in had never been published or announced to the public. No press conference had been organised to disseminate information about the case. Because of the media attention surrounding the case and pressure exerted by journalists, the media which had contacted the hospital\u2019s management had received a comment that the doctors had invoked the \u201cconscience clause\u201d. The hospital managers had been obliged to comply with their duty of cooperating with the press in their capacity as persons exercising public function. The hospital had therefore not breached medical secrecy.","elements":[]},{"content":"124.\u00a0\u00a0To sum up, the Government were of the view that the applicants\u2019 right to respect for their private life had not been violated.","elements":[]},{"content":"125.\u00a0\u00a0 The applicants submitted that there had been a breach of Article\u00a08 of the Convention as a result of the disclosure of information concerning the first applicant\u2019s pregnancy and their situation to priest K.P. and to the general public. They complained about the press release about the case issued by the management of the Lublin hospital, communication of information to the hospital in Warsaw concerning the first applicant\u2019s identity, her situation and her and her mother\u2019s wish to have the pregnancy terminated, and the disclosure of the applicants\u2019 identity and whereabouts to the general public and the ensuing harassment by various third parties.","elements":[]},{"content":"126.\u00a0\u00a0The applicants complained that the medical staff of the Jan Bo\u017cy hospital in had informed priest K.P. about their predicament without asking for their permission. As a result, he had been allowed to approach the first applicant without her or her family having asked to see him and without any thought having been given to the applicants\u2019 wishes. Inappropriate and manipulative pressure had been exerted on the family by Dr.\u00a0W.S. No proper respect had been shown for their own decisions and views. Information about the applicants\u2019 case had been leaked to the public, including by way of a press release issued by that hospital. As a result, the applicants had found themselves in the midst of a public controversy and the subject of a heated media debate. A hospital in Warsaw where they had subsequently sought assistance had received information about the case from the hospital without requesting it. When the first applicant was in the hospital in she had been harassed by anti-choice activists. The case had become national news and developments in it had been closely followed by many newspapers.","elements":[]},{"content":"127.\u00a0\u00a0The respondent State was liable for the above-mentioned violations of the applicants\u2019 private and family life. Medical staff working for the public hospital and therefore considered to be agents yof the State under Polish law had released sensitive information covered by the doctorpatient privilege guaranteed under Polish law. The State was therefore responsible for the actions taken by medical personnel, individual doctors, and civil servants from the Ministry of Health.","elements":[]}]},{"content":"2.\u00a0\u00a0The Court\u2019s assessment","elements":[{"content":"128.\u00a0\u00a0The Court has previously held that the protection of personal data, not least medical data, is of fundamental importance to a person\u2019s enjoyment of his or her right to respect for their private and family life as guaranteed by Article\u00a08 of the Convention. Respecting the confidentiality of health data is a vital principle in the legal systems of all the Contracting Parties to the Convention.\u00a0The disclosure of such data may dramatically affect an individual\u2019s private and family life, as well as his or her social and employment situation, by exposing that person to opprobrium and the risk of ostracism (see Z v.\u00a0Finland, 25\u00a0February\u00a01997, \u00a7\u00a7\u00a09596, Reports 1997I). Respecting the confidentiality of health data is crucial not only for the protection of a patient\u2019s privacy but also for the maintenance of that person\u2019s confidence in the medical profession and in the health services in general. Without such protection, those in need of medical assistance may be deterred from seeking appropriate treatment, thereby endangering their own health (see Z v.\u00a0Finland, cited above, \u00a7\u00a095, and Biriuk v.\u00a0Lithuania, no.\u00a023373/03, \u00a7\u00a043, 25\u00a0November 2008).","elements":[]},{"content":"129.\u00a0\u00a0The Court notes at the outset that it is not in dispute that the management of the Jan Bo\u017cy hospital in issued a press release for the purposes of informing the press about the first applicant\u2019s case, her pregnancy and the hospital\u2019s refusal to carry out an abortion. The Government have also acknowledged that the journalists who contacted that hospital were given information about the circumstances of case. Nor is it in dispute that following the press release and information received by journalists from the hospital the case became the subject of a number of articles in the national press. The hospital was a public hospital for whose acts the State is responsible for the purposes of the Convention (see Glass v.\u00a0the United Kingdom, no.\u00a061827/00, \u00a7\u00a071, ECHR\u00a02004II, and I. v.\u00a0Finland, no.\u00a020511/03, \u00a7\u00a035, 17\u00a0July 2008).","elements":[]},{"content":"130.\u00a0\u00a0The Court has noted the Government\u2019s argument that the press release did not contain the applicants\u2019 names or other details making it possible to establish their identity. However, the Court observes that after that communiqu\u00e9 the first applicant was contacted by various third parties who sent numerous text messages to her urging her to abandon her intention to have an abortion. The doctors at the hospital informed the applicants that a lot of pressure had been put on the hospital with a view to discouraging it from carrying out the abortion. That hospital had received numerous e-mails from persons criticising the applicants for their intention to have recourse to an abortion. In the evening of 4\u00a0June 2008 an unidentified woman went to the first applicant\u2019s room and tried to convince her to continue with the pregnancy. When the applicants were leaving that hospital on 5 June 2008 they were accosted by anti-abortion activists. Hence, the Court has no choice but to conclude that the information made available to the public must have been detailed enough to make it possible for third parties to establish the applicants\u2019 whereabouts and to contact them, either by mobile phone or personally.","elements":[]},{"content":"131.\u00a0\u00a0 In so far as the Government appear to argue that the first applicant, by contacting a friend via text messages and disclosing her predicament to her, had wished to make her case publizc, the Court notes that this can reasonably be regarded as a call for assistance, addressed to that friend and possibly also to her close environment, such as the school, by a vulnerable and distraught teenager in a difficult life situation. By no means can it be equated with an intention to disclose information about her pregnancy, her own views and feelings about it and about her family\u2019s attitude towards it to the general public and to the press.","elements":[]},{"content":"132.\u00a0\u00a0The Court finds that there was thus an interference with the applicants\u2019 right to respect for their private life. Such interference gives rise to a breach of Article\u00a08 unless it can be shown that it was \u201cin accordance with the law\u201d, pursued one or more legitimate aim or aims as defined in paragraph 2, and was \u201cnecessary in a democratic society\u201d to attain them.","elements":[]},{"content":"133.\u00a0\u00a0\u00a0It is true that a State enjoys a certain margin of appreciation in deciding what \u201crespect\u201d for private life requires in particular circumstances (see Stubbings and Others v. the United Kingdom, 22\u00a0October 1996, \u00a7\u00a7\u00a06263, Reports 1996IV, and X and Y v. the Netherlands, 26\u00a0March 1985, \u00a7\u00a024, Series\u00a0A no.\u00a091). However, the fact that the issue of the availability of legal abortion in is a subject of heated debate does not confer on the State a margin of appreciation so wide as to absolve the medical staff from their uncontested professional obligations regarding medical secrecy. It has not been argued, let alone shown, that in the present case there were any exceptional circumstances of such a character as to justify public interest in the first applicant\u2019s health (compare and contrast, Editions Plon v.\u00a0France, no.\u00a058148/00, ECHR 2004IV, mutatis mutandis, where the Court held that a permanent ban on distribution of a book disclosing health information about a public person was not necessary in a democratic society). The Court fails to see how the disclosure of information about the first applicant\u2019s unwanted pregnancy and about the refusal to carry out an abortion could be justified by media interest in the case. In the Court\u2019s view it cannot be regarded as compatible either with the Convention standards as to the State\u2019s obligation to secure respect for one\u2019s private or family life, or with the obligations of the medical staff to respect patients\u2019 rights laid down by Polish law. It did not therefore pursue a legitimate aim. That of itself is sufficient to ground a breach of Article\u00a08 of the Convention.","elements":[]},{"content":"134.\u00a0\u00a0However, the Court considers that it is also appropriate to address the lawfulness requirement. The Government referred in this connection to the general obligation of the hospital managers to co-operate with the press in their capacity as persons exercising a public function. However, no provision of domestic law has been cited on the basis of which information about individual patients\u2019 health issues, even non-nominate information, could be disclosed to the general public by way of a press release. It further observes that the first applicant was entitled to respect for her privacy regarding her sexual life, whatever concerns or interest her predicament generated in the local community. The national law expressly recognised the rights of patients to have their medical data protected, and imposed on health professionals an obligation to abstain from disclosing information about their patients\u2019 conditions. Likewise, the second applicant was entitled to the protection of information concerning her family life. Yet, despite this obligation, the hospital made information concerning the present case available to the press.","elements":[]},{"content":"135.\u00a0\u00a0In the light of the foregoing considerations, the Court considers that the disclosure of information about the applicants\u2019 case was neither lawful nor served a legitimate interest{.","elements":[]},{"content":"136.\u00a0\u00a0In the absence of a legitimate aim or legal basis for the interference complained of, it is not necessary to ascertain whether it was necessary in a democratic society within the meaning of Article\u00a08 \u00a7\u00a02 of the Convention.","elements":[]},{"content":"137.\u00a0\u00a0There has therefore been a violation of Article 8 of the Convention.","elements":[]}]}]}]},{"content":"IV.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE\u00a05 \u00a7\u00a01 OF THE CONVENTION","elements":[{"content":"138.\u00a0\u00a0The applicants complained of the unlawful removal of the first applicant from the custody of her mother, and her placement in a juvenile shelter and later in a hospital. They referred to Article\u00a05 of the Convention, which, in so far as relevant, provides as follows:","elements":[]},{"content":"\u201c1. ... No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:","elements":[]},{"content":"...","elements":[]},{"content":"(d)\u00a0\u00a0the 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;","elements":[]},{"content":"...\u201d","elements":[]},{"content":"A.\u00a0\u00a0The parties\u2019 observations","elements":[{"content":"139.\u00a0\u00a0The Government submitted that deprivation of liberty pursuant to Article\u00a05 \u00a7\u00a01 (d) of the Convention was allowed in most of the States Parties for the purpose of supervision of a minor\u2019s education or to bring him or her before a relevant authority, in the minor\u2019s interest, and also where the minor was not charged with a punishable act, but his or her development was endangered.","elements":[]},{"content":"140.\u00a0\u00a0The provision of Polish law applied in the present case empowered a family court to place a minor with a foster family or in an educational care centre. A court could interfere with parental authority as soon as a potential threat to the interests of the child came to light in order to prevent its negative consequences. Such an interference was not conditional on the inadequate performance of the parents, because a restriction of parental authority was not a measure of repression against parents, but a measure for the protection of the child which at the same time provided assistance to parents who were not coping adequately with their educational responsibilities.","elements":[]},{"content":"141.\u00a0\u00a0In the present case the domestic court had had evidence at its disposal that had led it to reasonably believe that the second applicant\u2019s interests \u2013 not only her development, but also her health and life \u2013 were seriously threatened. She had been deprived of her liberty on the basis of a lawful decision designed to guarantee her interests.","elements":[]},{"content":"142.\u00a0\u00a0In the Government\u2019s view, the procedure under which the first applicant had been deprived of her liberty had been fair. The decision had been taken promptly after the court learned about the first applicant\u2019s situation. Likewise, the decision had been lifted as soon as the grounds on which she had been deprived of her liberty had ceased to exist. The authorities could not be accused of having acted arbitrarily.","elements":[]},{"content":"143.\u00a0\u00a0The applicants submitted that, considering the first applicant\u2019s age, her distress and her unwanted pregnancy, the decision to deprive her of her liberty had been manifestly unjustified, excessive and extremely stressful for both applicants.","elements":[]}]},{"content":"B.\u00a0\u00a0The Court\u2019s assessment","elements":[{"content":"144.\u00a0\u00a0It is not in dispute between the parties that the first applicant was \u201cdeprived of [her] liberty\u201d within the meaning of Article 5 \u00a7 1.\u00a0\u00a0The Court reiterates that the exhaustive list of permitted deprivations of liberty set out in Article\u00a05 \u00a7\u00a01 must be interpr|eted strictly (see Guzzardi v.\u00a0, 6\u00a0November 1980, \u00a7\u00a7\u00a096, 98 and 100, Series A no.\u00a039).","elements":[]},{"content":"145.\u00a0\u00a0It is further noted that detention must be lawful both in domestic and Convention terms: the Convention lays down an obligation to comply with the substantive and procedural rules of national law and requires that any deprivation of liberty should be in keeping with the purpose of Article\u00a05, which is to protect an individual from arbitrariness (see\u00a0Winterwerp v.\u00a0the Netherlands, 24\u00a0October 1979, \u00a7\u00a7\u00a039 and 45, Series\u00a0A no.\u00a033; Bozano v.\u00a0France, 18\u00a0December 1986, \u00a7\u00a054, Series\u00a0A no.\u00a0111; and Weeks v.\u00a0the United Kingdom, 2\u00a0March 1987, \u00a7\u00a042, Series A no.\u00a0114). In this regard, there must be a relationship between the ground of permitted deprivation of liberty relied on and the conditions of detention (see Aerts v.\u00a0, 30\u00a0July 1998, \u00a7\u00a046, Reports 1998V, with further references).","elements":[]},{"content":"146.\u00a0\u00a0The Court observes that the first applicant was placed in the juvenile shelter pursuant to Article\u00a0109 of the Family and Custody Code. It\u00a0can therefore accept that the decision of the Family Court was lawful in terms of domestic law.","elements":[]},{"content":"147.\u00a0\u00a0As to Convention lawfulness, the Government justify her detention on the grounds of \u201ceducational supervision\u201d within the meaning of Article\u00a05 \u00a7\u00a01\u00a0(d). The Court has therefore considered whether the detention complied with the conditions imposed by that subsection.\u00a0The Court has accepted that, in the context of the detention of minors, the words \u201ceducational supervision\u201d must not be equated rigidly with notions of classroom teaching: in the context of a young person in local authority care, educational supervision must embrace many aspects of the exercise, by the local authority, of parental rights for the benefit and protection of the person concerned (see Koniarska v. the United Kingdom, (dec.), no.\u00a033670/96, 12\u00a0October 2000).","elements":[]},{"content":"148.\u00a0\u00a0The Court observes that the Family Court imposed detention on the first applicant, having regard to her pregnancy and referring to the doubts as to whether she was under pressure to have an abortion.\u00a0The Court has already acknowledged, in the context of Article 8 of the Convention, that there was a difference in the way in which the pregnancy affected the situation and life prospects of the first and second applicants (see\u00a0paragraph\u00a0110 above). It was therefore legitimate to try to establish with certainty whether the first applicant had had an opportunity to reach a free and wellinformed decision about having recourse to abortion. However, the essential purpose of the decision on the first applicant\u2019s placement was to separate her from her parents, in particular from the second applicant, and to prevent the abortion. The Court is of the view that by no stretch of the imagination can the detention be considered to have been ordered for educational supervision within the meaning of Article\u00a05\u00a0\u00a7\u00a01 (d) of the Convention if its essential purpose was to prevent a minor from having recourse to abortion. Furthermore, the Court is of the opinion that if the authorities were concerned that an abortion would be carried out against the first applicant\u2019s will, less drastic measures than locking up a 14year old girl in a situation of considerable vulnerability should have at least been considered by the courts. It has not been shown that this was indeed the case.","elements":[]},{"content":"149.\u00a0\u00a0Accordingly, the Court concludes that the first applicant\u2019s detention between 4 and 14\u00a0June 2008, when the order of 3\u00a0June 2008 was lifted, was not compatible with Article\u00a05 \u00a7\u00a01 of the Convention.","elements":[]}]}]},{"content":"V.\u00a0\u00a0ALLEGED VIOLATION OF ARTI}CLE 3 OF THE CONVENTION","elements":[{"content":"150.\u00a0\u00a0The applicants further complained that the facts of the case had given rise to a breach of Article\u00a03 of the Convention in respect of the first applicant. This provision, in so far as relevant, reads as follows:","elements":[]},{"content":"\u201cNo one shall be subjected to ... inhuman or degrading treatment ...\u201d","elements":[]},{"content":"151.\u00a0\u00a0The Court notes that this part of the application is not manifestly illfounded within the meaning of Article\u00a035 \u00a7\u00a03 (a) of the Convention. It\u00a0further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.","elements":[]},{"content":"A.\u00a0\u00a0The parties\u2019 submissions","elements":[{"content":"152.\u00a0\u00a0 In the Government\u2019s view, the first applicant had not been subjected to treatment constituting a breach of Article\u00a03 of the Convention. The applicant may have experienced stress or felt uncomfortable, but the treatment she complained about had not attained the minimum level of severity to consider it a breach of the said article of the Convention. On 9\u00a0April 2008 the second applicant had been offered psychological support for the first applicant, who had been given contraception counselling (the offer of postcoital contraception). When the first applicant experienced pain and vaginal bleeding at the juvenile shelter on 6\u00a0June 2008, she had been given medical assistance.","elements":[]},{"content":"153.\u00a0\u00a0The purpose of the first applicant\u2019s trip to the hospital in had been to help her in exercising her right to have an abortion. It had not been the intention of the authorities to subject her to debasing or inhuman treatment. Any discomfort that she might have felt had been connected with normal travel circumstances. The national authorities had taken it upon themselves to organise the travel and to provide means of transport.","elements":[]},{"content":"154.\u00a0\u00a0In the Government\u2019s assessment, the situation in which the first applicant had found herself could in no way be compared to the situation of the applicant in the case of Tysi\u0105c, referred to above, or that of the applicants in the case of A, B and C v.\u00a0 [GC], cited above. It should be noted that she had obtained the medical service she requested within the timelimit provided for by the law.","elements":[]},{"content":"155.\u00a0\u00a0The first applicant complained that she had been subjected to physical and mental suffering amounting to inhuman and degrading treatment by the medical and law-enforcement authorities. Following the decision of the Lublin District Court, the first applicant had been taken from her mother\u2019s custody, put in a police car, and driven around for hours without proper food, water or access to a toilet. In the shelter she had been locked up and not given prompt medical assistance despite vaginal bleeding and intense pain.","elements":[]},{"content":"156.\u00a0\u00a0When the first applicant had finally been allowed to have a legal termination of pregnancy, she had been driven in secret by the Ministry of Health to a hospital approximately 500 kilometers from her home. The applicant had not been provided with information on post-abortion care and immediately after the abortion she had been driven back home. The first applicant had been unnecessarily and repeatedly questioned about the circumstances concerning the rape, which had been traumatic for her. The circumstances of the case, seen as a whole, had exposed the first applicant to serious uncertainty, fear and anguish. The case had become national news; she, along will her mother, had been harassed by various persons driven by their own agenda who had no regard whatsoever for their dignity or the difficulty and vulnerability of their situation.","elements":[]}]},{"content":"B.\u00a0\u00a0The Court\u2019s assessment","elements":[{"content":"157.\u00a0\u00a0 According to the Court\u2019s wellestablished case-law, ill-treatment mu~st attain a minimum level of severity if it is to fall within the scope of Article\u00a03. The assessment of this minimum level of severity 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 many other authorities, Price\u00a0v.\u00a0the\u00a0United\u00a0Kingdom, no.\u00a033394/96, \u00a7\u00a024, ECHR 2001-VII; Kupczak\u00a0v.\u00a0Poland, no.\u00a02627/09, \u00a7\u00a058, 25\u00a0January 2011; Wiktorko v.\u00a0Poland, no.\u00a014612/02, \u00a7\u00a7\u00a044 and 54, 31\u00a0March 2009 and R.R. v. Poland, cited above, \u00a7\u00a0148).","elements":[]},{"content":"158.\u00a0\u00a0Treatment has been held by the Court to be \u201cinhuman\u201d 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 (see, among many other authorities, Labita v.\u00a0Italy [GC], no.\u00a026772/95, \u00a7\u00a0120, ECHR 2000IV).","elements":[]},{"content":"159.\u00a0\u00a0Treatment has been considered \u201cdegrading\u201d when it was such as to arouse in its victims feelings of fear, anguish and inferiority capable of humiliating and debasing them (see, among many other authorities, Iwa\u0144czuk v.\u00a0Poland, no.\u00a025196/94, \u00a7\u00a051, 15\u00a0November 2001, and Wiktorko v.\u00a0Poland, cited above).","elements":[]},{"content":"160.\u00a0\u00a0Although the purpose of\u00a0such\u00a0treatment is a factor to be taken into account, in particular, whether it\u00a0was intended to humiliate or debase the victim, the absence of\u00a0any\u00a0such\u00a0purpose does not inevitably lead to a finding that there has been no violation of\u00a0Article 3. \u00a0Moreover, it cannot be excluded that acts and omissions on the part of the authorities in the field of health-care policy may in certain circumstances engage their responsibility under Article\u00a03 (see, for example, Powell v.\u00a0the\u00a0United Kingdom (dec.), no.\u00a045305/99, ECHR 2000-V). The Court has also made findings of a\u00a0breach of this provision in the context of reproductive rights (see V.C.\u00a0v.\u00a0Slovakia, no.\u00a018968/07, \u00a7\u00a7\u00a0106-120, ECHR 2011 (extracts).","elements":[]},{"content":"161.\u00a0\u00a0For the Court\u2019s assessment of this complaint it is of a cardinal importance that the first applicant was at the material time only fourteen years old. The certificate issued by the prosecutor confirmed that her pregnancy had resulted from unlawful intercourse. The Court cannot overlook the fact that the medical certificate issued immediately afterwards confirmed bruises on her body and concluded that physical force had been used to overcome her resistance.","elements":[]},{"content":"162.\u00a0\u00a0In the light of the above, the Court has no choice but to conclude that the first applicant was in a situation of great vulnerability.","elements":[]},{"content":"163.\u00a0\u00a0However, when the applicant was admitted to Jan Bo\u017cy hospital in pressure was exerted on her by the chief doctor who tried to impose her own views on the applicant. Furthermore, the applicant was obliged to talk to a priest without being asked whether she in fact wished to see one. Considerable pressure was put on her and on her mother. Dr W.S. made the mother sign a declaration acknowledging that an abortion could lead to the first applicant\u2019s death. The Court has already noted that no cogent medical reasons have been put forward to justify the strong terms of that declaration (see paragraph 102 above). The first applicant witnessed the argument between the doctor and the second applicant, the doctor accusing the second applicant that she was a bad mother.","elements":[]},{"content":"164.\u00a0\u00a0The Court has already found that information about the case was relayed by the press, also as a result of the press release issued by the hospital. The first applicant received numerous unwanted and intrusive text messages from people she did not know. In the hospital in the authorities failed to protect her from being contacted by various persons who tried to exert pressure on her. The applicant was harassed. The authorities not only failed to provide protection to her, having regard to her young age and vulnerability, but further compounded the situation. The Court notes, in particular, that after the first applicant requested protection from the police when she was accosted by anti-abortion activists after leaving hospital in , protection was in fact denied her. She was instead arrested in the execution of the court\u2019s decision on her placement in the juvenile centre.","elements":[]},{"content":"165. The Court has been particularly struck by the fact that the authorities decided to institute criminal investigation on charges of unlawful intercourse against the first applicant who, according to the prosecutor\u2019s certificate and the forensic findings referred to above should have been considered to be a victim of sexual abuse. The Court considers that this approach fell short of the requirements inherent in the States\u2019 positive obligations to establish and apply effectively a criminallaw system punishing all forms of sexual abuse (see, M.C. v.\u00a0Bulgaria, no.\u00a039272/98, \u00a7\u00a0184, ECHR 2003XII). The investigation against the applicant was ultimately discontinued, but the mere fact that they were instituted and conducted shows a profound lack of understanding of her predicament.","elements":[]},{"content":"166.\u00a0\u00a0On the whole, the Court considers that no proper regard was had to the first applicant\u2019s vulnerability and young age and her own views and feelings.","elements":[]},{"content":"167.\u00a0\u00a0In the examination of the present complaint it is necessary for the Court to assess the first applicant\u2019s situation as a whole, having regard in particular to the cumulative effects of the circumstances on the applicant\u2019s situation. In this connection, it must be borne in mind that the Court has already found, having examined the complaint under Article\u00a08 of the Convention about the determination of the first applicant\u2019s access to abortion, that the approach of the authorities was marred by procrastination, confusion and lack of proper and objective counselling and information (see \u00a7\u00a0108 above). Likewise, the fact that the first applicant was separated from her mother and deprived of liberty in breach of the requirements of Article\u00a05 \u00a7\u00a01 of the Convention must be taken into consideration.","elements":[]},{"content":"168.\u00a0\u00a0The Court concludes, having regard to the circumstances of the case seen as a whole, that the first applicant was treated by the authorities in a deplorable manner and that her suffering reached the minimum threshold of severity under Article 3 of the Convention.","elements":[]},{"content":"169.\u00a0\u00a0The Court concludes that there has therefore been a breach of that provision.","elements":[]}]}]},{"content":"VI.\u00a0\u00a0OTHER ALLEGED VIOLATIONS OF THE CONVENTION","elements":[{"content":"170.\u00a0\u00a0 The Court notes at the outset that the applicants also made various other complaints under several Articles of the Convention.","elements":[]},{"content":"171.\u00a0\u00a0In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. Accordingly, this part of the application must be rejected as inadmissible pursuant to Article\u00a035 \u00a7\u00a7\u00a03\u00a0(a) and 4 of the Convention.","elements":[]}]},{"content":"VII.\u00a0\u00a0APPLICATION OF ARTICLE 41 OF THE CONVENTION","elements":[{"content":"172.\u00a0\u00a0Article 41 of the Convention provides:","elements":[]},{"content":"\u201cIf 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.\u201d","elements":[]},{"content":"A.\u00a0\u00a0Damage","elements":[{"content":"173.\u00a0\u00a0The first applicant requested the Court to award her just satisfaction in the amount of 60,000\u00a0euros (EUR) in respect of nonpecuniary damage. She submitted that the impact on the events concerned in the case had been extremely severe on her. She had been the object of comments expressed in public, in the media and directly to her. A book on the case by an anti-choice activist had been published, describing the events in a malicious and distorted manner. Her true identity and details of her private life had leaked to the media. She had suffered because her mother who had tried to protect and help her, was vilified in public. She had also been deprived of liberty. Her suffering during the summer of 2008 when the main events took place was intense, but she also suffered later when, for example, her teachers had made inappropriate comments and disclosed to her classmates what had happened to her.","elements":[]},{"content":"174.\u00a0\u00a0The second applicant requested the Court to award her just satisfaction in the amount of EUR\u00a040,000. She argued that she had suffered immense stress and anxiety caused by the treatment to which her daughter was subjected. She herself had fallen victim of hostility and hateful comments on the part of the hospital staff, antichoice activists, the police, the general public and certain media. As the story leaked to the media and their identity had been disclosed, she had been unable to protect her child. Her own identity had been disclosed as well. She had to appear before the courts several times and was subjected to humiliating interrogations.","elements":[]},{"content":"175.\u00a0\u00a0The Government did not comment.","elements":[]},{"content":"176.\u00a0\u00a0The Court, having regard to the applicants\u2019 submissions, is of the view that in the circumstances of the case they must have experienced considerable anguish and suffering, not only in respect of the difficulties which arose in the determination of access to a lawful abortion, in so far as the 1993 Act allowed it, but also because of the unlawful disclosure of information about their case to the public and the unwelcome publicity it caused. The Court, having regard to the circumstances of the case seen as a whole, to the differences in the applicants\u2019 situations and deciding on equitable basis, awards EUR\u00a030,000 to the first and EUR\u00a015,000 to the second applicant.","elements":[]}]},{"content":"B.\u00a0\u00a0Costs and expenses","elements":[{"content":"177.\u00a0\u00a0The applicants claimed reimbursement of costs and expenses incurred in the domestic proceedings as well as in the proceedings before the Court itself, in the total amount of EUR 26\u00a0445,10. They referred to invoices which they had submitted.","elements":[]},{"content":"178.\u00a0\u00a0Ms G\u0105siorowska and Ms Kotiuk claimed EUR\u00a016,445, comprising EUR\u00a013,370 in fees plus VAT of\u00a022 per cent) in respect of legal fees for work which they had carried out in the domestic proceedings and representing the applicants before the Court. The legal fees corresponded to 191 hours spent in preparation of the applicants\u2019 case for the purposes of representation before the domestic courts and the case before the Court, at an hourly rate of EUR\u00a070. The time spent on the case included 50 hours of advising the applicants, helping them to respond to various letters and in helping them in filing appeals and motions, 5 hours of representing the applicants before the Lublin courts, 10 hours of representing them before the Warsaw courts, 25 hours of drafting criminal motions and appeals, two working days of meetings with the applicants, 15 hours consulting with assisting counsel and 20 hours spent in preparation of a response to the Court\u2019s questions.","elements":[]},{"content":"179.\u00a0\u00a0 Furthermore, the lawyers assisting the Polish lawyers on behalf of the Centre for Reproductive Rights, Ms Zampas and later Ms Westeson, claimed EUR\u00a010,000 in respect of legal fees, corresponding to 100\u00a0hours at a hourly rate of EUR\u00a0100. They listed the following items: 70 hours spent in preparation of the case, 10 hours spent in communicating with Polish lawyers and 20\u00a0hours spent in drafting a response to the Court\u2019s questions.","elements":[]},{"content":"180.\u00a0 The Court reiterates that only legal costs and expenses found to have been actually and necessarily incurred and which are reasonable as to quantum are recoverable under Article\u00a041 of the Convention (see, among other authorities, Nikolova v.\u00a0Bulgaria [GC], no.\u00a031195/96, 25\u00a0March 1999, \u00a7\u00a079, and Smith and Grady v.\u00a0the United Kingdom (just satisfaction), nos.\u00a033985/96 and 33986/96, \u00a7\u00a028, ECHR 2000IX).","elements":[]},{"content":"181.\u00a0\u00a0In the light of the documents submitted, the Court is satisfied that the legal costs concerned in the present case have actually been incurred.","elements":[]},{"content":"182.\u00a0\u00a0The Court, deciding on an equitable basis and having regard to the details of the claims submitted, awards the applicants a global sum of EUR\u00a016,000 in respect of fees and expenses, plus any tax on that amount that may be chargeable to the applicants.","elements":[]}]},{"content":"C.\u00a0\u00a0Default interest","elements":[{"content":"183.\u00a0\u00a0The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.","elements":[]}]}]}],"section_name":"law"},{"content":"FOR THESE REASONS, THE COURT","elements":[{"content":"1.\u00a0\u00a0Joins to the merits unanimously the Government\u2019s preliminary objections concerning exhaustion of domestic remedies and lack of victim status as regards the Article 8 complaint about the determination of access to lawful abortion in respect of both applicants;","elements":[]},{"content":"2.\u00a0\u00a0Declares admissible, unanimously, the complaints under Article\u00a08 of the Convention concerning the determination of access to lawful abortion in respect of both applicants and the disclosure of their personal data, as well as the complaints under Articles\u00a03 (the first applicant) and 5 (the first applicant) of the Convention, and the remainder of the application inadmissible;","elements":[]},{"content":"3.\u00a0\u00a0Holds by six votes to one that there has been a violation of Article\u00a08 of the Convention as regards the determination of access to lawful abortion in respect of both applicants, and dismisses in consequence the Government\u2019s preliminary objections;","elements":[]},{"content":"4.\u00a0\u00a0Holds unanimously that there has been a violation of Article\u00a08 of the Convention as regards the disclosure of the applicants\u2019 personal data;","elements":[]},{"content":"5.\u00a0\u00a0Holds unanimously that there has been a violation of Article\u00a05 \u00a7\u00a01 of the Convention in respect of the first applicant;","elements":[]},{"content":"6.\u00a0\u00a0Holds unanimously that there has been a violation of Article\u00a03 of the Convention in respect of the first applicant;","elements":[]},{"content":"7.\u00a0\u00a0Holds unanimously","elements":[]},{"content":"(a)\u00a0\u00a0that the respondent State is to pay the applicants, within three months of the date on which the judgment becomes final in accordance with Article\u00a044\u00a0\u00a7\u00a02 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:","elements":[]},{"content":"(b)\u00a0\u00a0that 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;","elements":[]},{"content":"8.\u00a0\u00a0Dismisses unanimously the remainder of the applicants\u2019 claim for just satisfaction.","elements":[]},{"content":"Done in English, and notified in writing on 30 October 2012, pursuant to Rule\u00a077 \u00a7\u00a7\u00a02 and 3 of the Rules of Court.","elements":[]},{"content":"In accordance with Article 45 \u00a7 2 of the Convention and Rule 74 \u00a7 2 of the Rules of Court, the separate opinion of Judge De Gaetano is annexed to this judgment.","elements":[]},{"content":"1.\u00a0\u00a0I voted against a finding of a violation of Article 8 \u201cas regards the determination of access to lawful abortion in respect of both applicants\u201d (point 3 of the operative part of the judgment) for substantially the same reasons advanced in paragraphs 4 and 5 of my partly dissenting opinion in R.R. v. Poland (no.