European Convention on Human Rights: Commentary 9781472561725, 9781849461917, 9781782251354

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Preface The European Convention on Human Rights entered into force sixty years ago, on 3 September 1953. Over the decades, it has become the most effective international human rights protection system there is. For a time, there were two separate independent bodies – the Commission and the Court – that developed the case law, one step at a time, and made the Convention increasingly relevant. Fifteen years ago, on 1 November 1998, a new permanent Court replaced these two judicial organs. This new Court faced a greater number and new types of member states and had to cope with a dramatic increase in its applications. Reform measures brought punctual solutions, but did not solve the problem of the Court’s excessive workload. Against this background, it is remarkable that the European Court of Human Right was capable of maintaining its high-quality reasoning in the majority of its judicial activities: in the Chambers’ judgments and in those of the Grand Chamber. However, inconsistency in the case law has appeared, resulting in increasing criticism of the Court. This is not the fault of anyone in particular at the Court. It is the inevitable result of a Court that has reached its quantitative limits. From an external perspective, the Court has done everything in its power to increase its efficiency as well as to maintain the quality of its judgments. Other measures lie in the hands of the member states. The aim of this commentary is to help in understanding the working of the European Convention on Human Rights and the Court’s case law. Over the last decade, the author has published five editions of a textbook in German. To write a commentary in English turned out to be much more difficult, not only for language reasons (native speakers are kindly asked to be considerate with foreign authors), but mainly because it is impossible to find a selection of cases that is adequate for all member states of the Council of Europe. It is a challenge to provide a comprehensive commentary on most of the major legal questions decided and discussed up until today. The author would like to thank, first of all, Wilhelm Warth of the Beck Verlag. He came up with the idea for this book, encouraged me to pursue it and applied the right amount of pressure on me to finish the commentary. My special thanks go to my assistants at the institute, who have provided me with the much-needed support for this project. Christina Hochhauser, Franziska Paefgen, Nina Palmstorfer and Eva-Maria Tos were responsible for translating major parts of the text into English and adding recent case law. They have gone so far as to suspend their personal projects on a number of occasions during the last months in order to support me, which I have greatly appreciated. Anna Katharina Struth, who joined the team during the last weeks of this project, was also of great help. Lastly, I hope that this commentary will be useful for those who work with the Convention, be it at universities, in law firms or in a court of law. No publication is

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Preface

free of mistakes, therefore should readers find errors or just find that something could be clarified, they are kindly invited to notify this by e-mail to the Institute ([email protected]). October 2013 Christoph Grabenwarter

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List of Abbreviations a................................... a.o. .............................. ACHR ........................ AJIL............................ ALB ........................... AND .......................... ARM .......................... AUT .......................... AZE ...........................

and and others American Convention on Human Rights American Journal of International Law Albania Andorra Armenia Austria Azerbaijan

BVerfG ...................... BYIL ........................... BEL ............................ BIH ............................ BUL ...........................

German Constitutional Court British Yearbook of International Law Belgium Bosnia and Herzegovina Bulgaria

CISA........................... CJEU .......................... the Convention........ the Court................... CRO .......................... CFR ............................ CYP ........................... CZE ...........................

Convention Implementing the Schengen Agreement Court of Justice of the EU European Convention on Human Rights European Court of Human Rights Croatia Charter of Fundamental Rights of the European Union Cyprus Czech Republic

DPA ........................... DEN ..........................

Dayton Peace Agreement Denmark

e.g. .............................. EComHR................... ECtHR ....................... ed. ............................... EEA ............................ EHRLR ...................... EJIL ............................ ELR............................. ESP ............................ EST ............................ et al............................. et seq.......................... EU............................... EU...............................

exempli gratia/for example European Commission of Human Rights European Court of Human Rights Editor European Economic Area European Human Rights Law Review European Journal of International Law European Law Review Spain Estonia et alii/and others et sequens/and the following one(s) European Union Charter Charter of Fundamental Rights of the EU

FIN FRA ...........................

Finland France

GC .............................. GDR ........................... GEO .......................... GER ........................... GLJ .............................

Grand Chamber German Democratic Republic Georgia Germany German Law Journal

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List of Abbreviations GRE ...........................

Greece

HUN ......................... HRLJ ..........................

Hungary Human Rights Law Journal

IACHPR .................... ICCPR........................ ICESCR ..................... ILO ............................. IRL ............................. ISL ............................. ITA ............................

Inter-American Court of Human Rights International Covenant on Civil and Political Rights International Covenant on Economic, Social and Cultural Rights International Labour Organisation Ireland Iceland Italy

LAT ........................... LIE ............................. LTU ........................... LUX ...........................

Latvia Liechtenstein Lithuania Luxembourg

m.n. ............................ MDA ......................... MKD ......................... MLT .......................... MNE .......................... MON .........................

marginal note Moldova Macedonia Malta Montenegro Monaco

NED .......................... No............................... NOR ..........................

Netherlands number Norway

p. ................................. para. ........................... paras........................... PJCCM ...................... POL ............................ POR ........................... pp................................

page paragraph paragraphs Police and Judicial Cooperation in Criminal Matters Poland Portugal pages

RDH........................... RFDA......................... RGDIP ....................... ROM ......................... RTDH ........................ RUDH........................ RUS ...........................

Revue des droits de l’homme Revue française de droit administratif Revue ge´ne´rale de droit international public Romania Revue trimestrielle des droits de l’homme Revue universelle des droits de l’homme Russia

SLO ............................ SMR ........................... SRB ............................ SUI ............................. SVK ........................... SWE ..........................

Slovenia San Marino Serbia Switzerland Slovakia Sweden

TFEU ......................... TUR ...........................

Treaty of the functioning of the EU Turkey

UDHR........................ UK .............................

Universal Declaration of Human Rights United Kingdom

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List of Abbreviations UKR .......................... UN..............................

Ukraine United Nations

v .................................. VCLT .........................

versus Vienna Convention on the Law of Treaties

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Index of Country Codes When quoting ECtHR judgments the Member States of the Convention are abbreviated as follows: ALB ........................... AND .......................... ARM .......................... AUT .......................... AZE ........................... BEL ............................ BIH ............................ BUL ........................... CRO .......................... CYP ........................... CZE ........................... DEN .......................... ESP ............................ EST ............................ FIN ............................ FRA ........................... GEO .......................... GER ........................... GRE ........................... HUN ......................... IRL ............................. ISL ............................. ITA ............................ LAT ........................... LIE ............................. LTU ........................... LUX ........................... MDA ......................... MKD ......................... MLT .......................... MNE .......................... MON ......................... NED .......................... NOR .......................... POL ........................... POR ........................... ROM ......................... RUS ........................... SLO ............................ SMR ........................... SRB ............................ SUI ............................. SVK ........................... SWE .......................... TUR ........................... UKR .......................... UK .............................

Albania Andorra Armenia Austria Azerbaijan Belgium Bosnia and Herzegovina Bulgaria Croatia Cyprus Czech Republic Denmark Spain Estonia Finland France Georgia Germany Greece Hungary Ireland Iceland Italy Latvia Liechtenstein Lithuania Luxembourg Moldova Macedonia Malta Montenegro Monaco Netherlands Norway Poland Portugal Romania Russia Slovenia San Marino Serbia Switzerland Slovakia Sweden Turkey Ukraine United Kingdom

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Bibliography Clements/Mole/Simmons Author, Studies in honour of Jean-Paul Costa Author, in: van Dijk/van Hoof/van Rijn/ Zwaak Grabenwarter/Pabel Harris/O’Boyle/Warbrick Author, Studies in honour of Pierre Lambert Author, in: vande Lanotte/Haeck Author, in: Macdonald/Matscher/Petzold Author, in: Pettiti/Decaux/Imbert Reid Author, Studies in memory of Rolv Ryssdal Author, in: de Salvia/Villiger Velu/Ergec Villiger Author, Studies in honour of Ge´rard J. Wiarda Author, Studies in honour of Luzius Wildhaber Author, Liber Amicorum Luzius Wildhaber

Clements/Mole/Simmons, European Human Rights: Taking a Case under the convention, 2nd ed., 1999. Titiun (ed.), La conscience des droits, Me´langes en l’honneur de Jean-Paul Costa, 2011. van Dijk/van Hoof/van Rijn/Zwaak (ed.), Theory and Practice of the European Convention on Human Rights, 4th ed., 2006. Grabenwarter/Pabel, Europa¨ische Menschenrechtskonvention, 5th ed., 2012. Harris/O’Boyle/Warbrick, Law of the European Convention on Human Rights, 2nd ed., 2009. de Fontbressin a.o. (ed.), Les droits de l’homme au seuil du troisie`me mille´naire, Me´langes en hommage a` Pierre Lambert, 2000. vande Lanotte/Haeck (ed.), Handboek EVRM, Deel 1, 2005; Deel 2, 2004. Macdonald/Matscher/Petzold (ed.), The European System for the Protection of Human Rights, 1993. Pettiti/Decaux/Imbert (ed.), La Convention Europe´enne des Droits de l’Homme. Commentaire article par article, 2nd ed., 1999. Reid, A Practitioner’s Guide to the ECHR, 3rd, 2008. Mahoney/Matscher/Petzold/Wildhaber (ed.), Protecting Human Rights: The European Perspective, Studies in memory of Rolv Ryssdal, 2000. de Salvia/Villiger (ed.), The Birth of European Human Rights Law, Liber Amicorum Carl Aage Nørgaard, 1998. Velu/Ergec, La Convention Europe´nne des Droits de l’Homme, 1990. Villiger, Handbuch zur Europa¨ischen Menschenrechtskonvention, 2nd ed., 1999. Matscher/Petzold (ed.), Protecting Human Rights: The European Dimension. Studies in honour of Ge´rard J. Wiarda, 1988. Breitenmoser/Ehrenzeller/Sasso`li/Stoffel/Wagner-Pfeifer (ed.), Human Rights, Democracy and the Rule of Law, Liber Amicorum Luzius Wildhaber, 2007. Caflisch/Callewaert/Liddell/Mahoney/Villiger (ed.), Human Rights – Strasbourg Views, 2007.

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Convention for the Protection of Human Rights and Fundamental Freedoms as amended by Protocols No. 11 and No. 14 (Rome, 4.XI.1950) Articles 1 to 14 Article 1 – Obligation to respect human rights The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention. Article 1 – Obligation de respecter les droits de l’homme Les Hautes Parties contractantes reconnaissent a` toute personne relevant de leur juridiction les droits et liberte´s de´finis au titre I de la pre´sente Convention. Bibliography: Cohen-Jonathan, Observations – La territorialisation de la juridiction de la Cour europe´enne des droits de l‘homme, RTDH 2002, pp. 1069 et seq; Lawson, Life after Bankovic: On the extraterritorial application of the European Convention on Human Rights, in: Coomans/ Kamminga (ed.), Extraterritorial Application of Human Rights Treaties, 2004, pp. 83 et seq; O’Boyle, The European Convention on Human Rights and Extraterritorial Jurisdiction: A comment on ‘Life after Bankovic’, in: Coomans/Kamminga (ed.), Extraterritorial Application of Human Rights Treaties, 2004, pp. 125 et seq; Sasso`li, La Cour europe´enne des droits de l’homme et les conflits arme´s, Studies in honor of Luzius Wildhaber, pp. 709 et seq; Scha¨fer, Verletzungen der Europa¨ischen Menschenrechtskonvention durch Europa¨isches Gemeinschaftsrecht und dessen Vollzug, 2005; Thallinger, Grundrechte und extraterritoriale Hoheitsakte, 2008. Leading Cases: ECtHR, 23/3/1995 (GC), Loizidou (Preliminary Objections) v TUR, No. 15318/89; ECtHR, 10/5/2001 (GC), CYP v TUR, No. 25781/84; ECtHR, 8/7/2004, Ilas˛cu v MOL a. RUS, No. 48787/99; ECtHR, 30/6/2005 (GC), Bosphorus Hava Yollar{ Turizm ve Ticaret Anonim Sirketi v IRL, No. 45036/98; ECtHR, 2/5/2007 (GC), Behrami a. o. v FRA a. o., No. 71412/01; ECtHR, 21/1/2011, M. S. S. v BEL a. GRE, No. 30696/09; ECtHR, 7/7/2011 (GC), Al-Skeini a. o. v UK, No. 55721/07; ECtHR, 12/9/2012 (GC), Nada v SUI, No. 10593/08. Outline I. Rights and freedoms defined in the Convention . . . . . . . . . . . . . . . . . . . . . . . . . . II. Personal scope of the Convention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Subjects entitled to the rights. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Parties bound by the Convention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Territorial scope of the Convention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. No accountability for extra-territorial acts of other States . . . . . . . . . . . . 2. Accountability for extra-territorial acts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a) Effective control over an area . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 2 3 6 11 12 13 14

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Art. 1

1–3

Article 1 – Obligation to respect human rights

b) State agent authority and control . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . c) Exercise of extra-territorial authority in another Member State’s territory. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Temporal scope of the Convention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

15 16 18

I. Rights and freedoms defined in the Convention 1

Article 1 determines the scope of responsibility of the Member States. It refers to ‘Section I’ of the Convention, which consists of Articles 2 to 18. However, this reference is rather imprecise. On the one hand, Section I covers also Articles 15 to 18 which do not guarantee rights. On the other hand; the rights in the protocols are not covered by the wording of Article 1. With a view to the preambles of the protocols concerned and specific provisions in the protocols on the relationship to the Convention it has to be assumed that the obligation under Article 1 does not only concern Articles 2 to 14 but also the substantive rights in the protocols to the Convention (subject to ratification). In particular, the preambles of Protocols No. 1 and 4 explicitly refer to the existing rights already included in Section I and they express the wish of Contracting States to ensure the collective enforcement of certain rights other than those of the Convention. The wording of the preamble of Protocole No. 7 is similar though more general. Moreover, all protocols include an article which makes it clear that the protocols are equivalent to those in the Convention. According to these articles the substantive provisions of of the protocols ‘shall be regarded as additional articles to the Convention and all the provisions of the Convention shall apply accordingly’.1

II. Personal scope of the Convention 2

Article 1 determines the personal scope of the ECHR: The ‘Contracting Parties’ secure ‘everyone within their jurisdiction’ the rights and freedoms provided for in the Convention. It follows, that the Member States are the obligated parties under the ECHR and the persons within their jurisdiction are the beneficiaries. 60 years of practice under the Convention have shown that difficult questions regarding the limits of Article 1 may arise.

1. Subjects entitled to the rights 3

The wording ‘everyone’ shows that the Convention contrary to other catalogues of fundamental rights in national constitutions abstained from imposing any restrictions – such as the nationality requirement – on the group of persons entitled to the rights under the Convention. The idea of restricting the application to persons having a domicile or being residents of a Contracting State was quickly abandoned in the discussions in the course of the drafting of the Convention.2 To be under a State’s 1 Articles 6 of Protocols No. 1, 4 and 6; Article 7 of Protocol No. 7; Article 3 of Protocol No. 12, Article 5 of Protocol No. 13. 2 See the report of the Committee of Ministers of the Council of Europe, Recueil des Travaux Pre´paratoires de la Convention Europe´enne des Droits de l‘homme, Volume IV, p. 20. Cf. EComHR, 25/9/1965, X., No. 1611/62, Yb 8, 158 (168).

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II. Personal scope of the Convention

3–6

Art. 1

jurisdiction is the only criteria decisive for the question whether or not an individual is entitled to the fundamental rights of the Convention. Exceptionally, the nationality is decisive for the prohibition of expulsion of nationals and the right of nationals to enter their own country (Article 3 of Protocol No. 4) or in the case of the prohibition of collective expulsion of aliens (Article 4 of Protocol No. 4). In general, protection under the Convention begins with birth and ends with 4 death. The question whether a foetus (‘nasciturus’) is subjected to fundamental rights is worth considering with regard to the right to life in Article 2.3 Legal persons may also rely on fundamental rights as long as they are not 5 closely related to the State. Such close relationship exists where a legal entity is exercising public authority.4 The reference given in Article 34 which states that the Court may receive applications from ‘any person, non-governmental organisation or group of individuals’ reflects this restriction. Accordingly, Article 34 determines who is subjected to the rights of the Convention. Whether the party concerned is a private or public legal person is an indication for a possible governmental control, but is in the end of secondary importance. Therefore, a private legal person with 100 % non-governmental control still may not be subjected to fundamental rights, whereas a company with both private and public shareholders might be entitled to the rights under the Convention. On the other hand, if an organisation qualifies as a public entity, trust, fund or any other public institution under national law, it may rely on the Convention if it is sufficiently independent from the government – as in the case of universities or churches and religious communities5, but also broadcasting corporations.6 Where a Convention right due to its nature may not be applied to legal entities fundamental rights protection is not provided. This is the case for the right to life, the prohibition of torture and inhuman or degrading treatment (Article 2 and 3), as well as the right to liberty and security (Article 5), the prohibition of the death penalty (Article 1 of Protocol No. 6), the right to respect for private and family life (Article 8) or the right to marry (Article 12). Here, the elements of the application of these fundamental rights are tied to attributes of natural persons.

2. Parties bound by the Convention Member States have the obligation to respect the human rights provided by the 6 Convention. The principles are the following: According to the nature of the ECHR as an international law treaty, the Contracting States are obliged to safeguard and comply with the guarantees under the Convention. Certain state authorities or private individuals are not obliged. The Member State bears the international responsibility; it can meet these responsibilities in various ways. The State may delegate its obligation to comply with a guarantee to state bodies or private persons. The obligation applies to all acts of public authority by the legislature, executive 3

See in further detail Article 2 m.n. 3. Grabenwarter/Pabel, § 17 m.n. 5 with further references. 5 ECtHR, 16/12/1997, E ´ glise Catholique de la Cane´e v GRE, No. 25528/94, § 31; ECtHR, 27/6/2000 (GC), Cha’are Shalom ve Tsedek v FRA, No. 27417/95, § 72; see also Article 9 m.n. 3. 6 ECtHR, 23/9/2003, Radio France v FRA, No. 53984/00, § 26; ECtHR, 7/12/2006, O ¨ sterreichischer Rundfunk v AUT, No. 35841/02, §§ 46 et seq; ECtHR, 29/3/2011, RTBF v BEL, No. 50084/06, § 1, 62 et seq, 77 et seq. 4

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Art. 1

6–9

Article 1 – Obligation to respect human rights

authority and judiciary, as far as the acts have an impact on the provisions of the Convention.7 An infringement by a State may be found in cases of the State taking action as well as if it fails to act.8 7 It is immaterial whether the State acts are governed by public or private law.9 Whether the State itself carries out tasks of public authority or delegates the tasks to private individuals is also irrelevant.10 The ultimate responsibility under international law remains with the State as the contracting party to the Convention,11 it may be that the reasoning for the responsibility varies. 8 In general, the Convention does not directly impose any obligations on international organisations. Since membership is not open to international organisations so far.12 The responsibility of an international organisation may only be claimed via the responsibility of its member states, as far as these are Member States of the Convention. From the perspective of international law this assumption may be justified on the grounds that Member States undertake a commitment when ratifying the ECHR, therefore the delegation of state authority to international entities does not exempt the State from its obligations under the Convention.13 The Contracting States remain responsible under the Convention in relation to the ‘field of activity’ covered by such attribution,14 the Member State is responsible for the consequences of the transfer of powers.15 In this respect the State has the position of a kind of ‘safety’ guarantor: From the Convention perspective the State either must ensure that international organisations comply with the Convention or it must terminate the treaty concerned or rather substitute any deficit caused by the international organisation and shall establish a situation in line with the Convention. Consequently, the ‘promise’ undertaken by the Contracting States when ratifying the Convention to ‘secure to everyone within their jurisdiction’ (Article 1) the rights and freedoms provided by the ECHR must be understood in a broad sense. Therefore, the obligation relates not only to the protection from sovereign state power exercised directly by the State itself, but also applies widely to the protection of persons within the State’s jurisdiction from interferences with rights guaranteed by the Convention by bodies of international organisations. 9 These general principles also apply to the law of the European Union, namely to primary law16 as well as to secondary law, to acts of Union organs and bodies directly executing EU legislation and to acts of Member States as regards the implementation 7

Grabenwarter/Pabel, § 17 m.n. 6 with further references. See most recently ECtHR, 23/5/2001, Denizci a. o. v CYP, No. 25316/94 et al, § 375; cf. also ECtHR, 10/5/2001 (GC), CYP v TUR, No. 25781/84, § 131; ECtHR, 27/9/1995 (GC), McCann a. o. v UK, No. 18984/91, § 161. 9 ECtHR, 6/2/1976, Schwedische Lokomotivfu ¨ hrergesellschaft v SWE, No. 5614/72, § 37. 10 ECtHR, 25/3/1993, Costello-Roberts v UK, No. 13134/87, § 27; see also ECtHR, 23/11/1983, van der Mussele v BEL, No. 8919/80, §§ 28–30. 11 Grabenwarter/Pabel, § 17 m.n. 6 with further references. 12 Only the European Union may become a member according to Article 59 (2) ECHR. 13 Grabenwarter/Pabel, § 17 m.n. 8 with further references. 14 Cf. ECtHR, 18/2/1999 (GC), Waite a. Kennedy v GER, No. 26083/94., § 67; ECtHR, 18/2/1999 (GC), Beer a. Regan v GER, No. 28934/95, § 57; ECtHR, 18/2/1999 (GC), Matthews v UK, No. 24833/94, § 32. 15 ECtHR, 18/2/1999 (GC), Matthews v UK, No. 24833/94, § 33. In this sense already EComHR, 10/6/1958, X., No. 235/56, Yb 2, 256 (300 et seq). 16 Grabenwarter/Pabel, § 17, m.n. 8 with further references. 8

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II. Personal scope of the Convention

9, 10

Art. 1

of Union law.17 This must also apply to the procedure and the judgments of the European Court of Justice.18 However, the Court substantially limits the control over government action as regards the compliance with international and EU obligations. After the accession of the EU to the ECHR the Union will be liable to comply with the fundamental rights of the Convention under international law for actions taken by its organs when executing the law of the EU. In the area of organs of the EU member states implementing the EU legislation, the Member States remain liable under the Convention; the EU’s obligation is replaced by the Member States’ liability. As regards Member States’ actions on behalf of the United Nations the Court 10 disapproves of the obligation on States to respect fundamental rights while drawing attention to the rule set out in Article 103 of the United Nations Charter and the relevant case law of the ICJ.19 In the Behrami a. o. Case the Court refers to the fact that a vast majority of Member States joined the UN before they ratified the ECHR and all Member States are now members of the UN.20 Moreover, the text of the Convention’s preamble refers to the Universal Declaration of Human Rights. The key argument follows from a teleological consideration, more precisely from the ‘imperative nature of the principle aim of the UN and, consequently, of the powers accorded to the UNSC under Chapter VII to fulfill that aim’.21 The preamble, Article 1, 2 and 24 as well as Chapter VII of the UN Charter make clear that the maintenance of international peace is the primary goal of the UN. Even though the Court acknowledges that the protection of human rights plays a significant role for international peace, the UN Security Council is still primarily responsible for achieving this goal, namely through coercive measures. Since operations within the meaning of Chapter VII are of fundamental importance for the role of the UN and depend on the support of member states, the Convention may not be interpreted so that member states’ actions or omissions in accordance with Security Council resolutions are subjected to the control of the ECtHR.22 Additional standards – which are not included in the text of the resolution – must not be established. The Court not only applies these principles to Member States’ obligations but also to voluntary acts of permanent members of the Security Council (consent to a resolution) or to the deployment of forces, because these measures are ‘essential for the effective fulfillment’ of the mandate of the Security Council. The reasons given are not convincing: When referring to the emphasis of the UN on peacekeeping and thus indirectly on human rights protection, the Court provides an argument for the political justification but not for the legal justification of reduced control. In the Behrami judgment the Court argued that the measures taken by the member states of the UN to implement the Security Council resolution were attributable to the UN and not to the Member States of the Convention.23 Therefore 17 ECtHR, 30/6/2005 (GC), Bosphorus Hava Yollar{ Turizm ve Ticaret Anonim Sirketi v IRL, No. 45036/98, § 137; see also Grabenwarter/Pabel, § 17 m.n. 9 with further references. 18 So far, the Court left this question open: ECtHR, 4/7/2000, Gue ´rin Automobiles v AUT a. o., No. 51717/99; ECtHR, 10/3/2004 (GC), Senator Lines GmbH v AUT a. o., No. 56672/00. 19 See especially the ICJ in the Nicaragua Case, ICJ Reports 1984, p. 392, § 107. 20 ECtHR, 2/5/2007 (GC), Behrami a. o. v FRA a. o., No. 71412/01, §§ 146 et seq. 21 ECtHR, 2/5/2007 (GC), Behrami a. o. v FRA a. o., No. 71412/01, § 148. 22 The Court is going in a different direction by assuming that the gurantees of judical protection provided by the law of the EU also apply to acts in light of the United Nations; CJEU, 3/9/2008, Kadi a. o., verb. Rs. C-402/05 and C 415/05 P. 23 ECtHR, 2/5/2007 (GC), Behrami a. o. v FRA a. o., No. 71412/01, § 151.

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the complaint brought before the Court was inadmissible. In the Nada Case the Court decided differently. It pointed out that the UN Security Council resolutions in question required the States to act in their own names and to implement them at national level, thus the alleged violations of the Convention were attributable to Switzerland.24 In conclusion, the Court found that Switzerland violated the applicant’s right to respect for private and family life because it failed to take, or attempt to take, all possible measures to adapt the sanctions regime of the resolution to the applicant’s individual situation.25 This conclusion was reached by finding that due to the wording of the resolution; the member states enjoyed some limited but real latitude in implementing the relevant binding resolutions.26 The Court recently introduced a further criterion in order to deny the liability of international organisation’s member states ratione personae. In the Boivin Case, concerning a civil service law dispute before the administrative court of Eurocontrol, which was followed by an application against 34 Contracting States, the Court declined its competence arguing that the alleged violations of the Convention by the international organisation cannot be attributed to a Member State because at no time did a Member State intervene directly or indirectly in the dispute.27 This criterion does not seem suitable for determining the liability ratione personae.

III. Territorial scope of the Convention 11

Article 1 does not explicitly refer to the Member States’ territory, it rather applies a personal criterion.28 Only Article 56 and the corresponding provisions in the Protocols contain explicit rules on how to extend the application of the Convention to territories outside of the Member States’ territory. However, these are intended for specific historic ties of a Member State to territories outside Europe (i. e. former colonies, protectorates, mandates and the like) and are no longer of importance today. Article 56 may not be construed to imply that a State without such declaration is only accountable for acts on its own territory.29 The situations covered by the ‘effective control’ principle which leads to the liability of a State on foreign territory, are clearly separate and distinct from the circumstances where a Contracting State has not, through a declaration under Article 56, extended the Convention to an overseas territory for whose international relations it is responsible.30 Nevertheless, Article 1 reflects an essentially territorial notion of jurisdiction31 – which determines the obligations under the ECHR. These apply in principle only on actions taken by the Member State on its own territory. There may be exceptions in two cases: On the one hand, States are not accountable for extra-territorial acts of other States, on the other hand, States are accountable for extra-territorial acts by their state organs. 24

ECtHR, 12/9/2012 (GC), Nada v SUI, No. 10593/08, § 120. ECtHR, 12/9/2012 (GC), Nada v SUI, No. 10593/08, § 196. 26 ECtHR, 12/9/2012 (GC), Nada v SUI, No. 10593/08, § 180. 27 ECtHR, 9/9/2008, Boivin v FRA a. o., No. 73250/01. 28 For further details see above m.n. 1 et seq. 29 Grabenwarter/Pabel, § 17 m.n. 11 with further references. 30 ECtHR, 7/7/2011 (GC), Al-Skeini a. o. v UK, No. 55721/07, § 140. 31 Especially the history of the drafting of Article 1 points in this direction, cf. ECtHR, 12/12/2001 (GC), Bankovic a. o. v BEL a. o., No. 52207/99, §§ 19 et seq, 59. 25

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1. No accountability for extra-territorial acts of other States First of all, there is a presumption that a Member State exercises jurisdiction on its 12 complete state territory, but exceptionally it is not responsible for interferences with guarantees of the Convention if these are attributable to authorities of a different State and the own jurisdiction is ‘displaced’ by another. This can be the case when foreign troops are present in the Member State or when exercising powers in the course of the Schengen Implementing Convention.32 In the Ilas˛cu Case, the applicants were within the jurisdiction of the Republic of Moldova for the purposes of Article 1 but Moldova did not exercise authority over that part of its territory under the effective control of the ‘Moldovan Transdniestrian Republic’. Therefore, Moldova’s responsibility could not be engaged under Article 1 of the Convention on account of a wrongful act within the meaning of international law. However, Moldova still is under a positive obligation according to Article 1 to take diplomatic, economic, judicial or other measures that were in its power to take and were in accordance with international law to secure to the applicants the rights guaranteed by the Convention.33 A Member State must also be regarded as responsible under the Convention for acts performed by foreign officials on its territory in the case of acquiescence or connivance of its authorities.34

2. Accountability for extra-territorial acts A State can also be obliged to comply with the guarantees under the Conven- 13 tion in an area outside of its territory (‘extra-territorial jurisdiction’).35 A State may be held liable under the Convention for legal acts of its organs which were performed, or had effects, outside of the territory of the State (so-called ‘extraterritorial acts’).36 The interpretation of the term ‘jurisdiction’ determines the conditions under which the Convention has an extra-territorial effect on state acts outside its territory. The term does not refer to the principles of State responsibility in international law, also the question whether the extra-territorial acts were attributable or unlawful are irrelevant.37 The wording ‘within their jurisdiction’ is rather a specific rule of the ECtHR and must be understood as an autonomous concept. Three different groups of cases in which extra-territorial acts are recognised as constituting an exercise of jurisdiction may be derived from the Court’s case law: When exercising ‘effective control over an area’ outside its national territory, when 32

Grabenwarter/Pabel, § 17 m.n. 12 with further references. ECtHR, 8/7/2004 (GC), Ilas˛cu a. o. v MOL a. RUS, No. 48787/99, §§ 322, 330–331. In the subsequent judgment ECtHR, 15/11/2011, Ivantoc a. o. v MOL a. RUS, No. 23687/05, § 111, the Court found that Moldova discharged its positive obligation after the Ilas˛cu judgment. 34 ECtHR, 13/12/2012 (GC), El-Masri v MKD, No. 39630/09, § 206. 35 Karagiannis, Le territoire d’application de la Convention europe ´enne des droits de l’homme, RTDH 2005, pp. 33 et seq. 36 For further details see ECtHR, 12/12/2001 (GC), Bankovic ´ a. o. v BEL a. o., No. 52207/99, §§ 54 et seq, see also ECtHR, 26/6/1992, Drozd a. Janousek v FRA a. o., No. 12747/87, § 91; ECtHR, 23/3/ 1995 (GC), Loizidou (Preliminary Objections) v TUR, No. 15318/89, § 62; ECtHR, 10/5/2001 (GC), CYP v TUR, No. 25781/84, § 76. 37 Thallinger, Grundrechte und extraterritoriale Hoheitsakte, 2008, p. 86. 33

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an individual is subject to a state agent’s ‘authority and control’ and cases of extraterritorial authority in the territory of another Member State.

a) Effective control over an area 14

According to the Court’s case law, jurisdiction is established in cases where a State liable under the Convention actually exercises effective overall control over a certain area. This control may either be exercised directly, through armed forces, or through a subordinate local administration.38 When such control is assumed, it is not necessary to determine whether every single act of the local administration was subject to that control. In fact it is sufficient for the controlling State to be responsible to secure the entire range of substantive rights set out in the Convention in the area concerned and for violations of those rights to be imputable to the controlling State, that the local administration survives by virtue of the Member State and its support.39 This control is not given when bombing an area outside the occupied territory.40 It is a question of fact whether a Contracting State exercises effective control over an area outside its own territory. In determining whether effective control exists, the Court will primarily have reference to the strength of the State’s military presence in the area. Other indicators may also be relevant, such as the extent to which its military, economic and political support for the local subordinate administration provides it with influence and control over the region.41 As mentioned above, where a Member State has no effective control over acts in a certain territory, the fact that the region is recognised under public international law as part of the Member State’s territory gives rise to an obligation, under Article 1 of the Convention, to use all means available to it to continue to guarantee the enjoyment of the rights and freedoms set forth in the Convention (positive obligation).42 The ‘effective control of an area’ basis of jurisdiction applies also to unlawful occupation.43

b) State agent authority and control 15

The responsibility of Member States also applies in situations where the State is not in effective control of a certain area, but in the individual case exercises authority and control over a person or a group of persons.44 Here again, a distinction is to be drawn between the different cases, namely: 38 ECtHR, 23/3/1995 (GC), Loizidou (Preliminary Objections) v TUR, No. 15318/89, § 62; ECtHR, 16/11/2004, Issa a. o. v TUR, No. 31821/96, §§ 66 et seq (alleged violations of human rights during a Turkish military operation in Northern Iraq). 39 ECtHR, 10/5/2001 (GC), CYP v TUR, No. 25781/94, §§ 76 et seq; ECtHR, 7/7/2011 (GC), Al-Skeini a. o. v UK, No. 55721/07, § 138; ECtHR, 8/7/2004 (GC), Ilas˛cu v MOL a. RUS, No. 48787/99, § 392. 40 ECtHR, 12/12/2001 (GC), Bankovic ´ a. o. v BEL a. o., No. 52207/99, §§ 67 et seq (bombing of a television station in Belgrade in the course of a NATO operation); cf. also ECtHR, 14/3/2006, Hussein v ALB a. o., No. 23276/04 (Saddam Hussein argued that he fell within the jurisdiction of the 21 States concerned, which, he considered, continued to hold de facto power in Iraq). 41 ECtHR, 8/7/2004 (GC), Ilas ˛cu v MOL a. RUS, No. 48787/99, §§ 387 et seq. 42 ECtHR, 8/7/2004 (GC), Ilas ˛cu v MOL a. RUS, No. 48787/99, § 335; ECtHR, 19/10/2012 (GC), Catan a. o. v MOL a. RUS, No. 43370/04, 8252/05 and 18454/06, § 110 (Transdniestria fell within Moldova’s jurisdiction because Moldova was the territorial State, even though it did not have effective control over the Transdniestrian region). 43 ECtHR, 16/11/2004, Issa a. o. v TUR, No. 31821/96, § 71. 44 ECtHR, 16/11/2004, Issa a. o. v TUR, No. 31821/96, § 71.

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– Acts of diplomatic and consular agents, who are present on foreign territory in accordance with provisions of international law, may amount to an exercise of jurisdiction when these agents exert authority and control over others.45 – The exercise of jurisdiction within the meaning of Article 1 by a Contracting State when, through the consent, invitation or acquiescence of the government of that territory, it exercises all or some of the public powers normally to be exercised by that government.46 Thus, where, in accordance with custom, treaty or other agreement, authorities of the Contracting State carry out executive or judicial functions on the territory of another State, the Contracting State may be responsible for breaches of the Convention thereby incurred, as long as the acts in question are attributable to it rather than to the territorial State.47 – In addition, in certain circumstances, the use of force by a State’s agents operating outside its territory may bring the individual thereby brought under the control of the State’s authorities into the State’s Article 1 jurisdiction. This principle has been applied where an individual is taken into the custody of state agents abroad, as well as ‘abductions’, but also acts of control over a building (i. e. prison),48 ships49 and airplanes.

c) Exercise of extra-territorial authority in another Member State’s territory The threshold for the assumption of the accountability is lower if authority is 16 exercised on the territory of another Member State to the Convention. This argument is based on an teleological consideration: Where the territory of one Convention State is occupied by the armed forces of another, the occupying State should in principle be held accountable under the Convention for breaches of human rights within the occupied territory, because to hold otherwise would be to deprive the population of that territory of the rights and freedoms they would have enjoyed and would result in a ‘vacuum’ of protection within the ‘Convention legal space’.50 However, this does not imply, a contrario, that jurisdiction under Article 1 of the Convention can never exist outside the territory covered by the Member States.51 The responsibility for the extra-territorial exercise of state powers, is to be 17 distinguished from the according to the case law in certain cases arising obligation to protect individuals from acts attributable to States which are no members of the ECHR. The Court has consistently recognised a States’ obligation under Article 3 in cases where a Member State had to decide whether or not a person will be subjected to expulsion or extradition, the actual measure contrary to the Convention although takes place or is reasonable to expect in the other State.52 However, 45 ECtHR, 12/12/2001 (GC), Bankovic ´ a. o. v BEL a. o., No. 52207/99, § 73; ECtHR, 7/7/2011 (GC), Al-Skeini a. o. v UK, No. 55721/07, § 134. 46 ECtHR, 12/12/2001 (GC), Bankovic ´ a. o. v BEL a. o., No. 52207/99, § 71. 47 ECtHR, 14/5/2002, Gentilhomme a. o. v FRA, No. 48205/99, § 20; ECtHR, 7/7/2011 (GC), Al-Skeini a. o. v UK, No. 55721/07, § 135. 48 ECtHR, 2/3/2010, Al-Saadoon a. Mufdhi v UK, No. 61498/08, § 124. 49 ECtHR, 29/3/2010 (GC), Medvedyev a. o. v FRA, No. 3394/03, § 67; ECtHR, 23/2/2012 (GC), Hirsi Jamaa a. o. v ITA, No. 27765/95, § 81. 50 ECtHR, 18/12/1996, Loizidou (Merits) v TUR, No. 15318/89, § 78; ECtHR, 12/12/2001, Bankovic´ a. o. v BEL a. o., No. 52207/99, § 80. 51 ECtHR, 7/7/2011 (GC), Al-Skeini a. o. v UK, No. 55721/07, § 142. 52 For example ECtHR, 7/7/1989, Soering v UK, No. 14038/88, § 91. See further below Article 3 m.n. 13 et seq.

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this obligation only applies to the fundamental guarantees of the Convention, such as Article 2, 3, 4, 6 and 9, and not to all provisions under the ECHR.53 It would be going too far, if the deportation of an individual would constitute the violation of the guarantees mentioned, due to the fact that the Member State to which the individual is getting deported is not complying with its obligations under the Convention. In the M. S. S. Case the Court had to decide on the transfer of an asylum seeker from one Member State to another on the basis of the Dublin II Regulations and it found a violation of Article 3 since at the time of the applicant’s expulsion to Greece, the Belgian authorities knew or ought to have known about the degrading prevailing conditions of detention and life in Greece.54

IV. Temporal scope of the Convention The temporal scope of the Convention conforms with the general principles of international law.55 Its scope is therefore limited to the space of time from its entry into force for the individual contracting party to its denunciation by the State or the State withdrawing from the Council of Europe.56 The Convention shall not have retroactive effects, this means that it does not refer to state measures taken before the Convention or a particular Protocol has entered into force in the respondent State.57 19 In the context of the temporal scope of the ECHR, complaints associated with continuing violations, which had already begun before the Convention or Protocol entered into force in the State concerned and have continued after the accession, are problematic. In these cases the Courts’ exemptions are limited to whether the facts occurring after the date of entry into force disclosed a breach of the Convention,58 as the Court is competent only for facts at issue which occurred prior to the ECHR’s entry into force. Complaints about the length of pretrial detention or legal proceedings59 as well as about detention conditions60 are typical cases in which a distinction must be made between periods of time before and after the entry into force. If a decision is reached in court proceedings after the Convention entered into force, the whole process leading up to that decision – including the ones before the coming into force – may be examined in light of the guarantees of the Convention since the proceedings and with it possible errors might be contained in the final decision.61 20 Further difficulties may arise if the alleged situation contrary to the Convention is the result of a decision rendered yet before the Convention entered into force. The Court distinguishes between continuing situations and instantaneous acts 18

53

Grabenwarter/Pabel, § 17 m.n. 17 with further references. ECtHR, 21/1/2011 (GC), M. S. S. v BEL a. GRE, No. 30696/09; see also Article 3 m.n. 14. 55 Grabenwarter/Pabel, § 17 m.n. 18 with further references; Zwaak, in: van Dijk/van Hoof/van Rijn/Zwaak (ed.), p. 23. 56 See particularly Article 28 VCLT, which in general excludes the retroactive effect of contracts. 57 ECtHR, 25/9/2001, Volkova v RUS, No. 48758/99, § 1; EComHR, 9/6/1958, de Becker, Yb 2, 214 (230). 58 ECtHR, 23/9/1994, Hokkanen v FIN, No. 19823/92, § 53; EComHR, 8/10/1991, Kaunisto, No. 17925/91. 59 ECtHR, 10/12/1982, Foti a. o. v ITA, No. 7604/76 et al, § 53; ECtHR, 27/4/1989, Neves e Silva v POR, No. 11213/84, § 40. 60 Cf. EComHR, 15/5/1980, McFeeley, DR 20, 44 (76), § 24. 61 EComHR, 8/10/1976, X., Y. a. Z., No. 6916/75, DR 6, 107 (108); EComHR, 8/10/1991, Kaunisto, No. 17925/91. Cf. also EComHR, 6/10/1976, X., No. 7211/75, DR 7, 104 (105). 54

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with continuing effects.62 The latter – contrary to continuing situations – do not fall within the scope of the ECHR: However, subsequent decisions which confirm or approve of a legal act issued before the ratification may constitute a violation of the Convention. The deprivation of property or other rights in rem by law is in principle an instantaneous act and not a continuing deprivation of a right.63 This shall not apply if the applicant is a victim of a violation of Article 1 of Protocol No. 1 and therefore his property rights (i. e. in the case of an actual deprivation of property).64 The basic principle is that decisions passed before the Convention entered into 21 force do not fall into the temporal scope by the fact that it was enforced after the effective date.65 A decision is an instantaneous act. If a decision, on the other hand, itself forms a continuing violation, then the Convention is applicable. Such continuing violation is to be assumed where the alleged violation is based on a situation consisting of the very same violation which repeatedly occurs day-to-day.66 An application is incompatible ratione temporis with the provisions of the Convention if a constitutional court’s decision – as an instantaneous act – which was passed and legally binding before the Conventions ratification, gave rise to an application.67 62 In further detail Vajic, Before and After: Ratione Temporis Jurisdiction of the (New) European Court of Human Rights and the Blecˇic´ Case, Studies in honor of Luzius Wildhaber, p. 483 (492 et seq). 63 ECtHR, 11/1/2000, Almeida Garrett, Mascarenhas Falcao a. o. v POR, No. 29813/96 et seq, § 43; ECtHR, 13/12/2000 (GC), Malhous v CZE, No. 33071/96. Cf. also ECtHR, 12/7/2001 (GC), Prinz Hans-Adam II. von Liechtenstein v GER, No. 42527/98, §§ 81, 85. 64 ECtHR, 24/6/1993, Papamichalopoulos a. o. v GRE, No. 14556/89, §§ 39 et seq; ECtHR, 18/12/1996 (GC), Loizidou v TUR, No. 15318/89, §§ 41, 46; ECtHR, 22/5/1998, Vasilescu v ROM, No. 27053/95, §§ 49 et seq; ECtHR, 13/12/2000 (GC), Malhous v CZE, No. 33071/96. See also ECtHR, 23/4/1996, Phocas v FRA, No. 17869/91, § 49. 65 EComHR, 19/12/1961, X., No. 913/60, CD 8, 43 (44). 66 Cf. also EComHR, 9/6/1958, de Becker, Yb 2, 214 (244). 67 ECtHR, 8/3/2006 (GC), Blecic v CRO, No. 59532/00, § 92.

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Art. 2

Article 2 – Right to Life

Article 2 – Right to Life 1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. 2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection. Article 2 – Droit a` la vie 1. Le droit de toute personne a` la vie est prote´ge´ par la loi. La mort ne peut eˆtre inflige´e a` quiconque intentionnellement, sauf en exe´cution d’une sentence capitale prononce´e par un tribunal au cas ou` le de´lit est puni de cette peine par la loi. 2. La mort n’est pas conside´re´e comme inflige´e en violation de cet article dans les cas ou` elle re´sulterait d’un recours a` la force rendu absolument ne´cessaire: (a) pour assurer la de´fense de toute personne contre la violence ille´gale; (b) pour effectuer une arrestation re´gulie`re ou pour empeˆcher l’e´vasion d’une personne re´gulie`rement de´tenue; (c) pour re´primer, conforme´ment a` la loi, une e´meute ou une insurrection. Bibliography: Klugmann, Europa¨ische Menschenrechtskonvention und antiterroristische Maßnahmen, 2002; Mathieu, The right to life, Council of Europe Publishing, 2006; Trechsel, Spotlights on Article 2 ECHR, The Right to Life, Studies in honor of Konrad Ginther, 1999, pp. 671 et seq. Leading Cases: ECtHR, 27/9/1995, McCann a.o. v UK, No. 18984/91 (targeted killing of persons who were mistakenly perceived as terrorists); ECtHR, 9/10/1997, Andronicou a. Constantinou v CYP, No. 25052/94 (killing during freeing of hostages); ECtHR, 9/6/1998, L. C. B. v UK, No. 23413/94 (obligation to protect life from deadly health risks); ECtHR, 28/10/1998 (GC), Osman v UK, No. 23452/94 (obligation to protect individuals against the acts of third parties); ECtHR, 20/5/1999 (GC), Og˘ur v TUR, No. 21594/93 (killing by state forces); ECtHR, 14/3/2002, Edwards v UK, No. 46477/99 (death of a prisoner killed by another prisoner); ECtHR, 29/4/2002, Pretty v UK, No. 2346/02, 234 (assisted suicide); ECtHR, 8/7/2004 (GC), Vo v FRA, No. 53924/00 (unintentional killing of a foetus); ECtHR, 20/12/2004 (GC), Makaratzis v GRE, No. 50385/99 (excessive use weapons by a policeman); ECtHR, 7/6/2005, Kilinç a. o. v TUR, No. 40145/98 (obligation to protect a suicidal soldier); ECtHR, 10/4/2007 (GC), Evans v UK, No. 6339/05 (protection of unborn life); ECtHR, 24/3/2010 (GC), Giuliano a. Gaggio v ITA, No. 23458/02 (use of firearms at a demonstration). Outline I. II. III. IV.