\u00a027617/04, 26\u00a0May 2011). Neither the Convention generally nor Article 8 in particular confer a right to abortion. The issue was in this case \u2013 as it was in many other cases \u2013 one of regulatory frameworks and procedural mechanisms: in essence, how to enforce a \u201cright\u201d granted by domestic law in the face of opposition, direct or oblique, from public authorities. The issue should therefore have been examined under Article\u00a06. Invoking Article 8 in such cases not only distorts the true meaning of \u201cprivate life\u201d, but ignores the most fundamental of values underpinning the Convention, namely the value of life, of which the unborn child is the carrier. Calling the unborn child a foetus does not change the essential nature of what is at stake and of what an abortion entails.","elements":[]},{"content":"2.\u00a0\u00a0Moreover, I fail to understand how it is possible to find also a violation of Article 8 in this case in respect of the second applicant (the mother of the minor). Apart from the fact that in this two-month saga the second applicant appears to have been something of an \u00e9minence grise in respect of the decision which should have been exclusively the first applicant\u2019s, to state, as the judgment does in paragraph\u00a0109, that \u201cit cannot be overlooked that the interests and life prospects of the mother of a pregnant minor girl are also involved in the decision whether to carry the pregnancy to term or not\u201d (my italics) gives a venal or mercenary slant to the concept of private life. Fundamental rights cannot be gauged by the yardstick of convenience or, worse, selfish interest.","elements":[]},{"content":"3.\u00a0\u00a0As to Article 3 \u2013 and here I voted with the majority for a finding of a violation \u2013 just as the second applicant had a right and a duty to advise her daughter (but not to decide on her behalf) as to whether or not to terminate the pregnancy, the public authorities also had the duty to advise the second applicant as to what an abortion entails and of all its consequences. Such advice, however, should never have been allowed to degenerate, as happened in the instant case, into trickery, deceit and the emotional manipulation of a vulnerable person, which constitute an abuse of the dignity of the person. While the reluctance, indeed refusal, of some of the doctors to perform the abortion was understandable and was within their right to conscientious objection, the authorities\u2019 overall handling of the case was at best shambolic and at worst disgraceful. The violation of Article\u00a03 stems not from the simple fact that some people (including the priest) tried to persuade the first applicant not to have an abortion but because of the way they went about it, coupled with the publicity that was given by the authorities to the case, their disclosure of confidential information and their illegal arrest of the first applicant. Indeed, instead of being treated as a victim of rape and as person in need of help, she was treated as a criminal. Her parents fared only slightly better.","elements":[]},{"content":"","elements":[]}],"section_name":"conclusion"}] 8eh M G  n 0 { 8 Y &s6Z_'^%IFAx8J8Carlo Dossi And Others V. Italy, (Dec.), No. 26053/07, 12 October 2010?7Bozano V. France, 18 December 1986, § 54, Series A No. 111>6Biriuk V. Lithuania, No. 23373/03, § 43, 25 November 2008M5Assenov And Others V. Bulgaria, 28 October 1998, § 86, Reports 1998-Viii>4Aquilina V. Malta [Gc], No. 25642/94, § 39, Echr 1999-Iii83wAerts V. Belgium, 30 July 1998, § 46, Reports 1998-VF2A, B And C V. Ireland [Gc], No. 25579/05, 16 December 2010, § 214E1Zagorodniy V. Ukraine, No. 27004/06, §§ 51-52, 24 November 2011t0mWhitfield And Others V. The United Kingdom, Nos. 46387/99, 48906/99, 57410/00 And 57419/00, § 48, 12 April 2005:/{Velikova V. Bulgaria, No. 41488/98, § 50, Echr 2000-ViO.#Stanford V. The United Kingdom, 23 February 1994, § 28, Series A No. 282 A:-{Sarıkaya V. Turkey, No. 36115/97, § 67, 22 April 20048,wSalduz V. Turkey [Gc], No. 36391/02, 27 November 2008D+ Sakhnovskiy V. Russia [Gc], No. 21272/03, § 94, 2 November 2010B* Ryabov V. Russia, No. 3896/04, §§ 40 And 43, 31 January 2008P)%Rowe And Davis V. The United Kingdom [Gc], No. 28901/95, § 60, Echr 2000-Ii7(uRiviere V. France, No. 33834/03, § 62, 11 July 20068'wPrehn V. Germany (Dec.), No. 40451/06, 24 August 2010D& Poitrimol V. France, 23 November 1993, § 29, Series A No. 277 AG%Pishchalnikov V. Russia, No. 7025/04, §§ 77-79, 24 September 20096$sPeers V. Greece, No. 28524/95, § 67, Echr 2001-Iii8#wPavlenko V. Russia, No. 42371/02, § 98, 1 April 2010<"Pakelli V. Germany, 25 April 1983, § 31, Series A No. 64D! O’Kane V. The United Kingdom (Dec.), No. 30550/96, 6 July 1999; }Neziraj V. Germany, No. 30804/07, § 45, 8 November 20129yMartin V. Estonia, No. 35985/09, § 95-97, 30 May 2013[;Mamaç And Others V. Turkey, Nos. 29486/95, 29487/95 And 29853/96, § 48, 20 April 2004B Magee V. The United Kingdom, No. 28135/95, § 45, Echr 2000 Vi;}Luchaninova V. Ukraine, No. 16347/02, § 62, 9 June 2011@Labita V. Italy [Gc], No. 26772/95, § 119-121, Echr 2000-Iv9yKulikowski V. Poland, No. 18353/03, § 55, 19 May 20094oKudła V. Poland [Gc], No. 30210/96, Echr 2000-Xi1iKrombach V. France, No. 29731/96, Echr 2001 IiFKlimentyev V. Russia, No. 46503/99, §§ 116-119, 16 November 2006KIreland V. The United Kingdom, 18 January 1978, § 161, Series A No. 25HImbrioscia V. Switzerland, 24 November 1993, § 38, Series A No. 275AHirsi Jamaa And Others V. Italy [Gc], No. 27765/09, Echr 2012;}Güveç V. Turkey, No. 70337/01, §§ 130-131, Echr 2009;}Gäfgen V. Germany [Gc], No. 22978/05, § 187, Echr 20109yDesde V. Turkey, No. 23909/03, § 130, 1 February 2011<Czekalla V. Portugal, No. 38830/97, § 60, Echr 2002 ViiiO#Croissant V. Germany, 25 September 1992, §§ 29 And 30, Series A No. 237-BQ'Campbell And Fell V. The United Kingdom, 28 June 1984, § 99, Series A No. 803 mBykov V. Russia [Gc], No. 4378/02, 10 March 2009; }Bogumil V. Portugal, No. 35228/03, § 46, 7 October 2008b IBenham V. The United Kingdom, 10 June 1996, § 52, Reports Of Judgments And Decisions 1996 Iiic KAl-Khawaja And Tahery V. The United Kingdom [Gc], Nos. 26766/05 And 22228/06, § 118, Echr 2011; }Airey V. Ireland, 9 October 1979, § 24, Series A No. 32V1Van Raalte V. The Netherlands, Judgment Of 21 February 1997, § 33, Reports 1997-I8wUnal Tekeli V. Turkey, No. 29865/96, 16 November 2004JStafford V. The United Kingdom [Gc], No. 46295/99, § 68, Echr 2002-IvN!Rasmussen V. Denmark, Judgment Of 28 November 1984, Series A No. 87, § 40JPetrovic V. Austria, Judgment Of 27 March 1998, Reports 1998-Ii, § 22_CLithgow And Others V. The United Kingdom, Judgment Of 8 July 1986, Series A No. 102, § 177IInze V. Austria, Judgment Of 28 October 1987, Series A No. 126, § 41N!Gaygusuz V. Austria, Judgment Of 16 September 1996, Reports 1996-Iv, § 42 5zBJ = z @ H u G :qN$L _!k0(JmGumenyuk And Others V. Ukraine, No. 11423/19, §§ 86-89, 22 July 20217luChumak V. Ukraine, No. 44529/09, § 48, 6 March 2018akGZumtobel V. Austria, Judgment Of 21 September 1993, Series A No. 268-A, Pp. 13-14, §§ 31-32Cj Wohlmeyer Bau Gmbh V. Austria, No. 20077/02, § 45, 8 July 2004^iAVan Marle And Others V. The Netherlands, Judgment Of 26 June 1986, Series A No. 101, § 369hySan Juan V. France (Dec.), No. 43956/98, Echr 2002-IiiRg)Obermeier V. Austria, Judgment Of 28 June 1990, Series A No. 179, P. 23, § 70`fEMüller Ag V. Switzerland, No. 15269/89, Commission'S Report Of 14 October 1991, Unpublished`Eisenberg V. France (Dec.), No. 52237/99, 2 September 2003C_ Bouilly V. France, (No. 1) No. 38952/97, § 33, 7 December 1999^ABasic V. Austria, No. 29800/96, §§ 39-40, Echr 2001-I . Benthem V. The Netherlands, Judgement Of 23 October 1985, Series A No. 97, Pp. 14-16, §§ 32-36]Balmer-Schafroth And Others V. Switzerland, Judgment Of 26 August 1997, Reports Of Judgments And Decisions 1997-Iv, P. 1358, § 37>\Z V. Finland, 25 February 1997, §§ 95-96, Reports 1997-I@[Yardimci V. Turkey, No. 25266/05, 5 January 2010, §§ 55-56JZX And Y V. The Netherlands, 26 March 1985, §§ 23-24, Series A No. 91SY+Winterwerp V. The Netherlands, 24 October 1979, §§ 39 And 45, Series A No. 332XkWiktorko V. Poland, No. 14612/02, 31 March 2009FWWeeks V. The United Kingdom, 2 March 1987, § 42, Series A No. 114KVW. V. The United Kingdom, 8 July 1987, §§ 62 And 64, Series A No. 121FUV.C. V. Slovakia, No. 18968/07, §§ 106-120, Echr 2011 (Extracts)/TeTysiac V. Poland, No. 5410/03, 20 March 2007\S=Stubbings And Others V. The United Kingdom, 22 October 1996, §§ 62-63, Reports 1996-IvnRaSmith And Grady V. The United Kingdom (Just Satisfaction), Nos. 33985/96 And 33986/96, § 28, Echr 2000-Ix@QSentges V. The Netherlands (Dec.), No. 27677/02, 8 July 20039PyS.H. And Others V. Austria, No. 57813/00, 1 April 2010GORoche V. The United Kingdom [Gc], No. 32555/96, § 162, Echr 2005-X,N_R.R. V. Poland, No. 27617/04, 26 May 2011CM Price V. The United Kingdom, No. 33394/96, § 24, Echr 2001-ViiBL Powell V. The United Kingdom (Dec.), No. 45305/99, Echr 2000-VHKPentiacova And Others V. Moldova (Dec.), No. 14462/03, Echr 2005-...DJ Olsson V. Sweden (No. 1), 24 March 1988, § 67, Series A No. 130AINikolova V. Bulgaria [Gc], No. 31195/96, 25 March 1999, § 79mH_Mcginley And Egan V. The United Kingdom, 9 June 1998, § 101, Reports Of Judgments And Decisions 1998-Iii8GwM.C. V. Bulgaria, No. 39272/98, § 184, Echr 2003-Xii;F}Labita V. Italy [Gc], No. 26772/95, § 120, Echr 2000-Iv9EyKupczak V. Poland, No. 2627/09, § 58, 25 January 2011IDKrumpel And Krumpelová V. Slovakia, No. 56195/00, § 43, 5 July 2005JCKoniarska V. The United Kingdom, (Dec.), No. 33670/96, 12 October 2000{Glass V. The United Kingdom, No. 61827/00, Echr 2004-Ii7=uGecekusu V. Turkey (Dec.), No. 28870/05, 25 May 2010E<Evans V. The United Kingdom [Gc], No. 6339/05, § 71, Echr 2007-I6;sEgmez V. Cyprus, No. 30873/96, § 64, Echr 2000-Xii6:sEditions Plon V. France, No. 58148/00, Echr 2004-IvL9Christine Goodwin V. The United Kingdom [Gc], No. 28957/95, Echr 2002-Vid for the construction of a public road. The court further dismissed the claim against the Municipality, finding that it had no requisite standing to be sued (\u043d\u0435\u0434\u043e\u0441\u0442\u0430\u0442\u043e\u043a \u043d\u0430 \u043f\u0430\u0441\u0438\u0432\u043d\u0430 \u043b\u0435\u0433\u0438\u0442\u0438\u043c\u0430\u0446\u0438\u0458\u0430). On 20 April 2000 the Skopje Court of Appeal allowed the appeals lodged by the State and the company M.K. and remitted the case for renewed examination. It held that insolvency proceedings were pending against the company M.K. and that any claims should be established in those proceedings. It further found that the lower court had incorrectly established that the State should pay compensation.","elements":[]},{"content":"10.\u00a0\u00a0On 11 December 2001 the first-instance court ordered that the Municipality was to pay compensation, which amount was set at approximately EUR 9,000, since the 1987 expropriation order had identified it as the beneficiary of the expropriation. It dismissed the claim as regards the State and the company M.K. for lack of requisite standing to be sued. On 27 February 2003 that judgment was quashed by the Skopje Court of Appeal, which held that, inter alia, the lower court had not identified the final beneficiary of the land.","elements":[]},{"content":"11.\u00a0\u00a0On 27 May 2004 the first-instance court held that the company M.K.2000, the legal successor of the company M.K., and the Public Road Fund (\u0424\u043e\u043d\u0434 \u0437\u0430 \u043c\u0430\u0433\u0438\u0441\u0442\u0440\u0430\u043b\u043d\u0438 \u0438 \u0440\u0435\u0433\u0438\u043e\u043d\u0430\u043b\u043d\u0438 \u043f\u0430\u0442\u0438\u0448\u0442\u0430 \u0421\u043a\u043e\u043f\u0458\u0435), should pay compensation in an amount equivalent to approximately EUR 8,650, which corresponded to the market value of the land. It dismissed the claim as regards the State and the Municipality for lack of requisite standing to be sued in the proceedings. It further held that each party to the proceedings should pay their own costs.","elements":[]},{"content":"12.\u00a0\u00a0On 16 November 2005 the Skopje Court of Appeal upheld the lower court\u2019s judgment, with the exception of the costs, which matter was remitted for fresh consideration.","elements":[]},{"content":"13.\u00a0\u00a0On 10 February 2006 the first-instance court ordered the company M.K.2000 and the Public Road Fund to pay the trial costs incurred by the applicant.","elements":[]},{"content":"14.\u00a0\u00a0On 25 April 2007 the Supreme Court accepted a legality review request (\u0431\u0430\u0440\u0430\u045a\u0435 \u0437\u0430 \u0437\u0430\u0448\u0442\u0438\u0442\u0430 \u043d\u0430 \u0437\u0430\u043a\u043e\u043d\u0438\u0442\u043e\u0441\u0442\u0430) in which the public prosecutor complained about the lower courts\u2019 judgments. The Supreme Court overturned the first- and second-instance courts\u2019 judgments and dismissed the order for compensation to be paid to the applicant. The court held that the company M.K.2000 and the Public Road Fund could not be held responsible for the payment of any compensation for the land expropriated in the interest of the company K., which had ceased to exist. The land had been State-owned developed land. The company M.K.2000 and the Public Road Fund did not therefore have the requisite standing to be sued in the proceedings.","elements":[]}]},{"content":"B.\u00a0\u00a0The second set of non-contentious proceedings for determination of the amount of compensation for the expropriated land","elements":[{"content":"15.\u00a0\u00a0On 2 July 2007 the applicant lodged a request with the first-instance court against the Municipality, seeking determination of the amount of compensation for the land.","elements":[]},{"content":"16.\u00a0\u00a0On 11 September 2007 the first-instance court held that the Municipality should pay compensation to the applicant for 558 sq.m of land in the amount equivalent to approximately EUR 8,650.","elements":[]},{"content":"17.\u00a0\u00a0On 17 October 2007 the Municipality appealed against the first-instance court\u2019s decision. The applicant lodged observations in reply claiming that the compensation had been correctly set and that the Municipality\u2019s appeal should be dismissed.","elements":[]},{"content":"18.\u00a0\u00a0On 25 January 2008 the Skopje Court of Appeal dismissed the Municipality\u2019s appeal and upheld the first-instance court\u2019s decision. On 31\u00a0March 2009 the Supreme Court rejected as inadmissible the Municipality\u2019s appeal on points of law.","elements":[]}]}]},{"content":"II.\u00a0\u00a0RELEVANT DOMESTIC LAW","elements":[{"content":"A.\u00a0\u00a0Expropriation Act (Official Gazette 33/95 with the subsequent amendments)","elements":[{"content":"19.\u00a0\u00a0Section 24 of the Expropriation Act foresaw that a land or a pecuniary award shall be given in compensation of an expropriated plot of land.","elements":[]}]},{"content":"B.\u00a0\u00a0Non-contentious Proceedings Act (Official Gazette 19/79)","elements":[{"content":"20.\u00a0\u00a0Sections 238-247 of the Non-contentious Proceedings Act regulated the court proceedings for determination of the amount of compensation to be given in case of expropriation. According to section 242, these proceedings are urgent.","elements":[]}]}]}],"section_name":"facts"},{"content":"THE LAW","elements":[{"content":"I.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 OF THE CONVENTION","elements":[{"content":"21.\u00a0\u00a0In the application form the applicant complained that she was not awarded compensation for her expropriated land in violation of Article 1 of Protocol No. 1 of the Convention, which reads as follows:","elements":[]},{"content":"\u201cEvery natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.","elements":[]},{"content":"The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.\u201d","elements":[]},{"content":"22.\u00a0\u00a0In their observations, the Government informed about the second set of proceedings. They submitted that the applicant had abused the right to individual petition because she had not informed the Court about the second set that she had initiated eight days before the introduction of her application to the Court. They further argued that the applicant had not appealed against the first-instance court\u2019s decision of 11 September 2007 and that she had explicitly accepted the amount of compensation awarded to her (see paragraph 17 above). Accordingly, she had lost her victim status in respect to her complaint under Article 1 of Protocol No. 1.","elements":[]},{"content":"23.\u00a0\u00a0The applicant replied that she had not been legally represented when she had applied to the Court and that she had not been familiar with the Court\u2019s procedural rules. She also argued that she had had no intention of concealing the second set of proceedings and that her property right had been violated given the time it had taken for the domestic courts to award her compensation.","elements":[]},{"content":"24.\u00a0\u00a0The Court reiterates that according to Rule 47 \u00a7 6 of the Rules of Court, applicants must keep the Court informed of all circumstances relevant to their application and that incomplete and therefore misleading information may also amount to abuse of the right of application, especially if the information concerns the very core of the case (see \u010cerve\u0148\u00e1kov\u00e1 v.\u00a0Czech Republic (dec.), no. 26852/09, \u00a7\u00a7 25-27, 23 October 2012, Lukarev v. the former Yugoslav Republic of Macedonia (dec.), no. 3172/07, ECHR 15 January 2013). In the present case, however, the Court does not find that the applicant, in the circumstances, acted in such a manner that this would amount to an abuse of the right of petition. Thus, it rejects the Government\u2019s objection in this respect.","elements":[]},{"content":"24.\u00a0\u00a0The Court reiterates that according to Rule 47 \u00a7 6 of the Rules of Court, applicants must keep the Court informed of all circumstances relevant to their application and that incomplete and therefore misleading information may also amount to abuse of the right of application, especially if the information concerns the very core of the case (see \u010cerve\u0148\u00e1kov\u00e1 v.\u00a0Czech Republic (dec.), no. 26852/09, \u00a7\u00a7 25-27, 23 October 2012, Lukarev v. the former Yugoslav Republic of Macedonia (dec.), no. 3172/07, ECHR 15 January 2013). In the present case, however, the Court does not find that the applicant, in the circumstances, acted in such a manner that this would amount to an abuse of the right of petition. Thus, it rejects the Government\u2019s objection in this respect.","elements":[]},{"content":"24.\u00a0\u00a0The Court reiterates that according to Rule 47 \u00a7 6 of the Rules of Court, applicants must keep the Court informed of all circumstances relevant to their application and that incomplete and therefore misleading information may also amount to abuse of the right of application, especially if the information concerns the very core of the case (see \u010cerve\u0148\u00e1kov\u00e1 v.\u00a0Czech Republic (dec.), no. 26852/09, \u00a7\u00a7 25-27, 23 October 2012, Lukarev v. the former Yugoslav Republic of Macedonia (dec.), no. 3172/07, ECHR 15 January 2013). In the present case, however, the Court does not find that the applicant, in the circumstances, acted in such a manner that this would amount to an abuse of the right of petition. Thus, it rejects the Government\u2019s objection in this respect.","elements":[]},{"content":"25.\u00a0\u00a0As regards the complaint under Article 1 of Protocol No. 1 the Court reiterates that in the second set of proceedings, the applicant was awarded compensation for her land, the amount of which, as the Government argued, she had not contested. Accordingly, the Court concludes that the applicant can no longer claim to be a victim of the alleged violation of Article 1 of Protocol No. 1.","elements":[]},{"content":"26.\u00a0\u00a0It therefore follows that this part of the application should be rejected pursuant to Article 35 \u00a7\u00a7 3 and 4 of the Convention.","elements":[]}]},{"content":"II.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION","elements":[{"content":"27.\u00a0\u00a0The applicant complained of a violation of the \u201creasonable-time\u201d requirement under Article 6 of the Convention, which, in so far as relevant, reads as follows:","elements":[]},{"content":"\u201cIn the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...\u201d","elements":[]},{"content":"A.\u00a0\u00a0Admissibility","elements":[{"content":"28.\u00a0\u00a0The Government did not raise any objection as regards the admissibility of this complaint. They further accepted that the length of the proceedings had not complied with the \u201creasonable-time\u201d requirement.","elements":[]},{"content":"29.\u00a0\u00a0The Court concludes that this complaint is not manifestly ill-founded within the meaning of Article 35 \u00a7 3 (a) of the Convention. No other ground for declaring it inadmissible has been established.","elements":[]}]},{"content":"B.\u00a0\u00a0Merits","elements":[{"content":"30.\u00a0\u00a0The Court notes that the proceedings started in July 1989 and eventually came to an end in March 2009. The proceedings therefore lasted nearly twenty years at three levels of jurisdiction, of which twelve years fall within the Court\u2019s temporal jurisdiction (after 10 April 1997, the date of ratification of the Convention by the respondent State).","elements":[]},{"content":"31.\u00a0\u00a0Having regard to the criteria laid down in the Court\u2019s case-law for assessing the reasonable time requirement contained in Article 6 \u00a7 1 of the Convention, in particular the complexity of the case, the conduct of the applicant and of the relevant authorities, as well as what was at stake for the applicant (see, among many other authorities, Philis v. Greece (no. 2), judgment of 27 June 1997, Reports 1997-IV, \u00a7 35; Frydlender v. France [GC], no. 30979/96, \u00a7 43, ECHR 2000-VII; and Comingersoll S.A.\u00a0v.\u00a0Portugal [GC], no. 35382/97, ECHR 2000-IV), the Court considers that the proceedings were unduly prolonged, for which the respondent State bears sole responsibility.","elements":[]},{"content":"32.\u00a0\u00a0There has accordingly been a violation of Article 6 of the Convention as regards the length of the non-contentious proceedings for determination of the amount of compensation.","elements":[]}]}]},{"content":"III.\u00a0\u00a0APPLICATION OF ARTICLE 41 OF THE CONVENTION","elements":[{"content":"33.\u00a0\u00a0Article 41 of the Convention provides:","elements":[]},{"content":"\u201cIf 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.\u201d","elements":[]},{"content":"A.\u00a0\u00a0Damage","elements":[{"content":"34.\u00a0\u00a0The applicant claimed EUR 50,000 for the non-pecuniary damage suffered in respect of the length of the proceedings.","elements":[]},{"content":"35.\u00a0\u00a0The Government contested this claim as excessive and unsubstantiated.","elements":[]},{"content":"36.\u00a0\u00a0The Court considers that the applicant must have sustained non-pecuniary damage, which cannot be compensated solely by the finding of a violation of the Convention. Making its assessment on an equitable basis, the Court awards the applicant EUR 3,600 under this head, plus any tax that may be chargeable.","elements":[]}]},{"content":"B.\u00a0\u00a0Costs and expenses","elements":[{"content":"37.\u00a0\u00a0The applicant did not specify any claim for costs and expenses.","elements":[]},{"content":"38.\u00a0\u00a0Accordingly, the Court considers that there is no call to award her any sum on that account.","elements":[]}]},{"content":"C.\u00a0\u00a0Default interest","elements":[{"content":"39.\u00a0\u00a0The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.","elements":[]}]}]}],"section_name":"law"},{"content":"FOR THESE REASONS, THE COURT,","elements":[{"content":"1.\u00a0\u00a0Declares the length complaint under Article 6 of the Convention admissible and the remainder of the application inadmissible;","elements":[]},{"content":"2.\u00a0\u00a0Holds that there has been a violation of Article 6 of the Convention in respect of the length of the proceedings;","elements":[]},{"content":"3.\u00a0\u00a0Holds","elements":[]},{"content":"(a)\u00a0\u00a0that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article\u00a044\u00a0\u00a7\u00a02 of the Convention, the amount of EUR\u00a03,600, plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement;","elements":[]},{"content":"(b)\u00a0\u00a0that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;","elements":[]},{"content":"4.\u00a0\u00a0Dismisses the remainder of the applicant\u2019s claim for just satisfaction.","elements":[]},{"content":"Done in English, and notified in writing on 21 May 2015, pursuant to Rule 77 \u00a7\u00a7 2 and 3 of the Rules of Court.","elements":[]}],"section_name":"conclusion"}] N! Q 33'- Y001-154528CASE OF NIKOLOVA v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"CHAMBERECLI:CE:ECHR:2015:0521JUD00311540731154/072015-05-21 00:00:002015-05-21 00:00:00ENGFirst SectionCourt14.1129503250122MKD33x [{"content":"PROCEDURE","elements":[{"content":"1.\u00a0\u00a0The case originated in an application (no. 31154/07) against the former Yugoslav Republic of Macedonia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) by a Macedonian national, Ms\u00a0Ljubica Nikolova (\u201cthe applicant\u201d), on 10 July 2007.","elements":[]},{"content":"2.\u00a0\u00a0The applicant was represented by Mr K. \u010cadiev, a lawyer practising in Veles. The Macedonian Government (\u201cthe Government\u201d) were represented by their Agent, Mr K. Bogdanov.","elements":[]},{"content":"3.\u00a0\u00a0The applicant alleged, in particular, that the length of the impugned proceedings for determination of the amount of compensation for expropriated plot of land was in violation of Article 6 of the Convention.","elements":[]},{"content":"4.\u00a0\u00a0On 10 April 2013 the application was communicated to the Government.","elements":[]}],"section_name":"procedure"},{"content":"THE FACTS","elements":[{"content":"I.\u00a0\u00a0THE CIRCUMSTANCES OF THE CASE","elements":[{"content":"5.\u00a0\u00a0The applicant was born in 1931 and lives in Veles.","elements":[]},{"content":"6.\u00a0\u00a0The applicant was the owner of a plot of undeveloped land, the total surface area of which was 558 sq. m (\u201cthe land\u201d). On 30 June 1987 the Council of the Municipality of Kavadarci (\u201cthe Municipality\u201d) expropriated the land. As stated in the expropriation order, the expropriation was carried out for the benefit of the Municipality and in the interest of the then socially owned company K. (\u0432\u043e \u043a\u043e\u0440\u0438\u0441\u0442 \u043d\u0430 \u043e\u043f\u0448\u0442\u0438\u043d\u0430 \u041a\u0430\u0432\u0430\u0434\u0430\u0440\u0446\u0438, \u0430 \u0437\u0430 \u043f\u043e\u0442\u0440\u0435\u0431\u0438\u0442\u0435 \u043d\u0430 \u041e\u041e\u0417\u0422 \u201e\u041a.\u201d) in order to construct a storehouse (\u0441\u0442\u043e\u0432\u0430\u0440\u0438\u0448\u0442\u0435).","elements":[]},{"content":"A.\u00a0\u00a0The first set of non-contentious proceedings for determination of the amount of compensation for the expropriated land","elements":[{"content":"7.\u00a0\u00a0On 25 July 1989 the Municipality requested, in non-contentious proceedings, that the Kavadarci Court of First Instance (\u201cthe first-instance court\u201d) determine the amount of compensation to be paid to the applicant. The request was submitted after the parties (the applicant and the Municipality) had failed to reach an agreement on the issue.","elements":[]},{"content":"8.\u00a0\u00a0On 20 August 1997 the first-instance court ordered the State to pay the applicant the equivalent of 11,500 euros (EUR) in compensation for the land. On 23 April 1998 the Skopje Court of Appeal quashed that judgment and remitted the case for fresh consideration because of substantial procedural flaws.","elements":[]},{"content":"9.\u00a0\u00a0On 29 December 1999 the first-instance court awarded the applicant the equivalent of EUR 8,000 in compensation for the expropriated land (558\u00a0sq.\u00a0m). It ordered that the compensation was to be paid by a company, M.K., the successor to the company K., and by the State. The former was ordered to pay compensation for the part of the land it had used, and the latter to pay compensation for the remainder, which had been reserveonvention\u201d) by an Austrian national, Mr W. Nowicky (\u201cthe applicant\u201d), on 28 March 2002.","elements":[]},{"content":"2.\u00a0\u00a0The applicant was represented by Sch\u00f6nherr OEG, a company of lawyers practising in . The Austrian Government (\u201cthe Government\u201d) were represented by their Agent, Ambassador H. Winkler, Head of the International Law Departement at the Federal Ministry for Foreign Affairs.","elements":[]},{"content":"3.\u00a0\u00a0On 21 October 2003 the Court decided to communicate the application. Applying Article 29 \u00a7 3 of the Convention, it decided to rule on the admissibility and merits of the application at the same time.","elements":[]}],"section_name":"procedure"},{"content":"THE FACTS","elements":[{"content":"4.\u00a0\u00a0The applicant was born in 1937 and lives in .","elements":[]},{"content":"5.\u00a0\u00a0On 28 June 1976 the applicant filed a request with the Federal Chancellor (Bundeskanzler) to examine a product developed by him, namely \u201cUkrain\u201d, a medicine for the treatment of cancer. The request was transmitted to the Ministry of Health and Environmental Protection (Bundesministerium f\u00fcr Gesundheit und Umweltschutz ).","elements":[]},{"content":"6.\u00a0\u00a0On 27 July 1981 the applicant requested the Minister for Health and Environmental Protection to authorise \u201cUkrain\u201d under the Austrian pharmacopeia.","elements":[]},{"content":"7.\u00a0\u00a0By letter of 14 August 1981 the Minister informed the applicant that, under the relevant legislation which was in force at that time, he did not meet the conditions to request such an authorisation as he was not in possession of a licence to produce the medicament in question.","elements":[]},{"content":"8.\u00a0\u00a0On 29 August 1988 the applicant submitted a copy of his licence to produce \u201cUkrain\u201d which had been issued on 15 May 1988.","elements":[]},{"content":"9.\u00a0\u00a0On 31 August 1988 the then competent authority, namely the Federal Chancellor\u2019s Office (Bundeskanzleramt), ordered the Federal Institute for chemical and pharmacological examinations (FICP, Bundesanstalt f\u00fcr chemische und pharmazeutische Untersuchungen) and the Federal Institute for experimental pharmacological and balneological examinations (FICB, Bundesstaatliche Anstalt f\u00fcr experimentell- pharmakologische und balneologische Untersuchungen) to submit expert opinions.","elements":[]},{"content":"10.\u00a0\u00a0On 23 December 1988 the FICB submitted an expert opinion. It noted that the documentation submitted by the applicant\t suffered from severe shortcomings. On 26 January 1989 the applicant was informed about the expert opinion and invited him to make the necessary amendments to his request within twelve months.","elements":[]},{"content":"11.\u00a0\u00a0Between 1990 and 1995 the applicant submitted more documentation, which, however, was found to be insufficient in some twelve expert opinions issued by the FICB and the FICP.","elements":[]},{"content":"12.\u00a0\u00a0On 1 February 1995 the applicant lodged an application against the administration\u2019s failure to decide (S\u00e4umnisbeschwerde) with the (Verwaltungsgerichtshof).","elements":[]},{"content":"13.\u00a0\u00a0On 13 February 1995 the Administrative Court ordered the Federal Minister to decide upon the applicant\u2019s request, following which the then Federal Minister of Health and Consumer Protection (Bundesminister f\u00fcr Gesundheit und Konsumentenschutz) dismissed the applicant\u2019s request for authorisation on 2 June 1995. He found that the applicant had failed to establish the necessary quality, effectiveness and harmlessness of \u201cUkrain\u201d.","elements":[]},{"content":"14.\u00a0\u00a0On 13 July 1995 the applicant filed a complaint with the . He complained inter alia about shortcomings in the proceedings in that the Federal Minister had not duly taken account of his arguments.","elements":[]},{"content":"15.\u00a0\u00a0On 26 February 1996 the quashed the Federal Minister\u2019s decision and remitted the case. It found that the Federal Minister had not given sufficient reasons for his decision and had not duly taken account of the applicant\u2019s arguments.","elements":[]},{"content":"16.\u00a0\u00a0Meanwhile, in July 1995 the applicant had submitted new documents to the Federal Minister. He had, in particular, altered the indication as to the type of cancer against which \u201cUkrain\u201d should be used.","elements":[]},{"content":"17.\u00a0\u00a0In two expert opinions of May and June 1996 the FICP and the FICB found that the documentation suffered from severe shortcomings and \u201cUkrain\u201d should, therefore, not be authorised.","elements":[]},{"content":"18.\u00a0\u00a0On 29 August 1996, 24 October 1996, 16 May 1997 and 17 and 23\u00a0July 1997 the applicant submitted further documentation including two opinions of private experts.","elements":[]},{"content":"19.\u00a0\u00a0On 29 August 1997 the Federal Ministry appointed a further expert, E. who submitted his opinion on 25 November 1997. He found that \u201cUkrain\u201d should not be authorised. On 8 January 1998 an expert opinion by the FICP came to the same conclusion.","elements":[]},{"content":"20.\u00a0\u00a0In May and June 1998 the applicant commented on these opinions and submitted a further private expert opinion. This documentation was found to be still insufficient in an expert opinion submitted by E. on 13\u00a0August 1998.","elements":[]},{"content":"21.\u00a0\u00a0After having discussed the matter with the Federal Ministry in April and May 1999, the applicant, on 12 May 1999 limited his request for authorisation of \u201cUkrain\u201d to one particular type of cancer. In a meeting with an official of the Ministry on 19 May 1999 the applicant discussed a study scheme concerning a clinical test to be carried out in Moscow which, however, concerned another type of cancer than the one indicated in his request of 12 May 1999.","elements":[]},{"content":"22.\u00a0\u00a0On 24 February 2000 the applicant requested the Federal Minister to indicate which documents were still missing. On 17 July 2000 the Federal Minister complied with this request and ordered the applicant to file his submissions by 15 January 2001.","elements":[]},{"content":"23.\u00a0\u00a0Between 2000 and 2002 the applicant submitted more documentation, which, however, was found to be insufficient in nine expert opinions issued. During this time, namely on 3 August and on 7 December 2000, the applicant again altered the indications as to the types of cancer against which \u201cUkrain\u201d should be used.","elements":[]},{"content":"24.\u00a0\u00a0On 5 March 2001, the applicant limited his request to authorise \u201cUkrain\u201d as a medicament to be used exclusively where the usual treatment had failed.","elements":[]},{"content":"25.\u00a0\u00a0On 27 September 2001 the applicant lodged another application against the administration\u2019s failure to decide (S\u00e4umnisbeschwerde) with the .","elements":[]},{"content":"26.\u00a0\u00a0On 18 February 2002 the dismissed the applicant\u2019s request. It noted that according to the Pharmaceutical Act (Arzneimittelgesetz), a decision concerning a request for authorisation should be issued within two years after the request had been lodged. In the present case, the applicant had filed his amended request for authorisation on 5 March 2001. His complaint about the administration\u2019s failure do decide was therefore premature.","elements":[]},{"content":"27.\u00a0\u00a0On 25 April 2002 the Minister for Social Security and Generations (Bundesminister f\u00fcr soziale Sicherheit und Generationen) dismissed the applicant\u2019s request for authorisation.","elements":[]},{"content":"28.\u00a0\u00a0On 7 June 2002 the applicant lodged a complaint with the . He submitted inter alia that the proceedings suffered from shortcomings in that the Federal Minister had not sufficiently investigated the facts. On 25 June 2002 the commenced preliminary proceedings. On 2 September 2002 and on 13\u00a0December 2002 the parties submitted their respective submissions.","elements":[]},{"content":"29.\u00a0\u00a0The proceedings are currently pending before the .","elements":[]}],"section_name":"facts"},{"content":"THE LAW","elements":[{"content":"I.\u00a0\u00a0ALLEGED VIOLATIONS OF ARTICLE 6 \u00a7 1 OF THE CONVENTION","elements":[{"content":"30.\u00a0\u00a0The applicant complained that none of the authorities dealing with his case is a tribunal within the meaning of Article 6 of the Convention.","elements":[]},{"content":"31.\u00a0\u00a0The applicant further complained that the length of the proceedings was incompatible with the \u201creasonable time\u201d requirement. In this respect he also relied on Article\u00a06 \u00a7 1 of the Convention, which, as far as relevant, reads as follows:","elements":[]},{"content":"\u201cIn the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...\u201d","elements":[]},{"content":"A.\u00a0\u00a0Admissibility","elements":[{"content":"1.\u00a0\u00a0Applicability of Article 6","elements":[{"content":"32.\u00a0\u00a0The Government submitted that Article 6 was not applicable to the proceedings at issue. They submitted that the proceedings essentially concerned the evaluation of technical expert opinions and that an assessment of this kind, going beyond the usual judicial function, cannot be regarded as a \u201cdispute\u201d within the meaning of Article 6 \u00a7 1 of the Convention. In support of this argument they argued that according to the Court\u2019s case-law (Van Marle and Others v.\u00a0the Netherlands, judgment of 26\u00a0June 1986, Series\u00a0A no.\u00a0101; San Juan v. France (dec.), no.\u00a043956/98, ECHR 2002III; Eisenberg v. France (dec.), no. 52237/99, 2 September 2003), proceedings for admission to a profession were not covered by Article 6 where they in essence concerned an assessment of the knowledge and experience required for carrying on the profession. The Government argued that that position could be transposed to proceedings which essentially concern the examination of technical data.","elements":[]},{"content":"33.\u00a0\u00a0The applicant contested the Government\u2019s arguments.","elements":[]},{"content":"34.