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Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Scope of protection. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Interferences. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Justification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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I. Introduction

1

V. Positive obligations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Obligation to protect life . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Organisational and procedural obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Art. 2

16 17 21

I. Introduction The right to life is guaranteed under Article 2 of the ECHR. Its position on top of 1 the catalogue of human rights reflects its relevance as one of the most fundamental provisions in the Convention.1 The Court places the emphasis on the importance of this guarantee by its declaration that the ‘right to life enshrines one of the basic values of the democratic societies making up the Council of Europe’.2 Furthermore, this is illustrated by the fact that Article 2 belongs to the ‘non-derogable’ rights. No derogation is permitted in any circumstances under Article 15.3 The first sentence of Article 2 (1) covers the protection of life of every human being. It imposes an extensive obligation on the State to safeguard the lives of those within its jurisdiction.4 Article 2 (1) second sentence and paragraph 2 are primary directed against interferences by the State.5 Article 2 (1) second sentence enjoins the State to refrain from the intentional and unlawful taking of life. This prohibition is restricted by the one exception of the execution of a death sentence. In connection with the prohibition of intentional taking of life covered in paragraph 1, three other exceptions are constituted in Article 2 (2) under (a) to (c), which relate to both intentional and unintentional killing.6 Thus, a deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary. Recent case law paints a disturbing picture of the protection of life in Turkey7 and Russia.8 In several cases, the Court found a violation of the right to life when authorities failed to effectively investigate a death occurring during detention. The Charter of Fundamental Rights of the EU also provides for a guarantee of the right to life in Article 2 of the Charter. The exceptions from the prohibition of intentional killing under Article 2 (2) of the Convention are covered by Article 52 (3) of the Charter.9 Within the scope of protection the Charter of Fundamental Rights, the guarantees of the Convention largely correspond to one another. Differences may arise on the question regarding the protection of the unborn life.10 1 ECtHR, 27/9/1995, McCann v UK, No. 18984/91, § 147; ECtHR, 4/5/2001, Jordan v UK, No. 24746/94, § 102; ECtHR, 17/1/2002, Calvelli a. Ciglio v ITA, No. 32967/96, § 48. 2 ECtHR, 27/9/1995, McCann et al v UK, No. 18984/91, § 147; ECtHR, 29/4/2002, Pretty v UK, No. 2346/02. 3 An exception is made for cases of death resulting from lawful acts of war. 4 ECtHR, 9/6/1998, L. C. B. v UK, No. 23413/94, § 36; Harris/O’Boyle/Warbrick, p. 37; Opsahl, in: Macdonald/Matscher/Petzold, p. 207 (210) with further references from the case law. 5 Grabenwarter/Pabel, § 20, m.n. 1 with further references. 6 Opsahl, in: Macdonald/Matscher/Petzold, pp. 213 et seq. 7 Instead of many ECtHR, 20/5/1999 (GC), Og ˘ur v TUR, No. 21594/93; ECtHR, 18/9/2009 (GC), Varnava et al v TUR, No. 16064/90 et al. 8 See for example the convictions of Russia for violating Article 2 in Chechnya; ECtHR, 15/11/2007, Kukayev v RUS, No. 29361/02; ECtHR, 29/5/2008, Betayey and Betayeva v RUS, No. 37315/03; ECtHR, 17/9/2009, Magomadova et al v RUS, No. 33933/05; ECtHR, 15/7/2010, Gelayevy v RUS, No. 20216/07. 9 Grabenwarter/Pabel, § 20, m.n. 1 with further references. 10 See in detail below m.n. 3.

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Art. 2

2, 3

Article 2 – Right to Life

II. Scope of protection The concept of life in Article 2 is decisive for the personal as well as the factual scope of protection. Article 2 protects every born human life regardless of its social or economic value by any means. Neither the age nor sex of a person, or any other criteria, is relevant for the scope of protection. The granted protection ends with death.11 3 As is apparent from the case law of the Court, it has not been clearly established whether and to what extent Article 2 (1) first sentence protects the unborn life.12 An extension of protection to unborn life does not necessarily follow from the terms of the provision.13 The wording ‘toute personne’ in the authentic French language version of the Convention suggests that the guarantee is limited to born life.14 By contrast, the word ‘everyone’ does not exclude the possibility that unborn life falls under the protection of Article 2.15 It should be taken into account that, apart from the cases mentioned in paragraph 2, any interference with the right to life is a violation of Article 2. If one takes the view that the protection of life includes the unborn life, it implies that abortion – apart from the case in which abortion is necessary to save the life of the mother – must in principle be prohibited under the Convention.16 In this connection, the stated interpretation would conflict with the legal situation in several Member States and its legislation on the rights of the mother and the rights of the unborn child. According to the Court’s case law, the issue of when the right to life begins comes within the margin of appreciation which States enjoy.17 The Court based its position on various existing views and opinions on this question in Europe as well as the lack of consensus – scientific and legal – as to the nature and status of the embryo and foetus.18 Based on the considerably differing national laws on abortion in the Contracting States the Commission developed rather limited obligations for the protection of the foetus under the first sentence of Article 2. The Commission did not exclude legal protection of the unborn life under the Convention and provided that the foetus may enjoy a certain – though not 2

11

Grabenwarter/Pabel, § 20, m.n. 2 with further references. ECtHR, 8/7/2004 (GC), Vo v FRA, No. 53924/00. The Commission had to examine this question in various cases but did not come to a firm conclusion. EComHR, 12/7/1977, Bru¨ggemann a. Scheuten, DR 10, p. 100; EComHR, 13/5/1980, X., No. 8416/78, DR 19, p. 244; EComHR, 19/5/1992, H., No. 17004/90, DR 73, p. 155. See further, ECtHR, 16/12/2010 (GC), A, B a. C v IRL, No. 25579/05. See further Zwaak, in: van Dijk/van Hoof/van Rijn/Zwaak, pp. 387 et seq. 13 EComHR, 12/7/1977, Bru ¨ ggemann a. Scheuten, DR 10, p. 100 (116); EComHR, 13/5/1980, X., No. 8416/78, DR 19, p. 244 (249 et seq); against unborn life to be subjected to fundamental rights see also Harris/O’Boyle/Warbrick, p. 53; Opsahl, in: Macdonald/Matscher/Petzold, pp. 219 et seq. 14 Grabenwarter/Pabel, § 20, m.n. 147. 15 ECtHR, 8/7/2004 (GC), Vo v FRA, No. 53924/00, § 80. 16 EComHR, 13/5/1980, X., No. 8416/78, DR 19, p. 244 (252). In the Commission’s view an abortion in order to save the life of the mother would be prohibited if the unlimited protection of a foetus was guaranteed under Article 2 (1) first sentence. 17 ECtHR, 8/7/2004 (GC), Vo v FRA, No. 53924/00 §§ 82, 84; ECtHR, 10/4/2007 (GC), Evans v UK, No. 6339/05, §§ 54 et seq (concerning in vitro fertilisation); ECtHR, 16/12/2010 (GC), A, B a. C v IRL, No. 25579/05, § 237. 18 Mathieu, The right to life, 2006, pp. 23 et seq. 12

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III. Interferences

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Art. 2

unlimited – protection of life under the first sentence of Article 2.19 Furthermore, in the cases where the Commission had to decide on national laws on abortion, it found that this legislation was permitted in principle under the ECHR.20 Given the ambiguous wording and the differing legal positions on this matter in the Member States, it appears difficult to prove that such entitlement is provided for in the Convention. This may not preclude the unborn life from being subjected to fundamental rights under national constitutional law in view of the favourability principle (‘Gu¨nstigkeitsprinzip’) contained in Article 53. The entitlement to a fundamental right ends with death. A continuing effect of fundamental rights after the death of its subject is not contained in any of the rights of the Convention. Whether and to what extent legal representatives of minors or heirs are allowed to submit or continue a complaint is a question of legal capacity and not a question of whether the individual is subjected to the right. Even if a complaint was submitted by the dependents after an individual was killed contrary to the Convention, not the entitlement to the right devolves to the dependents, but only a right deriving from Article 2 from the time before the individual was killed and which is claimed subsequently devolves.21 In contrast to other guarantees of the Convention, Article 2 does not grant a 4 right to end life. The Court pointed out that it is not persuaded that the right to life can be interpreted as involving a negative aspect (‘negative right’). In the context of other Articles, the Court observes that the notion of a freedom implies some measure of choice as to its exercise; however, Article 2 is phrased in different terms. This assumption is confirmed by the wording of the guarantee, which explicitly demands the protection of human life. The Court accordingly finds that no right to die – whether at the hands of a third person or with the assistance of a public authority – can be derived from Article 2.22 The answer to the question of whether or not State laws allowing assisted suicide would be permitted under the Convention is given in the context of the obligation for the State to protect life.23

III. Interferences An interference with the right to life may result from the deprivation of life by 5 the State. Such killing – intentional or unintentional – is an interference with the right to life in all circumstances. The question of intention is only relevant for a 19

EComHR, 19/5/1992, H., No. 17004/90, DR 73, p. 155 (167). EComHR, 12/7/1977, Bru¨ggemann a. Scheuten, DR 10, p. 100 (117 et seq); EComHR, 13/5/ 1980, X., No. 8416/79, DR 19, p. 244 (248 et seq); EComHR, 19/5/1992, H., No. 17004/90, DR 73, p. 155 (168 et seq); see further EComHR, 8/3/1985, Knudsen, DR 42, p. 247 (255 et seq). Abortion is in particular subject to a complaint if the parents did not agree with the abortion. Under these circumstances not only Article 2 but also the protection of family life guaranteed in Article 8 (1) is decisive. See Zwaak, in: van Dijk/van Hoof/van Rijn/Zwaak, p. 391. 21 In particular the protection of fundamental rights of families guaranteed under Article 8 may reach beyond death, for example as regards the possibilities for prisoners to attend a funeral of close relatives or the release of a corpse; also in these cases only the question of the material scope is relevant whereas it is not a question of the subjection to a fundamental right; see further below Article 8 m.n. 20. 22 ECtHR, 29/4/2002, Pretty v UK, No. 2346/02, § 39. 23 See below m.n. 16 et seq. 20

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Art. 2

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Article 2 – Right to Life

possible justification. While an example of intentional killing by the government would be the execution of a death sentence or targeted killing in a police operation, unintended killing may occur in various other situations. Another interference with Article 2 is the extradition of a person to a country where a person’s life is at risk. Therefore it follows that the obligation for the State to protect life begins when life is at danger.24 This applies in particular to cases in which an alien is deported to a country where he or she is seriously at risk of being executed, as a result of the imposition of the death penalty.25 In several cases against Turkey and Russia the Court had to decide on incidents of ‘disappearing’ persons. When faced with allegations of missing persons, the Court takes certain elements of the present cases into account, particularly the circumstances of the disappearance and the duration of the absence. In light of these principles, the Court may find a breach of Article 2 (1) if it finds that liability for the presumed death is attributable to the government.26 A less rigid approach is justified when examining the issue of compliance with the Court’s sixmonth time limit in disappearance cases, not only in the context of an international armed conflict but also in the national context. In the particular case, the Court further found that the applicants could not be criticised for waiting nine months before lodging their complaint about their relative’s disappearance as an investigation had been carried out during that period and they had done all that could be expected of them to assist the authorities.27 In the Aslakhanova Case, concerning the disappearance of eight men in Chechnya, the Court concluded that the situation resulted from a systemic problem of non-investigation of such crimes, for which there was no effective remedy at national level. The Court outlined two types of general measures under Article 46 to be taken by Russia to address those problems: to alleviate the continuing suffering of the victims’ families, and, to remedy the structural deficiencies of criminal proceedings in Russia.28 In any case, an interference with the right to life may be found if the State fails to attend the imposed obligation to protect life granted under the first sentence of Article 2 (1),29 either by not averting an imminent killing or in other cases by not protecting a life in danger of certain intensity.30

24 ECtHR, 15/3/2000, S. C. C. v SWE, No. 46553/99 (joint examination of Article 2 and 3); EComHR, 6/10/1976, Lynas, DR 6, p. 141 (165). 25 ECtHR, 8/11/2005, Bader a.o. v SWE, No. 13284/04, §§ 42, 48. 26 See for example ECtHR, 18/6/2002, Orhan v TUR, No. 25656/94, §§ 328 et seq; ECtHR, 5/7/2007, Alikhadzhiyeva v RUS, No. 68007/01, §§ 57 et seq.; ECtHR, 15/11/2007, Khamila Isayeva v RUS, No. 6846/02, §§ 110 et seq; ECtHR, 18/9/2009 (GC), Varnava a. o. v TUR, No. 16064/90 et al. Concerning the disappearance of several people during the conflict between Turkey and Greece in an area in Northern Cyprus which was mainly under the control of Turkey; see, however ECtHR, 25/5/ 1998, Kurt v TUR, No. 24276/94, § 108; in ECtHR, 10/1/2008, Zubayrayev v RUS, No. 67797/01, §§ 91 et seq, the applicant did not provide sufficient evidence to prove the accountability of the State. 27 ECtHR, 31/7/2012, Er a. o. v TUR, No. 23016/04, §§ 57 et seq. 28 ECtHR, 18/12/2012, Aslakhanova v RUS, No. 2944/06 et al, §§ 216 et seq. 29 See below m.n. 16 et seq. 30 Grabenwarter/Pabel, § 20, m.n. 5 with further references.

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IV. Justification

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Art. 2

IV. Justification Article 2 prohibits the taking of life by a state agent where this is not justified by any of the four exceptions exhaustively listed in Article 2. Exceptions are made when executing a death sentence (second sentence Article 2 paragraph 1), when the death results from the use of force in defence of a person from unlawful violence, the killing in order to effect a lawful arrest or adherence and the killing in action lawfully taken for the purpose of quelling a riot or insurrection (Article 2 paragraph 2 under a, b, c). There is no other possible justification for the taking of life by a State. The first exception concerns the death penalty, which is expressly permitted by the second sentence of Article 2 (1). However, several conditions must be fulfilled: First of all, the death penalty must be pronounced by a ‘court’. Therefore it must be assumed that the government is complying with the institutional and procedural guarantees of Article 6.31 This derives from the systematic connection with Article 6: the similar wording ‘crime’ and ‘criminal’ in these two Articles shows that the scope of protection in Article 6 is by all means not smaller than in the cases in which a death sentence is pronounced according to Article 2.32 Furthermore, the death penalty must be provided by law, though it remains unclear whether or not the law providing the death penalty has to comply with particular requirements. The principle of certainty under Article 7 is indisputable.33 Apart from that, a system that allows a choice between a penalty of imprisonment and the death sentence is permitted under the Convention.34 Finally, Article 2 restricts the ‘crimes’ in which the death penalty can be imposed. Although the Convention – in contrast to EU Charter35 – does not apply the principle of proportionality generally, it may be assumed that the death penalty should be permissible only for the most serious crimes.36 Article 49 (3) of the EU Charter states the general principle of proportionality between penalties and criminal offences which is enshrined in most Member States’ constitutions and in the case law of the European Court of Justice. The human right of Article 2 is complemented with Protocol No. 6 and Protocol No. 13 to the Convention. Protocol No. 6 – which all Member States of the EU have ratified37 – requires parties to abolish the death penalty in peacetime. Accordingly, it can neither be imposed nor executed. A State may only make provision in its law for the death penalty with respect to acts committed in a time of war or imminent threat of war (Article 2 of Protocol No. 6). Again, such penalty shall be applied only in the instances laid down in the law and in accordance with its provisions. The scope of Protocol No. 6 was extended by Article 1 of Protocol No. 13, which prohibits the death penalty in all circumstances; therefore requiring the abolition of the death penalty in time of war or of imminent threat of war.38 Neither Article 1 and 2 of Protocol No. 6 ¨ calan v TUR, No. 46221/99, § 166. See ECtHR, 12/5/2005 (GC), O ECtHR, 7/7/1989, Soering v UK, No. 14038/88, § 104. 33 ECtHR, 12/5/2005 (GC), O ¨ calan v TUR, No. 46221/99, § 166; see also below Article 7 m.n. 10 et seq. 34 Grabenwarter/Pabel, § 20, m.n. 8 with further references. 35 Cf. Article 49 (3) of the EU Charter. 36 Cf. Harris/O’Boyle/Warbrick, p. 60. 37 Grabenwarter/Pabel, § 20, m.n. 9 with further references. 38 Cf. Report of the Committee of Ministers on the ECtHR of 21 February 2002. 31 32

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Art. 2

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Article 2 – Right to Life

nor Article 1 of Protocol No. 13 can be derogated under Article 15 of the Convention. Article 57 does not permit parties to make reservations with respect to these provisions. 10 However, unlike Article 2 the two Protocols are not binding to all Member States to the Convention.39 Nevertheless, already in 2005, when the Court had to decide the ¨ calan Case it drew far reaching conclusions from the existence of these Protocols O and the state of ratification for the interpretation of the exception in Article 2 (1) second sentence. Although at the time of the judgment, three Member States had not signed Protocol No. 6, and 16 States had yet to ratify Protocol No. 13, the Court found that the territories encompassed by the Member States of the Council of Europe ‘[had] become a zone free of capital punishment.’ The Court also points to the policy of the Council of Europe, which requires that new Member States undertake to abolish the death penalty.40 This means that, one may take the view that the death penalty is no longer permitted under Article 2. However, the ratification is just the ‘final step towards a complete abolition of the death penalty’ and reflects ‘the abolitionist trend in practice of the Contracting States’.41 It should be added that this statement of grounds can hardly be justified given the distinct wording, the two existing optional Protocols compromising exceptions and the ratification of the Protocol No. 13.42 Remarkably the Court avoided reaching any firm conclusion on these points so far.43 The extradition or expulsion of an individual may not only constitute an interference with Article 3,44 but also with Article 2, when there are substantial grounds for believing that there is a real risk that he will be subjected to the death penalty. This applies in particular to cases in which the death sentence was imposed in total disregard of the principles of a fair trial in absence of the accused.45 11 Article 2 (2) lists three other exhaustive situations in which the taking of life by the State is justified, provided that it results from the use of force which is no more than absolutely necessary. The exceptions delineated in paragraph 2 for the main part describe the situations in which the use force is absolutely necessary and therefore permitted, but may result – as an unintended outcome – in the deprivation of life.46 However, the exceptions are not concerned exclusively with unintentional killing, but also with intentional killing.47 In all three cases a strict and compelling necessity test must be employed. In particular, the force used must be strictly appropriate and no more than ‘absolutely necessary’ for the achievement of one of the purposes set out in sub-paragraphs (a), (b) or (c).48 The necessity test is made in the light of the information that the state agent had been given at the time he used the force. If the 39 Until now 46 Member States have ratified Protocol No. 6; Russia has signed, but not ratified the Protocol. 43 Member States have ratified Protocol No. 13. Poland and Armenia have signed but not ratified the Protocol. Russia and Azerbaijan have not even signed Protocol No. 13. 40 ECtHR, 12/5/2005 (GC), O ¨ calan v TUR, No. 46221/99, § 163. 41 ECtHR, 12/5/2005 (GC), O ¨ calan v TUR, No. 46221/99, § 164. 42 Grabenwarter/Pabel, § 20, m.n. 10 with further references. 43 ECtHR, 12/5/2005 (GC), O ¨ calan v TUR, No. 46221/99, § 165. 44 See Article 3 m.n. 15 et seq. 45 ECtHR, 8/11/2005, Bader a. o. v SWE, No. 13284/04, §§ 43 et seq. 46 ECtHR, 20/5/1999 (GC), Ogu ˆ r v TUR, No. 21594/93 § 78. 47 ECtHR, 20/5/1999 (GC), Ogu ˆ r v TUR, No. 21594/93 § 78, cf. Opsahl, in: Macdonald/Matscher/ Petzold, pp. 213 et seq. 48 As to the application of the principle of proportionality see ECtHR, 20/5/1999 (GC), Ogu ˆr v TUR, No. 21594/93 § 78.

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IV. Justification

11–14

Art. 2

state agent at the time used the forced in the honest belief that it was necessary the act remains justified even if a retrospective assessment of the situation might lead to a different conclusion.49 In any event, even assuming that the use of lethal force in the individual case can be said to have pursued any of the aims mentioned in the subparagraphs of Article 2, the Court further considers whether the State properly accounted for the use of that force.50 Article 2 (2) sub-paragraph (a) allows the deprivation of life by a state agent in 12 defence of a person from unlawful violence. This exception justifies the use of force on the ground of self-defence or the defence of another.51 Moreover, the intentional shooting of a person is permitted if the state agent believed that it was necessary to kill the target in order to save the life of an innocent or his own life. The Court accepts that this use of force is justified under Article 2 (2) sub-paragraph (a) when it is based on an honest belief which is perceived, for good reasons, to be valid at the time but subsequently turns out to be mistaken. Because of the severe and irrevocable interference with the right to life, this action can only be absolutely necessary in the meaning of Article 2 when, according to the principle of proportionality, there are no other less severe means of achieving the objective (to safeguard life and physical integrity of an innocent) than the shooting of a person.52 The shooting of a violent demonstrator by a policeman – after a clear warning that the police is about to open fire – may be necessary and therefore in accordance with Article 2. The circumstances of the incident have to meet the Court’s criteria of the state agent acting in the honest belief that his own life and physical integrity, and those of his colleagues, were in danger because of the unlawful attack to which they were being subjected.53 Also the use of lethal force for the purpose of defending the live of hostage may be justified.54 In cases against Russia concerning air raids in Chechnya, the Court emphasised, in particular, the use of high-calibre fragmentation bombs, an indiscriminate weapon, the use of which in a populated area the Court had already found to be irreconcilable with the necessary degree of caution to be expected from a law enforcement body in a democratic society.55 The effect of Article 2 (2) (a) in favour of a third party (‘Drittwirkung’ or ‘third 13 party effects’) have generally been acknowledged and consequently its relevance for the right of self-defence for private persons. It has, therefore, to be presumed that national self-defence legislation has to be in accordance with Article 2 (2) (a).56 Killing a person may be permissible under Article 2 (2) (b) if necessary to effect an 14 arrest or to prevent an escape, although only in the case of a lawfully executed arrest or to prevent an escape after a lawful adherence. However, any use of force must be ‘no more than absolutely necessary’ and, therefore, strictly proportionate in the circumstances. In view of the fundamental nature of the right to life, the circum49 ECtHR, 27/9/1995, McCann a.o. v UK, No. 18984/91, § 200; ECtHR, 9/10/1997, Andronicou a. Constantinou v CYP, No. 25052/94, § 192. 50 ECtHR, 29/3/2011, Esmukhambetov a. o. v RUS, No. 23445/03, § 141. 51 Grabenwarter/Pabel, § 20, m.n. 12 with further references. 52 ECtHR, 27/9/1995, McCann a. o. v UK, No. 18984/91, §§ 199 et seq; ECtHR, 9/10/1997, Andronicou a. Constantinou v CYP, No. 25052/94, §§ 191 et seq. 53 ECtHR, 24/3/2011 (GC), Giuliani a. Gaggio v ITA, No. 23458/02, §§ 189 et seq. 54 ECtHR, 9/10/1997, Andronico a. Constantinou v CYP, No. 25052/94, § 193. 55 ECtHR, 3/5/2011, Khamzayev a. o. v RUS, No. 1503/02, § 185; ECtHR, 3/5/2011, Kerimova a. o. v RUS, No. 17170/04 et al, § 253. 56 Grabenwarter/Pabel, § 20, m.n. 13 with further references.