\u00a0\u00a0As to the question whether Article 6 is applicable to the proceedings at issue, the Court recalls at the outset that, where proceedings concern in essence the evaluation of knowledge and experience for carrying on a profession under a particular title, the safeguards in Article 6 cannot be taken as covering resulting disagreements (see Van Marle and Others, cited above, \u00a7 36; San Juan and Eisenberg, decisions, also cited above). The Court had in these cases regard to the fact that the kind of assessment made by the authorities was akin to a school or university examination and, therefore, far removed from the exercise of the normal judicial function.","elements":[]},{"content":"35.\u00a0\u00a0These cases, however, differ essentially from the present case in that the proceedings at issue did not in any way concern the assessment of the applicant\u2019s competences but related to his request for a first-time authorisation of a pharmaceutical product. The Court observes that the very nature of such proceedings implies the assessment and evaluation of technical data. However, this is a common feature of many administrative proceedings and, in itself, does not prevent Article 6 from being applicable (see Balmer-Schafroth and Others v. Switzerland, judgment of 26\u00a0August 1997, Reports of Judgments and Decisions 1997IV, p. 1358, \u00a7 37).","elements":[]},{"content":"36.\u00a0\u00a0The Court observes that, in a case concerning the prolongation of an authorisation to deal with a medicament, the Commission had found Article\u00a06 to be applicable (see M\u00fcller AG v. Switzerland, no. 15269/89, Commission\u2019s report of 14 October 1991, unpublished).","elements":[]},{"content":"37.\u00a0\u00a0The Court further considers that the proceedings at issue are similar to proceedings concerning the issuing of a licence, in that a commercial activity (namely the sale of a medicament) is subject to official supervision in the public interest. In comparable cases the Court found that the public law aspects inherent in such systems did not alter the private character of the requested activities (see, among others, K\u00f6nig v. Germany, judgment of 28 June 1978, Series A no. 27, pp 29-33, \u00a7\u00a7 86-89 concerning a medical practitioner\u2019s activity; Benthem v.\u00a0the Netherlands, judgement of 23\u00a0October 1985, Series A no. 97, pp. 14-16, \u00a7\u00a7 32-36, relating to the a request for a licence for an installation for the delivery of liquid petroleum).","elements":[]},{"content":"38.\u00a0\u00a0In the present case, the applicant holds a licence to produce the medicament \u201cUkrain\u201d. The sale of \u201cUkrain\u201d is however subject to a further authorisation by the Federal Minister. The applicant has a right to be granted the authorisation at issue, provided that the requirements laid down in the Pharmaceutical Act are met. The question whether this was the case was in dispute between the authorities and the applicant.","elements":[]},{"content":"39.\u00a0\u00a0In conclusion, the Court finds that Article 6 under its civil head applies to the proceedings at issue.","elements":[]}]},{"content":"2.\u00a0\u00a0Complaint about lack of a tribunal","elements":[{"content":"40.\u00a0\u00a0The applicant complained that none of the authorities dealing with his case is a tribunal within the meaning of Article 6 \u00a7 1 of the Convention.","elements":[]},{"content":"41.\u00a0\u00a0The Court notes that the competent Federal Ministry which decided on the applicant\u2019s case is clearly an administrative authority. In this context the Court reiterates that it is not incompatible with Article 6 \u00a7 1 to confer the power to adjudicate on civil rights and obligations on administrative authorities, provided that their decisions are subject to subsequent control by a \u201ctribunal\u201d that has full jurisdiction. It therefore remains to be ascertained whether the \u2019s scope of review was sufficient. In the sphere of cases falling under the civil head of Article 6 the Court has occasionally answered this question in the negative (Obermeier v.\u00a0Austria, judgment of 28 June 1990, Series A no. 179, p. 23, \u00a7 70). In other cases it has answered this question in the affirmative (see for instance, Zumtobel v.\u00a0Austria, judgment of 21 September 1993, Series\u00a0A no.\u00a0268A, pp. 13-14, \u00a7\u00a7 31-32; Fischer v. Austria, judgment of 26 April 1995, Series\u00a0A no.\u00a0312, p. 18, \u00a7 34). However, the Court has always examined this issue not in the abstract but on a case-to-case basis once the proceedings were terminated. As the proceedings in the present case are still pending before the Administrative Court, the applicant\u2019s complaint about lack of access to a tribunal is premature and must be rejected under 35 \u00a7\u00a7 1 and 4 of the Convention.","elements":[]}]},{"content":"3.\u00a0\u00a0Complaint about the length of the proceedings","elements":[{"content":"42.\u00a0\u00a0The Government firstly argued that the applicant has not exhausted domestic remedies. They acknowledged that the applicant, in the course of the proceedings at issue, had filed twice an application against the authority\u2019s failure to decide. They argued, however, that the first application was lodged at a time when there had been no \u201cdispute\u201d within the meaning of Article 6 \u00a7 1 of the Convention. The second application was lodged at a time when the Federal Minister had not been defaulting. The Government concluded that the applicant had not made effective use of the domestic remedies available.","elements":[]},{"content":"43.\u00a0\u00a0The applicant contested the Government\u2019s arguments.","elements":[]},{"content":"44.\u00a0\u00a0As to the question whether the applicant has exhausted domestic remedies, the Court reiterates that an application under Article 132 of the Federal Constitution against the administration\u2019s failure to decide (S\u00e4umnisbeschwerde) constitutes, in principle, an effective remedy which has to be used in respect of complaints about the length of administrative proceedings (Basic v. Austria, no. 29800/96, \u00a7\u00a7 39-40, ECHR 2001-I). In the present case, the applicant did make use of this remedy. He has, therefore, raised the \u201creasonable time\u201d issue before the competent domestic authorities and invited them to accelerate the proceedings. In the Court\u2019s view, a detailed examination as to whether the applicant could have made more efficient use of the remedy by using it at other stages of the proceedings, would overstretch the duties incumbent on an applicant pursuant to Article 35 \u00a7 1 of the Convention (see, Wohlmeyer Bau GmbH v.\u00a0Austria, no. 20077/02, \u00a7 45, 8 July 2004). This is all the more so, as the applicant in the present case has made use of the remedy not only once but on two occasions, namely in February 1995 and again in September 2001. The Court further notes that the proceedings at issue have been pending before the Administrative Court for more than two years and four months, namely since 27 June 2002 and that an application under Article 132 of the Federal Constitution does not lie against delays caused by the Administrative Court.","elements":[]},{"content":"45.\u00a0\u00a0In sum, the Court concludes that the applicant complied with his obligation to exhaust domestic remedies. Thus, the Government\u2019s objection on non-exhaustion has to be dismissed.","elements":[]},{"content":"46.\u00a0\u00a0As to the period to be taken into consideration, the Government argued that the proceedings began on 2 June 1995, when the Federal Minister of Health and Consumer Protection dismissed the applicant\u2019s request for an authorisation of the medicament \u201dUkrain\u201d under the Pharmaceutical Act. This is disputed by the applicant. In his view, the proceedings started when he filed his first request of an authorisation.","elements":[]},{"content":"47.\u00a0\u00a0The Court reiterates that, in cases like the one at issue, in which an administrative authority\u2019s decision is a necessary preliminary for bringing the case before a tribunal, the relevant period does not start running when the request is lodged but only as soon as a \u201cdispute\u201d arises (see K\u00f6nig, cited above, \u00a7 98; Morscher v. Austria, no. 54039/00, \u00a7 38, 5 February 2004). The Government argue that a dispute only arose on 2 June 1995, when the applicant\u2019s request for the authorisation of \u201cUkrain\u201d was dismissed. However, the Court finds that 1 February 1995 should be taken as a starting point. At that date the applicant lodged an application against the Federal Minister\u2019s failure to decide on his application with the . The dispute in the present case effectively started on that date because the Federal Minister had failed to reply to his original application within the statutory time limit (see G. H. v. Austria, no. 31266/96, \u00a7 18, 3\u00a0October 2000, unreported). The proceedings are still pending before the . They have thus lasted until now for nine years and some ten months. The case has been brought before three levels of jurisdiction and was once remitted back.","elements":[]},{"content":"48.\u00a0\u00a0The Court finds that the complaint about the length of the proceedings is not manifestly ill-founded within the meaning of Article\u00a035\u00a0\u00a7\u00a03 of the Convention. It further finds that it is not inadmissible on any other grounds. It must therefore be declared admissible.","elements":[]}]}]},{"content":"B.\u00a0\u00a0Merits","elements":[{"content":"49.\u00a0\u00a0The Government argued that the proceedings were complex namely in that their very nature necessitated the taking of several expert opinions and scientific research. Furthermore, in the course of the proceedings at issue the applicant altered his request for authorisation of the medicament at issue several times, which made it necessary to conduct further research. The preparation of the expert opinions was further complicated by the fact that the applicant submitted the requested documentation over a protracted period and sometimes even after the expiry of the time-limits set by the Federal Minister. The Austrian authorities conducted the proceedings expeditiously. The generous time-limits for the applicant\u2019s submissions had been set in the applicant\u2019s interest.","elements":[]},{"content":"50.\u00a0\u00a0The applicant argued that the considerable length of the proceedings was attributable to the authorities. He pointed out in particular that according to the Pharmaceutical Act a decision concerning a request for authorisation should be issued within two years after the request had been lodged. He could not be blamed for having submitted as much documentation as he thought fit. The authorities should have decided on the basis of the submitted documentation within the statutory time-limit.","elements":[]},{"content":"51.\u00a0\u00a0The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, \u00a7 43, ECHR 2000-VII).","elements":[]},{"content":"52.\u00a0\u00a0The Court notes that the proceedings have until now lasted more than nine years and ten months and are still pending before the .","elements":[]},{"content":"53.\u00a0\u00a0The Court considers that the case was of considerable complexity, involving the taking of numerous expert opinions and requiring scientific research. The authorities further had to examine voluminous documentation submitted by the applicant. The Court further finds that the applicant contributed to some extent to the length of the proceedings in that he repeatedly altered the indication as to the type of cancer against which the medicament at issue should be used.","elements":[]},{"content":"54.\u00a0\u00a0The Court observes, however, that substantial periods of inactivity, for which the Government have not submitted any satisfactory explanation, are attributable to the authorities. The Court notes that a period of 8 months elapsed between the submission of E.\u2019s expert opinion on 13 August 1998 and the subsequent discussions between the applicant and the Federal Ministry. Another period of one year and some two months elapsed between 12 May 1999, when the applicant discussed his case with the Ministry, and 17 July 2000, when the Federal Minister indicated to the applicant which documents were still missing.","elements":[]},{"content":"55.\u00a0\u00a0The Court finally notes that the case has currently been pending before the for more than two years and five months.","elements":[]},{"content":"56.\u00a0\u00a0Having regard, in particular, to the overall duration and to the above mentioned delays attributable to the authorities, the Court considers that the length of the proceedings does not comply with the \u201creasonable time\u201d requirement. There has accordingly been a breach of Article 6 \u00a7 1 of the Convention.","elements":[]}]}]},{"content":"II.\u00a0\u00a0APPLICATION OF ARTICLE 41 OF THE CONVENTION","elements":[{"content":"\u201cIf 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.\u201d","elements":[]},{"content":"A.\u00a0\u00a0Damage","elements":[{"content":"58.\u00a0\u00a0The applicant claimed 1.1 million euros (EUR) in respect of pecuniary damage out of which EUR 1 million for the profit he would have made from the sale of \u201cUkrain\u201d and EUR 100,000 for the increased overall costs of the proceedings. The applicant did not claim compensation for nonpecuniary damage.","elements":[]},{"content":"59.\u00a0\u00a0The Government contested the claim.","elements":[]},{"content":"60.\u00a0\u00a0The Court does not discern any causal link between the violation found and the pecuniary damage resulting from the alleged loss of profit. It therefore makes no award under this head. It will deal with the claim for increased costs under the head of costs and expenses.","elements":[]}]},{"content":"B.\u00a0\u00a0Costs and expenses","elements":[{"content":"61.\u00a0\u00a0The applicant also claimed EUR 7,500 for the costs and expenses for the proceedings before the Court.","elements":[]},{"content":"62.\u00a0\u00a0Noting that the applicant had not submitted a note of fees, the Government argued that they were prevented from making an assessment as to whether the costs had actually been incurred in the proceedings. In any case, they maintained that the claim was excessive.","elements":[]},{"content":"63.\u00a0\u00a0As to the claim for increased costs of the domestic proceedings, the Court accepts that the excessive duration of the proceedings increased the overall costs incurred in the domestic proceedings (see Bouilly v. , (no. 1) no. 38952/97, \u00a7 33, 7 December 1999). The Court therefore awards on an equitable basis EUR 1,500 in this respect, plus any tax that may be chargeable on this amount.","elements":[]},{"content":"64.\u00a0\u00a0As to the costs of the Convention proceedings, the Court notes that the applicant did not submit any bill of fees or any other supporting documents as required under Rule 60 of the Rules of Court. According to the Court\u2019s case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. Given the applicant\u2019s failure to submit the required documents, the Court is not in a position to make such an assessment. It therefore rejects the claim.","elements":[]}]},{"content":"C.\u00a0\u00a0Default interest","elements":[{"content":"65.\u00a0\u00a0The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.","elements":[]}]}]}],"section_name":"law"},{"content":"FOR THESE REASONS, THE COURT UNANIMOUSLY","elements":[{"content":"1.\u00a0\u00a0Declares the complaint concerning the excessive length of the proceedings admissible and the remainder of the application inadmissible;","elements":[]},{"content":"2.\u00a0\u00a0Holds that there has been a violation of Article 6 \u00a7 1 of the Convention;","elements":[]},{"content":"3.\u00a0\u00a0Holds","elements":[]},{"content":"(a)\u00a0\u00a0that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article\u00a044\u00a0\u00a7\u00a02 of the Convention, EUR 1,500 (one thousand and five hundred euros) in respect of costs and expenses plus any tax that may be chargeable on that amount;","elements":[]},{"content":"(b)\u00a0\u00a0that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;","elements":[]},{"content":"4.\u00a0\u00a0Dismisses unanimously the remainder of the applicant\u2019s claim for just satisfaction.","elements":[]},{"content":"Done in English, and notified in writing on 24 February 2005, pursuant to Rule 77 \u00a7\u00a7 2 and 3 of the Rules of Court.","elements":[]}],"section_name":"conclusion"}] > !?Q 33%-  001-212148CASE OF SAMSIN v. UKRAINECHAMBERECLI:CE:ECHR:2021:1014JUD00389771938977/192021-10-14 00:00:002021-10-14 00:00:00ENGFith SectionCourt14.7306823730469UKR48:[{"content":"INTRODUCTION","elements":[{"content":".\u00a0\u00a0The applicant complained, in particular, that his dismissal from the position of Supreme Court judge and the measures applied to him under the Government Cleansing (Lustration) Act had breached his rights under Article\u00a08 of the Convention.","elements":[]}],"section_name":"introduction"},{"content":"THE FACTS","elements":[{"content":"2.\u00a0\u00a0The applicant was born on 30 November 1957 and lives in Kyiv. The applicant was represented by Mr I.V. Boychenyuk, a lawyer practising in Kyiv.","elements":[]},{"content":"3.\u00a0\u00a0The Government were represented by their Agent, Mr I.\u00a0Lishchyna.","elements":[]},{"content":"4.\u00a0\u00a0Information on the background to the events leading to the adoption of the Lustration Act can be found in Polyakh and Others v. Ukraine (nos.\u00a058812/15 and 4 others, 17 October 2019).","elements":[]},{"content":"5.\u00a0\u00a0The facts of the case, as submitted by the parties, may be summarised as follows.","elements":[]},{"content":"6.\u00a0\u00a0The applicant was first appointed as a judge in 1987. In 1995 he was appointed to the Supreme Court, and in 2003 that appointment was confirmed for an indefinite period (until retirement).","elements":[]},{"content":"7.\u00a0\u00a0In 2005 the Assembly of Judges of Ukraine elected him to the High Judicial Qualifications Commission (\u201cthe Commission\u201d). The Commission\u2019s primary role is the selection of candidates for judicial posts, and disciplinary proceedings against judges. The applicant was the Commission\u2019s chairman from 2006 to 2009. In September 2010 the applicant was again appointed to the Commission by the head of the State Judicial Administration and elected its chairman.","elements":[]},{"content":"8.\u00a0\u00a0On 11 April 2014 the applicant\u2019s tenure on the Commission was terminated on the coming into force of the Restoration of Trust in the Judiciary Act (see paragraph 33 below).","elements":[]},{"content":"9.\u00a0\u00a0On 16 October 2014 the Government Cleansing (Lustration) Act (\u201cthe GCA\u201d) came into force (see the relevant provisions of the Act in paragraph\u00a032 below).","elements":[]},{"content":"10.\u00a0\u00a0The President of the Supreme Court determined that the court\u2019s judges had to submit the declarations required by the GCA between 1 and 11\u00a0December 2014. On 11 December 2014 the Acting President of the Supreme Court informed the Ministry of Justice (\u201cthe Ministry\u201d) that the applicant had failed to submit that declaration.","elements":[]},{"content":"10.\u00a0\u00a0The President of the Supreme Court determined that the court\u2019s judges had to submit the declarations required by the GCA between 1 and 11\u00a0December 2014. On 11 December 2014 the Acting President of the Supreme Court informed the Ministry of Justice (\u201cthe Ministry\u201d) that the applicant had failed to submit that declaration.","elements":[]},{"coAAQ3333'- ?001-68396CASE OF NOWICKY v. AUSTRIACHAMBERECLI:CE:ECHR:2005:0224JUD0034983023634983/022005-02-01 00:00:002001-09-06 00:00:002005-02-24 00:00:002005-02-24 00:00:00ENGFirst SectionCourt14.1129503250122AUT4[{"content":"PROCEDURE","elements":[{"content":"1.\u00a0\u00a0The case originated in an application (no. 34983/02) against the lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Cntent":"11.\u00a0\u00a0On 13 March 2015 the Ministry requested from the Commission information about individuals who were members of the Commission in 2010-2014 (the GCA\u2019s \u201cone-year rule\u201d). The Commission provided the relevant information on 26 March 2015, confirming that the applicant had been a Commission member from 2010 to 2014, that is for more than a year in the relevant period.","elements":[]},{"content":"12.\u00a0\u00a0On 3 and 9 September 2015 the Ministry submitted to the High Council of Justice (\u201cthe HCJ\u2019) applications seeking the applicant\u2019s dismissal from his judicial post under the GCA on the grounds that he had not submitted his declaration, and because the GCA\u2019s one-year rule applied to him.","elements":[]},{"content":"12.\u00a0\u00a0On 3 and 9 September 2015 the Ministry submitted to the High Council of Justice (\u201cthe HCJ\u2019) applications seeking the applicant\u2019s dismissal from his judicial post under the GCA on the grounds that he had not submitted his declaration, and because the GCA\u2019s one-year rule applied to him.","elements":[]},{"content":"13.\u00a0\u00a0On 19 November 2015 the HCJ\u2019s disciplinary section recommended to the HCJ that it open proceedings in relation to the Ministry\u2019s applications. That recommendation was based on a report prepared by a member of the HCJ. Both documents stated that the GCA\u2019s one-year rule applied to the applicant and that he had failed to submit the required declaration.","elements":[]},{"content":"14.\u00a0\u00a0On 11 July 2016 the applicant attempted to resign from the Supreme Court and submitted an application to that effect for examination by the HCJ (see the relevant provisions of the domestic law on judicial resignations in paragraph 29 below).","elements":[]},{"content":"15.\u00a0\u00a0On 9 September 2016 the HCJ decided to postpone its examination of the applicant\u2019s resignation application until it had examined the Ministry\u2019s applications.","elements":[]},{"content":"16.\u00a0\u00a0In the proceedings before the HCJ the applicant argued that he had not submitted a lustration declaration since, on a literal reading of the GCA, whatever he said in the declaration would lead to his dismissal. However, the applicant submitted that the provisions of the GCA could not lead to his dismissal since the GCA was contrary to the principles of post-Communist lustration set out in Council of Europe documents (see Polyakh, cited above, \u00a7\u00a7\u00a0104 and 105), in particular as it provided for measures against civil servants without any evaluation of their individual role and conduct. The applicant stressed that he had not engaged in any blameworthy conduct and therefore application of the GCA measures to him could not serve the proclaimed purpose of the GCA, namely addressing the negative phenomena which had afflicted the civil service under the former President of Ukraine. He also pointed out that, in any event, he had already in 2014 been removed from the Commission under the Restoration of Trust in the Judiciary Act.","elements":[]},{"content":"16.\u00a0\u00a0In the proceedings before the HCJ the applicant argued that he had not submitted a lustration declaration since, on a literal reading of the GCA, whatever he said in the declaration would lead to his dismissal. However, the applicant submitted that the provisions of the GCA could not lead to his dismissal since the GCA was contrary to the principles of post-Communist lustration set out in Council of Europe documents (see Polyakh, cited above, \u00a7\u00a7\u00a0104 and 105), in particular as it provided for measures against civil servants without any evaluation of their individual role and conduct. The applicant stressed that he had not engaged in any blameworthy conduct and therefore application of the GCA measures to him could not serve the proclaimed purpose of the GCA, namely addressing the negative phenomena which had afflicted the civil service under the former President of Ukraine. He also pointed out that, in any event, he had already in 2014 been removed from the Commission under the Restoration of Trust in the Judiciary Act.","elements":[]},{"content":"17.\u00a0\u00a0On 25 April 2017 the HCJ dismissed the applicant from the position of Supreme Court judge. The HCJ found that the GCA\u2019s one-year rule applied to the applicant, and he had failed to submit a lustration declaration. Subsequently the HCJ left the applicant\u2019s resignation application without consideration because he had already been dismissed from judicial office. This deprived the applicant of the benefits associated with judicial retirement, banned him from employment in the civil service until the end of 2024, and put his name in a publicly accessible Lustration Register.","elements":[]},{"content":"18.\u00a0\u00a0The applicant appealed against the decision, reiterating the same arguments he had raised before the HCJ. The case was examined by the Administrative Court of Cassation (\u201cthe ACC\u201d), sitting as a first-instance court.","elements":[]},{"content":"19.\u00a0\u00a0On 22 March 2018 the AC\u0421 suspended the proceedings concerning the applicant\u2019s appeal until the Constitutional Court had ruled on the constitutionality of the GCA (for more detail on those proceedings see Polyakh, cited above, \u00a7\u00a7 60-70) but on 17 May 2018 the Grand Chamber of the Supreme Court quashed that decision and held that the examination of the case had to proceed.","elements":[]},{"content":"20.\u00a0\u00a0On 18 September 2018 the ACC allowed the applicant\u2019s claim and quashed the HCJ\u2019s decision. It found that, while the GCA applied to the applicant under the Act\u2019s one-year rule and because the applicant had failed to submit a lustration declaration, the HCJ\u2019s decision had been disproportionate. This was because the GCA\u2019s goal was to remove certain categories of civil servants from their positions, not to punish them, and that goal could have been achieved by allowing the applicant to resign.","elements":[]},{"content":"21.\u00a0\u00a0The Ministry and the HCJ appealed.","elements":[]},{"content":"21.\u00a0\u00a0The Ministry and the HCJ appealed.","elements":[]},{"content":"22.\u00a0\u00a0On 31 January 2019 the Grand Chamber of the Supreme Court quashed the ACC\u2019s ruling and upheld the HCJ\u2019s decision. The Grand Chamber agreed with the ACC\u2019s assessment that the GCA applied to the applicant under the Act\u2019s one-year rule and because the applicant had failed to submit a lustration declaration but considered that the proportionality principle had not been breached. The relevant parts of the Grand Chamber\u2019s decision read, insofar as relevant:","elements":[]},{"content":"\u201c[The ACC] came to the conclusion that the HCJ had breached the principle of proportionality because the applicant had intended to remove himself from the exercise of State power of his own volition, which would in itself be the result at which the lustration procedure was aimed. In other words, according to the position of the first-instance court, the interference with the rights of a person (dismissal of the plaintiff) did not justify the aim of the lustration process, that is the \u201cbalance was not achieved\u201d and this conclusion was found by the court to be sufficient to set aside the decision of the HCJ of 25 April 2017...","elements":[]},{"content":"By contrast [the appellants] argued that the court\u2019s conclusion concerning the violation of the constitutional right of the plaintiff to retire had not corresponded to the circumstances of the case because the HCJ had complied with the requirements of legislation in that respect.","elements":[]},{"content":"The Grand Chamber accepts this position of the appellants and considers it necessary to point out the following.","elements":[]},{"content":"The GCA establishes one procedure for voluntary removal of the subject of lustration from State power, that is for him to inform the competent authorities in his statement that restrictions under the GCA apply to him...","elements":[]},{"content":"The Grand Chamber specifies that the plaintiff did not lodge the statement envisaged by the Act.. within the time-limit set by the order of the president of the Supreme Court... This statement was not lodged later either.","elements":[]},{"content":"The plaintiff\u2019s failure to submit the statement is grounds for the [imposition of restrictions under the Act] because this provision of the legislation is obligatory.","elements":[]},{"content":"The case-file material shows that on 11 July 2016 the plaintiff lodged the application for resignation from the position of the judge of the Supreme Court of Ukraine. In other words, the application was submitted after the HCJ had received applications from the Ministry... and started considering them according to the procedure established by law.","elements":[]},{"content":"Therefore the [grounds for the plaintiff\u2019s dismissal] had arisen before he had expressed his willingness to resign. And that is why the HCJ had lawfully postponed the examination of his resignation application of 11 July 2016 until examination of the above-mentioned applications from the Ministry of Justice. This did not contradict the Rules of the HCJ.","elements":[]},{"content":"The Grand Chamber also considers it necessary to point out that the right to resign can be used by the judge if before the lodging of the application for resignation he had not committed any actions which may justify his dismissal by the competent authorities on other grounds.","elements":[]},{"content":"The reason for this is that the judge dismissed based on his resignation application retains the title of the judge... The title is not retained in case of dismissal on other grounds.","elements":[]},{"content":"According to section 120 of the Judiciary and the Status of Judges Act as worded at the relevant time the resignation application shall be launched by the judge directly with the HCJ which, within a month of receipt of that application, had to make an application for dismissal due to resignation to the authority who had appointed the judge. However this provision does not deprive the HCJ of the possibility to exercise other powers envisaged by the Constitution and the laws.","elements":[]},{"content":"...","elements":[]},{"content":"Accordingly, the first-instance court\u2019s conclusion that the HCJ breached the plaintiff\u2019s constitutional right to resignation does not correspond to the circumstances of the case and is not in accordance with the provisions of the Constitution and the laws of Ukraine.","elements":[]},{"content":"The Grand Chamber also agrees with the appellants\u2019 arguments concerning the absence of the breach of the principle of proportionality by the HCJ in dismissing the plaintiff under the GCA and concerning the legitimacy of the aim pursued by the limitation of the plaintiff\u2019s rights in view of the following.","elements":[]},{"content":"It can be seen from analysing the provisions of the GCA and of the Restoration of Trust in the Judiciary Act that their main goal is the implementation in Ukraine of the Government cleansing procedure, most importantly to restore the citizens\u2019 trust in the authorities, including the authority of the judiciary. The legislator designated termination of the powers of the members of the HCJ and the High Judicial Qualifications Commission as one of such measures.","elements":[]},{"content":"In view of the above-mentioned circumstances the plaintiff, as the member of the Commission, was subject to those measures due to his membership in that body during the period determined in the GCA.","elements":[]},{"content":"The Government-cleansing measures (lustration) are an expression of the concept of democracy capable of defending itself. The Parliament is responsible vis-\u00e0-vis the people for the creation of an effective State apparatus which is capable of defending democracy, the rule of law and guaranteeing human rights. However, the principle of democracy capable of defending itself; considering the principles of morality in law, does not give the State any authority to violate human rights.","elements":[]},{"content":"...","elements":[]},{"content":"The Grand Chamber agrees with the arguments set out in the HCJ\u2019s appeal that in this case there was an interference with the plaintiff\u2019s right to occupy the post of a judge which in the context of the case-law of the European Court of Human Rights is an aspect of the right to respect for private and family life guaranteed by Article 8 of the Convention. However, this interference was based on the legislative requirement and had for its aim protection of the rights and freedom of others, namely restoration of the citizens\u2019 trust in the authorities and in the judiciary. That was in accordance with the provisions of paragraph 2 of Article 8 of the Convention.","elements":[]},{"content":"Limitation of the plaintiff\u2019s rights was conducted on the basis of the Act which has not been declared unconstitutional by the Constitutional Court of Ukraine... The fact that the constitutionality of the Act is under examination by the Constitutional Court of Ukraine cannot be used as an argument in the present case for the court\u2019s own assessment of its provisions for compliance with the Basic Law. This assessment can be done only after decision of the Constitutional Court.","elements":[]},{"content":"...","elements":[]},{"content":"To comply with the principle of proportionality the limitation on the rights must be provided by a legislative act, pursue a legitimate aim and must be commensurate to that aim, that is there must be a relationship between the result which is being attained by the limitation and the harm which can be inflicted.","elements":[]},{"content":"According to the preamble of the GCA that Act determines legal and organisational measures concerning implementation of Government cleansing (lustration) and consolidation of democratic values, rule of law and human rights in Ukraine.","elements":[]},{"content":"To achieve that aim the Act implements the procedure for verification of people who are subject to that verification to check their compliance with the criteria established by the law, to determine whether they can remain in the respective positions.","elements":[]},{"content":"Therefore the aim of the implementation of the Act is to protect the rights and freedoms of others, it is legitimate and this implementation must be beneficial to ensuring the balance between the needs of a democratic State and defence of democracy and human rights.","elements":[]},{"content":"In the context of the present case the Grand Chamber also notes the following.","elements":[]},{"content":"A judge must maintain high standards of conduct in any activity in order to ensure public trust in the judiciary [citing the Judiciary and the Status of Judges Act 2016 \u2013 see paragraph 31 below].","elements":[]},{"content":"As a subject of constant public scrutiny, a judge must accept personal restrictions that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly. In particular, a judge shall conduct himself or herself in a way that is consistent with the dignity of the judicial office [citing the Bangalore Principles \u2013 see paragraph 35 below].","elements":[]},{"content":"According to the [Code of Judicial Ethics \u2013 see paragraph 34 below] judges must be examples of observance of the law. Judges must endeavor to conduct themselves in such a manner that their conduct would be considered irreproachable by a reasonable, law-abiding and well-informed person.","elements":[]},{"content":"Therefore a person who has its status of a judge must ensure high standards of conduct in all of their activities. The first expression of this is unwavering compliance with the requirements of the legislation, including duties and limitations imposed on a judge.","elements":[]},{"content":"In consequence, the plaintiff\u2019s failure to submit a lustration declaration was contrary to [the Bangalore Principles and the Code of Judicial Ethics].","elements":[]},{"content":"The Grand Chamber, taking into account the above-mentioned, having examined the body of the evidence assessed in the course of judicial examination, and having examined all the arguments of the parties, considers that [the HCJ, in its decision to dismiss the applicant on 25 April 2017 and not to examine his resignation application], acted within the limits of its powers and in a manner envisaged by the Constitution and the laws of Ukraine, in compliance with the principle of proportionality.\u201d","elements":[]},{"content":"The Grand Chamber, taking into account the above-mentioned, having examined the body of the evidence assessed in the course of judicial examination, and having examined all the arguments of the parties, considers that [the HCJ, in its decision to dismiss the applicant on 25 April 2017 and not to examine his resignation application], acted within the limits of its powers and in a manner envisaged by the Constitution and the laws of Ukraine, in compliance with the principle of proportionality.\u201d","elements":[]},{"content":"The Grand Chamber, taking into account the above-mentioned, having examined the body of the evidence assessed in the course of judicial examination, and having examined all the arguments of the parties, considers that [the HCJ, in its decision to dismiss the applicant on 25 April 2017 and not to examine his resignation application], acted within the limits of its powers and in a manner envisaged by the Constitution and the laws of Ukraine, in compliance with the principle of proportionality.\u201d","elements":[]},{"content":"23.\u00a0\u00a0The applicant lodged a complaint with the Constitutional Court, alleging that the GCA provisions applied in his case were unconstitutional. The Constitutional Court started the proceedings concerning the complaint on 22\u00a0April 2019. As of the time of the parties\u2019 latest communication with the Court (21 May 2021), those proceedings remained pending.","elements":[]},{"content":"As indicated in Polyakh and Others (cited above, \u00a7\u00a7\u00a060-70) the proceedings concerning the constitutionality of the GCA have been pending before the Constitutional Court since 2014.","elements":[]},{"content":"As indicated in Polyakh and Others (cited above, \u00a7\u00a7\u00a060-70) the proceedings concerning the constitutionality of the GCA have been pending before the Constitutional Court since 2014.","elements":[]},{"content":"24.\u00a0\u00a0According to the publicly accessible Lustration Register, the applicant is subject to the ten-year prohibition under the GCA\u2019s one-year rule (see paragraph 32 below).","elements":[]},{"content":"24.\u00a0\u00a0According to the publicly accessible Lustration Register, the applicant is subject to the ten-year prohibition under the GCA\u2019s one-year rule (see paragraph 32 below).","elements":[]},{"content":"25.\u00a0\u00a0According to the applicant, in May 2017 he stopped receiving his salary. At that time, his salary which would have been taken into account for a resignation allowance and judicial pension, was 41,600 Ukrainian hryvnias (UAH). Had the applicant been allowed to resign, based on that level of salary and the length of his judicial career (see paragraph 30 below), he would have been initially entitled to a resignation allowance of UAH\u00a037,440 (about 1,110 euros (EUR) at the end of December 2021). According to him, this would have been increased, starting from November\u00a02018, based on subsequent raises in remuneration of active Supreme Court judges, to reach UAH 354,713 per month in February 2021.","elements":[]},{"content":"25.\u00a0\u00a0According to the applicant, in May 2017 he stopped receiving his salary. At that time, his salary which would have been taken into account for a resignation allowance and judicial pension, was 41,600 Ukrainian hryvnias (UAH). Had the applicant been allowed to resign, based on that level of salary and the length of his judicial career (see paragraph 30 below), he would have been initially entitled to a resignation allowance of UAH\u00a037,440 (about 1,110 euros (EUR) at the end of December 2021). According to him, this would have been increased, starting from November\u00a02018, based on subsequent raises in remuneration of active Supreme Court judges, to reach UAH 354,713 per month in February 2021.","elements":[]},{"content":"26.\u00a0\u00a0In fact, in December 2017, on reaching sixty (the general retirement age for men), the applicant obtained an ordinary old-age pension of UAH\u00a010,740 (about 320 EUR). This was subsequently raised, apparently in line with legislative raises in the minimum pension, to reach UAH\u00a014,809 in February 2021.","elements":[]}],"section_name":"facts"},{"content":"RELEVANT LEGAL FRAMEWORK AND PRACTICE","elements":[{"content":"Domestic material","elements":[{"content":"Constitution","elements":[{"content":"27.\u00a0\u00a0Article 126 of the Constitution provides for the mandatory retirement age of sixty-five for judges.","elements":[]}]},{"content":"Code of Administrative Justice 2005 (2017 restatement)","elements":[]},{"content":"Code of Administrative Justice 2005 (2017 restatement)","elements":[{"content":"28.\u00a0\u00a0Article 361\u00a0\u00a7 5 (3) of the Code provides that the finding of a violation of Ukraine\u2019s international obligations by an international judicial institution is grounds for requesting the reopening of proceedings in an administrative case.","elements":[]}]},{"content":"Judiciary and the Status of Judges Act 2010 (as in force at the relevant time)","elements":[]},{"content":"Judiciary and the Status of Judges Act 2010 (as in force at the relevant time)","elements":[{"content":"29.\u00a0\u00a0Section 120 of the Act provided that judges who had served for at least twenty years could resign, preserving their judicial status and related immunities. Applications had to be submitted to the HCJ which, within a month of receipt of that application, had to make an application for dismissal due to resignation to the authority who had appointed the judge (constitutional changes of September 2016 conferred on the HCJ itself the power to dismiss judges).","elements":[]},{"content":"29.\u00a0\u00a0Section 120 of the Act provided that judges who had served for at least twenty years could resign, preserving their judicial status and related immunities. Applications had to be submitted to the HCJ which, within a month of receipt of that application, had to make an application for dismissal due to resignation to the authority who had appointed the judge (constitutional changes of September 2016 conferred on the HCJ itself the power to dismiss judges).","elements":[]},{"content":"30.\u00a0\u00a0Section 141 of the Act contained detailed rules concerning calculation of the allowance for judges who resigned from their post and of judicial pensions. The amount of the allowance was 60 per cent of the compensation of an active judge serving in an equivalent post. On reaching 62\u00a0years they could either keep that allowance or receive a judicial pension. The Constitutional Court declared the relevant provisions unconstitutional on 8\u00a0June 2016 and specified that the allowance must be 80 per cent of the compensation of an equivalent active judge, and had to be increased by two per cent per additional year of service, up to 90 per cent of an active judge\u2019s compensation. The allowance amount had to change in line with changes to the compensation of equivalent active judges.","elements":[]}]},{"content":"Judiciary and the Status of Judges Act 2016","elements":[]},{"content":"Judiciary and the Status of Judges Act 2016","elements":[{"content":"31. Section 56(7)(2) of the Judiciary and the Status of Judges Act\u00a02016 provides that judges, among their other duties, must maintain high standards of conduct in any activity in order to ensure public trust in the judiciary.","elements":[]}]},{"content":"Government Cleansing (Lustration) Act 2014","elements":[]},{"content":"Government Cleansing (Lustration) Act 2014","elements":[{"content":"32.\u00a0\u00a0The relevant provisions of the GCA are summarised in Polyakh (cited above, \u00a7\u00a7 73, 74 and 77) as follows:","elements":[]},{"content":"\u201c2.\u00a0\u00a0Categories of individuals subject to restrictive measures: the one-year rule and the \u201cEuroMaidan\u201d period rule","elements":[]},{"content":"\u201c2.\u00a0\u00a0Categories of individuals subject to restrictive measures: the one-year rule and the \u201cEuroMaidan\u201d period rule","elements":[]},{"content":"73.\u00a0\u00a0The Act provides for the dismissal of certain categories of individuals from their positions in the civil service. These include individuals who (a) for at least a year in the period from 25 February 2010 to 22 February 2014 (\u201cthe one-year period\u201d) or (b) for any period of time from 21 November 2013 to 22 February 2014 (the \u201cEuroMaidan period\u201d) occupied the following positions:","elements":[]},{"content":"...","elements":[]},{"content":"(iii) members of the High Council of Justice, the High Judicial Qualifications Commission, the head and deputy heads of the State Judicial Administration;","elements":[]},{"content":"...","elements":[]},{"content":"3.\u00a0\u00a0Ten-year and five-year bans","elements":[]},{"content":"3.\u00a0\u00a0Ten-year and five-year bans","elements":[]},{"content":"74.\u00a0\u00a0A person dismissed from any of the above-mentioned positions for the above-mentioned reasons would then be banned for ten years from the Act coming into force, that is, until 16 October 2024, from occupying positions in the civil service or local government (\u043f\u043e\u0441\u0430\u0434\u043e\u0432\u0438\u0445 \u0442\u0430 \u0441\u043b\u0443\u0436\u0431\u043e\u0432\u0438\u0445 \u043e\u0441\u0456\u0431 \u043e\u0440\u0433\u0430\u043d\u0456\u0432 \u0434\u0435\u0440\u0436\u0430\u0432\u043d\u043e\u0457 \u0432\u043b\u0430\u0434\u0438, \u043e\u0440\u0433\u0430\u043d\u0456\u0432 \u043c\u0456\u0441\u0446\u0435\u0432\u043e\u0433\u043e \u0441\u0430\u043c\u043e\u0432\u0440\u044f\u0434\u0443\u0432\u0430\u043d\u043d\u044f) and directors of State-owned companies working in the defence sector or those providing administrative services on behalf of government agencies (section 2 and section 1(3) of the GCA) (\u201cten-year ban\u201d).","elements":[]},{"content":"...","elements":[]},{"content":"4.\u00a0\u00a0Procedure","elements":[]},{"content":"77.\u00a0\u00a0The GCA requires all State and local government officials to lodge with their superiors, within the time frame approved by the relevant government entities, a statement (declaration) declaring whether any of the restrictions in the GCA apply to them and providing consent to the statement being checked (sections 4(1) and 2(1)(1) to (10)). Once screening is started in respect of a given government entity, all officials working there must file a declaration within ten days. Failure to file a declaration or filing a declaration stating that the GCA applies is grounds for dismissal (section\u00a04(3)). If the official files a declaration stating that the GCA does not apply to him or her, the relevant authority then conducts a check and draws up a report. If it is found, as a result of the check, that the GCA does apply to the official, his or her superior either dismisses him or her or refers the matter to the body competent to do so with an application for dismissal (section\u00a05(14)).\u201d","elements":[]}]},{"content":"Restoration of Trust in the Judiciary Act 2014","elements":[]},{"content":"Restoration of Trust in the Judiciary Act 2014","elements":[{"content":"33.\u00a0\u00a0The Act came into force on 11 April 2014. It provided that from the date of the Act\u2019s entry into force, the powers of the members of the High Council of Justice, the High Judicial Qualifications Commission and presidents of the higher courts would come to an end and that new elections would be held for those positions.","elements":[]}]},{"content":"Code of Judicial Ethics approved by the Assembly of Judges of Ukraine on 22 February 2013","elements":[]},{"content":"Code of Judicial Ethics approved by the Assembly of Judges of Ukraine on 22 February 2013","elements":[{"content":"34.\u00a0\u00a0Article 1 of the Code provides that judges must be examples of observance of the law, of the principle of the rule of law, and of their judicial oath, and must maintain high standards of conduct to strengthen public confidence in the judiciary. Article 3 provides that judges must endeavor to conduct themselves in such a manner that their conduct would be considered irreproachable by a reasonable, law-abiding and wellinformed person.","elements":[]}]}]},{"content":"International material","elements":[{"content":"Bangalore Principles","elements":[]},{"content":"Bangalore Principles","elements":[{"content":"35.\u00a0\u00a0The Bangalore Draft Code of Judicial Conduct 2001 was adopted by the Judicial Group on Strengthening Judicial Integrity, and it was revised at the Round Table Meeting of Chief Justices held in The Hague in November 2002. The relevant principle contained therein reads as follows:","elements":[]},{"content":"\u201c4.2\u00a0\u00a0As a subject of constant public scrutiny, a judge must accept personal restrictions that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly. In particular, a judge shall conduct himself or herself in a way that is consistent with the dignity of the judicial office.\u201d","elements":[]}]},{"content":"Venice Commission\u2019s opinions on the GCA","elements":[]},{"content":"Venice Commission\u2019s opinions on the GCA","elements":[{"content":"36.\u00a0\u00a0The relevant parts of the interim and final opinions of the Venice Commission on the GCA, adopted at 101st and\u00a0103rd (12-13\u00a0December 2014 and 19-20\u00a0June 2015)\u00a0plenary sessions respectively, read as follows:","elements":[]},{"content":"Interim opinion","elements":[]},{"content":"\u201c65.\u00a0\u00a0Under the Lustration law individuals subject to lustration have no possibility to prove that despite the position they held they did not engage in any violations of human rights and did not take or support any anti-democratic measures. There does not appear to be any possibility to invoke the time elapsed since the occupation of the position nor the subsequent conduct and attitude. The European Court of Human Rights has accepted that an extremely serious past conduct \u2013 namely collaboration with the Securitate - may become a criterion of permanent ineligibility to the public function. In the Commission\u2019s view, however, the fact that the Lustration law excludes the time factor altogether, irrespective of the gravity of the past conduct, collides with the principle of \u201cindividual liability\u201d on which lustration must be based (Article 1.2). Even a voluntary resignation from the position prior to 22 February 2014 would not be sufficient to be excluded from lustration. In the Commission\u2019s view, the individual should be given the opportunity to resign voluntarily: this would save governmental financial and human resources, while shielding the person from revealing his or her identity.","elements":[]},{"content":"...","elements":[]},{"content":"76.\u00a0\u00a0There is an overlap between the Lustration Law and the Law on the Restoration of the Trust in the Judiciary as concerns the Maidan events. The Ukrainian authorities have explained that the inclusion of judges in the new law was justified on two grounds: first, the previous law has proved ineffective (the number of cases processed by the special commission is negligible); second, the previous law does not enable to ban the lustrated judge from public service. The Venice Commission finds that if the previous law is deemed to be ineffective, it should be repealed and replaced by new, more effective provisions which however duly respect the constitutional rules on the independence of judges. The current overlap creates problems of legal certainty and of co-ordination: if a judge has already been the object of a procedure under the Law on the Restoration of Trust in the Judiciary, he or she should be immune from the application of the Lustration law pursuant to the principle of ne bis in idem. If no procedure has been carried out yet, it is unclear which procedure prevails. The lustration of judges should be regulated in one law only.\u201d","elements":[]},{"content":"Final opinion","elements":[]},{"content":"\u201c64.\u00a0\u00a0In its Interim Opinion, the Venice Commission noted that \u201ceven a voluntary resignation from the position prior to 22 February 2014 would not be sufficient to be excluded from lustration\u201d (para. 65). The 1996 Guidelines explicitly state that \u201clustration shall not be imposed on a person who /.../ in good faith voluntarily repudiated and/or abandoned membership, employment or agency with the relevant organisation before the transition to a democratic r\u00e9gime\u201d (para. l).","elements":[]},{"content":"65.\u00a0\u00a0The draft amendments take this requirement partly into account by providing in the heading of Article 3(2) that the ban shall be imposed on the relevant persons who \u201cwere not retired from the office on their own will\u201d. The provision is not completely clear as to whether the retirement must have occurred in the given period (21\u00a0November 2013 \u2013 22 February 2014) or whether later retirement would also be taken into account. The draft amendments fail to include a similar provision into other sections of Article\u00a03. Since \u201cthe aim of lustration is not to punish people presumed guilty /.../ but to protect the newly-emerged democracy\u201d (Preamble of the Guidelines), the changes in individual attitudes are a factor to be taken into account with respect to all categories of individuals.","elements":[]},{"content":"...","elements":[]},{"content":"111.\u00a0\u00a0The Venice Commission would particularly like to draw attention to the following main points:","elements":[]},{"content":"...","elements":[]},{"content":"b)\u00a0\u00a0Ordinary judges should be excluded from Article 2(4) and subject solely to the regime of the Law on the restoration of trust in the judiciary of Ukraine. \u201d","elements":[]}]}]}],"section_name":"relevant_law"},{"content":"THE LAW","elements":[{"content":"ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION","elements":[{"content":"37.\u00a0\u00a0The applicant complained of a violation of his rights under Article\u00a08 of the Convention following his dismissal from the position of Supreme Court judge. Article 8 reads as follows:","elements":[]},{"content":"\u201c1.\u00a0\u00a0Everyone has the right to respect for his private and family life, his home and his correspondence.","elements":[]},{"content":"2.\u00a0\u00a0There 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.\u201d","elements":[]},{"content":"Admissibility","elements":[{"content":".\u00a0\u00a0The Government did not raise any objection as to admissibility of the present application in view of the proceedings pending before the Constitutional Court (see paragraph 23 above) and it is therefore not necessary for the Court to address that issue. The Court, however, observes that according to the publicly available information the proceedings for review of the constitutionality of the Government Cleansing Act launched in 2015 and discussed in Polyakh and Others v. Ukraine (nos.\u00a058812/15 and 4 others, \u00a7\u00a7 60-70, 177-96, 17 October 2019) remain pending.","elements":[]},{"content":".\u00a0\u00a0As to applicability of Article 8, the Court already held in Polyakh and Others (cited above, \u00a7\u00a7 208-11) that application of measures under the Government Cleansing Act constituted an interference with the right to respect for private life, on account of the combination of the following factors:","elements":[]},{"content":"(i)\tthe applicants were dismissed from the civil service losing all their remuneration with immediate effect;","elements":[]},{"content":"(ii)\tthey were banned from occupying positions in the civil service for ten years, and","elements":[]},{"content":"(iii)\tthe applicants\u2019 names were entered into the publicly accessible online Lustration Register. which was very likely to be associated with social and professional stigma.","elements":[]},{"content":"40.\u00a0\u00a0In Oleksandr Volkov\u00a0v. Ukraine (no.\u00a021722/11, \u00a7\u00a7\u00a0165-67, ECHR\u00a02013), the Court also found that dismissal of a Supreme Court judge due to a \u201cbreach of judicial oath\u201d had constituted an interference with his right to respect for private life because it had involved loss of job with consequences for his material well-being and had affected his reputation.","elements":[]},{"content":".\u00a0\u00a0All those considerations are equally applicable in the present case. The fact that the applicant was only about five years away from mandatory retirement age at the time he was effectively dismissed is not sufficient to change that conclusion.","elements":[]},{"content":".\u00a0\u00a0Firstly, the applicant suffered considerable prejudice in terms of retirement payments to which he was entitled (see paragraphs\u00a025 and 26 above).","elements":[]},{"content":".\u00a0\u00a0Moreover, in Gumenyuk and Others\u00a0v. Ukraine (no.\u00a011423/19, \u00a7\u00a7\u00a086-89, 22 July 2021, not yet final) the Court found Article\u00a08 applicable on account of the fact that some Supreme Court judges were prevented from exercising judicial functions even though some of them were closer to retirement age at the relevant time than the applicant (two applicants, like Mr Samsin, were born in 1957 and one in 1954 \u2013 see Appendix to the Gumenyuk and Others judgment) and there was no indication that they lost their remuneration (ibid., \u00a7 88) or suffered any prejudice in terms of retirement payments.","elements":[]},{"content":".\u00a0\u00a0The Court concludes that Article 8 of the Convention is applicable in the present case.","elements":[]},{"content":"45.\u00a0\u00a0The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article\u00a035 of the Convention. It must therefore be declared admissible.","elements":[]}]},{"content":"Merits","elements":[{"content":"The parties\u2019 submissions","elements":[{"content":"46.\u00a0\u00a0The applicant argued that the High Council of Justice (\u201cthe HCJ\u201d) had unlawfully postponed the examination of his resignation application, and had had to examine it within thirty days after it had been lodged, regardless of the application under the Government Cleansing Act (\u201cthe GCA\u201d). He relied on the legislative provision set out in paragraph 29 above.","elements":[]},{"content":"47.\u00a0\u00a0He stressed that it had not been merely the absence of his lustration declaration but also his having occupied the position on the High Judicial Qualifications Commission (\u201cthe Commission\u201d) that had been grounds for his dismissal. Had he submitted the declaration, this would not have allowed him to argue that the GCA did not apply to him. The absence of the declaration had not prevented the authorities from investigating the issue themselves, affirming in the domestic proceedings that the GCA\u2019s one-year rule applied to him and publishing that information in the Lustration Register.","elements":[]},{"content":"48.\u00a0\u00a0The Government accepted that there was an interference with the applicant\u2019s rights under Article 8. That interference was lawful, on the basis of the GCA. The Grand Chamber of the Supreme Court had found that there had been grounds for applying the GCA to the applicant, and had found that the relevant procedure had been duly followed.\u00a0As to the necessity of the interference, in Polyakh and Others v. Ukraine (nos.\u00a058812/15 and 4 others, \u00a7\u00a7\u00a0285 and 286, 17 October 2019), the Court had recognised that the period when the applicant had chaired the Commission (2010-2014) was characterised by a number of negative developments which had in principle justified measures of change and reform in the civil service.","elements":[]},{"content":"48.\u00a0\u00a0The Government accepted that there was an interference with the applicant\u2019s rights under Article 8. That interference was lawful, on the basis of the GCA. The Grand Chamber of the Supreme Court had found that there had been grounds for applying the GCA to the applicant, and had found that the relevant procedure had been duly followed.\u00a0As to the necessity of the interference, in Polyakh and Others v. Ukraine (nos.\u00a058812/15 and 4 others, \u00a7\u00a7\u00a0285 and 286, 17 October 2019), the Court had recognised that the period when the applicant had chaired the Commission (2010-2014) was characterised by a number of negative developments which had in principle justified measures of change and reform in the civil service.","elements":[]},{"content":"49.\u00a0\u00a0During that period the applicant had held one of the highest positions in the State which had an impact on the entire judicial system, unlike the applicants in Polyakh (cited above), who had been lower-level civil servants. The application of the GCA measures to the applicant had therefore corresponded not only to the formal statutory grounds under the Act but also to the legitimate aim of removing from office those who had contributed to the above-mentioned negative developments. The assessment of the applicant\u2019s individual role could only be done through the verification process envisaged by the GCA, on the submission of a declaration consenting to undergo the verification process set out in the Act. The applicant\u2019s refusal to submit that declaration had not only prevented such an assessment but had also demonstrated his disregard for the law and his duties as a judge. As a judge of the highest court, he had to demonstrate openness, which was essential to restore and maintain public confidence in the judiciary. The applicant\u2019s dismissal had therefore been the only possible way of achieving the objective of restoring confidence in the judiciary.","elements":[]}]},{"content":"The Court\u2019s assessment","elements":[{"content":"50.\u00a0\u00a0In Polyakh (cited above, \u00a7\u00a7 267-82) the Court held that application of the measures under the GCA constituted an interference with the applicants\u2019 right to respect for their private life, that it was \u201cin accordance with the law\u201d, and presumably pursued the legitimate aims of the protection of national security and public safety, the prevention of disorder, and the protection of the rights and freedoms of others.","elements":[]},{"content":"51.\u00a0\u00a0In view of its findings above concerning applicability of Article\u00a08 and its conclusions below, the Court does not see a reason to revisit those conclusions in the present case. To the extent that the applicant argued that the interference was not in accordance with the law because the HCJ could not postpone the examination of his resignation application and had to examine it before the Ministry of Justice\u2019s application under the GCA, that issue in any event goes primarily to the question of whether the interference was necessary in a democratic society (see Polyakh, cited above, \u00a7\u00a0269, and, mutatis mutandis, Chumak v. Ukraine, no.\u00a044529/09, \u00a7\u00a048, 6\u00a0March 2018).","elements":[]},{"content":"52.\u00a0\u00a0Turning to that matter, the Court observes that in Polyakh (cited above, \u00a7\u00a7\u00a0296-98) it found a violation of Article 8, holding that the application of measures of considerable severity under the GCA to the applicants had not been based on an individualised assessment of their conduct, in the absence of cogent reasons for such an approach and in the absence of sufficiently narrow tailoring of those measures to address the \u201cpressing social need\u201d that the GCA ought to have been pursuing.","elements":[]},{"content":"53.\u00a0\u00a0The Government argued that the applicant\u2019s case had to be distinguished from Polyakh (cited above) in that an individualised assessment of his role and conduct had been prevented by his failure to submit a lustration declaration (see paragraph 49 above). In the assessment of the Grand Chamber of the Supreme Court, such a failure amounted to a serious breach of the applicant\u2019s duties as a Supreme Court judge, justifying his dismissal.","elements":[]},{"content":"54.\u00a0\u00a0The Court is not persuaded by this argument. In Polyakh (cited above, \u00a7\u00a7\u00a0309-15) the Court has already dealt with the case of an applicant who had been dismissed for filing his lustration declaration with a four-day delay. It noted:","elements":[]},{"content":"\u201c314.\u00a0\u00a0The essence of the declaration in question was the official\u2019s statement to the effect that the GCA restrictive measures applied or did not apply to him ... However, in the present case there was never any suggestion that there were any unknown facts in the fourth applicant\u2019s career which the declaration could reveal ... In that sense the obligation to file a declaration in the present case was different to the situations where such an obligation was aimed at revealing certain potentially hidden facts, such as secret collaboration with the security services of former totalitarian regimes (as was the case, for example, with the Polish lustration system, examined in many judgments including Matyjek [v. Poland, no. 38184/03, 24 April 2007], Bobek [v. Poland, no. 68761/01, 17 July 2007] and Luboch [v. Poland, no. 37469/05, 15 January 2008] ...).\u201d","elements":[]},{"content":"55.\u00a0\u00a0Those considerations are also pertinent in the present case. The applicant\u2019s membership of the Commission in 2010 to 2014 was a matter of public record. The authorities were undoubtedly aware of that fact and mentioned it in their decisions (see paragraphs 11 to 13 above). The relevant domestic decisions and the information in the Lustration Register demonstrate that it was not only the applicant\u2019s failure to submit the declaration, but also the fact that he had served on the Commission in 2010 to 2014, that constituted the grounds for his dismissal (see paragraphs\u00a017, 22 and 24 above).","elements":[]},{"content":"56.\u00a0\u00a0As to the argument that the applicant\u2019s failure to submit a lustration declaration prevented the authorities from assessing his individual role in the relevant period and demonstrated his disregard for the law and the duties of a judge, which failure was incompatible with his being a judge of the highest judicial instance, the Court only needs to observe that the key aspect of the applicant\u2019s argument before the HCJ and the domestic courts was that the goal of removing those who could possibly have been associated with the negative developments during the rule of the former President of Ukraine had already been achieved through the implementation of the Restoration of Trust in the Judiciary Act and he wished to be allowed to resign from his post on the Supreme Court.","elements":[]},{"content":"57.\u00a0\u00a0 The Court does not perceive any cogent arguments which would show that, in the absence of any evidence of specific known acts of misconduct on the applicant\u2019s part, and even assuming the legitimacy of the goals pursued, those goals could not be achieved, in the particular circumstances of his case (notably the measures already applied to the applicant under the Restoration of Trust in the Judiciary Act), by accepting the applicant\u2019s resignation application. Those features of the legislative scheme established by the GCA was also criticised by the Venice Commission (see paragraph 36 above).","elements":[]},{"content":"58.\u00a0\u00a0These considerations are sufficient for the Court to conclude, in the particular circumstances of the present case, that the imposition on the applicant of the measures envisaged by the GCA had not been necessary in a democratic society.","elements":[]},{"content":".\u00a0\u00a0There has, therefore, been a violation of Article 8 of the Convention.","elements":[]}]}]}]},{"content":"ALLEGED VIOLATION OF ARTICLE 14 TAKEN IN CONJUNCTION WITH ARTICLE 8 OF THE CONVENTION","elements":[{"content":"60.\u00a0\u00a0The applicant complained, under Article 14 taken in conjunction with Article 8 of the Convention, that he had been discriminated against vis\u00e0-vis persons who had not occupied high-ranking positions during the presidency of Mr\u00a0Yanukovych and vis-\u00e0-vis another judge (S.) who had been in a similar situation to the applicant but had been allowed to resign. Article 14 of the Convention reads:","elements":[]},{"content":"\u201cThe enjoyment of the rights and freedoms set forth in [the] 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.\u201d","elements":[]},{"content":"61.\u00a0\u00a0The Government submitted that there were no grounds\u00a0for\u00a0considering\u00a0that\u00a0the applicant had suffered\u00a0any discrimination.","elements":[]},{"content":"62.\u00a0\u00a0The Court notes that\u00a0this part of the application is essentially linked to the applicant\u2019s\u00a0complaint under Article 8\u00a0of the Convention. This part of the application\u00a0must therefore likewise be declared admissible.","elements":[]},{"content":"63.\u00a0\u00a0However, in the circumstances of the present case and having regard to its findings above under Article 8, the Court considers that it is not necessary to examine the applicant\u2019s complaints\u00a0under\u00a0Article\u00a014 taken in conjunction with Article\u00a08 of the Convention.","elements":[]}]},{"content":"APPLICATION OF ARTICLE\u00a041 OF THE CONVENTION","elements":[{"content":"64.\u00a0\u00a0Article\u00a041 of the Convention provides:","elements":[]},{"content":"\u201cIf 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.\u201d","elements":[]},{"content":"Damage","elements":[{"content":"65.\u00a0\u00a0The applicant claimed 200,152 euros (EUR) in respect of pecuniary damage. That claim was calculated as the amount of the allowance for judges who resigned (see paragraph 30 above) which he would have received between May 2017 (when he stopped receiving his judge\u2019s salary) and December 2017, when he started receiving his old age pension, plus, after the latter date, the difference between that old age pension and the judicial pension to which he considered he would have been entitled had he been allowed to resign.","elements":[]},{"content":".\u00a0\u00a0The applicant also claimed EUR 10,000 in respect of non-pecuniary damage.","elements":[]},{"content":"67.\u00a0\u00a0The Government contested those claims, considering them unsubstantiated. They disagreed with the applicant\u2019s method of calculation of pecuniary damage, in particular his assumption that his pension would have increased following the subsequent increase of compensation for active Supreme Court judges. They contended, in any case, that the domestic law allowed for full reparation, making it unwarranted for the Court to make an award for pecuniary damage. They maintained that the relevant amounts should most appropriately be determined by the domestic courts within the framework of review of the applicant\u2019s case by the domestic courts, to which review he would be entitled in the case of a finding of a violation by the Court (see the relevant provision of the Code of Administrative Justice in paragraph 28 above).","elements":[]},{"content":"68.\u00a0\u00a0The Court considers that the question of compensation for pecuniary damage is not ready for decision. That question must accordingly be reserved and the subsequent procedure fixed, having due regard to any agreement which might be reached between the Government and the applicant (Rule 75 \u00a7\u00a7 1 and 4 of the Rules of Court).","elements":[]},{"content":"69.\u00a0\u00a0The Court awards the applicant EUR 5,000 in respect of non-pecuniary damage, plus any tax that may be chargeable.","elements":[]}]},{"content":"Costs and expenses","elements":[{"content":"70.\u00a0\u00a0The applicant also claimed EUR 1,847 for the costs and expenses incurred before the Court. He submitted a copy of the agreement with his lawyer, under which he undertook to pay the lawyer the lumpsum of EUR\u00a01,500 in legal fees for representation before the Court, statements of acceptance of legal services detailing the time spent by the lawyer on the case and receipts for parcel shipment and translation services.","elements":[]},{"content":"71.\u00a0\u00a0The Government contested that claim, considering it unjustified and excessive. In particular, they argued that the applicant\u2019s translation and postal expenses had been incurred unnecessarily.","elements":[]},{"content":"72.\u00a0\u00a0According to the Court\u2019s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 1,500 covering the costs of the proceedings before the Court, plus any tax that may be chargeable to the applicant.","elements":[]}]},{"content":"Default interest","elements":[{"content":"73.\u00a0\u00a0The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.","elements":[]}]}]}],"section_name":"law"},{"content":"FOR THESE REASONS, THE COURT, UNANIMOUSLY,","elements":[{"content":"Declares the application admissible;","elements":[]},{"content":"Holds that there has been a violation of Article 8 of the Convention;","elements":[]},{"content":"Holds that there is no need to examine the complaint under Article\u00a014 taken in conjunction with Article 8 of the Convention;","elements":[]},{"content":"Holds that, as regards pecuniary damage resulting from the violations found, the question of just satisfaction is not ready for decision and accordingly,","elements":[]},{"content":"reserves\u00a0this question;","elements":[]},{"content":"invites\u00a0the Government and the applicant to submit, within three months from the date on which the judgment becomes final in accordance with Article 44 \u00a7 2 of the Convention, their written observations on this question and, in particular, to notify the Court of any agreement that they may reach;","elements":[]},{"content":"reserves\u00a0the further procedure and\u00a0delegates\u00a0to the President of the Chamber the power to fix\u00a0the same\u00a0if need be;","elements":[]},{"content":"Holds","elements":[]},{"content":"that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article\u00a044\u00a0\u00a7\u00a02 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:","elements":[]},{"content":"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;","elements":[]},{"content":"Dismisses the remainder of the applicant\u2019s claim for just satisfaction\u00a0in respect of non-pecuniary\u00a0damage\u00a0and costs and expenses.","elements":[]},{"content":"Done in English, and notified in writing on 14 October 2021, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and 3 of the Rules of Court.","elements":[]},{"content":"","elements":[]}],"section_name":"conclusion"}] +ti T M " 2 2]\-m,e]j+LtASzypusz V. The United Kingdom, No. 8400/07, 21 September 2010LSaunders V. The United Kingdom, 17 December 1996, § 86, Reports 1996-ViB Sander V. The United Kingdom, No. 34129/96, § 25, Echr 2000-V[;Pullar V. The United Kingdom, 10 June 1996, Reports Of Judgments And Decisions 1996-Iii<Popovitsi V. Greece, No. 53451/07, § 36, 14 January 2010?Piersack V. Belgium, 1 October 1982, § 30, Series A No. 53<Perote Pellon V. Spain, No. 45238/99, § 58, 25 July 20029yKyprianou V. Cyprus [Gc], No. 73797/01, Echr 2005-XiiiriKleyn And Others V. The Netherlands [Gc], Nos. 39343/98, 39651/98, 43147/98 And 46664/99, § 194, Echr 2003-Vi?Hauschildt V. Denmark, 24 May 1989, § 46, Series A No. 154C Gregory V. The United Kingdom, 25 February 1997, Reports 1997-IS +Findlay V. The United Kingdom, 25 February 1997, §§ 85 And 88, Reports 1997-Ii WEdwards And Lewis V. The United Kingdom [Gc], Nos. 39647/98 And 40461/98, §§ 46 And 49, Echr 2004-X0 gSelmouni V. France [Gc], No. 25803/94, § 101L Raninen V. Finland Judgment Of 16 December 1997, Reports 1997-Viii, §56B  Price V. The United Kingdom, No. 33394/96, 10 July 2001, § 30>Peers V. Greece, No. 28524/95, 19 April 2001, § 67, § 74:{Papon V. France, No. 64666/01, Decision Of 07 June 20013mKudla V. Poland [Gc], No. 30210/96, § 91, § 94JKeenan V. The United Kingdom, No. 27229/95, 3 April 2001, §§ 111-115m_Hurtado V. Switzerland, Report Of The Commission Of 28 January 1994, Series A No. 280-A, Pp. 15-16, § 79cKDevarga-Hirsch V. France, No. 9559/81, Decision Of The Commission Of 9 May 1983, D.R. 33 P. 158V1Chartier V. Italy, Report Of The Commission Of 8 December 1982, D.R. 33, Pp. 41-47KB. V. Germany, No. 13047/87, Decision Of 10 March 1988, D.R. 55, P. 271/cYasa V. Turkey Judgment Of 2 September 1998, Reports 1998-Vi, Pp. 2423-2424, § 46, P. 2431, § 74, Pp. 2437-2438, § 96, P. 2438, § 100, P. 2440, § 104, P. 2442, § 113m_Ergi V. Turkey Judgment Of 28 July 1998, Reports 1998-Iv, P. 1778, § 82, P. 1779, § 85, P. 1784, § 105d~MKurt V. Turkey Judgment Of 25 May 1998, Reports 1998-Iii, P. 1192, § 159, Pp. 1192-1193, § 160}Kaya V. Turkey Judgment Of 19 February 1998, Reports 1998-I, P. 326, § 91, P. 329, § 105, Pp. 329-330, § 106, Pp. 330-331, § 107s|kUnited Communist Party Of Turkey And Others V. Turkey Judgment Of 30 January 1998, Reports 1998-I, P. 28, § 62Y{7Aydin V. Turkey Judgment Of 25 September 1997, Reports 1997-Vi, Pp. 1895-1896, § 103z)Aksoy V. Turkey Judgment Of 18 December 1996, Reports 1996-Vi, Pp. 2275-2276, §§ 51-52, P. 2276, §§ 53-54, P. 2286, § 95, P. 2288, § 105 % zaH/hO6oV=$ |cJ2rZA(v\B(t[B){bI67263/01001-6073222495/93001-5828923818/94001-5828922880/93001-5828922492/93001-5828922535/93001-5828923763/94001-582897497/02001-8091930979/96001-8091955870/00001-8091960408/00001-80919 33983/02001-80919 39036/97001-58410 37475/97001-58410 !32540/05001-187578 !31107/96001-187578!37410/97001-187578!47848/08001-187578!67341/10001-187578!38359/13001-187578!35989/02001-187578!18274/04001-187578!47880/14001-187578!37469/05001-212148!68761/01001-212148!38184/03001-212148~!44529/09001-212148}!11423/19001-212148|!21722/11001-212148{!58812/15001-212148z!38977/19001-212148y38952/97001-68396x30979/96001-68396w31266/96001-68396v54039/00001-68396u20077/02001-68396t29800/96001-68396s15269/89001-68396r52237/99001-68396q43956/98001-68396p34983/02001-68396o!35382/97001-154528n!30979/96001-154528m!3172/07001-154528l!26852/09001-154528k!19/79001-154528j!33/95001-154528i!31154/07001-154528h!33986/96001-114098g!33985/96001-114098f!31195/96001-114098e!18968/07001-114098d!45305/99001-114098c!25196/94001-114098b!26772/95001-114098a!2627/09001-114098`!33394/96001-114098_!33670/96001-114098^!58148/00001-114098]!20511/03001-114098\!23373/03001-114098[!37119/97001-114098Z!27526/95001-114098Y!25642/94001-114098X!56195/00001-114098W!14612/02001-114098V!30873/96001-114098U!6339/05001-114098T!49853/99001-114098S!25579/05001-114098R!32555/96001-114098Q!28870/05001-114098P!25266/05001-114098O!26053/07001-114098N!14462/03001-114098M!27677/02001-114098L!61827/00001-114098K!50490/99001-114098J!39272/98001-114098I!161/05001-114098H!167/03001-114098G!27617/04001-114098F!5410/03001-114098E!57375/08001-114098D!50806/07001-158177C!41508/07001-158177B!40756/06001-158177A!25444/94001-158177@!55369/13001-158177?!26433/13001-158177>!24755/13001-158177=!9811/12001-158177<!861/09001-158177;!41747/08001-158177:!20671/04001-1581779!23586/20001-2103408!22608/20001-2103407!14057/17001-2103406!72286/01001-2103405!60800/08001-2103404!42525/07001-2103403!7334/13001-2103402!56123/19001-210340130979/96001-81366061444/00001-81366/11215/02001-81366.15212/03001-81366-1363/02001-81366,!4268/04001-138579+!36115/97001-138579*!29853/96001-138579)!29487/95001-138579(!29486/95001-138579'!22228/06001-138579&!26766/05001-138579%!35985/09001-138579$!22978/05001-138579#!30550/96001-138579"!28135/95001-138579!!23909/03001-138579 !7025/04001-138579!46503/99001-138579!4378/02001-138579!70337/01001-138579!35228/03001-138579!38830/97001-138579!42371/02001-138579!40451/06001-138579!57419/00001-138579!57410/00001-138579!48906/99001-138579!46387/99001-138579!36391/02001-138579!16347/02001-138579!28901/95001-138579!30804/07001-138579!27004/06001-138579!21272/03001-138579!18353/03001-138579 !29731/96001-138579 !3896/04001-138579 !41488/98001-138579 !27765/09001-138579 !33834/03001-138579!28524/95001-138579!30210/96001-138579!26772/95001-138579!25703/11001-13857946295/99001-9199329865/96001-919931612/68001-9199344399/05001-91993 IlS:!rY?