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Art. 2

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Article 2 – Right to Life

stances in which deprivation of life may be justified must be strictly construed.57 Accordingly, an intentional killing can never be permissible under Article 2 (2) (b) because the deprivation of life cannot be proportionate in order to reach the legitimate aim of effecting a lawful arrest or preventing an escape.58 In particular, the Court considers the deployment of military aviation equipped with heavy weapons to be, in itself, grossly disproportionate to the purpose of effecting the lawful arrest of a person.59 In line with the above-mentioned principle of strict proportionality inherent in Article 2, the first sentence of paragraph 2 implies a duty on the State to put in place an appropriate legal and administrative framework defining the limited circumstances in which law enforcement officials may use force and firearms in order to safeguard against arbitrariness and prevent the abuse of force.60 In the Putintseva Case, the Court found that the legal framework was fundamentally deficient and Russia in general failed to comply with its obligation under Article 2 to put in place an appropriate legal framework on the use of force and firearms by military sentries. The case concerned the death of a young man during his mandatory military service after being shot by a superior when trying to escape from a disciplinary detention in punishment for absence without leave.61 15 The intentional killing of a person is only permissible to quell a riot or insurrection. Both cases require the condition of a public emergency threatening the life of a nation constituted in Article 15. The term ‘insurrection’ relates to a scenario of civil disobedience in which part of the population upraises against the State authority.62 Whereas a ‘riot’ is understood as a situation in which a crowd of several people commit or are about to commit acts of violence to a greater extent.63 The Commission defined the term ‘riot’ relying on the facts of the case in Northern Ireland in 1976 when an assembly of 150 persons were throwing missiles at a patrol of soldiers to the point that they risked serious injury. This must be considered, by any standard, to be a riot.64 The Court found that violent demonstrations are riots within the meaning of Article 2 (2) (c).65 The deaths of fugitives in the GDR were in no sense the result of use of force which was ‘absolutely necessary’ because it had nothing to do with the quelling of a riot or insurrection, as the fugitives’ only aim was to leave the country.66 Similarly, these exceptions are only applicable if the use of force by the State and the killing of a person due to a riot or insurrection is lawful. Furthermore, they must be strictly proportionate in the circumstances as the ultimate measure.

57 ECtHR, 6/7/2005 (GC), Nachova a. o. v BUL, No. 43577/98, §§ 94 et seq; see further ECtHR, 7/10/2010, Karandja v BUL, No. 69180/01, § 61. 58 Grabenwarter/Pabel, § 20, m.n. 14 with further references. 59 ECtHR, 29/3/2011, Esmukhambetov a. o. v RUS, No. 23445/03, § 146. 60 See below m.n. 21 et seq. 61 ECtHR, 10/5/2012, Putintseva v RUS, No. 33498/04, § 65. 62 Grabenwarter/Pabel, § 20, m.n. 15 with further references. 63 Charrier, Code de la Convention europe ´enne des droits de l‘homme, 2000, Article 2 § 17. 64 EComHR, 10/7/1984, Stewart, DR 39, p. 162 (173). 65 ECtHR, 27/7/1998, Gu ¨ leç v TUR, No. 21593/93, § 71; ECtHR, 26/7/2005, Sims˛ek a.o. v TUR, No. 35072/97, §§ 107 et seq. 66 ECtHR, 22/3/2001, Streletz, Kessler u. Krenz v GER, No. 34044/96 § 96; ECtHR, 22/3/2001 (GC), K.-H.W. v GER, No. 37201/97, § 98.

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V. Positive obligations

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V. Positive obligations In the way the right to life is formulated in Article 2 (1) first sentence, it imposes 16 upon the national authorities an obligation to protect every human life provided by law.67 The State is obliged to protect the life of individuals against the acts of third parties (so-called ‘positive obligations’) as well as against interferences by the State itself.68 The State may also, to a certain extent, be obliged to safeguard the lives of those within its jurisdiction from natural hazards, negative environmental conditions or other external circumstances. In fulfilling these obligations the States are granted a margin of appreciation. An effective protection of life is requested.69 This principle of effectiveness determines the nature and degree of the obligation.

1. Obligation to protect life An essential part of the protection of life is the State’s obligation to implement a 17 general ban of killing.70 The Convention does not as such enjoin whether a provision of a criminal-law remedy or a remedy in the civil courts is necessary for compliance with the positive obligation to ban killing. A list of acts of killings that must be prosecuted by the State cannot be established from Article 2.71 Above all, the margin of appreciation of a State is limited by the principle of effectiveness and the principle of proportionality.72 Accordingly, a killing through negligence in traffic needs to be treated differently from murder. It follows from the principle of proportionality inherent within the Convention that murder must be punished with criminal sanctions.73 In cases of medical negligence causing the death of the patient, the obligation may for instance also be satisfied if the legal system affords victims a remedy in the civil courts, enabling any liability of the doctors concerned and any appropriate civil redress to be established. The Court found that Article 3 does not necessarily require a criminal-law remedy.74 In the case of the death of a foetus against the will of the mother due to the negligence of a doctor, the Court concluded that Article 2 did not require that the State provides for a criminal-law remedy in the instant case; therefore there has been no violation of the right to life.75 In a case against Turkey, a pregnant woman complaining of persistent pain went to a hospital where doctors found that the child she was carrying was dead and that she required immediate surgery. Because she did not have the money required as a deposit for the surgery, the doctor arranged for her to be transferred to another hospital in a vehicle without any medical personnel. She died on the journey. The Court found that the domestic law did not appear to have been capable of preventing the failure to give the deceased the medical treatment she required on account of the woman’s condition. As a result of 67

Trechsel, Studies in honor of Konrad Ginther, p. 673. Trechsel, Studies in honor of Konrad Ginther, p. 675. 69 Grabenwarter/Pabel, § 20, p. 16 with further references. 70 Grabenwarter/Pabel, § 20, p. 17 with further references. 71 ECtHR, 17/1/2002 (GC), Calvelli a. Ciglio v ITA, No. 32967/96, § 51. 72 ECtHR, 4/5/2001, Jordan v UK, No. 24746/94, § 104. 73 Grabenwarter/Pabel, § 20, m.n. 17 with further references. 74 ECtHR, 17/1/2002 (GC), Calvelli a. Ciglio v ITA, No. 32967/96, § 51. 75 ECtHR, 8/7/2004 (GC), Vo v FRA, No. 53924/00, §§ 93 et seq. 68

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blatant failings on the hospital authorities’ part, the deceased had been denied access to appropriate emergency treatment. That finding was sufficient for the Court to hold that the State had failed to comply with its obligation to protect the woman’s physical integrity.76 An obligation to prohibit euthanasia or assisted suicide by law does not follow from Article 2.77 Given the lack of uniform regulation in the laws of the Contracting States and the existing public controversy, no European consensus can be found, and therefore the permissibility of national pro-euthanasia laws cannot be presumed. This was also established in the Pretty Case, which attracted international public attention. The applicant – a woman who was suffering from a certain type of neuropathy which causes physical incapacity – was unable to commit suicide herself and therefore applied for permission for lawful euthanasia. Without the possibility of ending her life she faced the prospect of a distressed death. The Court had to examine a possible infringement of Article 2, 3, 8, 9 and 14 of the Convention. It concluded that no positive obligation arises under the Convention to require the respondent State either to give an undertaking not to prosecute the husband if he assisted the applicant to commit suicide or to provide a lawful opportunity for any other form of assisted suicide. Accordingly, the Court did not find a violation of any provision.78 18 Article 2 also extends, in appropriate circumstances, to a positive obligation on the authorities to take preventive operational measures to protect an individual or individuals whose lives are at risk from the criminal acts of another individual.79 For a positive obligation to arise, it must be established that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party,80 and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk.81 In this connection, depending on certain factors that are taken into account, there might be situations in which an authority has to pursue a prosecution against perpetrators of violence even when the victim withdraws his complaints. However, it is decisive that the domestic legislative framework does not prevent prosecution in the public interest, especially in the case of the victim withdrawing the complaint.82 In the Opuz Case, in 76

ECtHR, 9/4/2013, Mehmet Sentu¨rk a. Bekir Sentu¨rk v TUR, No. 13423/09, §§ 95 et seq. The Court expressly left the question open: ECtHR, 29/4/2002, Pretty v UK, No. 2346/02, § 41. 78 ECtHR, 29/4/2002, Pretty v UK, No. 2346/02, §§ 42, 56, 78, 83, 90; Morris, Assisted Suicide under the European Convention on Human Rights: a Critique, EHRLR 2003, p. 65 (68 et seq). 79 ECtHR, 28/10/1998 (GC), Osman v UK, No. 23452/94, § 115; ECtHR, 28/3/2000, Kiliç v TUR, No. 22492/93, § 62; ECtHR, 13/11/2012, Van Colle v UK, No. 7678/09, §§ 88 et seq; ECtHR, 4/12/2012, R.R. a. o. v HUN, No. 19400/11, § 32 (Appropriate measures may include a witness protection programme for the witness’ family exposed to retribution from criminal circles); Zwaak, in: van Dijk/van Hoof/van Rijn/Zwaak, pp. 358 et seq. 80 Such as the case of a murdered well-known journalist who got killed because he criticised the Ukrainian Government and who sent an open letter to the Public Prosecutor’s Office in which he explicitly drew attention to the threatening situation he was in and seeked protection by the State, ECtHR, 8/11/2005, Gongadze v UKR, No. 34056/02, §§ 164 et seq; cf. ECtHR, 9/10/2008, Albekov a. o. v RUS, No. 68216/01 §§ 86 et seq. 81 ECtHR, 28/10/1998 (GC), Osman v UK, No. 23452/94, § 116; ECtHR, 28/3/2000, Kiliç v TUR, No. 22492/93, § 63; ECtHR, 24/1/2008, Osmanog˘lu v TUR, No. 48804/99, §§ 74 et seq; ECtHR, 15/1/2009, Branko Tomasˇic´ a. o. v CRO, No. 46598/06, §§ 52 et seq; ECtHR, 9/6/2009, Opuz v TUR, No. 33401/02, §§ 131 et seq; ECtHR, 14/9/2010, Dink v TUR, No. 2668/07 et al. 82 ECtHR, 9/6/2009, Opuz v TUR, No. 33401/02, §§ 138 et seq, § 145. 77

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which a wife and her mother were consistently forced by the violent husband and the police to withdraw their complaint concerning domestic violence, the Court established certain ‘factors’ on which to decide whether a complaint has to be pursued. These include the seriousness of the offence, whether the victim’s injuries are physical or psychological, if the defendant used a weapon, if the defendant has made any threats since the attack, if the defendant planned the attack, the effect on any children, the continuing threat to the health and safety of the victim or anyone else involved, the current state of the victim’s relationship with the defendant, the history of the relationship, and the defendant’s criminal history. It can be inferred from this practice that the more serious the offence or the greater the risk of further offences, the more likely that the prosecution should continue in the public interest, even if victims withdraw their complaints.83 Apart from the duty to protect individuals identifiable in advance as potential target of a lethal act, a general obligation to protect society – not an identifiable individual – against the potential acts of persons serving a prison sentence for a violent crime, can also be deduced from Article 2.84 In the Maiorano Case a prisoner convicted for violent crimes was granted day release after having regularly committed criminal offences throughout his imprisonment. After he had been allowed to temporarily leave prison again, he abducted, raped and murdered two women. The Court found that in the present case, it was not possible to identify the two women as potential targets at the time the prisoner was granted day release, yet under these circumstances Article 2 requires the general protection of society against potential danger from a person who had been convicted for a violent crime.85 The Court reached a different conclusion in the case of a man who was stabbed to death by a stranger in the street, at the age of 21. His assailant had been convicted of several criminal offences and disciplinary sanctions imposed by prison authorities, but he was nevertheless granted early release. While emphasising that one of the essential functions of a prison sentence is to protect society, the Court recognised the legitimate aim of a policy of progressive social reintegration of people sentenced to imprisonment, including those convicted of violent crimes and found that the conditional release system in Greece was sufficient.86 The State is further obliged to ensure that in public transport infrastructure (i. e. 19 railway stations, airports) a minimum of safety regulations is guaranteed in order to reduce any potential risks for passengers.87 It remains unclear whether an obligation to protect life from external risks such as diseases or environmental influences derives from Article 2 (2) first sentence; therefore it is open to doubt whether the State shall take measures to ensure proper medical care, for transport safety or to prevent pollution.88 83

ECtHR, 9/6/2009, Opuz v TUR, No. 33401/02, §§ 137 et seq. So for example ECtHR, 15/12/2009, Maiorano a. o. v ITA, No. 28634/06, § 107. 85 ECtHR, 15/12/2009, Maiorano a. o. v ITA, No. 28634/06, § 107. 86 ECtHR, 17/1/2012, Choreftakis a. Choreftaki v GRE, No. 46846/08, §§ 50 et seq. 87 As the Court concluded in the Kalender Case, in which a woman and her son died in a train accident, due do the lack of safety regulations and the small number of staff, that the circumstances disclosed a breach of the State’s obligation to protect, ECtHR, 15/12/2009, Kalender v TUR, No. 4314/02, § 49. 88 ECtHR, 30/11/2004 (GC), O ¨ neryildiz v TUR, No. 48939/99, §§ 97 et seq; see further Xenos, Asserting the Right to Life (Article 2, ECHR) in the Context of Industry, GLJ 2007, p. 231; McBride, Protecting life: a positive obligation to help, ELR, Human Rights Survey 1999, p. 43 (44 et seq); 84

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It follows from the history of the drafting of the Convention – particularly of Article 2 – that the safeguarding of social rights through the ECHR was not intended. A State could only be required of its own motion to take such safeguarding steps within the meaning of Article 2 (1) if it appears likely to the state authorities at the time that a life is at danger or health is at risk.89 This obligation to act may also include a duty to supply information.90 In the L. C. B. Case the applicant, whose father was serving as a catering assistant on Christmas Island while the United Kingdom conducted nuclear tests there, complained about the State’s failure to warn and advise about the related health risks. The Court considered such obligation to inform for the State in general, however this case raised the question of whether, given the circumstances, the State did all that could have been required to prevent the applicant’s life from being avoidably put at risk. It found that the State had not failed in this regard.91 In the Budayeva Case the Court affirmed the positive obligations of a State in the case of a natural disaster and found that there was a causal link between the serious administrative flaws and the death and injuries sustained by the applicants.92 The Court has applied the obligation to take action quite rarely since Article 2 (1) leaves a wide discretion to the States. Nevertheless, the State’s obligation to conduct an effective investigation into a death applies in this context.93 The State has a positive obligation to protect particularly ‘vulnerable’ persons, such as patients in a hospital, residents of a nursing home or children more generally (for instance against domestic violence).94 It follows from Article 2 that States have to ensure that hospitals take measures to safeguard the life of the sick.95 The Court stated that school authorities had an essential role to play in the protection of the health and well-being of pupils – having regard to their particular vulnerability due to their age – and a primary duty to protect them against any form of violence to which they might be subjected while placed under the school’s supervision.96 20 Specific duties apply towards people who are closely related to the State even if they are not ‘vulnerable persons’. Examples include members of the military as well as persons in custody. The level of liability is higher if the person in custody is vulnerable.97 Accordingly, the failure of state agencies to pass information about the dangerousness of a prisoner followed by the murder of another prisoner Laurent, Un droit a` la vie en matie`re environmentale reconnu et conforte´ par une interpre´tation e´volutive du droit des biens pour les habitants de bidonvilles, RTDH 2003, p. 279 (287 et seq). 89 See for example ECtHR, 9/6/1998, L. C. B. v UK, No. 23413/94, §§ 36 et seq; ECtHR, 17/1/2002 ¨ neryildiz v (GC), Calvelli a. Ciglio v ITA, No. 32967/96, §§ 49 et seq; ECtHR, 30/11/2004 (GC), O TUR, No. 48939/99, §§ 100 et seq. 90 ECtHR, 9/6/1998, L. C. B. v UK, No. 23413/94, § 38; ECtHR, 20/3/2008, Budayeva a.o. v RUS, No. 15339/02, § 152. 91 ECtHR, 9/6/1998, L. C. B. v UK, No. 23413/94, §§ 36 et seq. 92 ECtHR, 20/3/2008, Budayeva a. o. v RUS, No. 15339/02, § 158. 93 ECtHR, 30/11/2004 (GC), O ¨ neryildiz v TUR, No. 48939/99, §§ 111 et seq (methane gas explosion at a garbage dump). 94 Mutatis mtuandis with regard to ECtHR, 2/12/2008, Juppsala v FIN, No. 18620/03, § 42. 95 ECtHR, 17/1/2002, Calvelli a. Cigliov ITA, No. 32967/96, §§ 49 et seq.; ECtHR, 8/7/2004 (GC), Vo v FRA, No. 53924/00, § 89; ECtHR, 17/1/2008, Dodov v BUL, No. 59548/00, § 81; ECtHR, 9/4/2009 (GC), Sˇilih v SLO, No. 71463/01, § 211. 96 ECtHR, 10/7/2012, Kayak v TUR, No. 60444/08, § 59 (youth stabbed in front of school). 97 ECtHR, 13/6/2002, Anguelova v BUL, No. 38361/97, § 110.

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sharing the cell, disclose a breach of the State’s obligation to protect life. When a prisoner harms himself (i. e. hunger strike) or attempts suicide, it requires a careful consideration of the principle of dignity, which should prohibit any oppressive removal of a person’s freedom of choice and action, and the obligation of the State to protect the life of the person in its custody. Eventually, a State is obliged to monitor a detainee’s condition if he shows indications of suicide risk and must supply the needed medical care.98 This may include monitoring of proper medication, especially in the case of psychotropic drugs for mentally ill prisoners.99 A State has a special obligation to afford the protection of soldiers in compulsory military service. In the case of an immediate suicide risk of a soldier, the military authorities – including the medical unit of the military forces – have to do all that could be reasonably expected of them to avoid a real and immediate risk to life of which they have or ought to have knowledge.100 This may also include taking the initiative to diagnose the nature of an individual’s mental disorder.101

2. Organisational and procedural obligations To ensure an effective protection of life the Court draws organisational obligations 21 from Article 2. These obligations regarding the use of state power include the duty to implement a framework and structure to protect life, given the risks that can emerge in all operations of law-enforcement officials. This means that national law must not only authorise, police operations but also sufficiently regulate them, within the framework of a system of adequate and effective safeguards against arbitrariness and abuse of force. This places demands on the organisational structure of police and other state forces.102 A legal and administrative framework should define the limited circumstances in which law-enforcement officials may use force and firearms, in the light of the international standards which have been developed in this respect, and includes effective training in that regard.103 Therefore the failure of a policeman in operation to assess a dangerous situation may involve the liability of the State if the failure can be attributed to the lack of training, control, planning or command within the law-enforcement organisation. Since situations where action is being taken against a definite, clearly identifiable target have to be distinguished from the general objective of maintaining public order in an area, the required sort of training for the forces shall be assessed in light of the task or function of the 98

ECtHR, 16/11/2000, Tanribilir v TUR, No. 21422/93, §§ 70 et seq; ECtHR, 3/4/2001, Keenan v UK, No. 27229/95, §§ 88 et seq; ECtHR, 16/10/2008, Renolde v FRA, No. 5608/05, §§ 98 et seq. 99 ECtHR, 16/10/2008, Renolde v FRA, No. 5608/05, § 100; ECtHR, 1/6/2010, Jasin ´ ska v POL, No. 28326/05, §§ 77 et seq. 100 ECtHR, 7/6/2005, Kilinç a. o. v TUR, No. 40145/98, §§ 40 et seq; ECtHR, 11/1/2011, Servet Gu¨ndu¨z a. o. v TUR, No. 4611/05, §§ 56 et seq. 101 ECtHR, 5/7/2011, Metin v TUR, No. 26773/05, § 72. 102 ECtHR, 24/5/2005, Acar a.o. v TUR, No. 36088/97, § 84 (making reference to the specific risk attached to the use of civilian volunteers in a quasi-police function, to take account of the killing of eight persons and the assault of two applicants by the so-called ‘village guards’), ECtHR, 2/12/2010, Abuyeva a. o. v RUS, No. 27065/05, No. 27065/05, §§ 196 et seq (concerning a military action in Chechnya). 103 ECtHR, 26/7/2005, Sims ˛ek a. o. v TUR, No. 35072/97, § 105, § 109 referring to the ‘UN Force and Firearms Principles’; ECtHR, 19/4/2012, Sasˇo Gorgiev v MKD, No. 49382/06, § 51 (State was responsible for the shooting of a waiter in a bar by police reservist).

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person.104 An operation must be regulated and organised in such way as to minimise to the greatest extent possible any risk to his life.105 The organisational aspect of fundamental rights protection – the obligation to properly organise and prepare an operation – becomes especially clear in the area of combating terrorism.106 It includes not only to instruct the single operating officer appropriately, but also to prepare large-scale operations well while recognising the right to life of all parties concerned (terrorists, officers or solders, the public).107 It also includes the provision of adequate equipment.108 Higher demands are made on States if law-enforcement officials are confronted with particularly dangerous situations.109 In the McCann Case the Court explicitly observed an ‘organisational fault’ due to the lack of appropriate care in the control and organisation of an arrest operation. British authorities killed three suspected terrorist based on false information in a planned operation. On the failure of the authorities to make sufficient allowances for the possibility that their intelligence assessments might, in some respects at least, be erroneous, the Court was not persuaded that the killing constituted the use of force which was no more than absolutely necessary and therefore found a breach of Article 2.110 Another infringement of Article 2 was found in the case of the police using firearms in a ‘chaotic way’ during a chase of suspect classified as dangerous; a number of police officers fired a hail of shots at the applicant’s car with revolvers, pistols and submachine guns. The Court concluded there was a violation of the obligation to protect life deriving from Article 2 even if the life-threatening conduct of the police did not result in the death of the suspect.111 When security forces are authorised by law – which only requires the vague condition that the force must have ‘regard to the particular circumstances of the case’ – to use firearms in a certain area this lack of a sufficiently clear legal basis discloses a breach of Article 2.112 22 Article 2 (1) first sentence includes the obligation to conduct an effective official investigation into the death of individuals killed as a result of the use of force by agents of the State and all other ‘alleged unlawful killings’ by an independent an unbiased authority.113 The State has to ensure prompt104 ECtHR, 24/3/2011 (GC), Giuliani a. Gaggio v ITA, No. 23458/02, § 255 (police operation during the G 8 summit). 105 Instead of many ECtHR, 20/12/2004 (GC), Makaratzis v GRE, No. 50385/99, § 60; ECtHR, 17/12/2009 Golubeva v RUS, No. 1062/03, §§ 104 et seq; ECtHR, 6/11/2012, Dimov a. o. v BUL, No. 30086/05, § 78 (police launched 15 rocket propelled grenades at a house in order to make an opening in the wall and to arrest a criminal). 106 ECtHR, 4/5/2001, McKerr v UK, No. 28883/95, § 160. 107 ECtHR, 27/9/1995, McCann a. o. v UK, No. 18984/91, §§ 202 et seq; ECtHR, 20/12/2011, Finogenov a. o. v RUS, No. 18299/03 et al, §§ 217 et seq (use of gas against terrorists during the Moscow Dubrowka-Theatre siege was justified, but the rescue operation afterwards was poorly planned and implemented). 108 ECtHR, 26/7/2005, Sims ˛ek a. o. v TUR, No. 35072/97, § 111. 109 So for example, regarding the especially dangerous situations occurring during boarder control, see ECtHR, 22/11/2005, Kakoulli v TUR, No. 38595/97, § 114 (killing of a Cypriot by Turkish border guards). 110 ECtHR, 27/9/1995, McCann a. o. v UK, No. 18984/91, §§ 202 et seq; Joseph, Denouement for the Death on the Rock: the Right to Life of Terrorists, NQHR 1996, p. 5 (10 et seq). 111 ECtHR, 20/12/2004 (GC), Makaratzis v GRE, No. 50385/99, §§ 64 et seq. 112 ECtHR, 9/11/2009, O ¨ lmez a. o. v TUR, No. 22746/03, § 70. 113 ECtHR, 27/7/1998, Gu ¨ leç v TUR, No. 21593/93, §§ 80 et seq; ECtHR, 20/5/1999 (GC), Og˘ur v TUR, No. 21594/93, §§ 91 et seq; ECtHR, 14/3/2002, Edwards v UK, No. 46477/99, § 70; ECtHR,