& s Z @ & q W = # s Z A (  t [ A (  r X > $ nU;!oU;!kQ7gN4eL2|cI/~eL3}cI+!41205/98001-111536*!39954/08001-111536)!36448/02001-111536(!21279/02001-111536'!58148/00001-111536&!25390/94001-111536%!12675/05001-111536$!77551/01001-111536#!34124/06001-111536"24490/94001-73294!43290/98001-73294 23763/94001-7329425878/94001-7329463486/00001-7329431657/96001-7329426307/95001-7329473225/01001-73294!41838/11001-175480!42606/13001-175480!55723/00001-122969!23458/02001-122969!5108/02001-122969!23531/94001-122969!41488/98001-122969!23763/94001-122969!25704/94001-122969!25656/94001-122969!37315/03001-122969!34085/06001-122969!40464/02001-122969 !7615/02001-122969 !69481/01001-122969 !49379/09001-122969 !20303/07001-122969 !26974/06001-122969!16622/05001-122969!29133/03001-122969!7626/01001-122969!39630/09001-122969!46744/07001-122969!7050/05001-122969!40787/10001-122969!35798/11001-122969!33898/11001-122969!21099/06001-122969~!24589/04001-122969}!23016/04001-122969|!18907/02001-122969{!57952/00001-122969z!46231/99001-122969y!15413/03001-122969x!27065/05001-122969w!77116/01001-122969v!16073/90001-122969u!16072/90001-122969t!16071/90001-122969s!16070/90001-122969r!16069/90001-122969q!16068/90001-122969p!16066/90001-122969o!16065/90001-122969n!16064/90001-122969m!42509/10001-122969l!332/08001-122969k!50184/07001-122969j!8300/07001-122969i!2944/06001-122969h!69480/01001-122969g!61274/09001-122969f!56745/08001-122969e!7862/08001-122969d!11554/07001-122969c!55146/14001-214013b!74355/01001-214013a!73557/01001-214013`!40461/98001-214013_!39647/98001-214013^!43571/12001-214013]!17711/07001-214013\!46629/06001-214013[!23782/06001-214013Z!44304/07001-214013Y!43490/07001-214013X!18471/03001-214013W!14212/10001-214013V!34640/05001-214013U!12025/02001-214013T!11789/10001-214013S!5753/09001-214013R!54648/09001-214013Q!2742/12001-214013P!18757/06001-214013O!53203/99001-214013N!59696/00001-214013M!74420/01001-214013L!23476/15001-214013K75529/01001-96415J30979/96001-96415I30019/05001-96415H53084/99001-96415G20886/04001-96415F20882/04001-96415E16141/05001-96415D58112/00001-89829C36515/97001-89829B39594/98001-89829A37259/04001-89829@!53451/07001-108168?!40461/98001-108168>!39647/98001-108168=!45238/99001-108168<!46664/99001-108168;!43147/98001-108168:!39651/98001-1081689!39343/98001-1081688!8400/07001-1081687!34129/96001-1081686!73797/01001-1081685!61779/08001-1081684!52999/08001-1081683!7739/06001-1772132!21724/03001-1772131!33977/96001-1772130!7064/05001-177213/!4493/04001-177213.!7923/04001-177213-!13772/05001-177213,!11082/06001-177213+!5826/03001-177213*!10932/06001-177213)22676/93001-93086(23763/94001-93086'26772/95001-93086&21986/93001-93086%42066/98001-93086$25803/94001-93086#30979/96001-93086"28653/05001-93086!25803/94001-60732 33394/96001-6073227229/95001-6073213047/87001-607329559/81001-607329044/80001-6073228524/95001-6073230210/96001-6073264666/01001-60732ded, pushed into a car and taken to a police station.","elements":[]},{"content":"7.\u00a0\u00a0At H\u00e2nce\u015fti Police Station the applicant was allegedly severely beaten up by police officers. He alleges that a police officer in plain clothes ordered five other officers to put a gas mask over his head; that he was handcuffed and his legs tied together and attached to his arms behind his back; that he was laid face-down on his abdomen; and that two electric wires were attached to his ears. He was allegedly given electric shocks while cold water was poured over him. Because of the severe pain he bit his tongue. In the meantime, another police officer had been blocking the air to the gas mask and moving the wires from his ears to his toes. The applicant alleges that between 30\u00a0May and 3\u00a0June 2002 he was subjected to the same ill-treatment every night. During the day he was driven to Comrat Police Station.","elements":[]},{"content":"8.\u00a0\u00a0On 3\u00a0June 2002 the Comrat District Court issued an order remanding the applicant in custody for a period of thirty days. The applicant was placed in the remand centre of Comrat Police Station. It is unclear from the documents in the case file whether he appealed against the decision of 3\u00a0June 2002.","elements":[]},{"content":"9.\u00a0\u00a0Following a request from his lawyer, an investigator from Comrat Police Station ordered the applicant\u2019s examination by a forensic doctor A. medical report of 4\u00a0June 2002 stated, inter alia:","elements":[]},{"content":"\u201c[According to the applicant] On 30\u00a0May\u00a02002 he was taken to H\u00e2nce\u015fti Police Station. His arms and legs were tied together, and he was beaten with a baton and with metal bars. Electric wires were attached to his toes and he was given electric shocks. When he was losing consciousness water was poured over him. The wires were then attached to his ears and he was again given electric shocks. When he was losing consciousness water was again poured over him. A gas mask was put over his head and the air permanently cut off. The applicant complained of headache, nausea and pain in the injured places.","elements":[]},{"content":"Above the right eyebrow \u2013 a scratch of 2.4 x 1.4 cm, ..., in the right occipital region of the head \u2013 a light-yellowish bruise of 1 x 0.8 cm, on the right upper eyelid - an oval bruise of 3.5 x 0.8 cm, around the left eye \u2013 a light-yellowish bruise of 4.5 x 2.1 cm, ... irregular-shaped light-violet bruises of 2.6 x 2 cm and 2.7 x 1.9 cm on both cheeks, in the right temporal region \u2013 an irregular-shaped light-yellowish bruise of 4 x 2 cm, auricles (right and left) [ears] \u2013 yellow, ... on the front part of the right shoulder \u2013 a yellow bruise of 10 x 7 cm, ... multiple bruises of between 7.3 x 2.4 cm, 1.3 x 1.2 cm and 4 x 0.9 cm on both sides of the chest, on the abdomen \u2013 multiple irregular-shaped light-yellowish bruises of between 1.8 x 1.2 cm and 6 x 1.7 cm, on the scapulas \u2013 irregular-shaped dark-reddish bruises of 9 x 6 cm, 14 x 2 cm and 3.7 x 1 cm, multiple bruises of between 0.2 x 0.4 cm and 7 x 2.2 cm on both legs. ... On the tip of the [applicant\u2019s] tongue \u2013 oval scar of 1.4 x 0.6 cm, 0.3 cm in depth.","elements":[]},{"content":"The scratches and bruises ... were inflicted by blows with a hard blunt object, the scar on the tip of the tongue ... could have been caused by human teeth, [the injuries] could have been caused in the circumstances and at the time indicated and are qualified as light bodily injuries.\u201d","elements":[]},{"content":"The scratches and bruises ... were inflicted by blows with a hard blunt object, the scar on the tip of the tongue ... could have been caused by human teeth, [the injuries] could have been caused in the circumstances and at the time indicated and are qualified as light bodily injuries.\u201d","elements":[]},{"content":"10.\u00a0\u00a0On 26\u00a0June2002 a private newspaper published an article according to which the police had arrested a gang organised by the applicant. It gave his name and stated that he could be sentenced to twenty-five years\u2019 imprisonment.","elements":[]},{"content":"10.\u00a0\u00a0On 26\u00a0June2002 a private newspaper published an article according to which the police had arrested a gang organised by the applicant. It gave his name and stated that he could be sentenced to twenty-five years\u2019 imprisonment.","elements":[]},{"content":"11.\u00a0\u00a0On 13\u00a0June 2003 a State-owned newspaper also published an article about a group of people suspected of racketeering. However, it did not disclose the applicant\u2019s name, but only mentioned \u201cPetru B.\u201d.","elements":[]},{"content":"12.\u00a0\u00a0On an unspecified date the applicant complained to the General Prosecutor\u2019s Office about the alleged ill-treatment in H\u00e2nce\u015fti Police Station. On 18 and 31 March 2005 the H\u00e2nce\u015fti and the General Prosecutor\u2019s Office, respectively, informed the applicant that his complaint had been dismissed on grounds of lack of \u201cconstitutive elements\u201d of an offence. It appears that, in dismissing the applicant\u2019s complaint, the Prosecutor\u2019s Office relied on the statements of two police officers who had declared not having beaten the applicant and not having seen any signs of ill-treatment on his body on 1 June 2002 when they had escorted him from H\u00e2nce\u015fti Police Station to another police station. The prosecutor concluded that the injuries found on the applicant\u2019s body had not been caused by police officers from H\u00e2nce\u015fti Police Station.","elements":[]},{"content":"13.\u00a0\u00a0Between January and October 2003 the criminal case against the applicant was examined by the Chi\u015fin\u0103u Court of Appeal. On 7 October 2004 the Chi\u015fin\u0103u Court of Appeal declined jurisdiction in favour of the Cahul Court of Appeal, which, in turn, declined jurisdiction on 31 October in favour of the Comrat Court of Appeal. In view of a competence conflict over jurisdiction, the case was sent to the Supreme Court of Justice which decided, on 27 January 2003 that the Cahul Court of Appeal was the competent instance.","elements":[]},{"content":"14.\u00a0\u00a0By a judgment of the Cahul Court of Appeal of 18 June 2007 the applicant was found guilty as charged and sentenced to ten years\u2019 imprisonment. It is not clear from the parties\u2019 submissions whether the proceedings ended on that date.","elements":[]}]},{"content":"II.\u00a0\u00a0RELEVANT DOMESTIC LAW AND PRACTICE","elements":[]},{"content":"II.\u00a0\u00a0RELEVANT DOMESTIC LAW AND PRACTICE","elements":[{"content":"15.\u00a0\u00a0The relevant provisions of the Criminal Code in force at the material time read as follows:","elements":[]},{"content":"\u201cArticle 185","elements":[]}]}],"section_name":"facts"},{"content":"THE LAW","elements":[{"content":"16.\u00a0\u00a0The applicant complained under Article 3 of the Convention that he had been ill-treated by the police. He also complained that the domestic authorities had failed to investigate his complaints of ill-treatment properly. Article 3 of the Convention reads as follows:","elements":[]},{"content":"\u201cNo one shall be subjected to torture or to inhuman or degrading treatment or punishment.\u201d","elements":[]},{"content":"17.\u00a0\u00a0The applicant complained that the length of the criminal proceedings had been incompatible with the \u201creasonable time\u201d requirement provided for in Article\u00a06 \u00a7 1 of the Convention, which reads as follows:","elements":[]},{"content":"\u201cIn the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...\u201d","elements":[]},{"content":"I.\u00a0\u00a0ADMISSIBILITY OF THE CASE","elements":[{"content":"18.\u00a0\u00a0The applicant complained under Article 6 \u00a7 1 of the Convention that the criminal proceedings against him were excessively long. The Government disputed the applicant\u2019s submission and argued that in view of the complexity of the case and the behaviour of the accused persons, the length of the proceedings had not been excessive.","elements":[]},{"content":"19.\u00a0\u00a0\u00a0The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the criteria established by its case-law, particularly the complexity of the case, the conduct of the applicant and of the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, \u00a7\u00a043, ECHR 2000-VII). In the present case, the Court notes that the applicant did not substantiate his complaint and did not provide the Court with a copy of the domestic case file. Without that, the Court is not able to determine the reasonableness of the length of the proceedings. In such circumstances, the complaint is manifestly ill-founded and must be declared inadmissible in accordance with Article 35 \u00a7\u00a7 3 and 4 of the Convention.","elements":[]},{"content":"20.\u00a0\u00a0The applicant also complained that the two newspapers that wrote articles about him (see paragraphs 10 and 11 above) breached his right to be presumed innocent. The Court notes that the State-owned newspaper did not disclose the applicant\u2019s identity and/or make him identifiable in any way. Accordingly, the complaint is manifestly ill-founded. As regards the other newspaper, the Court notes that it was privately owned and, therefore, the complaint is incompatible ratione materiae. In any event, it appears that the applicant has not used any available domestic remedies in order to initiate proceedings against the newspapers. The Court therefore considers the applicant\u2019s complaint under Article 6 \u00a7 2 to be inadmissible under Article\u00a035 \u00a7\u00a7 1, 3 and 4 of the Convention.","elements":[]},{"content":"21.\u00a0\u00a0The applicant finally complained under Article 38 of the Convention that his lawyer did not have adequate facilities to meet with him. In the Court\u2019s opinion, this complaint refers in substance to the applicant\u2019s right of petition guaranteed by Article 34 of the Convention. However, since the applicant failed to substantiate it by providing any evidence, the complaint must be declared inadmissible as manifestly ill-founded in accordance with Article 35 \u00a7\u00a7 3 and 4 of the Convention.","elements":[]},{"content":"22.\u00a0\u00a0The Court considers that the applicant\u2019s remaining complaint, under Article 3 of the Convention, raises questions of fact and law which are sufficiently serious that its determination should depend on an examination of the merits, and that no other grounds for declaring it inadmissible have been established. The Court therefore declares this complaint admissible. In accordance with its decision to apply Article\u00a029 \u00a7\u00a03 of the Convention (see paragraph 4 above), the Court will immediately consider the merits of the complaint.","elements":[]}]},{"content":"II.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION","elements":[{"content":"23.\u00a0\u00a0The applicant submitted that he had been tortured during his detention at H\u00e2nce\u015fti Police Station and argued that the authorities had failed to explain the origin of over forty injuries on his body recorded in the medical report of 4 June 2002. The applicant also contended that the Prosecutor\u2019s Office had failed to properly investigate his complaint.","elements":[]},{"content":"24.\u00a0\u00a0The Government submitted that the applicant had not been ill-treated during his detention at H\u00e2nce\u015fti Police Station. This had been proved by the statements of police officers from that police station who denied any accusation of ill-treatment. According to the Government, the authorities had conducted an effective investigation into the applicant\u2019s complaint of ill-treatment.","elements":[]},{"content":"25.\u00a0\u00a0As the Court has stated on many occasions, 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 \u00a7 2 even in the event of a public emergency threatening the life of the nation (see Selmouni v. France [GC], no. 25803/94, \u00a7 95, ECHR\u00a01999V, and Assenov and Others v. Bulgaria, 28\u00a0October 1998, \u00a7\u00a093, Reports of Judgments and Decisions 1998-VIII).","elements":[]},{"content":"25.\u00a0\u00a0As the Court has stated on many occasions, 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 \u00a7 2 even in the event of a public emergency threatening the life of the nation (see Selmouni v. France [GC], no. 25803/94, \u00a7 95, ECHR\u00a01999V, and Assenov and Others v. Bulgaria, 28\u00a0October 1998, \u00a7\u00a093, Reports of Judgments and Decisions 1998-VIII).","elements":[]},{"content":"26.\u00a0\u00a0Where a person is injured while in detention or otherwise under the control of the police, any such injury will give rise to a strong presumption that the person was subjected to ill-treatment (see Bursuc v. Romania, no.\u00a042066/98, \u00a7 80, 12 October 2004). It is incumbent on the State to provide a plausible explanation of how the injuries were caused, failing which a clear issue arises under Article 3 of the Convention (see Selmouni, cited above, \u00a7 87).","elements":[]},{"content":"27.\u00a0\u00a0In assessing evidence, the Court has generally applied the standard of proof \u201cbeyond reasonable doubt\u201d (see Ireland v. the United Kingdom, 18\u00a0January 1978, \u00a7 161, Series A no. 25). However, 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 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 v. Turkey [GC], no. 21986/93, \u00a7 100, ECHR 2000-VII).","elements":[]},{"content":"28.\u00a0\u00a0The Court reiterates that where an individual makes a credible assertion that he has suffered treatment infringing Article 3 at the hands of the police or other agents of the State, that provision, read in conjunction with the State\u2019s general duty under Article 1 of the Convention to \u201csecure to everyone within their jurisdiction the rights and freedoms defined in ... [the] Convention\u201d, requires by implication that there should be an effective official investigation. As with an investigation under Article 2, such investigation should be capable of leading to the identification and punishment of those responsible. Otherwise, the general legal prohibition of torture and inhuman and degrading treatment and punishment would, despite its fundamental importance, be ineffective in practice and it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity (see, among other authorities, Labita v. Italy [GC], no. 26772/95, \u00a7 131, ECHR 2000-IV).","elements":[]},{"content":"29.\u00a0\u00a0The investigation into serious allegations of ill-treatment must be thorough. That means that the authorities must always make a serious attempt to find out what happened and should not rely on hasty or ill-founded conclusions to close their investigation or as the basis of their decisions (see Assenov and Others, cited above, \u00a7\u00a0103 et seq.). They must take all reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony and forensic evidence (see Tanr\u0131kulu v.\u00a0Turkey [GC], no.\u00a023763/94, \u00a7\u00a0104 et seq., ECHR 1999-IV, and G\u00fcl v.\u00a0Turkey, no.\u00a022676/93, \u00a7 89, 14 December 2000). Any deficiency in the investigation which undermines its ability to establish the cause of injuries or the identity of the persons responsible will risk falling foul of this standard.","elements":[]},{"content":"30.\u00a0\u00a0In 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 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 Ireland, cited above, \u00a7 167). The fact that pain or suffering was deliberately inflicted for the purpose of obtaining a confession is a further factor to be taken into account in deciding whether ill-treatment amounted to torture (see Aksoy v. Turkey, 18 December 1996, \u00a7 64, Reports, and Salman, cited above, \u00a7 114).","elements":[]},{"content":"31.\u00a0\u00a0Turning to the facts of the present case, the Court notes that the applicant sustained numerous injuries during his detention at H\u00e2nce\u015fti Police Station. Since the Government have failed to provide an explanation for the applicant\u2019s injuries, the Court concludes that they were the result of ill-treatment while in police custody.","elements":[]},{"content":"32.\u00a0\u00a0The Court further notes that the findings in the medical report of 4\u00a0June 2002 that the applicant\u2019s ears were yellow and that he had a deep scar left by a bite to the tip of his tongue are consistent with the submission made by the applicant that he had been given electric shocks through wires attached to his ears and that, as a result of the severe pain, he had involuntarily bitten the tip of his tongue. The Court considers that this form of ill-treatment is particularly reprehensible as it presupposes an intention to obtain information, inflict punishment or intimidate. In such circumstances, the Court considers that the violence inflicted upon the applicant was of a particularly serious nature, capable of provoking severe pain and cruel suffering and that it falls to be treated as acts of torture. Accordingly, there has been a violation of Article 3 of the Convention.","elements":[]},{"content":"33.\u00a0\u00a0The Court finally notes that after receiving the applicant\u2019s complaint about ill-treatment, the Prosecutor\u2019s Office did not take statements from the applicant or from the doctors who had examined him. Nor did the Prosecutor Office asked the applicant to identify the police officers responsible. In fact, the Prosecutor\u2019s Office did not undertake any decisive steps in order to investigate the applicant\u2019s complaint but was content to accept without reservation the statements of the accused police officers. It is therefore impossible for the Court to conclude that an effective official investigation took place. Thus, there has been a violation of Article 3 of the Convention under its procedural head as well.","elements":[]}]},{"content":"III.\u00a0\u00a0APPLICATION OF ARTICLE 41 OF THE CONVENTION","elements":[{"content":"34.\u00a0\u00a0Article 41 of the Convention provides:","elements":[]},{"content":"\u201cIf 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.\u201d","elements":[]},{"content":"A.\u00a0\u00a0Damage","elements":[{"content":"35.\u00a0\u00a0The applicant claimed 500,000 euros (EUR) as compensation for the breach of his rights guaranteed by Articles 3 and 6 of the Convention. He did not specify whether his claim referred to pecuniary or non-pecuniary damage. According to the applicant, the amount was to compensate him for the extraction of a confession and for the period of five years spent in detention during the proceedings. In respect of the latter, he submitted that during his detention he had been unable to support his family.","elements":[]},{"content":"36.\u00a0\u00a0The Government treated the applicant\u2019s claim as a claim in respect of non-pecuniary damage. They submitted that the proceedings had not been excessively long and that the applicant\u2019s detention during the proceedings had been justified. Referring to the claim in respect of a breach of Article 3 of the Convention, the Government submitted that the amount claimed was too high in the light of the Court\u2019s previous case-law in Article 3 cases concerning . They also submitted that in some cases the Court considered that a finding of a violation constituted sufficient just satisfaction.","elements":[]},{"content":"37.\u00a0\u00a0Having regard to the violation found above and its gravity, the Court considers that an award for non-pecuniary damage is justified in this case. Making its assessment on an equitable basis, the Court awards him EUR\u00a030,000.","elements":[]}]},{"content":"B.\u00a0\u00a0Costs and expenses","elements":[{"content":"38.\u00a0\u00a0The applicant also claimed EUR 1,680 for the costs and expenses incurred before the Court.","elements":[]},{"content":"39.\u00a0\u00a0The Government objected and argued that the amount was excessive.","elements":[]},{"content":"40.\u00a0\u00a0The Court awards EUR 500 for costs and expenses in respect of costs incurred by Mr M. Cebotari.","elements":[]}]},{"content":"C.\u00a0\u00a0Default interest","elements":[{"content":"41.\u00a0\u00a0The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.","elements":[]}]}]}],"section_name":"law"},{"content":"FOR THESE REASONS, THE COURT UNANIMOUSLY","elements":[{"content":"1.\u00a0\u00a0Declares the complaint under Article 3 of the Convention admissible and the remainder of the application inadmissible;","elements":[]},{"content":"2.\u00a0\u00a0Holds that there has been a violation of Article 3 of the Convention in respect of the respondent State\u2019s substantive and procedural obligations;","elements":[]},{"content":"3.\u00a0\u00a0Holds","elements":[]},{"content":"(a)\u00a0\u00a0that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article\u00a044 \u00a7\u00a02 of the Convention, EUR 30,000 (thirty thousand euros) in respect of non-pecuniary damage, plus any tax that may be chargeable, and EUR 500 (five hundred euros) in respect of costs and expenses, plus any tax that may be chargeable to the applicant, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement;","elements":[]},{"content":"(b)\u00a0\u00a0that 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;","elements":[]},{"content":"4.\u00a0\u00a0Dismisses the remainder of the applicant\u2019s claim for just satisfaction.","elements":[]},{"content":"Done in English, and notified in writing on 23 June 2009, pursuant to Rule 77 \u00a7\u00a7 2 and 3 of the Rules of Court.","elements":[]}],"section_name":"conclusion"}] not to leave the place of his residence.","elements":[]},{"content":"6.\u00a0\u00a0On 21 February 2005 the Town Court, presided by Judge D., convicted the applicant of robbery and forgery, sentenced him to seven years and four months of imprisonment and ordered his detention pending the appeal proceedings.","elements":[]},{"content":"7.\u00a0\u00a0On 3 May 2005 the Murmansk Regional Court, under the presidency of judge K., quashed the judgment on appeal and remitted the case to the Town Court for a fresh examination, ordering that the applicant should remain in custody.","elements":[]},{"content":"8.\u00a0\u00a0On 3 June 2005 the Town Court, in its turn, further extended the applicant\u2019s detention and remitted the case to the Murmansk Prosecutor\u2019s Office for the elimination of certain procedural deficiencies preventing the examination of the case on the merits.","elements":[]},{"content":"9.\u00a0\u00a0The applicant\u2019s detention was once again extended by the Town Court, presided by judge D., on 16 August 2005. The applicant challenged the presiding judge on the ground that he had convicted him on 21 February 2005. Judge D. refused to step down. The applicant also raised that point in his statement of appeal against the detention order. On 6\u00a0September 2005 the Regional Court, presided by Judge K., found no grounds for Judge D. to step down. The Regional Court reasoned that by virtue of Articles\u00a061 and\u00a063 of the Russian Code of Criminal Procedure Judge D., who had already presided over the applicant\u2019s trial once, could not take part in the new trial proceedings, however, he was not prevented from deciding on detention matters.","elements":[]},{"content":"9.\u00a0\u00a0The applicant\u2019s detention was once again extended by the Town Court, presided by judge D., on 16 August 2005. The applicant challenged the presiding judge on the ground that he had convicted him on 21 February 2005. Judge D. refused to step down. The applicant also raised that point in his statement of appeal against the detention order. On 6\u00a0September 2005 the Regional Court, presided by Judge K., found no grounds for Judge D. to step down. The Regional Court reasoned that by virtue of Articles\u00a061 and\u00a063 of the Russian Code of Criminal Procedure Judge D., who had already presided over the applicant\u2019s trial once, could not take part in the new trial proceedings, however, he was not prevented from deciding on detention matters.","elements":[]},{"content":"10.\u00a0\u00a0On 18 November 2005 the Town Court further extended the applicant\u2019s detention. The parties disagreed as to whether the applicant had been served with a copy of that detention order. While the applicant argued that he had never received it, the Government stated that the detention order had been served on him on 5 December 2005. They supported their claim with a copy of the Town Court\u2019s letter of 29 November 2005 by which the detention order had been forwarded to the applicant and a copy of the detention order from his personal file kept in a remand prison, bearing the applicant\u2019s signature and the date of receipt.","elements":[]},{"content":"11.\u00a0\u00a0On several occasions the trial court adjourned hearings in the applicant\u2019s case. In particular, on 30 November 2005 the hearing was re-scheduled for 15 December 2005 because the applicant and his co-defendant asked to summon several defence witnesses. The hearing on 15\u00a0December 2005 was also adjourned owing to the applicant\u2019s and his co-defendants\u2019 counsel failure to appear. In the same decision the court, of its own motion, extended the applicant\u2019s detention.","elements":[]},{"content":"12.\u00a0\u00a0The applicant appealed, complaining, in particular, that the detention order of 15 December 2005 was delivered in his counsel\u2019s absence. On 17\u00a0January 2006 the Regional Court, presided by Judge K., dismissed the appeal, having noted that the counsel had failed to appear without providing any explanation for his absence. The appeal hearing was attended by a prosecutor and the applicant\u2019s counsel, but not by the applicant himself, despite his request to that effect.","elements":[]},{"content":"13.\u00a0\u00a0On 10 April 2006 the Town Court convicted the applicant of extortion and sentenced him to three years\u2019 imprisonment and a fine of 3,000 Russian roubles (RUB). The Regional Court upheld the conviction on 5 September 2006, but reduced the sentence.","elements":[]}]},{"content":"II.\u00a0\u00a0RELEVANT DOMESTIC LAW AND PRACTICE","elements":[{"content":"14.\u00a0\u00a0For the relevant domestic law and practice see Idalov v. Russia [GC], no.\u00a05826/03, \u00a7\u00a7 72 and 73, 22 May 2012; Khodorkovskiy and Lebedev v. Russia, nos. 11082/06 and 13772/05, \u00a7\u00a7 386 and 387, 25 July 2013; Butusov v.\u00a0Russia, no. 7923/04, \u00a7\u00a7 16-19, 22 December 2009; Lebedev v. Russia, no.\u00a04493/04, \u00a7 33, 25 October 2007; Mamedova v.\u00a0Russia, no. 7064/05, \u00a7\u00a7\u00a044-50, 1 June 2006.","elements":[]}]}],"section_name":"facts"},{"content":"THE LAW","elements":[{"content":"I.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 5 \u00a7 4 OF THE CONVENTION","elements":[{"content":"15.\u00a0\u00a0Citing Articles 5 and 6 of the Convention, the applicant complained of the following shortcomings in the detention proceedings:","elements":[]},{"content":"-\u00a0\u00a0inability to appeal against the detention order of 18\u00a0November 2005, as he had not been served with a copy of that decision;","elements":[]},{"content":"-\u00a0\u00a0court\u2019s failure to notify him and his counsel, in advance, of the hearing on 15\u00a0December 2005, thus denying him a possibility to prepare his arguments and his counsel to attend;","elements":[]},{"content":"-\u00a0\u00a0his absence from the appeal hearing on 17 January 2006;","elements":[]},{"content":"-\u00a0\u00a0partiality of Judge D. and Judge K.","elements":[]},{"content":"16.\u00a0\u00a0The Court will examine the above complaints under Article 5 \u00a7 4 of the Convention, which reads as follows:","elements":[]},{"content":"\u201cEveryone 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.\u201d","elements":[]},{"content":"A.\u00a0\u00a0The parties\u2019 submissions","elements":[{"content":"17.\u00a0\u00a0The Government contested the applicant\u2019s allegations. In particular, they provided the Court with copies of the documents confirming, in their view, the receipt by the applicant of the detention order of 18 November 2005 (see paragraph 10.\u00a0\u00a0above). With reference to these documents they submitted that the applicant had had a right to appeal against the detention order.","elements":[]},{"content":"18.\u00a0\u00a0They further claimed that the applicant\u2019s counsel had been well aware of the hearing on 15 December 2005, as it had been scheduled by the trial court on 30 November 2005, in the counsel\u2019s presence. The Government also submitted that a court under Article 255 of the CCP at any time could have ordered, varied or revoked any preventive measure on its own motion. The court was not required, when adjourning a hearing, to inform the parties who were in attendance about the subject-matter of the forthcoming hearing.","elements":[]},{"content":"19.\u00a0\u00a0As regards the appeal hearing on 17 January 2006, the Government argued that the applicant\u2019s personal attendance had not been necessary, since his effective participation had been secured by other means. Finally, they submitted that Judge D. and Judge K. had been impartial, despite their repeated participation in the hearings concerning the applicant\u2019s detention.","elements":[]},{"content":"20.\u00a0\u00a0The applicant maintained his complaints.","elements":[]}]},{"content":"B.\u00a0\u00a0The Court\u2019s assessment","elements":[{"content":"1.\u00a0\u00a0Admissibility","elements":[{"content":"21.\u00a0\u00a0The applicant argued that he had been stripped of an opportunity to appeal against the detention order of 18 November 2005 as he had not got its copy. The Government contested this argument by submitting a copy of the detention order bearing the applicant\u2019s signature and showing its date of receipt on 5 December 2005. They also produced a letter from the Town Court by which the detention order had been forwarded to the applicant.","elements":[]},{"content":"22.\u00a0\u00a0Having regard to the parties\u2019 submissions, the Court considers it established that the applicant had been served with the order. The Court also notes that the applicant attached a copy of that order to his application form to the Court.","elements":[]},{"content":"23.\u00a0\u00a0Accordingly, the applicant\u2019s complaint in this part is manifestly illfounded and must be rejected pursuant to Article 35 \u00a7\u00a7 3 (a) and 4 of the Convention.","elements":[]},{"content":"24.\u00a0\u00a0The applicant further complained about the fact that Judge D. had first convicted him and had then authorised his detention on remand after the conviction had been quashed. He also argued that Judge K. had been partial because he had repeatedly sat on a panel examining his appeals against the detention orders.","elements":[]},{"content":"25.\u00a0\u00a0The Court recalls in this connection that Article 5 \u00a7 4 of the Convention, which enshrines the right \u201cto take proceedings [in] a court\u201d, does not stipulate the requirement of that court\u2019s independence and impartiality and thus differs from Article\u00a06\u00a0\u00a7\u00a01 which refers, inter alia, to an \u201cindependent and impartial tribunal\u201d. However, the Court has held that independence is one of the most important constitutive elements of the notion of a \u201ccourt\u201d, as referred to in several Articles of the Convention (see\u00a0De Wilde, Ooms and Versyp v. Belgium, 18 June 1971, \u00a7 78, Series\u00a0A no.\u00a012). In the Court\u2019s opinion, it would be inconceivable that Article 5 \u00a7 4 of the Convention should not equally envisage, as a fundamental requisite, the impartiality of that court (see D.N. v. Switzerland [GC], cited above, \u00a7\u00a042).","elements":[]},{"content":"26.\u00a0\u00a0As regards the applicant\u2019s complaint about Judge D., the Court has previously held that normally questions which a judge has to answer when deciding on detention on remand are not the same as those which are decisive for his final judgment on the merits of a criminal case. When taking a decision on detention on remand and other pre-trial decisions of this kind the judge summarily assesses the available data in order to ascertain whether the prosecution have prima facie grounds for their suspicion; when giving judgment at the conclusion of the trial he must assess whether the evidence that has been produced and debated in court suffices for finding the accused guilty. Suspicion and a formal finding of guilt are not to be treated as being the same (see Ilijkov v. Bulgaria, no.\u00a033977/96, \u00a7 97, 26\u00a0July 2001).","elements":[]},{"content":"27.\u00a0\u00a0Turning to the circumstances of the present case, the Court notes that when ordering the applicant\u2019s pre-trial detention on 16 August 2005 Judge D. did not refer to the fact of the applicant\u2019s conviction and did not rely on the findings against the applicant made in the trial proceedings. He merely assessed whether there was a reasonable suspicion of the applicant having committed a criminal offence and whether there were additional risks warranting the applicant\u2019s detention. While ordering the applicant\u2019s detention after the quashing of the applicant\u2019s conviction, Judge D. found himself in the same position as any other judge who had to rule on a detention matter after the conviction of a defendant had been overturned. The Court thus does not find that Judge D.\u2019s impartiality could be called into question.","elements":[]},{"content":"28.\u00a0\u00a0As regards the repeated participation of Judge K. in the examination of the applicant\u2019s appeals against the detention orders, the Court reiterates that the mere fact that the same judge adjudicated two sets of proceedings arising out of the same events is not, in itself, sufficient to undermine that judge\u2019s impartiality, and that the answer to the question whether an applicant\u2019s fears are objectively justified depends on the circumstances and the special features of each particular case (see OOO\u00a0\u2019Vesti\u2019 and Ukhov v.\u00a0Russia, no. 21724/03, \u00a7 77, 30 May 2013).","elements":[]},{"content":"29.\u00a0\u00a0The Court observes, that while the appeal proceedings on review of the applicant\u2019s detention presided over by Judge K. concerned a relatively similar matter, they nevertheless constituted independent verifications of the separate detention orders and were not, as transpires from their wording, interrelated.","elements":[]},{"content":"30.\u00a0\u00a0Given the above considerations, the applicant\u2019s complaint in the part relating to the alleged lack of impartiality of Judge D. and Judge K. is also manifestly ill-founded and must be rejected pursuant to Article 35 \u00a7\u00a7 3 (a) and 4 of the Convention.","elements":[]},{"content":"31.\u00a0\u00a0As regards the applicant\u2019s complaint about his absence from the appeal detention hearing on 17\u00a0January 2006, the Court observes that a prosecutor and the applicant\u2019s counsel attended it while the applicant\u2019s request for leave to appear was dismissed.","elements":[]},{"content":"32.\u00a0\u00a0Against this background, the Court notes that the applicant did not advance any specific reasons, requiring his personal attendance, such as the necessity to describe his personal situation or to provide the appeal court with any relevant information of which his counsel did not have the first-hand knowledge. Moreover, the same issues had been previously discussed on a number of occasions in the applicant\u2019s presence and the applicant had had an opportunity to describe his personal situation to the judge and advance arguments in favour of his release. There is no evidence that the applicant\u2019s circumstances had materially changed since the previous hearings. Taking into account that no new issues were examined during the hearing on 17\u00a0January 2006, that the prosecutor did not put forward any new argument, and that the basis for remand was not amended, the applicant\u2019s personal attendance was not required (see Sorokin v. Russia, no.\u00a07739/06, \u00a7 82, 30 July 2009).","elements":[]},{"content":"33.\u00a0\u00a0Therefore, the Court is satisfied that counsel\u2019s presence was sufficient to ensure that the appeal hearing on 17 January 2006 was conducted in an adversarial manner and the principle of equality of arms was respected. It follows that the applicant\u2019s complaint in this part is also manifestly ill-founded and must be rejected pursuant to Article 35 \u00a7\u00a7 3\u00a0(a) and 4 of the Convention.","elements":[]},{"content":"34.\u00a0\u00a0The Court notes that the applicant\u2019s complaint concerning the lack of proper notification of the court hearing on 15 December 2005 and impossibility to effectively argue against his further detention is not manifestly ill-founded within the meaning of Article 35 \u00a7 3 (a) of the Convention and that it is not inadmissible on any other grounds. It must therefore be declared admissible.","elements":[]}]},{"content":"2.\u00a0\u00a0Merits","elements":[{"content":"35.\u00a0\u00a0The Court notes at the outset that it is undisputed between the parties that at the closure of the trial court hearing on 15 December 2005 the presiding judge adjourned the proceedings until 27 December 2005 in view of the failure to appear by the applicant\u2019s and his co-defendants\u2019 counsel. In the same hearing the court extended the applicant\u2019s detention on its own motion without providing the parties with an opportunity to make any submissions in this regard.","elements":[]},{"content":"36.\u00a0\u00a0The Court recalls in this connection that the proceedings on the lawfulness of detention pending investigation and trial must be adversarial and must always ensure equality of arms between the parties. The detainee should be afforded an opportunity to comment on the arguments put forward by the prosecution (see Lebedev v. Russia, no. 4493/04, \u00a7\u00a077, 25\u00a0October 2007).","elements":[]},{"content":"37.\u00a0\u00a0Therefore, the Court considers that the spontaneous extension of the applicant\u2019s detention left him no opportunity to obtain legal assistance of his own choosing and to put forward any arguments against the authorisation of his further detention. In doing so, the domestic court failed to ensure the adversarial nature of the proceedings and the equality of arms between the parties. Thus, the extension of the applicant\u2019s detention on 15 December 2005 fell short of the procedural requirements of Article 5 \u00a7 4.","elements":[]},{"content":"38.\u00a0\u00a0There has therefore been a violation of that provision.","elements":[]}]}]}]},{"content":"II.\u00a0\u00a0APPLICATION OF ARTICLE 41 OF THE CONVENTION","elements":[{"content":"39.\u00a0\u00a0Article 41 of the Convention provides:","elements":[]},{"content":"\u201cIf 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.\u201d","elements":[]},{"content":"A.\u00a0\u00a0Damage","elements":[{"content":"40.\u00a0\u00a0The applicant claimed 35,000 euros (EUR) in respect of nonpecuniary damage.","elements":[]},{"content":"41.\u00a0\u00a0The Government considered this claim excessive. In their view, the finding of a violation would in itself constitute sufficient just satisfaction.","elements":[]},{"content":"42.\u00a0\u00a0Considering its finding in the present case, as well as the parties\u2019 submissions, and acting on an equitable basis, the Court awards the applicant EUR 2,500 in respect of non-pecuniary damage, plus any tax that may be chargeable.","elements":[]}]},{"content":"B.\u00a0\u00a0Costs and expenses","elements":[{"content":"43.\u00a0\u00a0The applicant did not claim costs and expenses. Accordingly, there is no call to make an award under this head.","elements":[]}]},{"content":"C.\u00a0\u00a0Default interest","elements":[{"content":"44.\u00a0\u00a0The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.","elements":[]}]}]}],"section_name":"law"},{"content":"FOR THESE REASONS, THE COURT, UNANIMOUSLY,","elements":[{"content":"1.\u00a0\u00a0Declares the complaint concerning extension of the detention at the hearing on 15 December 2005, in the absence of the proper notification of the hearing and without legal assistance, admissible and the remainder of the application inadmissible;","elements":[]},{"content":"2.\u00a0\u00a0Holds that there has been a violation of Article 5 \u00a7 4 of the Convention;","elements":[]},{"content":"3.\u00a0\u00a0Holds","elements":[]},{"content":"(a)\u00a0\u00a0that the respondent State is to pay the applicant, within three months EUR\u00a02,500 (two thousand and five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;","elements":[]},{"content":"(b)\u00a0\u00a0that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;","elements":[]},{"content":"4.\u00a0\u00a0Dismisses the remainder of the applicant\u2019s claim for just satisfaction.","elements":[]},{"content":"Done in English, and notified in writing on 3 October 2017, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and 3 of the Rules of Court.","elements":[]}],"section_name":"conclusion"}]s":[{"content":"I.\u00a0\u00a0THE CIRCUMSTANCES OF THE CASE","elements":[{"content":"6.\u00a0\u00a0 The first applicant was born in 1967 and at the time of the lodging of his application was detained in HM Prison Moorlands. He was expected to be released on 1 September 2010. The second applicant was born in 1978 and is currently detained in HM Prison Dovegate.","elements":[]},{"content":"7.\u00a0\u00a0The first applicant is a taxi driver. On 31 August 2006, he drove from Sheffield to Luton. On his way back to Sheffield from Luton, he was arrested in the context of a police investigation into the supply of unlawful drugs. He had been followed on his journey in both directions by police officers. Six kilograms of heroin were found in the boot of his car. The case against him was that he had collected the consignment of drugs in Luton and was transporting it back to Sheffield when he was arrested.","elements":[]},{"content":"8.\u00a0\u00a0The first applicant\u2019s defence was that he did not know anything about the drugs found in his car. He said that he had taken a passenger named Paul with him on the journey from Sheffield to Luton at the request of Mr\u00a0Younas, one of the alleged members of the conspiracy to supply unlawful drugs. Paul had used the first applicant\u2019s mobile telephone while in the car and the calls to another of the individuals in the alleged conspiracy, Mr Rasul, had been made by Paul. Calls to Mr Younas and a third member of the alleged conspiracy, Mr N. Khan, were made by the first applicant: calls to Mr Younas were to check directions and calls to Mr N. Khan related to a dispute about an unpaid taxi fare. Paul had left the car shortly after arrival in Luton. The first applicant argued that he must have left the drugs in the car when he left the vehicle.","elements":[]},{"content":"9.\u00a0\u00a0In August 2006, the second applicant was charged with conspiracy to supply heroin. The case against him was that he was involved in making arrangements for the payment of the drugs to be transported from Luton to Sheffield. The prosecution relied on telephone analysis to establish a link between the second applicant and the other alleged conspirators. Cash amounting to GBP 18,955 was found in the second applicant\u2019s cellar. The money had been in contact with heroin.","elements":[]},{"content":"10.\u00a0\u00a0The second applicant\u2019s defence was that he was a cousin of Mr N.\u00a0Khan and a friend of Mr Younas and was therefore in close contact with them. However, he had not taken part in the conspiracy. His telephone contacts with them on the relevant days had been innocent. The cash found at his home derived partly from the sale of a car and partly from former heroin dealings for which he had been convicted in 2003.","elements":[]},{"content":"11.\u00a0\u00a0The applicants were subsequently tried together on charges of conspiracy to supply heroin. The trial commenced on 3 January 2007 and the jury was sworn. On the following day the court heard evidence from the police officers who had followed the first applicant from Sheffield to Luton and back, one of whom was M.B. The police officers testified that the first applicant did not have a passenger with him at any point during that journey and that no-one had alighted from the vehicle in Luton.","elements":[]},{"content":"12.\u00a0\u00a0During the evidence of M.B., the first of the police officers to testify, one of the jurors, A.T., sent a note to the judge indicating that he, A.T., was a serving police officer and that he knew M.B., although he had not worked with him for two years. The judge read the note to counsel and agreed with them a series of questions to be put to A.T. The judge then questioned A.T. in the absence of the other jurors but in the presence of the applicants. A.T. confirmed that he was a police dog handler near Doncaster, some distance from Sheffield. He said that he had known M.B. for approximately ten years and that on three occasions they had worked on the same incident, although not in the same team. They had never worked at the same station and did not know each other socially. He was asked if he knew anything about M.B. which would affect his ability to judge M.B.\u2019s evidence impartially or his ability to judge the case in accordance with the oath he had sworn. He replied that he did not.","elements":[]},{"content":"13.\u00a0\u00a0The defence made an application to the judge to discharge A.T. on the grounds that there was a conflict of evidence between the police and the first applicant which the jury would have to resolve, that it would therefore be unfair for the jury to include a police officer and that justice would not be seen to be done if the police officer continued to serve on the jury. They also argued that there was a risk that A.T. knew of the second applicant\u2019s previous conviction for dealing in heroin. On 4 January 2007, setting out his decision on the application, the judge concluded that:","elements":[]},{"content":"\u201cJurors are entitled, when called, to try the cases before them, and are not to be asked to withdraw ... unless there is a proper reason, one of which clearly concerns prejudice to an accused, or the appearance of any prejudice. I am wholly satisfied in this case that there is no prejudice to either defendant if this juror remains, nor indeed, if anyone were to hear his questioning, any appearance of unfairness. This is a juror who honestly and frankly has brought to the court\u2019s attention his knowledge of a witness and, in answering the questions posed to him as he has, has clearly indicated that his knowledge is slight and, no matter what the extent of his knowledge, not something that will in any way adversely affect his judgment of this particular case.","elements":[]},{"content":"... I appreciate that there is a conflict between the witness and the defendant, and that that is a conflict of some importance within the case but, in my judgment, this juror is well capable of dealing with the matter in a proper and impartial way.\u201d","elements":[]},{"content":"14.\u00a0\u00a0The application to discharge A.T. was rejected. A.T. subsequently became the jury foreman.","elements":[]},{"content":"15.\u00a0\u00a0In the trial proceedings before the court, the prosecution relied on the fact that the other co-accused in the conspiracy had pleaded guilty in order to establish the existence of a conspiracy. They also relied on evidence of the second applicant\u2019s bad character and previous conviction for dealing in heroin.","elements":[]},{"content":"16.\u00a0\u00a0The first applicant, in his defence, called a witness who testified that she had seen him leave Sheffield at the start of his journey with a passenger in the car.","elements":[]},{"content":"17.\u00a0\u00a0On 12 January 2007, the applicants were convicted of conspiracy to supply heroin. The first applicant was sentenced to eight years\u2019 imprisonment. The second applicant was sentenced to 17 years\u2019 imprisonment. This was to take place consecutively to a period of two years and five months\u2019 imprisonment, the period outstanding under a previous conviction for supplying heroin in respect of which he had been released on licence.","elements":[]},{"content":"18.\u00a0\u00a0After the trial, the applicants\u2019 counsel realised that A.T. had been involved in recent drugs operations in the area and had given evidence at other drugs trials in which counsel for the second applicant had appeared.","elements":[]},{"content":"19.\u00a0\u00a0The applicants applied for leave to appeal against their convictions on the ground that the presence of the police officer on the jury, and in particular his role as jury foreman, led to an appearance of bias in the trial proceedings. Leave to appeal was granted and the appeal was heard on 29\u00a0January 2008.","elements":[]},{"content":"20.\u00a0\u00a0Handing down its judgment on 14 March 2008, the Court of Appeal noted:","elements":[]},{"content":"\u201c10. Where an impartial juror is shown to have had reason to favour a particular witness, this will not necessarily result in the quashing of a conviction. It will only do so if this has rendered the trial unfair, or given it an appearance of unfairness. To decide this it is necessary to consider two questions:","elements":[]},{"content":"i) Would the fair minded observer consider that partiality of the juror to the witness may have caused the jury to accept the evidence of that witness? If so","elements":[]},{"content":"ii) Would the fair minded observer consider that this may have affected the outcome of the trial?","elements":[]},{"content":"If the answer to both questions is in the affirmative, then the trial will not have the appearance of fairness. If the answer to the first or the second question is in the negative, then the partiality of the juror to the witness will not have affected the safety of the verdict and there will be no reason to consider the trial unfair.\u201d","elements":[]},{"content":"21.\u00a0\u00a0The court referred to the recent change in the law which had allowed persons previously ineligible for jury duty, including police officers, to sit on juries (see paragraphs 38-42 below). However, it observed that the change had simply removed the automatic disqualification of such persons: disqualification was still possible on a case-by-case basis where the particular circumstances of the case were such as to suggest apparent bias.","elements":[]},{"content":"22.\u00a0\u00a0After considering the judgment of the House of Lords in Abdroikof and Others (see paragraphs 43-54 below) which concerned the compatibility of police officer jurors with Article 6 of the Convention, the court concluded on the general issue of bias:","elements":[]},{"content":"\u201c... the fact that a police juror may seem likely to favour the evidence of a fellow police officer will not, automatically, lead to the appearance that he favours the prosecution. If the police evidence is not challenged or does not form an important part of the prosecution case, we do not consider that it will normally do so. None the less it will be appropriate to quash the conviction if, but only if, the effect of the juror\u2019s partiality towards a brother officer puts in doubt the safety of the conviction and thus renders the trial unfair.\u201d","elements":[]},{"content":"23.\u00a0\u00a0As to the applicants\u2019 appeals, the court emphasised that there was no question of the juror having any connection with those responsible for the prosecution of the case. The investigation had been carried out by the Serious Organised Crime Agency without the involvement of local police forces. The prosecution was conducted by the Organised Crime Division of the Crown Prosecution Central Casework Directorate without contact with the local Crown Prosecution Service branch.","elements":[]},{"content":"24.\u00a0\u00a0The court set out the starting point for consideration of the applicants\u2019 appeals as follows:","elements":[]},{"content":"\u201cIf one starts, as one must, from the premise that police officers are not, by reason simply of their occupations, considered to be biased in favour of the prosecution, we do not consider that the fact that a police officer has taken part in operations involving the type of offence with which a defendant is charged, gives rise, of itself, to an appearance of bias on the part of the police officer. Most police officers are likely to have had experience of most of the common types of criminal offence, not least drug dealing. We do not consider that familiarity with the particular offence charged against an offender would lead the objective observer to suspect a police juror of bias.\u201d","elements":[]},{"content":"25.\u00a0\u00a0As regards the first applicant, the court noted that three police officers, one of whom was M.B., gave evidence of keeping him under observation at different stages of his journey from Sheffield to Luton and that each of the officers said that he saw no passenger in the car. The court further noted that the challenge to the officers\u2019 evidence was on the basis that it was inaccurate and that it was not suggested to the witnesses in cross-examination that their evidence was untruthful. It further observed that such a suggestion would not have been likely to be fruitful as the officers\u2019 accounts were no doubt supported by contemporary records made at a time when they would have attached no significance to the fact that the first applicant had no passenger in the car. As to the witness called by the first applicant who spoke to glimpsing a passenger in the back of his car as it passed her in Sheffield, the court commented that she was not a witness of good character and that it was the prosecution case that she was not to be believed. It continued:","elements":[]},{"content":"\u201c54. Hanif\u2019s explanation for the records of the use of his mobile phone and for being found with the heroin in the back of his car bordered on the farcical. The mobile phone records showed that, if his explanation was true, his phone must have been being passed to and fro between himself and his passenger like a yo-yo. Equally unlikely was the suggestion that the conspirators, Younas and [N. Khan], would have been having repeated telephone conversations with him about his taxi charges at a time when they were busy arranging for a drug delivery. Finally it is hard to believe that, if his passenger had been carrying a valuable consignment of heroin, he would have left it in the back of the taxi.","elements":[]},{"content":"55. Quite apart from these matters, Hanif\u2019s evidence had significant inconsistencies with earlier statements made to the police. It was the prosecution\u2019s case that his evidence had been tailored to accommodate the police evidence.","elements":[]},{"content":"56. In the light of these facts we turn to consider the two questions set out at paragraph 10 above. The material evidence of the three police witnesses was that they had seen no passenger in Hanif\u2019s car. Insofar as there was an issue in relation to this evidence it was whether it was possible that there might have been a passenger unobserved by the police. As to that issue, the jury plainly concluded that it was not. No fair minded observer would believe, however, that this conclusion might have been brought about as a result of partiality on the part of the police juror to his fellow officers and, in particular, to [M.B.] who was known to him. Thus the question is answered in the negative and the second question does not arise.\u201d","elements":[]},{"content":"26.\u00a0\u00a0The court accordingly concluded that the first applicant\u2019s conviction was not rendered unsafe by the fact that the foreman of the jury was a police officer who was acquainted with M.B. and dismissed the first applicant\u2019s appeal against conviction.","elements":[]},{"content":"27.\u00a0\u00a0The court also rejected the second applicant\u2019s contention that, because of A.T.\u2019s involvement in drugs operations, he might have become aware of the second applicant\u2019s previous conviction for dealing in heroin, noting:","elements":[]},{"content":"\u201c49. ... there was nothing to support this surmise. Had the juror known anything about any of the defendants we think that he would clearly have made this fact known to the judge, as he did his knowledge of [M.B.]. Furthermore, Bakish Alla Khan\u2019s previous conviction was placed before the jury.\u201d","elements":[]},{"content":"28.\u00a0\u00a0The court observed that at trial there was no challenge to the prosecution evidence in respect of the second applicant and that no police witnesses were called. The issue was whether the jury was satisfied that the explanations advanced by the second applicant for the undisputed evidence were untrue and that this evidence demonstrated his guilt. The Court of Appeal considered that the jury\u2019s verdict showed that it was satisfied of this. It therefore concluded that the allegation of jury bias made on behalf of the second applicant was not made out and dismissed his appeal against conviction.","elements":[]},{"content":"29.\u00a0\u00a0The Court of Appeal made the following concluding remarks:","elements":[]},{"content":"\u201cIt is undesirable that the apprehension of the jury bias should lead to appeals such as those with which this court has been concerned. It is particularly undesirable if such appeals lead to the quashing of convictions so that re-trials have to take place. In order to avoid this it is desirable that any risk of jury bias, or of unfairness as a result of partiality to witnesses, should be identified before the trial begins. If such a risk may arise, the juror should be stood down.","elements":[]},{"content":"We considered attempting to give guidance in this judgment as to the steps that should be taken to ensure that the risk of jury bias does not occur. However, it seems to us that these will involve instructions to be given by the police, prosecuting and prison authorities to their employees coupled with guidance to court officials. It would be ambitious to attempt to formulate all of this in a judgment without discussion with those involved. There is one matter, however, that should receive attention without any delay. It is essential that the trial judge should be aware at the stage of jury selection if any juror in waiting is, or has been, a police officer or a member of the prosecuting authority, or is a serving prison officer. Those called for jury service should be required to record on the appropriate form whether they fall into any of these categories, so that this information can be conveyed to the judge. We invite all of these authorities and Her Majesty\u2019s Court Service to consider the implications of this judgment and to issue such directions as they consider appropriate.\u201d","elements":[]},{"content":"30.\u00a0\u00a0The second applicant\u2019s appeal against sentence was successful and the sentence of 17 years was reduced to 15 years.","elements":[]},{"content":"31.\u00a0\u00a0The applicants were refused leave to appeal to the House of Lords on 17 June 2008.","elements":[]}]},{"content":"II.\u00a0\u00a0RELEVANT DOMESTIC LAW AND PRACTICE","elements":[{"content":"A.\u00a0\u00a0Jury selection","elements":[{"content":"32.\u00a0\u00a0Pursuant to section 1 of the Juries Act 1974 as amended (\u201cthe 1974 Act\u201d), all persons aged eighteen to seventy who are registered as parliamentary or local electors and have been ordinarily resident in the United Kingdom for a period of at least five years since the age of thirteen are eligible for jury service and are therefore under a duty to attend court if summoned.","elements":[]},{"content":"33.\u00a0\u00a0Certain individuals are ineligible for jury duty, including for example those who suffer from a mental disorder. Other narrowly defined groups, although eligible for jury duty, are entitled to be excused, such as persons who have served as jurors in the recent past and full-time members of the armed forces whose absence from duty would be prejudicial to the efficiency of the service.","elements":[]},{"content":"34.\u00a0\u00a0The trial judge has the power to question jurors in order to establish that they are qualified for jury service or to ensure that they are not unsuitable to try the case, for example, on the ground of bias. A juror who is not qualified or is otherwise unsuitable will be excused. Both prosecution and defence are entitled to challenge as many individual jurors as they wish for cause. A juror may be challenged on the basis that he is ineligible for jury service or on the basis that he may reasonably be suspected of being biased.","elements":[]}]},{"content":"B.\u00a0\u00a0Eligibility of police officers to serve on juries","elements":[{"content":"1.\u00a0\u00a0The historic position","elements":[{"content":"35.\u00a0\u00a0Pursuant to the Juries Act 1870 and a series of later statutes, a number of occupational groups were exempted from jury service, including the elected members of representative assemblies, ministers of religion, officers in the armed services, medical practitioners, various classes of public servants, holders of certain offices related to the sea and all who could not satisfy a threshold property qualification.","elements":[]},{"content":"36.\u00a0\u00a0A review of jury service was undertaken by a departmental committee chaired by Lord Morris of Borth-y-Gest (\u201cthe Morris Committee\u201d), which reported in 1965. The Morris Committee considered that those professionally concerned in the administration of the law and the police should continue to be ineligible for jury service. The Morris Committee noted:","elements":[]},{"content":"\u201c103.\u00a0The present law exempts many of those who practise the law or are concerned with the business of the courts. It seems to us clearly right that such persons, and all others closely connected with the administration of law and justice, should be specifically excluded from juries ... If juries are to continue to command public confidence it is essential that they should manifestly represent an impartial and lay element in the workings of the courts. It follows that all those whose work is connected with the detection of crime and the enforcement of law and order must be excluded, as must those who professionally practise the law, or whose work is concerned with the functioning of the courts. It is impossible, whether desirable or not, to ensure that jurors have no previous knowledge of the law before they begin to hear a case. Many persons without formal legal training, for example, know enough about the way our courts function to be able to make a shrewd guess as to whether the accused has a previous criminal record; and one cannot entirely prevent by legislation the use of such knowledge in the jury room.","elements":[]},{"content":"104.\u00a0\u00a0Nevertheless, it seems to us necessary to secure the exclusion from juries of any person who... \u2018because of occupation or position, has knowledge or experience of a legal or quasi-legal nature which is likely to enable him to exercise undue influence over his fellow jurors\u2019. If justice is not only to be done but to be seen to be done, such persons must not be allowed to serve on juries lest the specialist knowledge and prestige attaching to their occupations might cause them to be what has been described to us as \u2018built-in leaders\u2019\u201d","elements":[]},{"content":"37.\u00a0\u00a0As to civilian employees of the police, the Morris Committee said:","elements":[]},{"content":"\u201c110.\u00a0... we think there is much force in the contention of the Association of Chief Police Officers that \u2018all civilian employees in the police service who have been employed for some length of time, no matter in what capacity, become identified with the service through their everyday contact with its members. As such they become influenced by the principles and attitudes of the police, and it would be difficult for them to bring to bear those qualities demanding a completely impartial approach to the problems confronting members of a jury\u2019. We find this convincing, and we have little doubt that civilian employees in the police service, including traffic wardens, should be ineligible.\u201d","elements":[]},{"content":"38.\u00a0\u00a0The Juries Act 1974 implemented a number of the Morris Committee\u2019s recommendations and included a provision rendering police officers and other involved in the administration of justice ineligible to serve on juries.","elements":[]}]},{"content":"2.\u00a0\u00a0The Auld Review and subsequent legislative amendment","elements":[{"content":"39.\u00a0\u00a0In September 2001 the issue of jurors\u2019 eligibility was reviewed by Lord Justice Auld in the context of his \u201cReview of the Criminal Courts of England and \u201d (\u201cthe Auld Review\u201d). He considered the concerns which arose when individuals connected in a professional capacity with the criminal justice system were permitted to serve on juries:","elements":[]},{"content":"\u201cThere is also the anxiety voiced by some that those closely connected with the criminal justice system, for example, a policeman or a prosecutor, would not approach the case with the same openness of mind as someone unconnected with the legal system. I do not know why the undoubted risk of prejudice of that sort should be any greater than in the case of many others who are not excluded from juries and who are trusted to put aside any prejudices they may have. Take, for example shopkeepers or house-owners who may have been burgled, or car owners whose cars may have been vandalised, many government and other employees concerned in one way or another with public welfare and people with strong views on various controversial issues, such as legalisation of drugs or euthanasia. I acknowledge that there may be Article 6 considerations in this. But it would be for the judge in each case to satisfy himself that the potential juror in question was not likely to engender any reasonable suspicion or apprehension of bias so as to distinguish him from other members of the public who would normally be expected to have an interest in upholding the law. Provided that the judge was so satisfied, the overall fairness of the tribunal and of the trial should not be at risk.\u201d","elements":[]},{"content":"40.\u00a0\u00a0He concluded:","elements":[]},{"content":"\u201cThus, in my view, there is a strong case for removing all the present categories of ineligibility based upon occupation, that is, ... the Judiciary, ... others concerned with the administration of justice and ... the clergy ... Any difficulty or embarrassment that the holding of any such office may pose in a particular case can be dealt with under the courts\u2019 discretionary power of excusal.\u201d","elements":[]},{"content":"41.\u00a0\u00a0He further considered developments in the state of , where the automatic ineligibility of occupational groups to serve had been removed (see paragraphs 121-122 below) and the positive experience of those involved in the administration of justice who had served on juries there. Accordingly, he recommended that everyone should be eligible for jury service, save the mentally ill.","elements":[]},{"content":"42.\u00a0\u00a0Following this recommendation, section 321 and schedule 33 to the Criminal Justice Act 2003 (\u201cthe 2003 Act\u201d) amended the 1974 Act to remove the automatic disqualification of those involved in the administration of justice from jury duty (see paragraphs 32-33 above).","elements":[]}]},{"content":"3.\u00a0\u00a0Abdroikof and Others in the House of Lords","elements":[{"content":"43.\u00a0\u00a0The compatibility of the change in the law introduced by the 2003 Act with Article 6 of the Convention was considered prior to the applicants\u2019 appeal hearing by the House of Lords in R v. Abdroikof and Others [2007] UKHL 37, which concerned three appeals against conviction. The first two involved trials in which serving police officers had sat as jurors; the third concerned a trial where an employee of the Crown Prosecution Service was a juror and is therefore not of direct relevance to the present case.","elements":[]},{"content":"44.\u00a0\u00a0Lord Bingham of Cornhill confirmed that the test of bias under the common law was no different from the requirement under Article 6 of the Convention for an independent and impartial tribunal. He further observed:","elements":[]},{"content":"\u201c23. It must in my view be accepted that most adult human beings, as a result of their background, education and experience, harbour certain prejudices and predilections of which they may be conscious or unconscious. I would also, for my part, accept that the safeguards established to protect the impartiality of the jury, when properly operated, do all that can reasonably be done to neutralise the ordinary prejudices and predilections to which we are all prone ...\u201d","elements":[]},{"content":"45.\u00a0\u00a0In relation to the first appeal, he found as follows:","elements":[]},{"content":"\u201c25. In the case of the first appellant, it was unfortunate that the identity of the officer became known at such a late stage in the trial, and on very short notice to the judge and defence counsel. But had the matter been ventilated at the outset of the trial, it is difficult to see what argument defence counsel could have urged other than the general undesirability of police officers serving on juries, a difficult argument to advance in face of the parliamentary enactment. It was not a case which turned on a contest between the evidence of the police and that of the appellant, and it would have been hard to suggest that the case was one in which unconscious prejudice, even if present, would have been likely to operate to the disadvantage of the appellant, and it makes no difference that the officer was the foreman of the jury. In the event, confronted with this question at very short notice, defence counsel raised no objection. I conclude, not without unease, that having regard to the parliamentary enactment the Court of Appeal reached the right conclusion in this case, and I would dismiss the appeal.\u201d","elements":[]},{"content":"46.\u00a0\u00a0As regards the second appeal, however, Lord Bingham considered:","elements":[]},{"content":"\u201c26. The second appellant\u2019s case is different. Here, there was a crucial dispute on the evidence between the appellant and the police sergeant, and the sergeant and the juror, although not personally known to each other, shared the same local service background. In this context the instinct (however unconscious) of a police officer on the jury to prefer the evidence of a brother officer to that of a drug-addicted defendant would be judged by the fair-minded and informed observer to be a real and possible source of unfairness, beyond the reach of standard judicial warnings and directions. The second appellant was not tried by a tribunal which was and appeared to be impartial. It cannot be supposed that Parliament intended to infringe the rule in the Sussex Justices case [that justice should not only be done, but should manifestly and undoubtedly be seen to be done], still less to do so without express language. I would allow this appeal, and quash the second appellant\u2019s conviction.\u201d","elements":[]},{"content":"47.