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ness114 of the investigation and the authorities must act on their own motion115 once the matter has come to their attention. An obligation to conduct an investigation exists if state authorities were or should have been aware of a threat to life and, under these circumstances, due to the failure of the relevant authorities to take adequate measures to diminish the threat, the person dies.116 The Court established a number of concrete principles for an investigation.117 First of all these include legally binding organisational standards. The Member States are obliged to frame the organisation which conducts the investigation in a way which allows an effective procedure. It may generally be regarded as necessary for the persons responsible for and carrying out the investigation to be independent from those implicated in the events. This means not only a lack of hierarchical or institutional connection but also a ‘practical independence’.118 In principle this refers to ‘subjective impartiality’ within the meaning of Article 6.119 The investigation must also be effective in the sense that it is capable of leading to a determination of whether death in the case was or was not justified in the circumstances and to the identification and punishment of those responsible.120 However, there is no absolute right to obtain a prosecution or conviction and the fact that an investigation ends without concrete, or with only limited, results is not indicative of any failings as such.121 For the purpose of ensuring effectiveness, the procedure itself also has to fulfil 23 concrete standards. The goal of the procedural obligation is not to come to a certain result, but to conduct an effective investigation into the incidents. It has to be determined whether the force used was justified or not; the authorities must have taken reasonable steps available to them to secure the evidence, including inter alia eye witness testimony, forensic evidence and, where appropriate, an autopsy which provides a complete and accurate record of injury and an objective analysis of clinical findings, including the cause of death.122 Especially in the case of inconsistency 1/7/2003, Finucane v UK, No. 29178/95, §§ 68 et seq; ECtHR, 15/5/2007 (GC), Ramsahai a. o. v NED, No. 52391/99, §§ 333 et seq. 114 ECtHR, 2/9/1998, Yas ˛a v TUR, No. 22495/93, §§ 102 et seq; ECtHR, 16/7/2013, McCaughey a. o. v UK, No. 43098/09 (violation due to excessive delay in investigation into deaths at the hands of security forces in Northern Ireland). 115 ECtHR, 4/5/2001, Jordan v UK, No. 24746/94, § 105. 116 ECtHR, 15/1/2009, Branko Tomas ˇic´ a. o. v CRO, No. 46598/06, §§ 52 et seq; ECtHR, 15/12/2009, Maiorano a. o. v ITA, No. 28634/06, §§ 127 et seq; ECtHR, 14/9/2010, Dink v TUR, No. 2668/07 et al, §§ 77 et seq. 117 See for summary of these principles ECtHR, 7/1/2010, Rantsev v CYP a. RUS, No. 1062/03, §§ 232–233. 118 ECtHR, 4/5/2001, Kelly a. o. v UK, No. 30054/96, § 95; the lack of independence of an authority is not ‘restored’ due to the fact that in the further course of the procedure an independent authority – which is not conducting any investigations – will be competent, ECtHR, 1/12/2009, ¨ zalp v TUR, Velcea a. Maza˘re v ROM, No. 64301/01, §§ 111 et seq; ECtHR, 20/4/2010, Bektas´ a. O No. 10036/03, § 66 (the same policeman who shot down the victims during an operation, carried out the investigation and gathered the evidence at the crime scene, whereby the whole criminal procedure were not regarded as independent.) 119 See Article 6 m.n. 57 et seq. 120 ECtHR, 4/5/2001, Kelly a. o. v UK, No. 30054/96, § 96. See on this case in view of the different decision by the EComHR, Trechsel, Studies in honor of Konrad Ginther, pp. 683 et seq; see also ECtHR, 13/6/2002, Anguelova v BUL, No. 38361/97, § 139. 121 ECtHR, 15/3/2011, Tsechoyev v RUS, No. 39358/05, § 150. 122 ECtHR, 4/5/2001, Kelly a. o. v UK, No. 30054/96, § 96.

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between different investigations, adequate steps have to be taken by the relevant authorities to investigate the apparent inconsistency.123 Inconsistent behaviour on the part of an accused officer must be put in balance by the courts when deciding on the accusation against them.124 Furthermore, the obligation of States includes ensuring the promptness of the investigation and a degree of public scrutiny, which must always allow for the involvement of the next-of-kin of victims in all necessary investigative proceedings.125 A failure of compliance with the requirements to hold an effective investigation was found where the proceedings were of private character and therefore lacked the power to compel witness126 or in the case of a failure to ensure the attendance of a defendant at the trail court hearings.127 The Court considers that a frequent change of the sitting judge will undoubtedly impede the effective processing of a case in the meaning of Article 2.128 However, in exceptional situations, the required standard of an effective investigation must be applied realistically to take account of specific problems faced by investigators.129 In the AlSkeini Case, the Court took into account the practical problems caused to the investigating authorities to investigate the deaths of civilians killed by British soldiers. These practical problems included the breakdown in the civil infrastructure and the danger inherent in any activity in Iraq at that time.130 Nonetheless, the fact that the United Kingdom was in occupation also entailed that, if any investigation into acts allegedly committed by British soldiers was to be effective, it was particularly important that the investigating authority was operationally independent of the military chain of command. 24 While the Court grants discretion to the national courts in the choice of appropriate sanctions for the violation of the right to life, in the case of a disproportion between the gravity of the act and the punishment imposed, it finds a failure of the State to carry out an effective investigation.131 In particular, a State has to guarantee an appropriate remedy for victims who have been infected by a life-threatening disease.132 The Court stressed that States had to be all the more stringent when punishing their law-enforcement officers convicted of killing someone in order to combat the sense of impunity.133 In the particular case, it was looking at the prison sentences given to the four perpetrators and the way they had been imposed in practice, the Court held that the punishment had not accounted for the cruel, life-threatening inhuman treatment to which the victim had been subjected. The State’s obligation under Article 2 to conduct an effective 123

ECtHR, 26/5/2009, Esat Bayram v TUR, No. 75535/01, § 51. ECtHR, 30/10/2012, Ghimp a. o. v MOL, No. 32520/09, § 53. 125 ECtHR, 4/5/2001, Kelly a.o v UK, No. 30054/96, §§ 96 et seq; ECtHR, 18/12/2008, Kats a.o. v UKR, No. 29971/04, § 122. 126 ECtHR, 14/3/2002, Edwards v UK, No. 46477/99, § 87. For the relationship between the obligation to conduct an investigation deriving from Article 2 and the right to an effective appeal according to Article 13 see below Article 13 m.n. 16 et seq. 127 ECtHR, 13/10/2009, Gasyak a. o. v TUR, No. 27872/03, § 78. 128 ECtHR, 9/4/2009 (GC), S ˇ ilih v SLO, No. 71463/01, § 210. 129 ECtHR, 7/7/2011 (GC), Al-Skeini a. o. v UK, No. 55721/07, § 168. 130 ECtHR, 7/7/2011 (GC), Al-Skeini a. o. v UK, No. 55721/07, § 168. 131 ECtHR, 20/3/2008, Nikolova a. Velichkova v BUL, No. 7888/03, § 62; EGMR, 27/5/2010, Fadime a. Turkan Karabulut v TUR, No. 23872/04, §§ 46 et seq. 132 ECtHR, 23/3/2010, Oyal v TUR, No. 4864/05, § 72. 133 ECtHR, 26/7/2011, Enukidze a. Girgvliani v GEO, No. 25091/07, § 274. 124

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V. Positive obligations

24, 25

Art. 2

investigation may revive if any new information or material arises which has the potential to either undermine the conclusions of an earlier investigation or allows an earlier inconclusive investigation to be pursued further.134 Specific attention will be paid to the effectiveness of an investigation in the case of a racially motivated attack and the need to maintain the confidence of minorities in the ability of the authorities to protect them from the threat of racist violence.135 In particular, when an individual who is taken into state custody dies 25 authorities must conduct an investigation on its own motion because, in this case, the events at issue lie wholly, or in large part, within the exclusive knowledge of the authorities and strong presumptions of fact will arise with respect to injuries and death occurring during such detention.136 When an individual is taken into custody in good health the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation.137 This principle also applies to cases where individuals were found injured or dead in areas under the exclusive control of the authorities and there was prima facie evidence that state agents could be involved.138 In this sense, the Court concludes that a failure on the Government’s part to submit relevant information to assess the merits of a complaint without a satisfactory explanation may give rise to drawing inferences as to whether the applicant’s allegations are well-founded.139 In particular, special obligations to conduct an investigation derive in situations in which persons are found injured or dead in an area within the exclusive control of the authorities of the State (in particular the military). In such case it is legitimate to draw a parallel between the situation of detainees and the situation of the persons in that area. Given the salient fact that in both situations the events at issue lay wholly, or in large part, within the exclusive knowledge of the authorities.140

134 So for instance ECtHR, 27/11/2007, Brecknell v UK, No. 32457/04, §§ 70 et seq, concerning the examination of evidence about the participation of Irish security forces in acts of terrorism in Northern Ireland which came to light 20 years later. 135 ECtHR, 26/7/2007, Angelova a. Iliev v BUL, No. 55523/00, § 105; see further ECtHR, 10/6/2010, Vasil Sashov Petrov v BUL, No. 63106/00, §§ 71 et seq, where the information available to the authorities was not sufficient to cause the obligation to conduct an investigation into potential racist motivation. 136 ECtHR, 31/5/2001, Akdeniz a. o. v TUR, No. 23954/94, § 85; ECtHR, 27/6/2000, Salman v TUR, No. 21986/93, §§ 97 et seq; ECtHR, 1/6/2006, Taı¨s v FRA, No. 39922/03, § 85, §§ 103 et seq (no reasonable explanation of the French government concerning the interference which lead to the death of the applicant’s son during police adherence in order to become sober. In addition a lack of sufficient medical or police supervision was found (as the person in custody was especially vulnerable due to his HIV disease); ECtHR, 27/7/2006, Bazorkina v RUS, No. 69481/01, §§ 105 et seq (‘disappearance’ of the applicant’s son during the start of the second Chechen war, who was in custody of the Russian military); for the shifted burden of proof in case of a possible interference with Article 3, see below m.n. 10, 12. 137 ECtHR, 27/6/2000, Salman v TUR, No. 21986/93, § 100; ECtHR, 13/6/2002, Anguelova v BUL, No. 38361/97, § 110; ECtHR, 18/6/2002, Orhan v TUR, No. 25656/94, § 326. 138 ECtHR, 21/6/2011, Nakayev v RUS, No. 29846/05, § 78. 139 ECtHR, 24/2/2005, Khashiyev a. o. v RUS, No. 57942/00, § 137; ECtHR, 7/6/2011, Predica v ROM, No. 42344/07, §§ 55 et seq, official explaination for violent death of 20-year old in prison was improbable. 140 ECtHR, 24/6/2005, Akkum a. o. v TUR, No. 21894/93, § 211; ECtHR, 24/6/2009, Beker v TUR, No. 27866/03, § 42.

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Art. 2

25

Article 2 – Right to Life

In view of the special positive obligations of the State in cases of vulnerable persons, the event of death of such an individual regularly requires a special investigation. An investigation into the death of a patient in a hospital must be conducted if there are grounds for suspecting any irregularity in order to determine the cause of death and so that those responsible are made accountable.141 141 ECtHR, 17/1/2002, Calvelli a. Ciglio v ITA, No. 32967/96, §§ 49 et seq; ECtHR, 8/7/2004 (GC), Vo v FRA, No. 53924/00 § 89; ECtHR, 17/1/2008, Dodov v BUL, No. 59548/00 § 81; ECtHR, 9/4/2009 (GC), Sˇilih v SLO, No. 71463/01, § 211.

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Art. 3

Bibliography

Article 3 – Prohibition of torture No one shall be subjected to torture or to inhuman or degrading treatment or punishment. Article 3 – Interdiction de la torture Nul ne peut eˆtre soumis a` la torture ni a` des peines ou traitements inhumains ou de´gradants. Bibliography: Cassese, Prohibition of Torture and Inhuman or Degrading Treatment or Punishment, in: Macdonald/Matscher/Petzold, (ed.), The European System for the Protection of Human Rights, 1993, p. 241; Danelius, Protection against Torture in Europe and the World, in: Macdonald/ Matscher/Petzold, (ed.), The European System for the Protection of Human Rights, 1993, p. 263; Vermeulen, Freedom from torture and other inhuman or degrading treatment or punishment, in: van Dijk/van Hoof/van Rijn/Zwaak (ed.), Theory and Practice of the European Convention on Human Rights, 4th ed., 2006. p. 405; Vogler, The scope of extradition in the light of the European Convention on Human Rights, in: Matscher/Petzold (ed.), Protecting Human Rights: The European Dimension. Studies in honour of Ge´rard J. Wiarda, 1988, p. 663. Case law: ECtHR, 18/1/1978, IRL v UK, No. 5310/71 (ill-treatment in police custody); ECtHR, 25/4/1978, Tyrer v UK, No. 5856/72 (physical punishment as a sanction); ECtHR, 7/7/1989, Soering v UK, No. 14038/88 (prohibition of extradition due to death row conditions); ECtHR, 28/7/1999, Selmouni v FRA, No. 25803/94 (ill-treatment in police custody); ECtHR, 3/4/2001, Keenan v UK, ¨ calan v TUR, No. 46221/99 No. 27229/95 (ill-treatment of a detainee); ECtHR, 12/5/2005 (GC), O (death sentence after an unfair trail); ECtHR, 4/7/2006 (GC), Ramirez Sanchez v FRA, No. 59450/ 00 (solitary confinement of a terrorist); ECtHR, 11/7/2006 (GC), Jalloh v GER, No. 54810/00 (forced administration of emetics); ECtHR, 12/2/2008 (GC), Kafkaris v CYP, No. 21906/04 (whole life imprisonment and the prohibition on retroactivity); ECtHR, 28/2/2008 (GC), Saadi v ITA, No. 37201/06 (prohibition of extradition due to the risk of torture); ECtHR, 1/6/2010 (GC), Ga¨fgen v GER, No. 22978/05 (threatening a kidnapper with torture in order to find out the place where he was hiding the kidnapped child); ECtHR, 21/1/2011, M. S. S. v BEL and GRE, No. 30696/09 (transfer of a asylum seeker from Belgium to Greece under the asylum procedure of the Dublin II Regulation); ECtHR, 17/1/2012, Harkins a. Edwards v UK, No. 9146/07 et al (life imprisonment); ECtHR, 9/7/2013 (GC), Vinter a. o. v UK, No. 66069/09 et al (life imprisonment). Outline I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Scope of protection and interferences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Torture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Inhuman treatment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Degrading treatment or punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. No justification of an interference with Article 3. . . . . . . . . . . . . . . . . . . . . . . . . . IV. Positive obligations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Cases of ill-treatment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Police operations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Treatment of detainees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Expulsion and extradition. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. Ill-treatment by private persons. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 2 3 4 6 7 8 9 10 11 13 18

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Art. 3

1–3

Article 3 – Prohibition of torture

I. Introduction 1

Article 3 prohibits torture, inhuman or degrading treatment or punishment. With regard to its structure it is remarkable that Article 3 is the only clause of the Convention that makes no provision for exceptions or derogation. Even in the event of immense difficulties faced by the State, like the fight against terrorism and serious forms of organised crime or in cases of abduction, the Convention prohibits in absolute terms torture or inhuman treatment.1 As a result all interferences with Article 3 constitute a violation of the fundamental right. The EU Charter adopted the Convention’s wording of the prohibition of torture in its Article 4.2

II. Scope of protection and interferences 2

The provision protects the individual from interferences with his physical and psychological integrity.3 Not all interferences with the integrity of a person violate Article 3, it must attain a minimum level of severity and it must disrespect a person’s humanity.4 The assessment of this minimum level depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim.5 Both ‘punishment’ – meaning state measures of punitive nature – and ‘treatment’ – understood as any form of state action – are subject to the prohibition.6 For the determination of the scope of protection the general terms torture, inhuman punishment or treatment as well as degrading punishment or treatment have to be clarified. The terms relate to three different levels of severity of an ill-treatment. Hence, the question of severity is material on the one hand, for the application of Article 3 in general and for the classification of the measure on the other hand.7

1. Torture 3

The distinction between torture and inhuman treatment relies on the degree of gravity of the action.8 A particular form of ill-treatment is qualified as torture, if the 1 See ECtHR, 15/11/1996, Chahal v UK, No. 22414/93, §§ 79 et seq; ECtHR, 4/7/2006 (GC), Ramirez Sanchez v FRA, No. 59450/00, § 115 (no violation); see further below para. 7. 2 Grabenwarter/Pabel, § 20, m.n. 26 with further references. 3 ECtHR, 25/4/1978, Tyrer v UK, No. 5856/72, § 33; ECtHR, 25/3/1993, Costello-Roberts v UK, No. 13134/87, § 30. 4 ECtHR, 18/1/1978, IRL v UK, No. 5310/71, § 162; ECtHR, 22/9/1993, Klaas v GER, No. 15473/89, §§ 23 et seq (alleged ill-treatment of a detainee in the presence of his minor daughter); ECtHR, 27/8/1992, Tomasi v FRA, No. 12850/87, § 114 (number and intensity of hits); ECtHR, 28/1/1994, Hurtado v SUI, No. 17549/90, § 12 (refusal of medical care and sanitation despite of injuries). 5 ECtHR, 23/9/1998, A. v UK, No. 25599/94, § 20; ECtHR, 23/11/2009, Cig ¨ ner (No. 2) v ˘erhun O TUR, No. 2858/07, §§ 89 et seq. 6 Grabenwarter/Pabel, § 20, m.n. 27 with further references. 7 Addo/Grief, Is There a Policy Behind the Decisions and Judgements Relating to Article 3 of the European Convention on Human Rights?, ELR 20 (1995), 178 (188). 8 Cassese, Prohibition of Torture and Inhuman or Degrading Treatment or Punishment, in: Macdonald/Matscher/Petzold, p. 241 with further references.

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II. Scope of protection and interferences

3

Art. 3

inhuman treatment is deliberate and caused very serious and cruel suffering.9 For the determination of the term torture the definition provided in Article 1 of the United Nations Convention against Torture may be used.10 Furthermore, a treatment with no interference with the physical integrity may still be identified as torture if it caused severe psychological suffering.11 Also ill-treatment which caused psychological and physical suffering but had not resulted in any long-term health consequences may attain a level of severity such as to qualify as torture. This is especially the case if the use of force was aimed at debasing the applicant, driving him into submission and making him confess to criminal offences.12 The Court considers that certain acts which were classified in the past as inhuman or degrading treatment as opposed to torture could be classified differently in future. It takes the view that the increasingly high standard being required in the area of the protection of human rights correspondingly and inevitably requires greater firmness in assessing breaches of fundamental values.13 The Court found torture in the following cases: so-called ‘Palestinian hanging’, where a person was stripped naked, with his arms tied together behind his back and suspended by his arms, which led to a temporary paralysis of both arms;14 rape of persons in custody by state officials;15 physical and mental pain in police custody;16 ill-treatment by a police officer, which impaired a person’s health to such an extent that he became disabled;17 extraction of all finger and toe nails;18 subjecting a person to electric shocks.19 To threat a person with physical violence which due to its severity would amount to torture may not necessarily be qualified as torture within the meaning of Article 3. The Court refers to the definition of torture in Article 1 of the United Nations Convention Against Torture and also according to the views taken by other international human rights monitoring bodies, it considers that a threat of torture 9 ECtHR, 18/1/1978, IRL v UK, No. 5310/71, § 167; ECtHR, 28/7/1999, Selmouni v FRA, No. 25803/94, §§ 96 et seq; ECtHR, 21/6/2011, Isayev a. o. v RUS, No. 43368/04, § 166; ECtHR, 21/6/2012, Kulish v UKR, No. 35093/07, § 53; ECtHR, 13/12/2012, El-Masri v MKD, No. 39630/09, §§ 205, 211. 10 Article 1 of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment from December 10, 1987, entered into force on June 26, 1987. 11 In the Selmouni Case the Court deemed the physical and mental ill-treatment of the person concerned must altogether be regarded as torture; ECtHR, 28/7/1999, Selmouni v FRA, No. 25803/94, § 105; see also ECtHR, 3/6/2004, Bati a.o. v TUR, No. 33097/96, § 123. 12 ECtHR, 19/3/2009, Polonskiy v RUS, No. 30033/05, § 124; ECtHR, 4/12/2012, Lenev v BUL, No. 41452/07, § 117. 13 ECtHR, 28/7/1999, Selmouni v FRA, No. 25803/94, § 101; ECtHR, 27.6.2000 (GC), Salman v TUR, No. 21986/93, § 115; ECtHR, 27/6/2000, Ilhan v TUR, No. 22277/93, § 87; ECtHR, 15/5/2012, Kaverzin v UKR, No. 23893/03, § 124. 14 ECtHR, 18/12/1996, Aksoy v TUR, No. 21987/93, § 64. 15 ECtHR, 25/9/1997, Aydin v TUR, No. 23178/94, § 86; ECtHR, 24/1/2008, Maslova a. Nalbandov v RUS, No. 839/02, § 108; ECtHR, 17/1/2012, Zontul v GRE, No. 12294/07, §§ 88 et seq. 16 ECtHR, 28/7/1999, Selmouni v FRA, No. 25803/94, §§ 98 et seq; see further Cohen-Jonathan, Un arreˆt de principe de la ‘nouvelle’ Cour europe´enne des droits de l’homme: Selmouni contre France, RGDIP 104 (2000), 181 et seq; ECtHR, 27/6/2000 (GC), Salman v TUR, No. 21986/93, § 115 and ECtHR, 4/4/2006, Corsacov v MDA, No. 18944/02, § 65 (beats on the soles of a detainees feet with a truncheon [so-called ‘falaka’] for the purpose of obtaining a confession); ECtHR, 16/9/2010, Tigran Ayrapetyan v RUS, No. 75472/01, §§ 76 et seq. 17 ECtHR, 16/2/2012, Savin v UKR, No. 34725/08, § 62. 18 ECtHR, 5/6/2012, Buntov v RUS, No. 27026/10, §§ 163 et seq. 19 ECtHR, 19/3/2009, Polonskiy v RUS, No. 30033/05, § 124; ECtHR, 21/4/2011, Nechiporuk a. Yonkalo v. UKR, No. 42310/04, § 157.