\u00a0\u00a0Lord Rodger of Earlsferry dismissed both appeals. He was of the view that while the notional observer\u2019s first reaction to the news that police officers could serve on juries might well be that it was possible that a police officer on the jury would tend to prefer the evidence of any police or prosecution witnesses to the defence evidence, and be thus, consciously or subconsciously, biased in favour of the prosecution, this perception did not withstand closer scrutiny:","elements":[]},{"content":"\u201c32. ... [B]eing fair-minded and informed, the observer will think a little more about the matter. He will reflect that, up and down the land, day in day out, we take risks when we hand the critical decisions on guilt or innocence to juries. We take the risk that, consciously or subconsciously, men on juries may be unduly sympathetic to a man charged with rape who claims that he and the woman just got carried away by their physical urges. We take the risk that, consciously or subconsciously, a juror who has herself been the victim of sexual abuse may tend to side with the woman who claims that she was sexually assaulted by the defendant. We take the risk that, consciously or subconsciously, a gay juror may tend to believe the gay man who says that he was assaulted by the defendant in a homophobic attack. We take the risk that, consciously or subconsciously, a homophobic juror may just reject the gay man\u2019s evidence. We take the risk that, consciously or subconsciously, a juror who is an undergraduate may sympathise with a victim who is an undergraduate at the same university. We take the risk that, consciously or subconsciously, a black juror may tend to believe the evidence of a black witness as opposed to the account given by an Asian defendant. We take the risk that, consciously or subconsciously, a juror who was convicted of drug dealing and was sentenced to four years in prison in the early 1990s may sympathise with a defendant accused of supplying drugs. Having reflected on these and similar situations, the observer will realise that, in effect, Parliament has now added two to the long list of situations where there is indeed a risk, where it is indeed possible, that, consciously or subconsciously, a juror may be partial. But he will also realise that Parliament must have considered that in these two situations, like so many others, the risk is manageable within the system of jury trial as we know it.\u201d","elements":[]},{"content":"48.\u00a0\u00a0He continued:","elements":[]},{"content":"\u201c33. It would, after all, be wrong to pretend that in these various situations there is not a real, as opposed to a fanciful, possibility that the jurors in question may be biased. For instance, there is plainly a real possibility, in the sense of it being something that could well happen, that a homophobic juror may just reject the gay man\u2019s evidence. But the law regards that risk as being manageable and, so, acceptable. The law caters for the risk. It takes steps to minimise it by making jurors take an oath or affirm that they will \u2018faithfully try the defendant and give a true verdict according to the evidence\u2019. It makes them sit and listen to the evidence in a solemn setting. It requires the judge to give them a direction that they must assess the evidence impartially. Of course, it would be na\u00efve to suppose that these safeguards will always work with every juror. The law is not na\u00efve: it stipulates that there should be 12 men and women on a jury. The assumption is that, among them, the twelve will be able to neutralise any bias on the part of one or more members and so reach an impartial verdict \u2013 by a majority, if necessary. If any of the jurors consider that the jury will be unable to do so, then they must tell the judge, who can then deal with the matter \u2013 by discharging the jury, if necessary. So the mere fact that there is a real possibility that a juror may be biased does not mean that there is a real possibility that the jury will be incapable of returning an impartial verdict.\u201d","elements":[]},{"content":"49.\u00a0\u00a0He considered that the jury system operated, not because those who served were free from prejudice but despite the fact that many of them would harbour prejudices of various kinds when they entered the jury box. However, he accepted that there would be an unacceptable risk of a juror going wrong if, inter alia, he was a friend of one of the witnesses, was having an affair with a witness or had worked alongside one of the witnesses. In such a case he agreed that the person should be discharged from sitting on the jury.","elements":[]},{"content":"50.\u00a0\u00a0As to the first appeal, Baroness Hale concluded:","elements":[]},{"content":"\u201c54. The Abdroikof case was tried at the Old Bailey, which hears cases from all over and sometimes further afield. There was no particular link between the court and the station where the police juror served. No important issue turned on a conflict between police and defence evidence and there was no closer link between the police witnesses and the police juror than that they all served in the Metropolitan Police. It would be possible, perhaps, to conclude that Parliament had intended that no police officer should serve on a jury involving police witnesses from the same police force as that in which he served. Given the independence of each police force, that would have the attraction of consistency with the approach adopted earlier in relation to the CPS and other prosecuting bodies. With some hesitation, however, but because of the greater distance between the police and the prosecution process, I feel able to agree with my noble and learned friend, Lord Bingham of Cornhill, that there is not sufficient to raise the appearance of bias in this case. Hence this appeal should be dismissed ...\u201d","elements":[]},{"content":"51.\u00a0\u00a0She identified further considerations arising in the second appeal which required the conviction to be quashed, noting as follows:","elements":[]},{"content":"\u201c53. In the Green case there are two factors which make the connection between the police and prosecution too close for comfort. One is that the victim of the alleged crime was himself a police officer and the case depended to some extent on his evidence of how the accused was searched and what was said at the time. The officers were serving in the same borough at the time of the trial although not in the same police station. Another is that the juror was posted to a police station which committed its cases to the Crown Court where the case was tried. Officers in his station will have had regular dealings with the CPS conducting prosecutions in the same court.\u201d","elements":[]},{"content":"52.\u00a0\u00a0Lord Carswell noted at the outset that the changes relating to jury service enacted in the 2003 Act reflected the changes in the sophistication of jurors and in the willingness of Parliament to trust in their impartiality and ability to recognise and put aside their prejudices. He continued:","elements":[]},{"content":"\u201c67.\u00a0Unconscious prejudices and bias can be insidious in their operation on people\u2019s minds, but the number and diversity of people on a criminal jury constitute a safeguard against such prejudice or bias on the part of any one juror exercising sufficient influence to determine the outcome of the trial. To a certain extent they are inescapable in human society, but it is generally reckoned that they are balanced out in the jury\u2019s deliberation and subsumed in the general attempt to reach a consensus ...","elements":[]},{"content":"68.\u00a0\u00a0I accordingly consider that the fair-minded and informed observer would not necessarily conclude that the mere presence on a jury of a police officer or CPS staff member would create such a possibility of bias as to deny the defendant a fair trial. Such an observer would in my view wish to know more about the circumstances of the case, the issues to be decided, the background of the juror in question and the closeness of any connection which he or she might have to the case to be tried. I think that it is for this reason that the Metropolitan Police has instructed its officers that, where possible, they should not serve as jurors in a court where their Operational Command Unit carries out its work ...\u201d","elements":[]},{"content":"53.\u00a0\u00a0Lord Carswell agreed with Lord Rodger that both appeals should be dismissed.","elements":[]},{"content":"54.\u00a0\u00a0Lord Mance agreed with Lord Bingham and Baroness Hale and concluded:","elements":[]},{"content":"\u201c83. With regard to the case of the second appellant, as Lord Bingham and Baroness Hale point out ..., the police sergeant who was the alleged victim and whose evidence was relevant shared the same local service background as, and was as a result the \u2018brother officer\u2019 of, the policeman on the jury. Further, the juror was posted to a station which committed its cases to the Crown Court of trial \u2013 a factor which Metropolitan Police Notice 20-2004 Item 1 identified as one to be avoided ... Absent such considerations, I do not agree that it follows automatically that a police officer is disqualified as a juror, even in a case of significant conflict of evidence between a police witness and a defendant.\u201d","elements":[]}]},{"content":"4.\u00a0\u00a0Guidance regarding police officers and jury service","elements":[{"content":"55.\u00a0\u00a0The Metropolitan Police, by Notice 20-2004 Item 1, informed police officers and staff that they were no longer exempt from jury service. The notice advised that:","elements":[]},{"content":"\u201cWhere possible, police officers should not attend the court where their Operational Command Unit commits its work\u201d.","elements":[]},{"content":"56.\u00a0\u00a0In 2009, after the applicants\u2019 appeal had been dismissed, Her Majesty\u2019s Court Service issued Guidance for summoning officers when considering deferral and excusal applications. The guidance notes, inter alia:","elements":[]},{"content":"\u201c18. Members of the judiciary or those involved in the administration of justice who apply for excusal or deferral on grounds that they may be known to a party or parties involved in the trial should normally be deferred or moved to an alternative court where the excusal grounds may not exist. If this is not possible, then they should be excused ...","elements":[]},{"content":"There are additional considerations which apply to certain categories of potential jurors involved in the administration of justice. Those categories are:","elements":[]},{"content":"(1) employees of the prosecuting authority;","elements":[]},{"content":"(2) serving police officers summoned to a court which receives work from their police station or who are likely to have a shared local service background with police witnesses in the trial.","elements":[]},{"content":"(3) serving prison officers summoned to a court, who are employed at a prison linked to that court or who are likely to have special knowledge of any person, involved in a trial.","elements":[]},{"content":"Potential jurors falling into category (1), (2) or (3) should be excused from jury service unless there is a suitable alternative court/trial to which they can be transferred. For example an employee of the Crown Prosecution Service should not serve on a trial prosecuted by the CPS. However, they can serve on a trial prosecuted by another prosecuting authority, such as the Revenue and Customs Prosecution Office. Similarly, a serving police officer can serve where there is no particular link between the court and the station where the police juror serves.\u201d","elements":[]}]},{"content":"5.\u00a0\u00a0Other recent judicial consideration of the amended 1974 Act","elements":[]}]},{"content":"a.\u00a0\u00a0R v. Ingleton [2007] EWCA Crim 2999","elements":[{"content":"57.\u00a0\u00a0Following the judgment in Abdroikof and Others, but prior to the Court of Appeal judgment in the applicants\u2019 case, the Court of Appeal handed down judgment in the case of R v. Ingleton. The appeal against conviction had been lodged in light of the fact that one of the jurors was a police officer who knew all the officers in the case, including the four who had given evidence.","elements":[]},{"content":"58.\u00a0\u00a0The Court of Appeal considered the judgment of the House of Lords in Abdroikof and Others and summarised the position as follows:","elements":[]},{"content":"\u201c29. In all cases the test is one of apparent bias. This will depend on the facts. If, for example, a potential juror knows a witness personally, it is common for such a juror to stand down. Where, however, the witness he knows is not contentious and not to be called, but is taken simply as read as an agreed statement, there may well be no possibility of bias. It is therefore necessary for the judge to make all appropriate factual enquiries. Usually, this is by posing questions, either in court or in writing to the potential juror. The manner in which the questions are asked will depend on the circumstances. Sometimes a few questions in open court will suffice. In other cases, where the information might be sensitive, or more detail is required, the matter may have to be dealt with in writing.","elements":[]},{"content":"30. The results of the factual inquiry should be made known to counsel, who will then be in a position to make submissions to the court. Here, it would have been helpful to have known how well the juror knew the police officers. Had he ever worked with them on any particular matter or in a particular project? How often did he see them in the course of his work? How and in what circumstances did he meet him? All such inquiries can be dealt with by very brief questions, briefly stated and briefly answered. They are not complicated ...\u201d","elements":[]},{"content":"59.\u00a0\u00a0The Court of Appeal was of the view that although the evidence of the police officers in the case would not have been vigorously challenged even if the policeman had not been on the jury, the evidence was nevertheless a relevant part of the background to the case. It noted that it was simply not known how important the evidence was to the jury\u2019s deliberations and in what light they considered the evidence or what views the police officer juror expressed, if any, on his colleagues\u2019 evidence. It concluded:","elements":[]},{"content":"\u201c33. In these circumstances, we have no doubt that there was here a real possibility of bias arising from the presence on the jury of a police officer who knew the police witnesses. The possibility that he might be likely to accept the words of his colleagues, irrespective of the dispute between the parties is one which can only be described as real. We know no more than that and there is no suggestion the police officer was actually biased. None at all. Justice must not only be done but must be seen to be done. We fear that on the facts of this case that did not occur.\u201d","elements":[]},{"content":"60.\u00a0\u00a0As to the point at which the juror ought to have been discharged, the court noted:","elements":[]},{"content":"\u201c34. ... We consider that caution should have caused [the trial judge] to exclude as a juror the officer who knew all four of the police witnesses who were going to give evidence, particularly in view of the fact that he could not be certain as to the precise scope, when all the evidence was given, of their evidence and how it might emerge, and not forgetting that this was the third attempt, it appears, to bring this matter to trial.","elements":[]},{"content":"35. ... [T]he police officer juror should, in our judgment, have been asked to stand down at the outset, as should normally occur where a policeman or indeed any other potential juror knows witnesses who are to be called to give oral evidence, unless it can be said with certainty that the evidence of the witnesses who are known will play no contested part in the determination of the matter.","elements":[]},{"content":"36. We venture to suggest, if it cannot be so determined with certainty, the potential juror who knows witnesses personally should be asked to stand down, whether he be a policeman or not a policeman. In other words, in many cases, if not most, where a potential juror knows witnesses who are likely to be called, it is the case that an enquiry always has to take place, albeit a brief one. When that enquiry has taken place, then the judge will act upon it, but we reiterate, unless it can be said with certainty that the known witnesses to be called will play no contested as opposed to an agreed part in the determination of the issues, a juror who personally knows a witness or witnesses should normally be asked to stand down. Once the juror was not excluded, we accept [defence counsel\u2019s] submission that the judge had a continuing obligation to keep that decision under review. When facts emerge which might change the situation, having decided not to exclude the juror, the judge is under an obligation to consider such facts and here, it is in the view of this Court when it became apparent there was potential significance of the police evidence, that the jury should have been discharged, as it simply could not be known how the juror would deal with the witnesses as against the defendant\u2019s case ...\u201d","elements":[]}]},{"content":"b.\u00a0\u00a0R v. C [2008] EWCA Crim 1033","elements":[{"content":"61.\u00a0\u00a0Following the judgment of the Court of Appeal in the applicants\u2019 case, the Court of Appeal dismissed an appeal in the case of R v. C, where a juror with experience as a police officer serving in a child protection or child abuse team and of conducting interviews with those who made complaints of such behaviour sat at a trial involving offences of sexual abuse against the defendant\u2019s daughter. The judge had refused to discharge the juror, noting that the juror had indicated in her note to the judge that she felt able to give a proper judgment on the evidence.","elements":[]},{"content":"62.\u00a0\u00a0The Court of Appeal reiterated that the fact that a police officer was a juror did not in itself give rise to an appearance of bias. However, an appearance of bias could arise where a police officer juror shared some connection, for example, by way of place of service, with a police officer in the case whose evidence was going to be in dispute.","elements":[]},{"content":"63.\u00a0\u00a0The court noted that the evidence of the police officer in the case was not in dispute, although there was some criticism of the conduct of the interview which was alleged to have been aimed at eliciting rather than challenging what the complainant was saying. However, the court found that this was insufficient to give rise to an appearance of bias, noting that those who investigated matters of sexual abuse might believe some complainants or disbelieve them and that it was impossible to say that the occupation carried an inherent risk of an assumption that the allegations were truthful.","elements":[]}]},{"content":"c.\u00a0\u00a0R v. Burdett and Smith (2009) [2009] ECA Crim 543","elements":[{"content":"64.\u00a0\u00a0The Court of Appeal subsequently dismissed two appeals against conviction for money laundering offences in R v. Burdett and Smith. The evidence against the defendants consisted of bank account evidence of cheques cashed; nothing had been found to link them to knowledge of the particular underlying fraud. At trial, the prosecution had called only one witness, a police officer, to read the defendants\u2019 interviews. He was cross-examined principally to show that there was no evidence directly linking either of the defendants to the underlying fraud.","elements":[]},{"content":"65.\u00a0\u00a0After the jury had been empanelled but before the prosecution witness was called, it was discovered that one of the jurors was a policeman. The two officers worked for different police forces some distance apart, and the police officer juror was a road traffic officer. An application was made by the defence to discharge the jury, but the application was refused. The juror became the jury foreman.\u00a0\u00a0At trial, a dispute arose between the police officer witness and one of the defendants.","elements":[]},{"content":"66.\u00a0\u00a0The court reiterated the relevant principles, and concluded:","elements":[]},{"content":"\u201cIt seems to us that it is clear there was no connection between the two officers. It would therefore follow that no right-thinking person would think there would be bias. Secondly, and more crucially in this case, it is clear that the point raised on behalf of [one of the defendants] was not an important part of the prosecution case, nor a serious issue between the defence and the prosecution. It was a small part of [his] case. We cannot therefore consider that this ground of the appeal has any merit at all. It can be dismissed simply by the application of now the well-established principles to the facts. The answer is clear.\u201d","elements":[]}]},{"content":"d.\u00a0\u00a0R v. Yemoh and Others [2009] EWCA Crim 930","elements":[{"content":"67.\u00a0\u00a0In R v. Yemoh and Others, the Court of Appeal dismissed the appeals of a number of appellants complaining about the presence of a police officer on the jury at their trial concerning a stabbing. At trial, evidence was heard from two police officers who had arrived at the scene of the crime in the borough of Hammersmith shortly after the victim had collapsed. The evidence of one of the officers, which strongly supported the theory of a group attack on the victim, was challenged by all defendants.","elements":[]},{"content":"68.\u00a0\u00a0A few days after the trial started, the judge learned that a police officer was sitting on the jury. He did not inform the parties until the jury had retired to deliberate. At that point, he informed counsel of the fact that a serving police officer was a member of the jury, and that he appeared to be its foreman. He explained that the police officer juror was based in the area of Wembley, , and had indicated that he knew nothing about the case. The judge was accordingly satisfied that he should serve on the jury. He also indicated that he had had in mind that the police evidence was \u201creally less than contentious\u201d and that had that not been the case, he would have reported the matter to counsel immediately. Counsel for the defence requested that the jury be discharged, noting that Hammersmith and Wembley were not very distant from one another geographically and that youth gang violence was a problem affecting both areas. The judge refused the application.","elements":[]},{"content":"69.\u00a0\u00a0Summarising the relevant passages of the judgments in Abdroikof and Others and the applicants\u2019 case, the Court of Appeal noted:","elements":[]},{"content":"\u201c111. Although it might have been preferable for the judge to have asked more questions of the juror, it seems to us that we should accept the answer as conveyed to the judge that the juror knew nothing about the case, and by that we mean in his professional position. If he had inside information about the case or the background to the case as a result of his position as a police officer in Wembley, we take the view that he would have told the court official. Likewise the judge made it clear in his summing up that the jury had to decide the case on the evidence and we imagine he had said that on other occasions. If the juror was aware of information which did not form part of the evidence in the case then it seems likely to us that he would have publicly made that clear. Unlike in the , jurors are only rarely questioned in this country. Jurors are often told the names of witnesses in case they know them and are usually questioned before being empanelled on long complex trials, such as terrorism and fraud cases, but not otherwise. The system here proceeds on the assumption that a juror will reveal any difficulties that he or she may have in impartially approaching the case being tried and that other jurors will play a role in ensuring impartiality. No appeal would succeed on the speculative basis that a juror may have been partial towards a witness. We see no need for any further enquiries to be made.\u201d","elements":[]},{"content":"70.\u00a0\u00a0The Court of Appeal further observed that the factual evidence of the two police officer witnesses differed on the contested point, and that there were other witnesses on the same issue. It considered that this removed the basis for an allegation of bias, emphasising in particular that:","elements":[]},{"content":"\u201c...there is absolutely no logical reason why, and no evidential basis for contending that, the juror would have preferred the evidence of [the police officer who gave the contested evidence] (and persuaded the other jurors to accept it) over [the second police officer] merely because the juror was a policeman.\u201d","elements":[]}]},{"content":"e.\u00a0\u00a0R v. Syed Shadat Ali [2009] EWCA Crim 1763","elements":[{"content":"71.\u00a0\u00a0Following his conviction for having an offensive weapon, the defendant appealed on the basis that his jury had included a police officer, based at Bethnal Green police station in . Two police officers, based at Limehouse police station, , had given evidence at his trial, and the defendant challenged the evidence they gave. All officers were members of the Metropolitan Police.","elements":[]},{"content":"72.\u00a0\u00a0The Court of Appeal summarised the position as follows:","elements":[]},{"content":"\u201c16. ... First, the question is obviously one of fact and degree and there is a measure of judicial discretion at the margins. Second and obviously each case will depend on its own facts. Third, again at the margins it is difficult to deduce clear cut principles which are to be applied.\u201d","elements":[]},{"content":"73.\u00a0\u00a0The court recalled that Parliament had decided that generally speaking police officers should not be disqualified from serving on juries and continued:","elements":[]},{"content":"\u201c17. ... We take note of the fact that the Metropolitan Police is a huge organisation, and we consider that it would be contrary to the Parliamentary intention if no Metropolitan Police officer could serve on a jury in any case where significant evidence of a Metropolitan Police officer was challenged. The expression used in Abdroikov, \u2018the same local service background\u2019, cannot extend to service in any part of the whole of the Metropolitan Police area. In the case before the House of Lords where the appeal succeeded the officers served in the same borough. Mere casual contact with a London police station should not alone be regarded as significant since no doubt police officers from time to time make enquiries all over and beyond. Certainly, in the present case there was a conflict of evidence, central to the issue in the case, between police officers and the appellant. It was, however, a conflict as to the officer\u2019s accuracy not as to their truthfulness and it was, we think, generally speaking a strong case and there was some support for the police account ... Lord Mance did not regard such a significant conflict of evidence as an automatic ground for disqualification and in this respect, he may be seen as having been in a majority with Lord Roger of Earlsferry and Lord Carswell who dissented in the result.\u201d","elements":[]},{"content":"74.\u00a0\u00a0The court therefore concluded:","elements":[]},{"content":"\u201c18. The judge is not therefore, in our judgment, to be regarded as being in error, in exercising his discretionary judgment to reject the submission because, first of all, although there was a significant conflict of evidence between the police officers and the appellant, Lord Mance did not consider that that was an automatic ground for disqualification, and secondly, because these officers were not within our understanding of Abdroikov from the same local service background. They were merely and only, for present purposes, all members of the Metropolitan Police.\u201d","elements":[]},{"content":"75.\u00a0\u00a0The court also commented on the applicant\u2019s failure to challenge the presence of the police officer juror before the trial had commenced:","elements":[]},{"content":"\u201c19. There is an added feature in this case. We are concerned with the putative view of the fair-minded observer. Such a putative person would have known that the fact that the juror was a police officer was published before the trial when the jury were being selected. The defendant then raised no objection although the nature of the impending evidential conflict must have been well known to him and those representing him. We think that the fair-minded observer would reckon that it was rather late in the day to take the point at a later stage which should have been taken, if at all, at the outset. The fact that the point was taken when it was is not fatal but it colours the court\u2019s approach to its persuasiveness. For these reasons the appeal against conviction is dismissed.\u201d","elements":[]}]},{"content":"f.\u00a0\u00a0R v. Tregalles [2009] EWCA Crim 1638","elements":[{"content":"76.\u00a0\u00a0In R v. Tregalles, the applicant appealed against his conviction of sixteen offences of rape, buggery and indecent assault involving his children. A member of his jury was a police officer, and she became the jury foreman. Prior to trial, she had advised the summoning officer of her occupation, but this information was not passed on to the judge and none of the participants of the trial were aware of it until after the jury had returned their verdicts and been discharged. When it became known, the police officer was questioned by the judge in the presence of counsel. She explained that she served in the Bolton Division of the Greater Manchester Police Force.","elements":[]},{"content":"77.\u00a0\u00a0The Court of Appeal accepted that the defendant\u2019s evidence involved allegations of improper conduct in 1981 and 1991 by police officers of the Greater Manchester Police Force, although the officers appeared to have worked in different divisions to the police officer juror. The court noted that for the jury to accept that the defendant was telling the truth required them to accept that the police had behaved improperly on both occasions. However, it observed that the case did not involve contested police evidence, let alone a crucial dispute of evidence between the defendant and police witnesses: the police officers concerned in the events of 1981 and 1991 were not called as witnesses and their identities were not even known. It continued:","elements":[]},{"content":"\u201c31. ... Thus the presence of a serving police officer on the jury cannot give rise to any question of partiality towards a witness (and there is not, and could not be, any suggestion of partiality towards the prosecution). The question of apparent bias depends in this case, as it seems to us, simply on whether a serving officer might be influenced to reject the appellant\u2019s evidence concerning events in 1981 and 1991 out of a sense of loyalty to the police and an unwillingness to accept the possibility of improper conduct on the part of another police officer, rather than making a fair assessment of the appellant\u2019s credibility on the basis of the evidence in the case.\u201d","elements":[]},{"content":"\u201c31. ... Thus the presence of a serving police officer on the jury cannot give rise to any question of partiality towards a witness (and there is not, and could not be, any suggestion of partiality towards the prosecution). The question of apparent bias depends in this case, as it seems to us, simply on whether a serving officer might be influenced to reject the appellant\u2019s evidence concerning events in 1981 and 1991 out of a sense of loyalty to the police and an unwillingness to accept the possibility of improper conduct on the part of another police officer, rather than making a fair assessment of the appellant\u2019s credibility on the basis of the evidence in the case.\u201d","elements":[]},{"content":"78.\u00a0\u00a0In this regard, the court noted that the defendant\u2019s evidence regarding the police officers formed a relatively small part of the evidence as a whole. It further noted that the police officer on the jury served, so far as was known, in a different division from the officers concerned; she did not know who those officers were; and it was conceded by defence counsel that in the light of her apparent age she could not herself have been a serving officer at the time. It observed:","elements":[]},{"content":"\u201c33. ... Those factors all militate against her assessment of the appellant\u2019s evidence ... being influenced by her position as a serving officer.\u201d","elements":[]},{"content":"\u201c33. ... Those factors all militate against her assessment of the appellant\u2019s evidence ... being influenced by her position as a serving officer.\u201d","elements":[]},{"content":"79.\u00a0\u00a0The Court concluded:","elements":[]},{"content":"\u201c34. Taking all those matters into account, we have reached the conclusion that the case of apparent bias is not made out. We are satisfied that in the circumstances of this case a fair-minded and informed observer would not consider there to be a real possibility of bias arising out of the occupation of the juror. It is unfortunate that the juror\u2019s occupation was not communicated to the trial judge before the trial proceeded. It is likely that, out of an abundance of caution, the judge would have asked her to stand down if the position had been known. In the event, however, her presence on the jury did not affect the fairness of the appellant\u2019s trial or render the convictions unsafe.\u201d","elements":[]}]},{"content":"g.\u00a0\u00a0R v. L [2011] EWCA Crim 65","elements":[{"content":"80.\u00a0\u00a0In the case of R v. L the applicant was convicted of one count of attempted burglary and two counts of burglary. At trial, five police officers had given evidence as to his movements over the period in which the offences had taken place.\u00a0Following the lodging of an appeal, the Court of Appeal invited the Registrar of Criminal Appeals to investigate the membership of the jury, and in particular the occupations of its members. These inquiries revealed that one juror was an employee of the Crown Prosecution Service (\u201cCPS\u201d), a second was a serving police officer and a third was a retired police officer. As to the police officers, the serving police officer\u2019s role was administrative and he was non-operational. He had no knowledge of the defendant and no connection with those conducting the surveillance operation. He assumed that the Metropolitan Police was generally responsible for the operation which had led to the defendant\u2019s arrest and he was a member of that force. The retired police officer retired from the City Police in 2003. He had no connection with the surveillance operation in the case or with the Metropolitan Police.","elements":[]},{"content":"81.\u00a0\u00a0The court explained that it was normal practice for the attention of the judge to be drawn to any information about potential jurors with specific occupations, such as the police, the Crown Prosecution Service and the Prison Service, whose role might be regarded as directed to and part of the overall prosecution of offences. It further observed that the form for the jury summons had been amended since the trial to include the following question:","elements":[]},{"content":"\u201cIf you are, or have been in the last five years, employed by any Police Force, Her Majesty\u2019s Prison Service or any prosecuting authority, please state your occupation, your employer and work place location. We may need to contact you about this.\u201d","elements":[]},{"content":"82.\u00a0\u00a0The court acknowledged that what had happened in relation to the selection and empanelling of the jury in the appellant\u2019s case was unclear. It continued:","elements":[]},{"content":"\u201c17. ... We know from the transcript that before the jury was sworn the Common Serjeant raised the issue with counsel. We have studied the transcript. He asked defence counsel whether there was any \u2018attack on police officers\u2019 so as to enable him to decide whether to \u2018enquire whether any of the jury members are serving officers or part of the prosecution services\u2019. Counsel responded that there might well be criticism of the police and that it might be advisable to avoid any potential risks, and so the necessary enquiries should be made. Counsel accepted, however, that there would be no direct attack on any individual police officer, although he later said that there would be suggestions that police officers were \u2018incorrect factually or otherwise\u2019. He then added that there would be observations that he would make towards the end of the case which would not fall \u2018particularly kindly on police ears\u2019. In answer to a further direct question by the Common Serjeant, counsel confirmed that there was \u2018certainly not going to be any accusation of deliberate fabrication\u2019. That response led the Common Serjeant to observe that this represented the dividing line on the issue. As we have indicated, counsel\u2019s answer at this stage was unfortunate. The reality was that, however uncomfortable it might be forensically, it was, as we look at the case now with the benefit of hindsight, inevitable that at least one of the officers would have to be addressed directly on the basis that his evidence was not true.","elements":[]},{"content":"18. Counsel for the Crown suggested that if the issue was that police officers were mistaken rather than lying, then it \u2018may be proper\u2019 that police officers should be allowed to sit on the jury. With this information the Common Serjeant decided that no further steps should be taken in relation to the jury panel, and no further comments were made to the jury about the subject.\u201d","elements":[]},{"content":"83.\u00a0\u00a0On appeal, defence counsel told the court, and the court accepted, that he had not been aware of any of these facts at the time. He submitted that he should have been informed of the occupations and that if he had known, quite apart from any specific objections to individual jurors, he would also have objected to a jury a quarter of whose members consisted of three individuals involved in or linked with \u201cthe prosecuting arm of the criminal justice system\u201d.","elements":[]},{"content":"84.\u00a0\u00a0The court then turned to the facts of the case, addressing first the position of the two police officer jurors:","elements":[]},{"content":"\u201c24. ... The retired former police officer did not have, and never had, any connection whatever with the police force, let alone any individual officers involved in the surveillance operation or who gave evidence at trial. There was no link whatever between him and the prosecution process. He was indeed long-retired.","elements":[]},{"content":"25. The serving police officer is in a different position because he was at the time still a serving officer. However, he, too, had no link at all with the case or the prosecution witnesses or the surveillance operation, and in particular no contact or link with the only police witness whose evidence was to be challenged (even if not head-on), or the police station involved in the process, or the court to which the case had been committed. So, in accordance with the principles outlined in Abdroikov and [the applicants\u2019 case], we can see no reason why the position of either of these two jurors should cause any further concern or interest.