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Art. 3

3, 4

Article 3 – Prohibition of torture

may violate Article 3 of the Convention. The classification of whether a given threat of physical torture amounted to one of the categories in Article 3 depends upon all the circumstances of a given case.20 In the Ga¨fgen Case – in which a police officer threatened a criminal to cause him pain in order to extract a statement from him to find out the place where he was hiding a kidnapped boy – the Court found that the threat was ‘only’ qualified as inhuman treatment. In conclusion, the Court found that the national authorities did not afford the applicant appropriate and sufficient redress for his treatment which disclosed a breach of Article 3 (for not conducting sufficient investigation into the ill-treatment).21

2. Inhuman treatment 4

A treatment is inhuman if it premeditatedly causes severe psychological or physical suffering. The treatment is such as to arouse in the victim feelings of fear and inferiority.22 Whether the state measure reaches the degree and intensity so it must be qualified as inhuman treatment within the meaning of Article 3, depends on all circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim.23 While assessing the state treatment, the Court has regard to whether its object is to humiliate and debase the person concerned.24 However, although the question of purpose of the treatment is a factor which has to be taken into account, the absence of any such purpose cannot conclusively rule out a finding of violation of Article 3.25 In various cases, mainly against Russia and Turkey, the Court identified an inhuman treatment of family members of persons who ‘disappeared’ in state custody. Due to the distress and anguish the applicants suffered as a result of the disappearance of their family members and their inability to find out what happened to them because of the authorities’ manner, the Court concluded a breach of Article 3.26 The moral suffering of a person who witnesses the killing of his or her family attains the minimum level of severity as well.27 An example for inhuman treatment is the ‘five techniques’28, a practice used during interrogation, which causes severe physical and 20 ECtHR, 1/6/2010 (GC), Ga ¨ fgen v GER, No. 22978/05, § 108; Ast, The Ga¨fgen Judgment of the European Court of Human Rights: On the Consequences of the Threat of Torture for Criminal Proceedings, GLJ 2010, p. 1393 et seq. 21 ECtHR, 1/6/2010 (GC), Ga ¨ fgen v GER, No. 22978/05, §§ 120 et seq. 22 ECtHR, 26/10/2000, Kudła v POL, No. 30210/96, § 92; ECtHR, 15/7/2002, Kalashnikov v RUS, No. 47095/99, § 95; ECtHR, 21/1/2011 (GC), M. S. S. v BEL a. GRE, No. 30696/09, § 220. 23 ECtHR, 28/7/1999, Selmouni v FRA, No. 25803/94, § 100; ECtHR, 10/7/2001, Price v UK, No. 33394/96, § 24; ECtHR, 4/3/2008, Tastan v TUR, No. 63748/00, § 31 (71-year-old was drafted for military service); ECtHR, 27/9/2011, Archip v ROM, No. 49608/08, §§ 57 et seq. 24 ECtHR, 16/12/1997, Raninen v FIN, No. 20972/92, §§ 55 et seq, § 58. 25 ECtHR, 19/4/2001, Peers v GRE, No. 28524/95, § 74; ECtHR, 15/7/2002, Kalashnikov v RUS, No. 47095/99, § 95. 26 See inter alia ECtHR, 2/10/2008, Lyanova a. Aliyeva v RUS, No. 12713/02 a. 28440/03, §§ 116 et seq; ECtHR, 18/9/2009 (GC), Varnava a. o. v TUR, No. 16064/90 et al, §§ 200 et seq; ECtHR, 27/9/2011, Beksultanova v RUS, No. 31564/07, §§ 105 et seq; different ECtHR, 20/5/2010, Perian a. o. v TUR, No. 12336/03, § 99; see also ECtHR, 16/4/2012, Janowiec a. o. v RUS, No. 55508/07 et al, §§ 163 et seq (‘Katyn massacre’). 27 ECtHR, 29/3/2011, Esmukhambetov a. o. v RUS, No. 23445/03, §§ 185, 189 et seq. 28 The individual must stand against a wall over a long period with eyes wide shut, he is exposed to a high level of noise, food and drinks will be reduced to a minimum and persons who fall asleep will immediatly be woken up and put back against the wall.

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II. Scope of protection and interferences

4, 5

Art. 3

mental suffering und may lead to acute psychiatric disturbances.29 Likewise, the Court found that in the case of authorities forcing an applicant to regurgitate, not for therapeutic reasons, but in order to retrieve evidence, a measure which although it was not the intention, caused both physical pain and mental suffering and therefore the applicant has been subjected to inhuman treatment contrary to Article 3.30 A measure may as well be qualified as inhuman treatment if it has severe influence on an object which is closely related to a person such as a house that belongs to the applicant, especially if this is done with the intention of subjecting the person to inhuman treatment.31 The treatment of patients confined in psychiatric hospitals has to comply with Article 3, although the use of handcuffs and a security bed was accepted if it is used as a therapeutic method.32 The imposition of a death sentence in a trail in breach of Article 6, as well 5 constitutes inhuman treatment. The Court’s argument is the following: in regard of the developments in the criminal policy of the Member States and the commonly accepted standards in that sphere, the death penalty may raise an issue under Article 3. Any prisoner condemned to death may experience severe stress and fear. In certain circumstances the imposition of such sentences may entail treatment going beyond the threshold set by Article 3 when for example a long period of time must be spent on death row in extreme conditions, with the ever present and mounting anguish of awaiting execution of the death penalty. Furthermore, the anxiety and suffering engendered can only be aggravated by the arbitrary nature of the proceedings which led to it, so that, considering the human life is at stake, the sentence thus becomes a violation of the Convention.33 While, in principle, matters of appropriate sentencing largely fall outside the scope of the Convention, a grossly disproportionate sentence can amount to illtreatment contrary to Article 3 at the moment of its imposition. However, the Court considers that it will only be in very exceptional cases that an applicant will be able to demonstrate that the sentence he or she would face would be grossly disproportionate.34 As regards cases concerning a sentence of life imprisonment the Court notes that no issue arises under Article 3 if a life sentence is de jure and de facto reducible.35 Furthermore, for a life sentence to remain compatible with 29 ECtHR, 18/1/1978, IRL v UK, No. 5310/71, § 167; different the assessment of the EComHR in its report from 25/1/1976, Irland, Yb 19, 512 (792 et seq), which qualified this method as torture. 30 ECtHR, 11/7/2006 (GC), Jalloh v GER, No. 54810/00, § 82; However, see the various deviating votes. The Court decided differently in the case of the surgically removal of swallowed drugs, as it was not aimed at gathering evidence against the applicant but was a necessary medical treatment, ECtHR, 7/10/2008, Bogumil v POR, No. 35228/03, § 77, § 81. 31 ECtHR, 24/4/1998, Selçuk a. Asker v TUR, No. 23184/94, § 77; ECtHR, 16/2/2006, Osman v BUL, No. 43233/98, §§ 63 et seq; ECtHR, 29/3/2011, Esmukhambetov a. o. v RUS, No. 23445/03, §§ 187 et seq. 32 ECtHR, 24/9/1992, Herczegfalvy v AUT, No. 10533/83, §§ 82 et seq; see further Cassese, in: Macdonald/Matscher/Petzold, p. 252; different ECtHR, 6/9/2007, Kucheruk v UKR, No. 2570/04, §§ 140 et seq. 33 ECtHR, 8/7/2004, Ilas ˛cu a. o. v MDA, No. 48787/99, §§ 429 et seq; also ECtHR, 12/5/2005 ¨ calan v TUR, No. 46221/99, § 175. (GC), O 34 ECtHR, 17/1/2012, Harkins a. Edwards v UK, No.9146/07 et al, §§ 133 f (concerning an expulsion to a non-Contracting State); ECtHR, 9/7/2013 (GC), Vinter a. o. v UK, No. 66069/09 et al, § 102; see ECtHR, 11/4/2006, Le´ger v FRA, No. 19324/02, § 72. 35 ECtHR, 9/7/2013 (GC), Vinter a. o. v UK, No. 66069/09 et al, § 108; see already ECtHR, 12/2/2008 (GC), Kafkaris v CYP, No. 21906/04, § 98.

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Article 3 there have to be both a prospect of release and a possibility of review.36 Although a measure of review is a prospective event necessarily subsequent to the passing of the sentence, whole life prisoners are entitled to know, at the outset of their sentence, what they must do to be considered for release and under what conditions, including when a review of their sentence will take place or may be sought.37

3. Degrading treatment or punishment 6

Degrading treatment or punishment is the weakest form of an infringement of Article 3. In order for a punishment to be degrading, the humiliation or debasement involved must attain a certain level and must in any event be other than the usual element of humiliation of a punishment which might be prohibited by law or morally unacceptable.38 Whereas in cases of torture or inhuman treatment significant physical and mental pain is inflicted on a person,39 in cases of degrading treatment not the infliction of pain but the humiliation is the main objective.40 A treatment is considered to be degrading when it humiliates or debases an individual, showing a lack of respect for, or diminishing, his human dignity, or arouses feelings of fear, anguish or inferiority capable of breaking an individual’s moral and physical resistance.41 In this connection, the case law shows that the Court is regularly referring to the – in the Convention not expressively mentioned – human dignity of a person. A treatment is degrading if it diminishes in effect the human dignity of the person.42 An incident where the person must have experienced a profound sense of vulnerability, powerlessness and affront which can reasonably be seen as humiliating and therefore may be considered as degrading within the meaning of Article 3.43 Whether the treatment must be qualified as degrading within the meaning of Article 3 depends on all circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim.44 The Court valuated corporal punishment based on a judicial order (i. e. birching) as degrading treatment and concluded a violation of Article 3. The Court took into account that corporal punishment based on judicial order involves one human being inflicting physical violence on another human being. Institutionalised violence and the way in which a penalty is executed are the main arguments for the finding of a violation of the person’s dignity. The fact that birching was not executed in public and that the applicant did not suffer any severe or long-lasting physical effects, did not alter the qualification as degrading treat36

ECtHR, 9/7/2013 (GC), Vinter a. o. v UK, No. 66069/09 et al, § 110. ECtHR, 9/7/2013 (GC), Vinter a. o. v UK, No. 66069/09 et al, § 122. 38 ECtHR, 25/4/1978, Tyrer v UK, No. 5856/72, § 30. 39 ECtHR, 7/7/1989, Soering v UK, No. 14038/88, § 100 with further references. 40 Cassese, in: Macdonald/Matscher/Petzold, p. 243 with further references in the case law. 41 ECtHR, 21/1/2011 (GC), M. S. S. v BEL a. GRE, No. 30696/09, § 220. 42 ECtHR, 24/7/2001, Valasinas v LTU, No. 44558/98, § 102, 117; ECtHR, 11/12/2003, Yankov v BUL, No. 39084/97, § 104; ECtHR, 21/1/2011 (GC), M. S. S. v BEL a. GRE, No. 30696/09, § 220. 43 ECtHR, 28/7/2009, Rachwalski u. Ferenc v POL, No. 47709/99, § 61. 44 ECtHR, 25/2/1982, Campbell a. Cosans v UK, No. 7511/76, § 30; ECtHR, 7/7/1989, Soering v UK, No. 14038/88, § 100 with further references; ECtHR, 27/6/2000, Ilhan v TUR, No. 22277/93, § 84; ECtHR, 3/4/2001, Keenan v UK, No. 27229/95, § 108; ECtHR, 2/12/2004, Farbtuhs v LAT, No. 4672/02, § 56; ECtHR, 16/10/2008, Renolde v FRA, No. 5608/05, § 119. 37

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II. Scope of protection and interferences

6

Art. 3

ment.45 The Court decided otherwise in the case of corporal punishment where a student got five ‘whacks’ in accordance with the school’s disciplinary regime. In this case the applicant has adduced no evidence of any severe or long-lasting effects as a result of the treatment complained of and the minimum level of severity has not been attained, consequently no violation of Article 3 was found.46 In the case of a soldier who was subjected to forced physical exercise to the point of physical collapse by a military commander in full knowledge of the man’s specific health problems, it concluded that the treatment was inhuman punishment in breach of Article 3.47 Likewise, the detention of a severely disabled person in conditions where she was dangerously cold and risked developing sores because her bed was too hard or unreachable, and was unable to go to the toilet or keep clean without greatest of difficulty, constituted a degrading treatment contrary to Article 3.48 The Court considered the random weekly body search in a highsecurity prison as inhuman treatment49 just like the unnecessary stripping of a handcuffed applicant by the police in order to search the person after he was arrested,50 or the gynaecological examination of a minor in custody without consent.51 Degrading treatment was further assumed in a case in which authorities took away partly broken glasses from a severely sight-impaired detainee for five months, glasses which could have alleviated the daily difficulties the applicant faced before he received his new glasses.52 Furthermore police questioning of witnesses for nine hours and a half without food or water constitutes degrading treatment.53 The circumstances, under which a paraplegic applicant was left at the mercy of his cellmates in receiving assistance to relieve himself, bathe, get dressed and undressed, constituted degrading treatment.54 The holding of a person in a metal ‘cage’ during court hearings constitutes degrading treatment if there is no specific security risk, the trial attracts considerable media attention, the person was accused of non-violent crimes and had no criminal record,55 Interferences with the right to self-determination of women concerning contraception and abortion may lead to a violation of Article 3. In the V. C. Case the Court found a violation of Article 3 because of the sterilisation of a Roma woman in a public hospital without her informed consent, although there was no indication that the medical staff acted with the intention of ill-treating her.56 Furthermore in R. R. v Poland the Court considered the deliberate denial of timely access to genetic tests to which a pregnant woman, who was carrying a child thought to be suffering 45

ECtHR, 25/4/1978, Tyrer v UK, No. 5856/72, §§ 30 et seq. ECtHR, 25/3/1993, Costello-Roberts v UK, No. 13134/87, § 32; see further ECtHR, 25/2/1983, Campbell a. Cosans v UK, No. 7511/76, §§ 29 et seq. 47 ECtHR, 3/7/2008, Chember v RUS, No. 7188/03, §§ 56 et seq. 48 ECtHR, 10/7/2001, Price v UK, No. 33394/96, § 30. 49 ECtHR, 4/2/2003, Lorse ´ a. o. v NED, No. 52750/99, §§ 72 et seq; ECtHR, 4/2/2003, van der Ven v NED, No. 50901/99, §§ 60 et seq. 50 ECtHR, 22/2/2007, Wieser v AUT, No. 2293/03, §§ 40 ff. 51 ECtHR, 1/2/2011, Yazgu ¨ l Yilmaz v TUR, No. 36369/06, § 53. 52 ECtHR, 20/4/2010, Slyusare.v RUS, No. 60333/00, §§ 42 et seq. 53 ECtHR, 22/2/2011, Soare a. o. v ROM, No. 24329/02, § 222. 54 ECtHR, 20/5/2010, Engel v HUN, No. 46857/06, §§ 27 et seq. 55 ECtHR, 31/5/2011, Khodorkovskiy v RUS, No. 5829/04, §§ 123 et seq; see also ECtHR 20/9/2012, Titarenko v UKR, No. 31720/02, §§ 62 et seq. 56 ECtHR, 8/11/2011, V. C. v SVK, No. 18968/07, §§ 100 et seq; see further ECtHR 12/6/2012, N. B. v. SVK, No. 29518/10, §§ 71 et seq. 46

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from a severe genetic abnormality, was entitled as treatment contrary to Article 3.57 In this case the Court took in particular into account that the pregnant woman was in a position of great vulnerability and that she obtained the results of the tests when it was already too late for her to make an informed decision on whether to continue the pregnancy or to have recourse to legal abortion. Similarly, the Court concluded a breach of Article 3 in the case of a teenage girl, who had become pregnant as a result of rape and encountered various difficulties in obtaining access to an abortion, such as harassment, procrastination of medical staff, lack of proper counselling and deprivation of liberty.58 The Convention does not impose an obligation on the State to provide financial support for fugitives. In the M.S.S. Case the Court classified the circumstances in which the refugee was forced to live as degrading, because of the excessive duration of the procedure and the fact that the applicant was not able to get access to the aid provided by law due to the failure of the authorities.59 In addition, also legislation may be degrading. According to the Court, a law stating that in order to confer an illegitimate child the status of a ‘legitimate’ child, her mother would have to legitimate her and, hence, to contract marriage, the Court took the view that the legal rules at issue probably present some aspects of humiliation, but that these aspects do not constitute degrading treatment coming within the ambit of Article 3.60 High social security costs, which, according to the applicant, force her to pursue a former job as a prostitute, do not violate Article 3.61

III. No justification of an interference with Article 3 7

According to its wording, Article 3 makes no provision for exceptions. Thus, whenever a case of torture, inhuman or degrading treatment or punishment is found, automatically entails that the fundamental right has been violated. The Court expressively held that even in circumstances of immense contrary interests, the Convention prohibits torture in absolute terms and therefore a breach of Article 3 may never be justified.62 However, it has been discussed on various occasions whether in very exceptional circumstances an exception from the prohibition of torture might be permissible. Specifically, the question arises whether a State is allowed to use torture or threaten with torture in order to save the life of one or more individuals.63 The assumption that the freedom from torture could be subject to limitations is in particular based on the reference to the right to life provided by Article 2 – in which the State is allowed to interfere under certain circumstances (see above Article 2 m.n. 6 et seq). 57

ECtHR, 26/5/2011, R. R. v POL, No. 27617/04, §§ 153 et seq. ECtHR, 30/10/2012, P. a. S. v POL, No. 57375/08, § 157 et seq. 59 ECtHR, 21/1/2011, M. S. S. v BEL a. GRE, No. 30696/09, §§ 249 et seq. 60 ECtHR, 13.6.1979, Marckx v BEL, No. 6833/74, §§ 66 et seq; although a violation of Article 8 was found. 61 ECtHR, 11.9.2007, Tremblay v FRA, No. 37194/02, § 33 ff. S. dazu Larralde, La France, Etat proxe´ne`te?, RTDH 2009, 195 ff. 62 ECtHR, 15/11/1996, Chahal v UK, No. 22414/93, §§ 79 et seq; ECtHR, 1/6/2010 (GC), Ga ¨ fgen v GER, No. 22978/05, § 87. 63 Addo/Grief, Does Article 3 of The European Convention on Human Rights Enshrine Absolute Rights?, EJIL 9 (1998), 510 et seq. 58

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III. No justification of an interference with Article 3

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Art. 3

Since the State would be allowed to kill but not torture a person in order to save another person’s life, this would result in a contradiction in value between these two fundamental rights.64 Initially, one argument against the assumption that interferences with the freedom from torture can be justified is the clear wording of Article 3. Especially in comparison with the right to life in Article 2, in which paragraph 2 contains an exhaustive number of exceptions from the prohibition of the deprivation of life, it shows that Article 3 does not even provide for specific, narrow exceptions from the prohibition of torture.65 A systematic argument follows from Article 15 (2). The prohibition of torture is included in the list of rights – just like the prohibition of slavery and the guarantee of no punishment without law – which are declared nonderogable.66 Not even in the event of a ‘public emergency threatening the life of the nation’ derogation is permitted for the State. On the contrary an exception from the right to life guaranteed in Article 2 might be justified in cases of the deprivation of life due to lawful acts of war. In this respect the Convention differentiates between the right to life and the prohibition of torture. Eventually, it can as well not follow from the reference to the States’ obligations to protect the life of (potential) victims that a limitation of the prohibition of torture is justified. The assumption of these obligations deriving from Article 2 is rather limited at the point where the fulfilment of such obligation would constitute a violation of the prohibition of torture.67 In the context of combating terrorism the Court held that it is not possible to weigh the risk of ill-treatment against the reasons put forward for the ill-treatment (i. e. the dangerousness of the affected person), with the consequence that such weighting is contrary to Article 3. It would also be incorrect to require a higher standard of proof for the risk of ill-treatment where the person is considered to represent a serious danger to the community, since assessment of the level of risk is independent of such a test.68 According to the Court Article 3 guarantees that every human being has an absolute, inalienable right not to be subjected to torture or to inhuman or degrading treatment under any circumstances, even the most difficult.69 However, when the Court examines a possible interference with Article 3, it weighs the different interests in order to determine whether the required degree of severity is present in the case.70 The outcome of the examination depends on all circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, sex, age and state of health of the victim. The Court further takes into account, the purpose of the treatment as well as the underlying motivation plus the context in which the treatment took place.71 Such justification of ill-treatment – provided that it was necessary and appropriate and not excessive in relation to the 64

Grabenwarter/Pabel, § 20, m.n. 32 with further references. Grabenwarter/Pabel, § 20, m.n. 32 with further references. 66 The ECtHR also refers to it see ECtHR, 15/11/1996, Chahal v UK, No. 22414/93, § 79. 67 Grabenwarter/Pabel, § 20, m.n. 32 with further references. 68 ECtHR, 28/2/2008 (GC), Saadi v ITA, No. 37201/06, §§ 138 et seq (absolute character of the non-refoulement prohibition). 69 ECtHR, 1/6/2010 (GC), Ga ¨ fgen v GER, No. 22978/05, §§ 107 et seq. 70 See already above m.n. 6. 71 ECtHR, 6/4/2000 (GC), Labita v ITA, No. 26772/95, § 120; ECtHR, 1/6/2010 (GC), Ga ¨ fgen v GER, No. 22978/05, § 88 (an intense emotional situation). 65

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objective set – may be given in cases of police authorities conducting an operation, the police interrogating a suspect and the execution of sentences.72 In cases of expulsion and extradition, however, the Court when assessing whether the minimum level of severity has been attained for the purposes of Article 3 notes that the reasons for removal or extradition must not be balanced against the risk of ill-treatment if a person is returned.73

IV. Positive obligations 8

Besides the obligation for the State to refrain from all actions prohibited by the freedom from torture, positive obligations derive from Article 3. According to this provision, the Member States are obliged to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment or punishment.74 Such positive obligation arises for the State in cases of a real and immediate risk to the physical or psychological integrity of an individual, together with a reasonable likelihood for the violation to occur. In this regard it is immaterial whether the risk derives from the State or a third party.75 A positive obligation for the State exists in situations in which the physical well-being of a person depends on measures taken by the State. Within their control, authorities are under the obligation to take the necessary measures to prevent further harm to the individual’s life and limb.76 Especially, but not exclusively, in cases of individuals being closely related to the State – such as detainees in state custody or members of the military – the State is under such positive obligation. Similarly, appropriate measures must be taken in order to prevent persons from ill-treatment exercised by private individuals.77 Even suffering which flows from naturally occurring illness may raise an issue under Article 3 where it is, or risks being exacerbated by treatment stemming from measures for which the authorities can be held responsible. In the latter situation, however, the threshold is high.78 According to the Court unaccompanied minors seeking for asylum come within the class of highly vulnerable members of society. Therefore state authorities are required to take adequate measures to provide them with care and protection.79 72 ECtHR, 2/4/2009, Muradova v AZE, No. 22684/05, § 109; ECtHR, 17/9/2009 (GC), Enea v ITA, No. 74912/01, §§ 64 et seq; ECtHR, 3/11/2009, Staszewska v POL, No. 10049/04, § 53; ECtHR, 20/1/2011, Payet v FRA, No. 19606/08, § 64; for expulsion and extradition see m.n. 13 et seq; for police operations see m.n. 10 and for imprisonment see m.n. 11. 73 ECtHR, 17/1/2012, Harkins a. Edwards v UK, No. 9146/07 et al, §§ 124 et seq; ECtHR, 10/4/2012, Babar Ahmad a. o. v UK, No. 24027/07, §§ 172 et seq. 74 ECtHR, 23/9/1998, A. v UK, No. 25599/94, § 22; ECtHR, 10/10/2002, D. P. a. J. C. v UK, No. 38719/97, § 109. 75 ECtHR, 19/1/2010, Muskhadzhiyeva a. o. v BEL, No. 41442/07, §§ 55 et seq; ECtHR, 9/6/2009, Opuz v TUR, No. 33401/02, § 159. 76 ECtHR, 17/12/2009, Denis Vasilyev v RUS, No. 32704/04, § 115; ECtHR, 1/2/2011, Ebcin v TUR, No. 19506/05, §§ 36, 41 et seq. 77 See for example ECtHR, 23/9/1998, A. v UK, No. 25599/94, § 22; ECtHR, 10/5/2001, Z. a. o. v UK, No. 29392/95, §§ 74 et seq; ECtHR, 10/10/2002, D. P. a. J. C. v UK, No. 38719/97, § 109; see m.n. 18. 78 ECtHR, 13/11/2012, Hristozov a. o. v BUL, No. 47039/11 et al, § 111; cf. ECtHR, 27/5/2008 (GC), N. v UK, No. 26565/05, § 29, 43. 79 ECtHR, 5/4/2011, Rahimi v GRE, No. 8687/08, §§ 87 et seq.

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V. Cases of ill-treatment

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Article 3 also includes a procedural obligation to investigate. According to Article 3, the State is obliged to conduct an effective and official investigation into all cases of suspected torture or inhuman or degrading treatment in state custody, as well as into all other suspicious incidents in this sense.80 In circumstances where an individual raises an arguable claim that he has been ill-treated unlawfully and in breach of Article 3, it requires that there should be an effective official investigation, which should be capable of leading to the identification and punishment of those responsible.81 This obligation to investigate also applies to cases where the illtreatment contrary to Article 3 was not exercised by people attributable to the State.82 Similar to the requirements following from the right to life in Article 2, it is necessary for the persons responsible for and carrying out the investigation to be independent from those involved in the events.83 The national authorities have to react promptly to a complaint or evidence and the investigation must be expeditious. They must take all reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony and forensic evidence. 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.84

V. Cases of ill-treatment The obligations for Member States have been established in numerous judgments 9 of the Court. These include cases of police operations, medical or other treatment of detainees, expulsion and extradition and protection from ill-treatment exercised by private persons.

1. Police operations Article 3 does not in general prohibit the use of force in cases of police 10 operations, for example for the purpose of arresting somebody.85 Recourse to physical force which was not strictly necessary with a view to the person’s conduct diminishes human dignity and is in principle an infringement of the right set forth in Article 3.86 Thus, already at the stage of determining whether the action of a police force attains the minimum level of severity and therefore whether the treatment falls within the scope of Article 3, the principle of proportionality is applied. 80

Grabenwarter/Pabel, § 20, m.n. 33 with further references. ECtHR, 28/10/1998, Assenov a. o. v BUL, No. 24760/94, § 102; ECtHR, 30/9/2004, Krastanov v BUL, No. 50222/99, § 57; see also ECtHR, 2/11/2004, Martinez Sala a.o. v ESP, No. 58438/00, §§ 158 et seq. 82 ECtHR, 4/12/2003, M. C. v BUL, No. 39272/98, § 151; ECtHR, 14/12/2010, Milanovic ´ v SRB, No. 44614/07, § 85. 83 ECtHR, 5/10/2004, Barbu Anghelescu v ROM, No. 46430/99, §§ 66 et seq; ECtHR, 12/10/2004, Bursuc v ROM, No. 42066/98, §§ 100 et seq; see also m.n. 22. 84 ECtHR, 4/4/2006, Corsacov v MDA, No. 18944/02, §§ 69 et seq; ECtHR, 14/12/2010, Milanovic ´ v SRB, No. 44614/07, § 86; see ECtHR, 27/9/2011, M. a. C. v ROM, No. 29032/04, §§ 116 et seq. 85 ECtHR, 2/4/2009, Muradova v AZE, No. 22684/05, § 109; ECtHR, 3/11/2009, Staszewska v POL, No. 10049/04, § 53. 86 Instead of many ECtHR, 28/7/2009, Rachwalski a. Ferenc v POL, No. 47709/99, § 59; ECtHR, 20/10/2009, Kop v TUR, No. 12728/05, § 27. 81

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If 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.87 The State must provide a plausible explanation of how those injuries were caused.88 This requirement for authorities to prove that the course of action was necessary in the specific situation also applies to the use of force in a police operation (i. e. during a demonstration). In the Muradova Case the Court found that the authorities used force against protesters in an excessive way and therefore concluded that there was a violation of Article 3. However, Article 3 does not in general prohibit the use of force against riotous protesters for the purpose of restoring order. In the present case though, the authorities have not furnished any arguments which would provide a basis to explain or justify the degree of force used against the applicant who at the time of the incident was trying to leave the demonstration in an attempt to avoid danger.89 In contrast, in the Protopapa Case the Court did not consider it established beyond reasonable doubt that the applicant was subjected to treatment contrary to Article 3 at a demonstration or that the authorities had recourse to physical force which had not been rendered strictly necessary by the applicant’s own behaviour.90

2. Treatment of detainees 11

The conditions of detention and treatment of detainees or people in police custody forms another group of cases. In these cases it is assumed that the State is obliged to fulfil a minimum standard of conditions in prisons.91 The conditions of enforcement of a prison sentence must be compatible with the respect for the human dignity of the detainee.92 A prisoner shall not be subjected to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention.93 In particular the conditions of detention must not result in serious damage to the health of the detainee.94 In view of the individual case, the Court has regard to the cumulative effects of the regime to which the detainee was subjected and the material conditions in which he was kept.95 Measures of restraint have to be adapted to the personal situation and the individual risk a detainee poses.96 These requirements also apply to the conditions in which detainees are transported.97 When examining the compliance of the general conditions of detention with Article 3, the Court considers not only the specific accusations of the applicant but 87

ECtHR, 12/5/2009, Mrozowski v POL, No. 9258/04, § 26. ¨ zcan a.o. v TUR, No. 18893/05, §§ 78 et seq. ECtHR, 20/4/2010, O 89 ECtHR, 2/4/2009, Muradova v AZE, No. 22684/05, § 133. 90 ECtHR, 24//2009, Protopapa v TUR, No. 16084/90, § 48. 91 Grabenwarter/Pabel, § 20, m.n. 35 with further references. 92 ECtHR, 26/10/2000, Kudła v POL, No. 30210/96, §§ 92 et seq; ECtHR, 15/7/2002, Kalashnikov v RUS, No. 47095/99, § 95; ECtHR, 29/4/2003, Poltoratskiy v UKR, No. 38812/97, § 132. 93 ECtHR, 11/12/2003, Yanko v BUL, No. 39084/97, §§ 112 et seq (degrading treatment by removing hair of a prisoner); ECtHR, 3/2/2009, Kaprykowski v POL, No. 23052/05, §§ 68 et seq. 94 ECtHR, 6/3/2001, Dougoz v GRE, No. 40907/98, §§ 45 et seq; ECtHR, 3/4/2001, Keenan v UK, No. 27229/95, § 110; ECtHR, 19/4/2001, Peers v GRE, No. 28524/95, § 75; ECtHR, 29/4/2003, Poltoratskiy v UKR, No. 38812/97, § 132. 95 ECtHR, 10/8/2006, Dobrev v BUL, No. 55389/00, § 138. 96 ECtHR, 15/5/2012, Kaverzin v UKR, No. 23893/03, § 155 et seq; ECtHR, 20/1/2011, Kashavelov v RUS, No. 891/05, § 39 (systematic use of handcuffs). 97 ECtHR, 22/5/2012 (GC), Idalov v RUS, No. 5826/03, §§ 103 et seq. 88

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also the cumulative effects of the conditions. It evaluates a possible lack of personal space afforded to the detainees, coldness of the cell, overcrowded cells, insufficient access to daylight and poor sanitary conditions, access to natural light or air, adequacy of heating arrangements, the opportunity to use the toilet in private, as well as the duration of the detention under the given circumstances.98 In the Kalashnikov Case the Court had to examine the conditions of detention in a Russian prison. It concluded a violation of Article 3 due to inhuman treatment, even though there was no indication that there was a positive intention of humiliating or debasing the applicant. The cell in which the applicant was detained measured approximately 20 m2 and was designed for 8 inmates. Furthermore the applicant and other inmates contracted various diseases given the poor sanitary conditions.99 With regard to such conditions of prisons, found mainly in Russia and other Eastern European countries, the Court repeatedly concluded a violation of Article 3.100 In a series of cases the Court held that the conditions under which asylum seekers are detained in Greece constitute a violation of Article 3. In doing so, the Court took into account that the States which form the external borders of the EU are currently experiencing considerable difficulties in coping with the increasing influx of migrants and asylum seekers and that the situation is exacerbated by the transfers of asylum seekers by other Member States in application of the Dublin Regulation. However it deems an absolute obligation for the States to comply with Article 3.101 Especially the detention in an overcrowded place in appalling conditions of hygiene and cleanliness, a confined space with no possibility of taking a walk, without proper meals usually amount to degrading treatment.102 Solitary confinement is not in principle regarded as incompatible with Article 3.103 In the individual case though may the severity of the measure, the duration and the purpose of the isolation, as well as the effects on the applicant lead to a different outcome.104 The concrete circumstances are hence decisive for the legitimacy of solitary confinement. Limitations of the legitimacy can be found if the detention causes severe physical and psychological suffering and is used for the purpose of obtaining a confession.105 The Court regarded the access to a

98 ECtHR, 22/12/2009, Norbert Sikorski v POL, No. 17599/05; §§ 128 et seq; ECtHR, 10/6/2010, Zakharin v RUS, No. 1555/04, § 122; ECtHR, 15/6/2010, Ciupercescu v ROM, No. 35555/03, §§ 127 et seq. 99 ECtHR, 15/7/2002, Kalashnikov v RUS, No. 47095/99, §§ 97 et seq; see further Grabenwarter/ Pabel, § 20, m.n. 36 with further references. 100 Instead of many ECtHR, 29/4/2003, Poltoratskiy v UKR, No. 38812/97, §§ 145 et seq; ECtHR, 11/3/2004, Iorgov v BUL, No. 40653/98, §§ 80 et seq; ECtHR, 8/11/2005, Alver v EST, No. 64812/01, §§ 52 et seq. 101 ECtHR, 21/1/2011 (GC), M. S. S. v BEL a. GRE, No. 30696/09, § 223. 102 ECtHR, 21/1/2011 (GC), M. S. S. v BEL a. GRE, No. 30696/09, § 222, 227 et seq; see also ECtHR, 5/4/2011, Rahimi v GRE, No. 8687/08, §§ 81 et seq (concerning an unaccompanied minor). 103 ECtHR, 4/2/2003, Lorse ´ a. o. v NED, No. 52750/99, §§ 65 et seq; ECtHR, 4/2/2003, van der Ven v NED, No. 50901/99, §§ 53 et seq; ECtHR, 4/7/2006 (GC), Ramirez Sanchez v FRA, No. 59450/00, §§ 131 et seq; ECtHR, 10/4/2012, Babar Ahmad a. o. v UK, No. 24027/07, §§ 205 et seq. 104 ECtHR, 29/9/2005, Mathew v NED, No. 24919/03, §§ 197 et seq (imprisonment in an isolated cell which did not provide shelter from weather conditions in Aruba); ECtHR, 16.10.2008, Renolde v FRA, No. 5608/05, § 129 (45 days solitary confinement for a mentaly ill detainee). 105 Grabenwarter/Pabel, § 20, m.n. 36 with further references.

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television and newspapers, language lessons, contact with a counsel and a lawyer, as well as regular visits from family members, as mitigating circumstances.106 Furthermore, Article 3 of the Convention establishes a positive obligation for the State to train its police authorities in such manner as to ensure their high level of competence in their professional conduct so that no one is subjected to torture or treatment that runs contrary to that provision.107 This also presupposes that the police force can cope with rather difficult detainees without having to use force.108 Beyond that the facility staff has to respond to prison violence in a prompt way, ensuring that a detainee is protected from further abuse by inmates and that potential predators and potential victims are not housed together. Therefore a proper classification system which includes screening for the risk of victimisation and abusiveness, consideration of the traits known to place someone at risk and of an individual’s own perception of vulnerability is critical.109 In general, a state complies with its obligation to ensure that a person is detained in conditions respecting his human dignity when it provides sufficient medical services.110 More concretely the obligation to care for ill detainees includes three different duties: the State must be convinced that the health of a person allows an imprisonment, it has to ensure an adequate (and timely)111 medical treatment and it has to adapt the conditions of the detention to the individuals health.112 Although the Court recognises that medical assistance available in prison hospitals may not always be of the same standard as in the best medical institutions for the general public, the national authorities must ensure that diagnosis and care in detention facilities are prompt and accurate, and that where necessitated by the nature of a medical condition, supervision is regular and involves a comprehensive therapeutic strategy aimed at ensuring the detainee’s recovery or at least preventing his or her condition from worsening.113 In the case of a seriously ill or aged person, the particular physical and psychological situation of the person concerned has to be respected when placing and treating the detainee.114 The detention of a seriously ill person with a limited life expectancy does not in itself constitute degrading treatment.115 Whereas certain conditions like the absence of a lift, standing alone, will not be sufficient to run afoul of Article 3 requirements, applied to a disabled individual who depends on a wheelchair for mobility, they constitute a breach of 106 ECtHR, 21/7/2005, Rohde v DEN, No. 69332/01, § 97; ECtHR, 4/7/2006 (GC), Ramirez Sanchez v FRA, No. 59450/00, § 134. 107 So for example ECtHR, 1/7/2010, Davydov a. o. v UKR, No. 17674/02 et al, § 268 see for training activities with law enforcement authorities. Such activities must have the purpose of avoiding any ill-treatment contrary to Article 3. 108 ECtHR, 22/12/2009, Palushi v AUT, No. 27900/04, § 63. 109 ECtHR, 10/2/2011, Premininy v RUS, No. 44973/04, § 87. 110 ECtHR, 10/3/2009 (GC), Paladi v MDA, No. 39806/05, § 72 (no sufficient medical care). 111 ECtHR, 8/9/2011, Oshurko v UKR, No. 33108/05, § 82. 112 ECtHR, 18/12/2008, Ukhan v UKR, No. 30628/02, § 74, 83; ECtHR, 24/2/2009, Poghossian v GEO, No. 9870/07, §§ 46 et seq; ECtHR, 9/9/2010, Xiros v GRE, No. 1033/07, §§ 73 et seq. 113 ECtHR, 30/7/2009, Pitalev v RUS, No. 34393/03, § 54; ECtHR, 10/1/2012, Vladimir Vasilyev v RUS, No. 28370/05 § 58. 114 ECtHR, 14/11/2002, Mouisel v FRA, No. 67263/01, § 45; ECtHR, 2/12/2004, Farbtuhs v LAT, No. 4672/02, §§ 56 et seq; ECtHR, 11/7/2006, Rivie`re v FRA, No. 33834/03, §§ 73 et seq (concerning a suicidal detainee); Ce´re´, Le maintien en de´tention de malades graves constitue un traitement inhumain et de´gradant, RTDH 2003, 1007 et seq. 115 ECtHR, 14/12/2004, Gelfmann v FRA, No. 25875/03, §§ 54 et seq (person suffering from AIDS).

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Article 3.116 If a state refuses to provide a kind of medical treatment to a detainee – a treatment to which the general public has access and this endangers the prisoner’s life or health – a violation of Article 3 may also be concluded.117 On the whole the standard should be compatible with the human dignity of a detainee but should also take into account the practical demands of imprisonment.118 In the Testa Case not only the unhygienic and unreasonable environment for the applicant suffering from Hepatitis C amounted to the breach of Article 3. The prisoner was also not adequately informed about her medical condition and was as well not provided with proper medical care although she was regularly consulting a doctor.119 As far as the applicant claims a violation of his fundamental right because of ill- 12 treatment in state custody or detention, not the general principle according to which the applicant has to provide the prima facie evidence applies, the case law in Strasbourg modified this principle due to the difficult situation of a person in state custody in order to provide such evidence. Based on the special status of the individual affected and the subsequent State authorities’ obligations to care for the individual in custody, the applicant who complaints about an ill-treatment must at first only prove the corresponding injury (i. e. by a medical certificate). The authorities are then obliged to clarify how the injury occurred, for example by bringing forward that the individual was already injured before he was arrested, or that his injuries were self-inflicted, or that they could have also occurred in everyday prison life.120 The Court then reviews on the basis of all available information if the Governments statements provide a plausible explanation of how the injury occurred. The consistency and preciseness of the respective argument are decisive.121

3. Expulsion and extradition The prohibition of inhuman or degrading treatment became especially relevant for 13 the case law of the Court in Strasburg in the event of measures terminating a residence as in the case of expulsion and extradition. As a result – and due to the positive obligations deriving from Article 3 – national laws are subjected to specific requirements.122 It must be noted that the right to political asylum or residence in a Member State is not contained in the Convention.123 According to the case law 116

ECtHR, 10/1/2012, Arutyunyan v RUS, No. 48977/09, §§ 77 et seq. ECtHR, 16/2/2010, V. D. v ROM, No. 7078/02, § 92 (refusal to provide removable dentures for a prisoner who has become toothless during detention). 118 ECtHR, 22/1/2008, Aleksanyan v RUS, No. 46468/06, § 140; ECtHR, 27/11/2012, Dirdizov v RUS, No. 41461/10, § 89, 99. 119 ECtHR, 12/7/2007, Testa v CRO, No. 20877/04, §§ 51 et seq. 120 Cassese, in: Macdonald/Matscher/Petzold, p. 251. 121 So ECtHR, 27/8/1992, Tomasi v FRA, No. 12850/87, §§ 114 et seq; ECtHR, 4/12/1995, Ribitsch v AUT, No. 18896/91, §§ 34 et seq; ECtHR, 13/6/2002, Anguelova v BUL, No. 38361/97, §§ 147 et seq; ECtHR, 20/7/2004, Balogh v HUN, No. 47940/99, §§ 47 et seq; ECtHR, 20/7/2004, Mehmet Emin Yu¨ksel v TUR, No. 40154/98, §§ 26 et seq; ECtHR, 12/10/2004, Bursuc v ROM, No. 42066/98, §§ 102 et seq; ECtHR, 2/11/2004, Martinez Sala a. o. v ESP, No. 58438/00, § 145 (no adequate explaination). 122 Bossuyt, Judges on thin Ice: The European Court of Human Rights and the Treatment of Asylum Seekers, Int. Am.&Eur. Hum. Rts. J. 2010, p. 3. 123 So the established case law of the Convention bodies, see for example ECtHR, 30/10/1991, Vilvarajah a. o. v UK, No. 13163/87, § 102; ECtHR, 15/11/1996, Chahal v UK, No. 22414/93, §§ 73 et seq; cf. Danelius, Protection against Torture in Europe and the World, in: Macdonald/Matscher/ Petzold, p. 269. 117

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expulsion or extradition of an asylum seeker by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned faced a real risk of being subjected to torture or to inhuman or degrading treatment or punishment within the scope of Article 3 in the country to which he was returned.124 However, there seem to be arguments against such responsibility for a State, since an ill-treatment occurring after one State expelled the individual to another State, is administered by that other State.125 Nevertheless, under certain circumstances a Member State handing over a person to another State’s authority is responsible under the Convention.126 Since it is immaterial for the individual subjected to ill-treatment contrary to the Convention if the ill-treatment occurs due to his expulsion or due to the denial of access into the country, also refusing entry into a Member State may fall within the scope of protection under Article 3.127 It is the State’s responsibility to take appropriate measures at an early stage in order to prevent and counter a danger threatening the subject of protection, regardless where the danger derives from. For this reason it appears consistent when the Court concludes a breach of Article 3 – and therefore a prohibition of expulsion – in the case of a deportation to Somalia where the applicant would have been exposed to torture or inhuman or degrading treatment not by a state authority but due to the civil war and fighting going on in Somalia at that time.128 In the particular case though the Court placed higher demands on the expositions of the applicant, who had to prove not only the threat of attacks by clans vying with each other for control of the country, but also that no local authority would be willing or be able to effectively protect him.129 14 According to the Court’s case law deportation is prohibited under Article 3 if the applicant had a strong claim to be at real risk of ill-treatment in event of his deportation. In case of a deportation that is not executed yet, the Court therefore has to assess the risk of such ill-treatment in the host State.130 In any examination of whether an applicant faces a real risk of ill-treatment in the country to which he is to be removed, the Court considers both the general human rights situation in that country and the particular characteristics of the applicant.131 In a case where

124 ECtHR, 7/7/1989, Soering v UK, No. 14038/88, § 91; ECtHR, 20/3/1991, Cruz Varas v SWE, No. 15576/89, §§ 69 et seq; ECtHR, 30/10/1991, Vilvarajah a. o. v UK, No. 13163/87, § 103; ECtHR, 6/3/2001, Hilal v UK, No. 45276/99, § 59; EComHR, 12/3/1984, Kirkwood v UK, No. 10479/83; see further Ganshof van der Meersch, L‘extradition et la Convention europe´enne des droits de l’Homme, RTDH 1990, 5 et seq. 125 Danelius, in: Macdonald/Matscher/Petzold, p. 270; see also Cassese, in: Macdonald/Matscher/ Petzold, p. 249. 126 Vogler, The scope of extradition in the light of the European Convention on Human Rights, Studies in honour of Georg Wiarda, p. 667. 127 Grabenwarter/Pabel, § 20, m.n. 40 with further references. 128 ECtHR, 17/12/1996, Ahmed v AUT, No. 25964/94, §§ 43 et seq; ECtHR, 29/4/1997, H. L. R. v FRA, No. 24573/94, §§ 37 et seq; ECtHR, 2/5/1997, D. v UK, No. 30240/96, §§ 51 et seq. 129 Grabenwarter/Pabel, § 20, m.n. 40 with further references. 130 See the Court’s approach when assessing the risk in ECtHR, 17/7/2008, N. A. v UK, No. 25904/07, §§ 142 et seq; ECtHR, 20/1/2009, F.H. v SWE, No. 32621/06, §§ 97 et seq. 131 ECtHR, 30/10/1991, Vilvarajah a. o. v UK, No. 13163/87, § 108; ECtHR, 28/6/2011, Sufi a. Elmi v UK, No. 8319/07 et al, § 215; ECtHR, 17/1/2012, Othman (Abu Qatada) v UK, No. 8139/09, § 187.