\u201d","elements":[]},{"content":"85.\u00a0\u00a0The appeal was in the event upheld on the ground of the participation of the CPS juror. However, having upheld the appeal on this limited basis, the court went on to consider the defence argument that the cumulative effect of the employments of the three jury members should have led to the quashing of the conviction. On this point, it noted:","elements":[]},{"content":"\u201c33. ... In the context of random jury selection, questions of eligibility or disqualification or excusal are directed to individual potential jurors, not to the jury as a whole. It might be possible to envisage very exceptional circumstances in which the end result of the random process could give rise to concerns about the appearance of jury impartiality even when, taking each individual juror on his or her own, there would be none. [Counsel for the defence] suggested in argument the possibility of twelve jurors, each one of whom was a serving police officer, about whom each one taken individually there could be no concern in the context of disqualification or excusal. It would, he suggested, not be unreasonable for the defendant at such a trial (or in the event of a conviction, the appellant), as well as properly informed, reasonable members of the public, to question the fairness of the process, again preferably before the trial started, or, if the fact only emerged after conviction, after trial.","elements":[]},{"content":"34. We shall deal with the submission briefly. In the criminal justice process it is never wise to say \u2018never\u2019. In the context of a situation which does not arise for decision, we simply record that this problem should be examined if and when it occurs. We have already indicated that it would be a very exceptional case if it were to occur. Given the valuable Courts Service Guidance and the provisions of the CPS Code of Conduct for its employees in the context of their potential as jurors, we think that the exceptional circumstances that we have in mind are most unlikely to arise.\u201d","elements":[]}]},{"content":"C.\u00a0\u00a0Relevant aspects of a jury trial","elements":[{"content":"1.\u00a0\u00a0The juror\u2019s oath","elements":[{"content":"86.\u00a0Once selected for jury duty, jurors must swear an oath or affirmation that they will:","elements":[]},{"content":"\u201cfaithfully try the defendant and give a true verdict according to the evidence. \u201d","elements":[]}]},{"content":"2.\u00a0\u00a0Guidance to the jury","elements":[{"content":"87.\u00a0\u00a0Prospective jurors and those called to sit as jurors are provided with guidance to ensure that they are alert to the need to bring any concerns about fellow jurors to the attention of the trial judge.","elements":[]},{"content":"88.\u00a0\u00a0Jurors are also warned, by directions of the trial judge, of the importance of not discussing the case with anyone outside their number and are further directed to try the case on the basis of the evidence.","elements":[]},{"content":"89.\u00a0\u00a0In v Her Majesty\u2019s Advocate [2003] 1 AC 641, Lord Hope of Craighead noted:","elements":[]},{"content":"\u201c...the entire system of trial by jury is based upon the assumption that the jury will follow the instructions which they receive from the trial judge and that they will return a true verdict in accordance with the evidence.\u201d","elements":[]}]},{"content":"3.\u00a0\u00a0Power to discharge jurors","elements":[{"content":"90.\u00a0\u00a0The judge may discharge a juror whether due to illness or any other reason. The remainder of the jury may complete the hearing of the case and return a verdict provided that their number is not reduced below nine.","elements":[]}]},{"content":"4.\u00a0\u00a0Secrecy of jury deliberations","elements":[{"content":"91.\u00a0\u00a0Section 8(1) of the Contempt of Court Act 1981 states that it is a contempt of court to obtain, disclose or solicit any particulars of any statements made, opinions expressed, arguments advanced or votes cast by members of the jury in the course of their deliberations.","elements":[]}]},{"content":"5.\u00a0\u00a0Verdicts","elements":[{"content":"92.\u00a0\u00a0The jury\u2019s verdict is given in open court in the presence of all the jurors and the parties to the proceedings. Majority verdicts are possible. The minimum majorities possible are 11-1 or 10-2. In the case of a jury which has been reduced in number to ten or eleven members, the minimum permissible majorities are 9-1 or 10-1 respectively. A jury of nine members must be unanimous.","elements":[]}]}]}]},{"content":"III.\u00a0\u00a0APPROACH IN OTHER RELEVANT JURISDICTIONS","elements":[{"content":"A.\u00a0\u00a0Scotland","elements":[{"content":"93.\u00a0\u00a0Jury selection in Scotland is governed by the Law Reform (Miscellaneous Provisions) () Act 1980 as amended. Section 1(1)(d) provides that those listed in Part I of Schedule 1 to the Act are ineligible for jury service. Part I of Schedule 1 includes the judiciary and others concerned with the administration of justice. The latter category in particular covers, inter alia, \u201cconstables of any police force\u201d.","elements":[]},{"content":"94.\u00a0\u00a0In September 2008 the Scottish Government published a consultation paper on \u201cThe Modern Scottish Jury in Criminal Trials\u201d. The consultation paper sought views on whether the categories of ineligible persons should be maintained or amended. In December 2009, it published a follow-up paper, \u201cThe Modern Scottish Jury in Criminal Trials \u2013 Next Steps\u201d. It indicated that it did not intend to amend the list of ineligible persons as the responses to the consultation did not indicate a strong appetite for change. The paper further noted that there was:","elements":[]},{"content":"\u201c... a strong indication from respondents that it would be unwise to open up jury duty to those who work within the justice system ...\u201d","elements":[]}]},{"content":"B.\u00a0\u00a0Northern Ireland","elements":[{"content":"95.\u00a0\u00a0By virtue of article 3(3) of the Juries () Order 1996, persons listed in Schedule 2 to that Order are ineligible for jury service. Schedule 2 includes police officers.","elements":[]}]},{"content":"C.\u00a0\u00a0Ireland","elements":[{"content":"96.\u00a0\u00a0The Juries Act 1976 as amended regulates juries in . Section 7 of the Act provides that the persons specified in Part I of the First Schedule to the Act are ineligible for jury service. Part I of the Act lists persons concerned with the administration of justice and includes members of the Garda S\u00edoch\u00e1na, the Irish police force.","elements":[]},{"content":"97.\u00a0\u00a0In March 2010 the Law Reform Commission in published a consultation paper on jury service as part of its Third Programme of Law Reform 2008-2014. It considered the developments in other jurisdictions, commenting in particular on the New York Jury Project (see paragraph 121 below); the Morris Committee report (see paragraphs 36-37 above), the Auld Review and subsequent legislative changes in England and Wales (see paragraphs 39-42 above); the recent consultation exercise in Scotland (see paragraph 94 above); and the activities of the Law Reform Commissions of New South Wales and Western Australia (see paragraphs 110-111 and 112-115 below).","elements":[]},{"content":"98.\u00a0\u00a0In its discussion of the ineligibility of police officers, the Commission noted, as regards the New York Jury Project:","elements":[]},{"content":"\u201c3.70 The New York Jury Project concluded that the exemption of police officers from jury service was no longer justified on the basis that a large number of cases are not connected to the special training or presumed biases of police officers in that jurisdiction. This is particularly the case in terms of a large number of civil trials in the state of . However, this is not the situation in where the vast majority of cases requiring juries involve serious criminal offences.\u201d (footnotes omitted)","elements":[]},{"content":"99.\u00a0\u00a0The paper concluded:","elements":[]},{"content":"\u201c3.82 The Auld Review suggested that the trial judge, on a case-by-case basis, should resolve cases of this nature. However, this can only be achieved where the judge is aware of the presence of such jurors and is familiar with any possible connection to the case. The fact that this decision by the House of Lords was a majority decision suggests that the difference picked out in the cases does not provide any hard and fast rules. Having considered this issue at some length, the Commission has provisionally concluded that, since members of police forces have strong occupational cultures, there is scope for a likelihood of at least a perception of bias if Garda\u00ed were permitted to serve on juries.","elements":[]},{"content":"3.83 The Commission therefore considers that members of An Garda S\u00edoch\u00e1na should continue to be ineligible for jury service. The Commission has come to this decision on the basis that the overwhelming majority of jury trials in this jurisdiction relate to the prosecution of criminal offences. It is possible that Garda jurors might legitimately have access to information about accused persons which would be inadmissible as evidence at trial and which would not be available to other jurors. Additionally, the Commission considers that it is important to maintain community confidence in the impartiality, fairness and unbiased nature of the jury system. The Commission considers that confidence in trial by jury will be called into question if members of the An Garda S\u00edoch\u00e1na were eligible for selection as jurors ...\u201d","elements":[]},{"content":"100.\u00a0\u00a0The Commission therefore provisionally recommended that the exclusion be retained.","elements":[]}]},{"content":"D.\u00a0\u00a0Malta","elements":[{"content":"101.\u00a0\u00a0Article 604 of the Maltese Criminal Code provides that some occupational groups are exempted from serving as jurors. The list of exempted occupations includes police officers. Pursuant to Article 606, if the name of an exempted person is drawn to serve on a jury, it is not taken into account and is considered as if it had not been drawn.","elements":[]}]},{"content":"E.\u00a0\u00a0France","elements":[{"content":"102.\u00a0\u00a0Pursuant to Articles 255 and 257 of the French Code on Criminal Procedure, police officers are not able to serve on juries.","elements":[]}]},{"content":"F.\u00a0\u00a0Belgium","elements":[{"content":"103.\u00a0\u00a0Article 224 of the Belgian Judiciary Code lists various occupations and functions which are excluded from jury service. While certain civil servants are excluded, the list does not refer to \u201cpolice officers\u201d as such. An assessment of whether individual officers fell within any other category listed would have to be made on a case by case basis.","elements":[]},{"content":"104.\u00a0\u00a0Article 289 of the Code of Criminal Procedure allows an accused to challenge between six and twelve jurors without providing reasons.","elements":[]}]},{"content":"G.\u00a0\u00a0Norway","elements":[{"content":"105.\u00a0\u00a0Section 71(5) of the Administration of Courts Act 1915 (domstolloven) provides that police officers are not eligible for jury service.","elements":[]}]},{"content":"H.\u00a0\u00a0Austria","elements":[{"content":"106.\u00a0\u00a0Section 3 of the 1990\u00a0Act on Juries of Assizes and Lay Judges excludes police officers from serving on juries.","elements":[]}]},{"content":"I.\u00a0\u00a0New Zealand","elements":[{"content":"107.\u00a0\u00a0In , the criteria for eligibility for jury service are set out in the Juries Act 1981. Section 8 of the Act contains a list of \u201ccertain persons not to serve\u201d, which includes police officers.","elements":[]},{"content":"108.\u00a0\u00a0In February 2001, the New Zealand Law Commission published a report on Juries in Criminal Trials. It made a series of recommendations regarding jury services, but did not address whether police officers should continue to be excluded. A prior discussion paper published in July 1998, which highlighted aspects for consideration, did not suggest a possible reform of the police officer exclusion, although it did invite submissions on whether lawyers and barristers should continue to be excluded from jury service.","elements":[]}]},{"content":"J.\u00a0\u00a0Australia","elements":[{"content":"109.\u00a0\u00a0In each of the six Australian states as well as in its two major mainland territories police officers are ineligible for jury service.","elements":[]},{"content":"110.\u00a0\u00a0In a report of September 2007, the New South Wales Law Reform Commission considered the developments in England and Wales and in . As to the New York Jury Project in particular, it noted the conclusion there that the exemption of police officers was not justified because of the large number of cases that did not implicate the special training or presumed biases of police officers, on which they could sit without any problem at all. The Commission continued:","elements":[]},{"content":"\u201cThis is not the case in NSW, where the vast majority of jury trials are of criminal matters.\u201d","elements":[]},{"content":"111.\u00a0\u00a0It concluded:","elements":[]},{"content":"\u201c4.71 It is our view that serving members of the core law enforcement agencies mentioned at the commencement of this section who are actually engaged in criminal investigation and law enforcement should continue to be ineligible. This follows from the fact that the vast majority of jury trials are criminal, and from the further fact that the primary job of these officers is the detection and charging of crime, so that it is likely that they would be aware of, or have access to, information concerning suspects that would not be available to private citizens and could not be adduced in evidence. In our view, it is important to maintain the community confidence in the impartiality and fairness of the jury system, which might be threatened if police or those centrally involved in criminal law enforcement were permitted to serve as jurors.\u201d","elements":[]},{"content":"112.\u00a0\u00a0The Law Reform Commission of Western Australia reached a similar conclusion. In a discussion paper published in September 2009, the Commission discussed the changes in England and following the Auld Review. It considered that there were good reasons for the exclusion of justice-related occupations, noting that the integrity of the jury system depended upon its independence from government and impartiality to inspire public confidence in the criminal justice system. It further observed that, while some US states had abolished occupation-based exclusions, these jurisdictions had also established rigorous jury vetting practices to ensure that juries were as impartial and independent as possible. Such practices existed neither in Australia nor in . It continued:","elements":[]},{"content":"\u201cThe failure of the Auld review (and the subsequent Criminal Justice White Paper) to properly appreciate the importance of the rationales underlying justice-related occupational exclusions has left the jury system in vulnerable to criticism that it is not properly independent or impartial ...","elements":[]},{"content":"... It is the Commission\u2019s strongly held view that, even without the attendant practical difficulties, the underlying rationale of juror independence from the justice system and the status of the jury as an impartial lay tribunal preclude adoption of the English approach in this jurisdiction. The Commission notes that various English judges and commentators have expressed the view that the fair trial of the accused is potentially at risk where judicial officers, police officers and lawyers can sit on juries. More importantly, the English House of Lords has found that the potential of bias in some cases where police officers and prosecutors have served on juries is such that the jury\u2019s verdict must be considered unsafe and the conviction quashed.\u201d (footnotes omitted)","elements":[]},{"content":"113.\u00a0\u00a0Taking into account the experience in , the Commission expressed the view that the current exclusion of police officers from jury service during the term of their employment and for five years thereafter should remain in place. It found the following points to be persuasive:","elements":[]},{"content":"\u201c\u2022 the integral role that police officers play in the detection and investigation of crime and prosecution of criminal charges;","elements":[]},{"content":"\u2022 the fact that police officers have ready access to information that may concern an accused or witness and that is not available to lay jurors and may not be adduced in evidence;","elements":[]},{"content":"\u2022 the potential for partiality of police-jurors toward the prosecution or the evidence of fellow officers, whether real or apparent;","elements":[]},{"content":"\u2022 the risk of unsafe verdicts should a police-juror know or be known to a witness or prosecutor or an accused in a trial;","elements":[]},{"content":"\u2022 the appearance to an accused that he or she would not receive a fair trial where a police-juror was empanelled; and","elements":[]},{"content":"\u2022 the need to preserve public confidence in the impartial administration of criminal justice.\u201d (footnotes omitted)","elements":[]},{"content":"114.\u00a0\u00a0In its final report of April 2010, the Commission noted that, as to its proposal to maintain the ineligibility of police officers to service on juries, the vast majority of submissions it received in reply supported the proposal. Indeed, the only submission opposing it came from the Department of the Attorney-General, on the basis that the removal of the exclusion would increase the size of the jury pool as well as its representative nature.","elements":[]},{"content":"115.\u00a0\u00a0The Commission concluded:","elements":[]},{"content":"\u201cStudies undertaken in this area suggest that a police culture of \u2018group loyalty\u2019 does exist and that it is both widespread and influential ... As mentioned earlier, the English Court of Appeal has warned that the potential for a police-juror to accept at face value a fellow officer\u2019s evidence where that evidence is disputed may be enough to put in doubt the safety of a verdict to convict.","elements":[]},{"content":"Taking into account the perception by the accused that he or she would not receive a fair trial if a police officer were empanelled on the jury, the potential for unsafe verdicts and the need to maintain public confidence in the jury system, the Commission considers that the risks of permitting a police officer to serve on a jury far outweigh any benefit that can be gained by a small increase to the jury pool ...\u201d (footnotes omitted)","elements":[]},{"content":"116.\u00a0\u00a0A discussion paper published by the Queensland Law Reform Commission in June 2010 also reviewed the developments which had occurred in other jurisdictions.\u00a0As to the ineligibility of police officers to serve, the paper noted:","elements":[]},{"content":"\u201c7.157 Where police officers have a connection with the case at hand, or are known to the witnesses, prosecutors, defendant or other participants in the trial, their presence on a jury would constitute a clear case of potential bias which ought to be avoided.","elements":[]},{"content":"7.158 Aside from specific instances like those, however, it may be thought that police officers would be no more susceptible to prejudices or biases than any other potential juror. Lord Justice Auld suggested as much in recommending that police officers be made liable to perform jury service in England and :","elements":[]},{"content":"...","elements":[]},{"content":"7.159 A significant body of research has, however, demonstrated that \u2018police as a group are generally suspicious and primed to see deception in other people\u2019 and \u2018tend to make prejudgments of guilt, with confidence, that are frequently in error\u2019. In the , police training has been found to enhance this \u2018guilt-presumptive process\u2019: trained investigators \u2018were significantly less accurate, more confident, and more biased toward seeing deception\u2019. Thus, police officers may not merely be prone, like everyone else, to any number of a range of personal prejudices or biases but predisposed, by virtue of their profession, to assume guilt. This is not a criticism of police, but a reflection of the nature of their profession and training.","elements":[]},{"content":"7.160 ... Regardless of whether an individual officer is directly connected with a particular case or a trial\u2019s participants, and whether or not he or she personally is biased towards the prosecution, it would seem to be inimical to include those identified with one of the two opposing sides of the adversarial contest in the pool of ordinary community members whose task is to judge \u2013 with impartiality and independence \u2013 the contest between those two sides.\u201d (footnotes omitted)","elements":[]},{"content":"117.\u00a0\u00a0The Law Reform Commission\u2019s provisional recommended that police officers should continue to be ineligible for jury service.","elements":[]}]},{"content":"K.\u00a0\u00a0Canada","elements":[{"content":"118.\u00a0\u00a0In nine of the ten provinces of Canada (excluding , where the right to a jury trial is an exceptional one), legislation provides that police officers are excluded from jury service.","elements":[]}]},{"content":"L.\u00a0\u00a0United States of America","elements":[{"content":"119.\u00a0\u00a0The Jury Selection and Service Act 1968 is the federal legislation which governs juries in the . Section 1863(6) sets out three categories of persons who are not permitted to serve on juries on the ground that they are exempt from service, namely members in the active service of the armed forces, members of the fire or police department and public officers in the executive, legislative or judicial branch of federal, state or local government actively involved in the performance of official duties.","elements":[]},{"content":"120.\u00a0\u00a0Paragraph 1866(c)(3) provides that any person summoned for jury service may be excluded upon peremptory challenge, i.e. challenge without cause shown, as provided by law. Paragraph 1866(c)(4) provides that a person may be challenged pursuant to the procedure specified by law upon a challenge for good cause shown.","elements":[]},{"content":"121.\u00a0\u00a0In the state of , a report to the Chief Judge, The Jury Project, was published on 31 March 1994 (\u201cNew York Jury Project\u201d). The report proposed that all automatic exemptions and excusals from jury service be eliminated. It noted that New York had the most extensive list of occupational and related exemptions in the United States, and that half of the states outside had either reduced or completely abolished occupational jury exemptions. As regards the exemption of police officers, the report explained:","elements":[]},{"content":"\u201cOther occupational exemptions (notably those for doctors and law enforcement officers) are often justified on the ground that these individuals would not be appropriate jurors in particular cases (physicians in malpractice and some tort cases; police officers in criminal cases). Putting aside the dubiousness of this proposition, there are obviously a large number of cases that do not implicate the special training or presumed biases of doctors and police officers, on which they could sit without any problem at all.\u201d (footnotes omitted)","elements":[]},{"content":"122.\u00a0\u00a0The New York Judiciary Law now contains no automatic exemption for police officers. However, the possibility for the defence to make a number of peremptory challenges remains, pursuant to Article\u00a0270.25 of the Criminal Procedure Law.","elements":[]}]},{"content":"M.\u00a0\u00a0Hong Kong","elements":[{"content":"123.\u00a0\u00a0Section 5 of the Jury Ordinance exempts from service as jurors members of the Hong Kong Police Force.","elements":[]},{"content":"124.\u00a0\u00a0A June 2010 report by the Law Reform Commission of Hong Kong reviewed the applicable criteria for service as jurors. It considered the position in other common law jurisdictions and examined the Auld Review and the subsequent legislative amendment in England and to allow police officers to serve on juries. The report noted:","elements":[]},{"content":"\u201c5.107 Members of the Hong Kong Police Force... are generally perceived as part of the prosecution process ... We took the view in our consultation paper that these persons should be excluded from jury service to avoid a perception of bias ...","elements":[]},{"content":"5.108 We received strong support for this recommendation and maintain our view that members of the Hong Kong Police Force... should be exempt from jury service.\u201d","elements":[]},{"content":"125.\u00a0\u00a0The Law Reform Commission accordingly recommended that members of the police force should continue to be exempt from service as jurors.","elements":[]}]}]}],"section_name":"facts"},{"content":"THE LAW","elements":[{"content":"I.\u00a0\u00a0JOINDER","elements":[]},{"content":"126.\u00a0\u00a0Given their\u00a0similar factual and legal background, the Court decides that the two applications should be joined pursuant to Rule 42 \u00a7 1 of the Rules of Court.","elements":[]},{"content":"II.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 6 \u00a7 1 OF THE CONVENTION","elements":[{"content":"127.\u00a0\u00a0The applicants complained that the presence of a police officer on the jury denied them the right to a fair trial by an independent and impartial tribunal as provided in Article 6 \u00a7 1 of the Convention, which reads as follows:","elements":[]},{"content":"\u201cIn the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.\u201d","elements":[]},{"content":"128.\u00a0\u00a0The Government contested that argument.","elements":[]},{"content":"A.\u00a0\u00a0Admissibility","elements":[{"content":"129.\u00a0\u00a0The Court notes that the applications are not manifestly ill-founded within the meaning of Article 35 \u00a7 3 of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.","elements":[]}]},{"content":"B.\u00a0\u00a0Merits","elements":[{"content":"1.\u00a0\u00a0The parties\u2019 submissions","elements":[]}]},{"content":"a.\u00a0\u00a0The applicants","elements":[{"content":"130.\u00a0\u00a0The applicants clarified that they did not consider the participation of police officers on juries in itself to violate Article 6 \u00a7 1 of the Convention. However, in the view of the first applicant, there would be a breach where a police officer was a member of the jury and the evidence of police officers called as witnesses was important to the prosecution case and likely to be challenged in cross-examination. The second applicant made a slightly different submission, contending that there would be a breach where a police officer was on the jury and the trial involved evidence gathered by police officers with whom the police officer juror would have, at the very least, some form of collegiate interest. Both applicants argued that the relevant circumstances arose in the present case.","elements":[]},{"content":"131.\u00a0\u00a0They considered that the assumption that a jury would follow the instructions of the trial judge and decide the case on the evidence before them did not prevent cases where juries failed to do so. In particular, they contended that the ability of directions to counter jury bias was limited, and emphasised the prohibition on inquiring into the jury\u2019s deliberations (see paragraph 91 above). Further, the random selection of the jury and the fact that they served for a limited period had, in their view, no bearing on the potential bias of police officers on juries.","elements":[]},{"content":"132.\u00a0\u00a0The applicants referred to the Morris Committee report of 1965 (see paragraphs 36-37 above), which expressed strong opposition to the idea of police officers serving on juries, as more helpful than the recent Auld Review (see paragraphs 39-41 above). While they accepted that people might no longer defer to professionals or to those holding a particular office to the extent that they previously did, there was in their view no doubt that a police officer with experience of dealing with searches in drugs cases would have knowledge and experience which would enable him to exert undue influence over his fellow jurors by reference to matters within his knowledge that were not in evidence before the jury. They also relied on the views of the Association of Chief Police Officers summarised in the Morris Committee report (see paragraph 37 above) and considered that it was unclear what had changed between 1965 and 2003 to remove this fundamental objection to police officers serving on juries.","elements":[]},{"content":"133.\u00a0\u00a0The applicants further argued that A.T. did not act openly and responsibly in his disclosure to the trial judge. Indeed, they contended that A.T. misled the court by stating only that he was a dog handler and making no mention of his work as a handler of drugs detection dogs and his own participation in searches of premises for drugs on a number of occasions (see paragraphs 12 and 18 above). In doing so, he gave the impression that his own line of work was far removed from the sort of case that the jury was trying when it was clear that A.T. had specialist knowledge of the way in which drug dealers operate. It made no difference that the evidence of M.B. was being challenged as inaccurate, rather than untruthful (see paragraph 25 above). Further, although the evidence of M.B. was supported by other witnesses, it was important to recall that these witnesses were also police officers (see paragraph 11 above) and thus could not be considered to address concerns regarding impartiality.","elements":[]}]},{"content":"b.\u00a0\u00a0The Government","elements":[{"content":"134.\u00a0\u00a0The Government emphasised that the subjective impartiality of juries had to be presumed until there was proof to the contrary (citing Kyprianou v. [GC], no. 73797/01, ECHR 2005XIII). As to objective impartiality, they referred to the Auld Review and to the findings of Lord Bingham, Lord Rodger and Lord Carswell in Abdroikof and Others (see paragraphs 39-41, 43, 47-49 and 52 above) to support their contention that the participation of police officers was not in itself incompatible with Article 6 \u00a7 1. Whether there was a real possibility of bias was a matter to be determined on the facts of the particular case. The Government further observed that police officers were called for jury service in their capacity as citizens required to perform an important civic duty, and not in their capacity as police officers.","elements":[]},{"content":"135.\u00a0\u00a0The Government submitted that there was no violation of Article 6\u00a0\u00a7\u00a01 as a result of the presence of A.T. on the jury in the present case. Referring to the case-law of the Court on the question of the impartiality of juries in the United Kingdom, they emphasised that the essential question was whether the applicants\u2019 doubts were objectively justified and, in this connection, account had to be taken of the part played by the judge and the measures which were designed to ensure, so far as possible, that the applicants would receive a fair trial.","elements":[]},{"content":"136.\u00a0\u00a0The Government argued that it would be illogical and unprincipled to suggest that a police officer from a particular police force could not serve as a juror in any case where another officer from that force or any other force was to give evidence, regardless of the nature of the evidence or the connection between the officers. They further considered that A.T. had acted openly and responsibly by sending the note to the trial judge and disclosing that he was a police officer and that he knew M.B. (see paragraph 12 above). When questioned, A.T. explained that he did not know M.B. socially and that they had worked together on only three occasions but not in the same duty group nor at the same police station. Significantly in the Government\u2019s view, A.T. stated that he did not know anything about M.B. which would affect his ability to judge M.B.\u2019s evidence impartially or to return a true verdict according to the evidence (see paragraph 12 above). Further, there was no question of A.T. having any connection with those responsible for the conduct of the prosecution. It was also important to recall that A.T. would have received directions from the trial judge to determine the case solely on the evidence.","elements":[]},{"content":"137.\u00a0\u00a0In light of the evidence in the case and the Court of Appeal\u2019s comments regarding the first applicant\u2019s almost \u201cfarcical\u201d explanation for his mobile phone records (see paragraph 25 above), the Government concluded that there was no possibility that a fair-minded observer would consider that the jury\u2019s decision to convict was based on any alleged partiality on the part of A.T. As regards the second applicant, he made no challenge to the prosecution evidence and no police witnesses were called to establish his guilt (see paragraph 28 above); there was accordingly no evidence of partiality.","elements":[]},{"content":"2.\u00a0\u00a0The Court\u2019s assessment","elements":[]}]},{"content":"a.\u00a0\u00a0General principles","elements":[{"content":"138.\u00a0\u00a0The Court recalls 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, including a jury, must be impartial from an objective as well as a subjective point of view (see Hauschildt v.\u00a0Denmark, 24 May 1989, \u00a7 46, Series A no. 154; Kyprianou, cited above, \u00a7\u00a0118; Pullar v. the United Kingdom, 10 June 1996, \u00a7 30, Reports of Judgments and Decisions 1996III; and Gregory v. the United Kingdom, 25 February 1997, \u00a7 43 Reports 1997I).","elements":[]},{"content":"139.\u00a0\u00a0Further, the personal impartiality of a judge or a jury member must be presumed until there is proof to the contrary (see Piersack v. , 1 October 1982, \u00a7 30, Series A no. 53; Kyprianou, cited above, \u00a7 119; Sander v. the United Kingdom, no. 34129/96, \u00a7 25, ECHR 2000V; and Szypusz v. the United Kingdom, no. 8400/07, \u00a7 80, 21 September 2010).","elements":[]},{"content":"140.\u00a0\u00a0As to whether the court was impartial from an objective point of view, this Court must examine whether in the circumstances there were sufficient guarantees to exclude any objectively justified or legitimate doubts as to the impartiality of the jury bearing in mind that the misgivings of the accused, although important, cannot be decisive for its determination (see Kleyn and Others v. the Netherlands [GC], nos. 39343/98, 39651/98, 43147/98 and 46664/99, \u00a7\u00a0194, ECHR 2003VI; Gregory, cited above, \u00a7 45; Sander, cited above, \u00a7 27; and Szypusz, cited above, \u00a7 81). While the need to ensure a fair trial may, in certain circumstances, require a judge to discharge an individual juror or an entire jury it must also be acknowledged that this may not always be the only means to achieve this aim. In other circumstances, the presence of additional safeguards will be sufficient (see Gregory, cited above, \u00a7 48; and Szypusz, cited above, \u00a7 81).","elements":[]},{"content":"141.\u00a0\u00a0Finally, the Court has previously held that it does not necessarily follow from the fact that a member of a tribunal has some personal knowledge of one of the witnesses in a case that he will be prejudiced in favour of that person\u2019s testimony. In each individual case it must be decided whether the familiarity in question is of such a nature and degree as to indicate a lack of impartiality on the part of the tribunal (see Pullar, cited above, \u00a7 38).","elements":[]}]},{"content":"b.\u00a0\u00a0Application of the general principles to the facts of the case","elements":[{"content":"142.\u00a0\u00a0As noted above, the personal impartiality of a jury member is presumed until there is proof to the contrary. The Court observes that there is no evidence of actual partiality on the part of A.T. during the trial and it will accordingly examine whether there were sufficient guarantees to exclude any objectively justified doubts as to his impartiality.","elements":[]},{"content":"143.\u00a0\u00a0The Court recognises at the outset that there were a number of safeguards present in the applicants\u2019 case. First, A.T. was one of twelve jurors, selected at random from the local population. Second, before commencing service, he was required to swear an oath or to make a solemn affirmation that he would faithfully try the case and give a true verdict according to the evidence (see paragraph 86 above). Third, he and his fellow jurors would have been advised, in accordance with the standard jury guidance, to bring any concerns to the attention of the trial judge and not to discuss the case with anyone outside the jury (see paragraphs 87-88 above). Fourth, in line with normal practice, A.T. would have received directions from the trial judge as to how to approach the case and the evidence presented (see Pullar, cited above, \u00a7\u00a040).\u00a0 Fifth, A.T. drew to the attention of the trial judge the fact that he was a police officer and knew M.B. and the trial judge arranged for A.T. to be questioned, allowing more detailed information as to his acquaintance with M.B. and his knowledge of the applicants to be ascertained (see paragraph 12 above). Thus far, the safeguards operated in the manner intended to guarantee the applicants\u2019 right to a fair trial. The effectiveness of such safeguards can be seen in cases such as Gregory and Pullar, both cited above. The question in the present case is whether these safeguards were sufficient to exclude objectively justified concerns regarding the jury\u2019s impartiality arising from the continued presence of A.T. on the jury.","elements":[]},{"content":"144.\u00a0\u00a0The Court observes that the recent amendment to the legislation of England and allowing police officers to serve on juries resulted in a departure from the approach followed in most of the jurisdictions examined above (see paragraphs 93-125). Indeed, of the jurisdictions surveyed, only in New York and Belgium are police officers permitted to serve on juries (see paragraphs 103 and 121 above), and it is to be recalled that in both jurisdictions, unlike in England, peremptory challenges are permitted (see paragraphs 104 and 122 above). Significantly, within the United Kingdom, the Scottish Government, following a consultation exercise conducted after the changes in England and had entered into force, decided against making any c