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assurances have been provided by the receiving State, those assurances constitute a further relevant factor which the Court will consider.132 In the Court’s view obtaining diplomatic assurances is one of the most important safeguards with a view to ensuring that a person will not be subjected to treatment contrary to the Convention upon his or her return.133 However, assurances are not in themselves sufficient to ensure adequate protection against the risk of ill-treatment. There is an obligation to examine whether assurances provide, in their practical application, a sufficient guarantee that the applicant will be protected against the risk of ill-treatment. The weight to be given to assurances from the receiving State depends, in each case, on the circumstances prevailing at the material time.134 In the Chahal Case, the applicant an Indian supporting Sikh separatism, was expelled to India because he was suspected of supporting terrorist activities. The applicant was afraid that he would be subjected to torture once he would be expelled to India. After the Court evaluated all material and allegations it was persuaded that due to the fact that the applicant was well-known for being a supporter of the Sikh separatism, that there is a real risk of him being subjected to treatment contrary to Article 3 if he is returned to India.135 In determining whether it has been substantiated that there is a real risk that the applicant if expelled to India, would be ill-treated, the Court considered the assurance from the Indian Government that it would treat the applicant in a human way, however the Government’s assurance was not significant for the Court’s decision.136 In the Saadi Case the applicant – a member of a terrorist organisation – was as well, if expelled, at risk of being subjected to torture in the host State. In that connection, the Court pointed out that, even if authorities had given diplomatic assurances, still that would not have absolved the Court from its obligation to examine whether the applicant would be protected against the risk of treatment prohibited by the Convention.137 Furthermore the Court observed that the existence of domestic laws and the ratification of international treaties guaranteeing respect for fundamental rights were not in themselves sufficient to ensure adequate protection against the risk of ill-treatment where reliable sources had reported practices contrary to the principles of the Convention.138 In certain circumstances, even an expulsion or extradition to a Convention State may constitute a violation of Article 3.139 The transfer of an asylum seeker from one EU member state to another EU member state in accordance with the Dublin II Regulations may be contrary to the Convention.140 In the M.S.S. Case the Court had to decide on the transfer of an asylum seeker from Belgium to Greece on the basis of 132

ECtHR, 17/1/2012, Othman (Abu Qatada) v UK, No. 8139/09, § 187. ECtHR, 31/1/2012, M. S. v BEL, No. 50012/08, § 131. 134 ECtHR, 17/1/2012, Othman (Abu Qatada) v UK, No. 8139/09, § 187, see also §§ 188 et seq with a detailed overview of the criteria established by the Court. 135 ECtHR, 15/11/1996, Chahal v UK, No. 22414/93, §§ 95 et seq. 136 Grabenwarter/Pabel, § 20, m.n. 41 with further references. 137 ECtHR, 28/2/2008 (GC), Saadi v ITA, No. 37201/06, §§ 147 et seq; Grabenwarter/Pabel, § 20, m.n. 41 with further references. 138 ECtHR, 28/2/2008 (GC), Saadi v ITA, No. 37201/06, §§ 147 et seq; ECtHR, 23/2/2012 (GC), Hirsi Jamaa a. o. v ITA, No. 27765/09, § 128. 139 Fornerod, L’article 3 de la Convention Europe ´enne des Droits de l’Homme et l’e´loignement force´ des e´trangers: illustrations re´centes, RTDH 2010, 315 329 et seq. 140 ECtHR, 21/1/2011 (GC), M. S. S. v BEL a. GRE, No. 30696/09. 133

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the Dublin II Regulations. According to this regulation the EU member state where the asylum seeker entered into the EU’s territory for the first time is in general responsible for the asylum procedure. In the present case the Court concluded a violation of Article 3 since at the time of the applicant’s expulsion the Belgian authorities knew or ought to have known that he had no guarantee that his asylum application would be seriously examined by the Greek authorities. Further if the Belgian authorities had verified the asylum practice in Greece, they would have seen that the risks the applicant faced were real and individual enough to fall within the scope of Article 3.141 15 There is no impediment to expulsion or extradition in the cases of criminal proceedings or detention (i. e. because the applicant has been convicted of a criminal offence) awaiting the applicant in the country where he was prosecuted, as long as the conditions of detention in the prosecuting State are not contrary to Article 3.142 Extradition or expulsion by a Contracting State to a country in which the individual is facing the death penalty may give rise to an issue under Article 3.143 Although a prohibition of the death penalty is not contained in the Convention.144 An expulsion that causes the exposure of the applicant to the ‘death row phenomenon’ has been shown to be such as to be contrary to Article 3. The ‘death row phenomenon’ refers to the distress felt by convicted prisoners in the time between the trial and the execution of the death sentence which may delay due to a strategy to prolong the appeal proceedings as much as possible so prisoners often await their death for years.145 Uncertainty over the conditions of detention in the event of an extradition to a foreign country of a person suffering from serious mental disorder may lead to a real risk of deterioration in his mental and physical health reaching the Article 3 threshold and may therefore constitute a violation, too.146 A similar situation existed in the Al-Sadoon and Mufdhi Case in which two Iraqis – who were arrested by British soldiers in Iraq for security reasons – were handed over to Iraqi authorities. The two individuals concerned were at risk of being subjected to the death penalty and judicial execution in Iraq. The Court held that, in respect of those States which are bound by it, the right not to be subjected to the death penalty under Article 1 of Protocol No. 13 must be strictly construed and therefore the United Kingdom has to make sure that no individual within its jurisdiction is subjected to the death penalty. Furthermore the Court found a violation of Article 3 due to the fact that a possible execution of the death sentence causes suffering from fear and distress. It was decisive in the present case that the United Kingdom failed to require any binding assurance from the Iraqi authorities to protect the applicants when they were handed over.147 141

ECtHR, 21/1/2011 (GC), M. S. S. v BEL a. GRE, No. 30696/09, § 358, 367. ECtHR, 4/2/2005 (GC), Mamatkulov v TUR, No. 46827/99, § 67, 77. For the conditions of detention see para. 11. Moreover it is questionable whether an imminent infringement of other rights guaranteed under the Convention – especially Articles 6 and 7 – hinder the expulsion in the State concerned. 143 ECtHR, 7/7/1989, Soering v UK, No. 14038/88, § 99; cf. also EComHR, report from 23/4/1998, Hatami, RJD 1998-VII, §§ 94 et seq; different EComHR, 12/3/1984, Kirkwood v UK, No. 10479/83. 144 Cf. above para. 7 et seq. 145 ECtHR, 7/7/1989, Soering v UK, No. 14038/88, § 99; concerning the ‘death row phenomenon’ see also ECtHR, 29/4/2003, Poltoratskiy v UKR, No. 38812/97, § 133, 135. 146 ECtHR, 16/4/2013, Aswat v UK, No. 17299/12, § 57. 147 ECtHR, 2/3/2010, Al-Sadoon a. Mufdhi v UK, No. 61498/08, §§ 115 et seq. 142

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In light of the particular circumstances of the case, expulsion might constitute a violation of Article 3 if a vital medical treatment for the individual concerned is not available in the country to which he was extradited.148 A more difficult access to medical care – which is though generally available in the country of origin – resulting from the expulsion does not give rise to a violation of Article 3.149 Therefore arguments such as that the applicant would be unable to afford a medical treatment or that it would not be available in his region of residence do not preclude his expulsion.150 The Court rightly stressed that Article 3 does not place an obligation on the Contracting State to alleviate such disparities through the provision of free and unlimited health care to all aliens without a right to stay within its jurisdiction. A finding to the contrary would place too great burden on the Contracting States. In this context, a prohibition of expulsion only derives from Article 3 in exceptional cases that are narrowly defined.151 The Court found no violation of Article 3 in the case of the expulsion of a minor at which she was properly accompanied on the journey and in the country of origin she was handed over to the immigration authorities.152 With regard to the material date, the existence of the risk must be assessed 16 primarily with reference to those facts which were known or ought to have been known to the Contracting State at the time of expulsion.153 Therefore the expelling country is not held responsible for any changes in the conditions after the expulsion. However, the Court notes that it is not precluded from having regard to information which comes to light subsequent to the extradition, as this may be of value in confirming or refuting the appreciation that has been made by the Contracting Party of the well-foundedness or otherwise of an applicant’s fears.154 If the applicant has not yet been removed when the Court examines the case, the relevant time will be that of the Court’s examination.155 Even though the historical position is of interest in so far as it may shed light on the current situation and its likely evolution, it is necessary to take into account information that has come to light after the final decision taken by domestic authorities.156 The specific situation in case of an expulsion has an effect on the required proof of 17 the imminent prosecution in the home country which the applicant has to furnish. An absolute proof is not required since it is usually impossible to provide.157 A general endangerment to an entire population group or an overall unstable situation 148 ECtHR, 2/5/1997, D. v UK, No. 30240/96, §§ 51 et seq: The Case concerned an AIDS patient who was supposed to be expelled to his home Caribbean country, although he only had 8 to 12 months of life left and there was no medical treatment available on the island and also no family to take care of him. He would have died under harrowing circumstances. 149 ECtHR, 17/1/2006, Aoulmi v FRA, No. 50278/99, § 57. 150 ECtHR, 27/5/2008 (GC), N. v UK, No. 26565/05, § 48. 151 ECtHR, 27/5/2008 (GC), N. v UK, No. 26565/05, § 44; cf. ECtHR, 20/12/2011, Yoh-Ekale Mwanje v BEL, Nr. 10489/10, §§ 82 et seq. 152 ECtHR, 28/11/1996, Nsona v NED, No. 23366/94, § 99. 153 ECtHR, 23/2/2012 (GC), Hirsi Jamaa a. o. v ITA, No. 27765/09, § 121. 154 ECtHR, 20/3/1991, Cruz Varas v SWE, No. 15576/89, § 76; ECtHR, 5/4/2011, Toumi v ITA, No. 25716/09, § 56. 155 ECtHR, 15/11/1996, Chahal v UK, No. 22414/93, § 86; ECtHR, 17/12/1996, Ahmed v AUT, No. 25964/94, § 43; ECtHR, 11/10/2011, Auad v BUL, No. 46390/10, § 99. 156 ECtHR, 28/6/2011, Sufi a. Elmi v UK, No. 8319/07 et al, § 215; ECtHR, 7/2/2012, Al Husin v BIH, No. 3727/08, § 51. 157 Grabenwarter/Pabel, § 20, m.n. 44 with further references.

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Art. 3

17

Article 3 – Prohibition of torture

will not normally in itself entail a violation of Article 3 in the event of an expulsion.158 However, the Court has never excluded the possibility that the general situation of violence in a country of destination may be of sufficient level of intensity as to entail that any removal to it would necessarily breach Article 3.159 A mere possibility of illtreatment, however, is not in itself sufficient to give rise to a breach of Article 3.160 Substantial grounds must be shown for believing that the person concerned, if extradited, faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment in the requesting country.161 The applicant who is going to be extradited or expelled must conclusively prove the substantial likelihood of the immediate serious endangerment.162 This proof can be supplied by objective documents (i. e. arrest warrant or an official confirmation), personal accommodation letters are in general not sufficient. In the case of a Columbian man who got arrested for drug trafficking after trying to smuggle drugs into France, the Court found no violation of Article 3 because the applicant was not able to sufficiently prove a threat. The Columbian claimed that he runs a real risk, if deported to Colombia, of being subjected to reprisals by drug traffickers, who may seek revenge because of certain statements he made to the French police.163 In the Kaboulov Case the applicant was convicted of murder in Kazakhstan and was supposed to be extradited. Despite the fact that the applicant himself did not supply a sufficient proof of a potential threat in Kazakhstan, still the Court had regard to the reports of the various international human rights organisations and according to these materials, there were numerous credible reports of torture and inhuman or degrading ill-treatment of detainees, therefore the Court concluded that an extradition to Kazakhstan would be a violation of Article 3.164 If the applicant submits forged evidence in order to prove that his expulsion would expose him to a real risk of being subjected to ill-treatment this can be held against him. The same applies to a inconsistent behaviour of asylum seekers as in the case of frequent travelling between the host State and the country where they were prosecuted, as well as in the case of frequent travelling to third countries or if the person concerned contacts the authorities in the State where he is prosecuted without evidence of a prosecution. In the case of an applicant who waited 18 months after his first hearing to speak for the first time about torture he suffered and his political activities due to which he is subjected to prosecution in his home country, the Court found that substantial grounds have not been shown for believing that the applicant would be exposed to torture on his return to Chile because the applicant repeatedly modified his statements.165 Indirect removal of an alien leaves the responsibility of the Member States intact and the States are required to ensure that the person in question would not face a real risk of being subjected to treatment contrary to Article 3 in the event of repatria158

ECtHR, 30/10/1991, Vilvarajah a.o. v UK, No. 13163/87, §§ 107 et seq; ECtHR, 17/2/2004, Venkadajalasarma v NED, No. 58510/00, § 66; ECtHR, 17/2/2004, Thampibillai v NED, No. 61350/00, § 64. 159 ECtHR, 20/1/2009, F.H.v SWE, No. 32621/06, § 90. 160 ECtHR, 30/10/1991, Vilvarajah a. o. v UK, No. 13163/87, §§ 109 et seq. 161 ECtHR, 7/7/1989, Soering v UK, No. 14038/88, § 88, 91. 162 ECtHR, 28/6/2011, Sufi a. Elmi v UK, No. 8319/07 et al, § 218. 163 ECtHR, 29/4/1997, H. L. R. v FRA, No. 24573/94, §§ 37 et seq. 164 ECtHR, 19/11/2009, Kaboulov v UKR, No. 41015/04, §§ 111 et seq. 165 ECtHR, 20/3/1991, Cruz Varas a. o. v SWE, No. 15576/89, § 77–82.

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V. Cases of ill-treatment

17, 18

Art. 3

tion.166 Therefore it must be considered if the state to which the applicant is being returned can offer him effective and lasting protection or if there is any possibility given that the applicant will run the risk of going down a chain of deportation and ending up back in the country where he was persecuted.167 In this regard the Court examines if the intermediary country offers sufficient guarantees that the persons concerned would not be returned to their countries of origin arbitrarily and without an assessment of the risks faced.168 In this connection the situation where all States claim not being responsible for examining an asylum application (‘refugees in orbit’) may as well raise an issue under Article 3.169 The Court acknowledges that under certain circumstances, for example when a person participates in terrorist activities, the population of a State is at danger and therefore the States must proceed against these persons with all severity.170 Even under such difficult circumstances, Article 3 makes no provision for exceptions and no derogation from it is permissible, it prohibits in absolute terms torture and inhuman or degrading treatment and punishment, therefore no weighing between the reasons for an expulsion and the risk for the person affected is permitted.171 The same is true for the assessment of whether the minimum level of severity has been met for the purposes of Article 3. According to the Court these factors can only be assessed independently of the reasons for removal or extradition.172

4. Ill-treatment by private persons A positive obligation to protect individuals from ill-treatment within the meaning 18 of Article 3 may as well arise if the ill-treatment was not exercised by the State but by private persons. Such obligation only arises in cases of an ill-treatment of which the authorities had or ought to have had knowledge.173 The States enjoy a certain margin of appreciation as to the forms and methods for the compliance with the obligation imposed by Article 3. The Court though requires that the measures taken guarantee an effective protection.174 In order to reduce the threat of severe interferences in the physical and psychological integrity of a person by a third party (in particular rape) the Court takes the view that the State is obliged to provide for criminal penalties. It further requires an effective investigation and prosecution of these crimes.175 Moreover state authorities are obliged to take measures in order to properly address acts of violence and harassment that has already occurred and to prevent any such 166

ECtHR, 23/2/2012 (GC), Hirsi Jamaa a. o. v ITA, No. 27765/09, § 146. Grabenwarter/Pabel, § 20, m.n. 44 with further references. 168 ECtHR, 23/2/2012 (GC), Hirsi Jamaa a. o. v ITA, No. 27765/09, §§ 147 et seq. 169 Grabenwarter/Pabel, § 20, m.n. 45 with further references. 170 ECtHR, 3/12/2009, Daoudi v FRA, No. 19576/08, §§ 65 et seq. 171 ECtHR, 15/11/1996, Chahal v UK, No. 22414/93, § 81; ECtHR, 28/2/2008 (GC), Saadi v ITA, No. 37201/06, §§ 138 et seq; ECtHR, 20/7/2010, A. v NED, No. 4900/06, § 143; cf. though ECtHR, 7/7/1989, Soering v UK, No. 14038/88, § 89. 172 ECtHR, 17/1/2012, Harkins a. Edwards v UK, No. 9146/07 et al, §§ 124 et seq; ECtHR, 10/4/2012, Babar Ahmad a. o. v UK, No. 24027/07, §§ 172 et seq. 173 ECtHR, 10/5/2001, Z. a. o. v UK, No. 29392/95, §§ 74 et seq; ECtHR, 10/10/2002, D. P. u. J. C. v UK, No. 38719/97, §§ 110 et seq. 174 ECtHR, 10/10/2002, D. P. a. J. C. v UK, No. 38719/97, § 109. 175 ECtHR, 4/12/2003, M. C. v BUL, No. 39272/98, §§ 149 et seq; ECtHR, 27/9/2011, M. a. C. v ROM, No. 29032/04, §§ 114 et seq. 167

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Art. 3

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Article 3 – Prohibition of torture

further acts if the continuing risk of such abuse is real and foreseeable.176 Therefore the law has to provide adequate protection to children against domestic violence and abuse.177 In addition to that the State has to take concrete steps in order to protect a child when it is threatened with abuse in its family; this may involve the placement of the effected child in a foster family. If the authority did not suspect an abuse and there was also no indication of a possible abuse which required further investigation, in these circumstances, the authority cannot be regarded as having failed in any positive obligation to take effective steps to protect an individual from abuse.178 However, no obligation to guarantee a minimum subsistence income can be drawn from the positive obligation to intervene in situations in which a child is substantially neglected.179 This state obligation to protect individuals against violence by private parties applies in particular in cases of children and other vulnerable persons.180 When assessing whether a person is vulnerable, the Court among other things takes the social background of the person into account.181 In the Opuz Case the Court found a woman suffering from domestic violence to be vulnerable due to her social background, namely the vulnerable situation of women in Southeast Turkey.182 The Court reached this conclusion on the basis of reports of different NGOs about the situation of women in the region. 176

ECtHR, 24/7/2012, Dordevic v CRO, No. 41526/10, §§ 143, 148. ECtHR, 23/9/1998, A. v UK, No. 25599/94, §§ 23 et seq. 178 ECtHR, 10/10/2002, D. P. a. J. C. v UK, No. 38719/97, §§ 110 et seq. 179 Grabenwarter/Pabel, § 20, m.n. 39 with further references. 180 ECtHR, 10/10/2002, D. P. a. J. C. v UK, No. 38719/97, § 109; ECtHR, 9/6/2009, Opuz v TUR, No. 33401/02, § 159; ECtHR, 24/7/2012, Dordevic v CRO, No. 41526/10, § 138. 181 ECtHR, 9/6/2009, Opuz v TUR, No. 33401/02, § 160. 182 ECtHR, 9/6/2009, Opuz v TUR, No. 33401/02, § 160. 177

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Art. 4

Bibliography

Article 4 – Prohibition of slavery and forced labour 1. No one shall be held in slavery or servitude 2. No one shall be required to perform forced or compulsory labour. 3. For the purpose of this Article the term “forced or compulsory labour” shall not include: (a) any work required to be done in the ordinary course of detention imposed according to the provisions of Article 5 of this Convention or during conditional release from such detention; (b) any service of a military character or, in case of conscientious objectors in countries where they are recognised, service exacted instead of compulsory military service; (c) any service exacted in case of an emergency or calamity threatening the life or well-being of the community; (d) any work or service which forms part of normal civic obligations. Article 4 – Interdiction de l’esclavage et du travail force´ 1. Nul ne peut eˆtre tenu en esclavage ni en servitude. 2. Nul ne peut eˆtre astreint a` accomplir un travail force´ ou obligatoire. 3. N’est pas conside´re´ comme “ travail force´ ou obligatoire “ au sens du pre´sent article: (a) tout travail requis normalement d’une personne soumise a` la de´tention dans les conditions pre´vues par l’article 5 de la pre´sente Convention, ou durant sa mise en liberte´ conditionnelle; (b) tout service de caracte`re militaire ou, dans le cas d’objecteurs de conscience dans les pays ou` l’objection de conscience est reconnue comme le´gitime, a` un autre service a` la place du service militaire obligatoire; (c) tout service requis dans le cas de crises ou de calamite´s qui menacent la vie ou le bien-eˆtre de la communaute´; (d) tout travail ou service formant partie des obligations civiques normales. Bibliography: Allain, Rantsev v Cyprus and Russia: The European Court of Human Rights and Trafficking as Slavery, HRLR 2010, 546; Andrews, Current Survey, Council of Europe, ELR 1984, 132; Dremczewski, The European Convention on Human Rights, YEL 3 (1983), 439; Warbrick, The European Convention on Human Rights, YEL 14 (1994), 601. Leading cases: ECtHR, 18/6/1971, De Wilde, Ooms and Versyp v BEL, No. 2832/66 et al (obligation to perform labour by detained vagrants); ECtHR, 24/6/1982, van Droogenbroeck v BEL, No. 7906/77 (obligation to perform labour during detention); ECtHR, 23/11/1983, van der Mussele v BEL, No. 8919/80 (obligation of a lawyer-in-training to provide pro bono legal counsel); ECtHR, 18/7/1994, Karlheinz Schmidt v GER, No. 13580/88 (fire brigade tax in Baden-Wu¨rttemberg); ECtHR, 26/7/2005, Siliadin v FRA, No. 73316/01 (exploitation of a minor living in France illegally as an unpaid ‘house maid’); ECtHR, 7/1/2010, Rantsev v CYP a. RUS, No. 25965/04 (Cypriot and Russian authorities failed to protect 20-year old Russian cabaret artiste from human trafficking); ECtHR, 7/7/2011, Stummer v Austria (GC), No. 37452/02 (prison work; affiliation to old-age pension system).

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Art. 4

1, 2

Article 4 – Prohibition of slavery and forced labour Outline

I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Prohibition of slavery and servitude. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Prohibition on Forced or Compulsory Labour . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. The term ‘forced or compulsory labour’. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Exceptions to Article 4 (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a) Work performed during detention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b) Military service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . c) Services exacted in case of emergency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . d) Normal civic obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Prohibition of trafficking in human beings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Positive obligations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 2 3 4 6 7 8 9 10 11 14

I. Introduction 1

As Articles 2 and 3, Article 4 provides for one of the fundamental guarantees of the Convention.1 Article 4 (1) contains an absolute prohibition of slavery and servitude; Article 4 (2) prohibits forced or compulsory labour. Article 4 (3) contains a list of four exemptions that do not fall within the meaning of forced or compulsory labour as stipulated under Article 4 (2). The International Labour Organisation’s (ILO) Forced Labour Convention of 1930 (No. 29) serves as a model for the guarantee enshrined in Article 4 – as the Court stressed in its decision in the van der Mussele Case.2 In the light of labour exploitation then still existing in some colonies, the Convention concerned obliged the Member States ‘to suppress the use of forced or compulsory labour in all its forms within the shortest possible period’.3 Article 4 of the Convention further prohibits any form of forced or compulsory labour and, as the Court held in its Rantsev Case, trafficking in human beings.4 Article 8 CCPR is comparable to Article 4 of the Convention. It contains an explicit prohibition of slave-trade. Article 5 of the European Union Charter of Fundamental Rights incorporates the prohibition of slavery and forced labour of Article 4 of the Convention, supplementing it with an explicit ban on trafficking in human beings.5

II. Prohibition of slavery and servitude 2

Article 4 (1) prohibits slavery and servitude. The prohibition of Article 4 (1) is absolute, i. e. any infringement of the protective scope of this human right constitutes a violation of this prohibition. There is no justification for any infringement of the protective scope of Article 4 (1).

1

Cf. ECtHR, 26/7/2005, Siliadin v FRA, No. 73316/01, § 82. ECtHR, 23/11/1983, van der Mussele v BEL, No. 8919/80, § 32. 3 See Article 1 (1) Forced Labour Convention. 4 ECtHR, 7/1/2010, Rantsev v CYP a. RUS, No. 25965/04; as to that see m.n. 11 et seq. 5 Grabenwarter/Pabel, § 20, m.n. 47 with further references. 2

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III. Prohibition on forced or compulsory labour

2–4

Art. 4

Slavery is the status or condition of a person over whom any or all of the powers attached to the right of ownership are exercised.6 The Convention itself does not provide a definition of ‘slavery’. ‘Servitude’ within the meaning of Article 4 is the status of a tenant who may not change his legal status autonomously as well as other forms of dependence, such as indentured servitude, practices of trafficking in women or child or teenage labour in institutions where they are kept in complete dependence without any right to self-determination. The Court has so far only identified one instance of slavery. It held that forcing a person over years to perform unremunerated labour in constant fear of arrest, as it was the case with a minor girl who was entirely at the mercy of a French family (as a ‘household slave’), constituted slavery.7 A violation of the prohibition on slavery was claimed by young (15 and 16-yearold) members of the British armed forces who had committed to serving for lengthy periods in the Army or the Navy. The EComHR negated that these circumstances could be classified as slavery, not least because UK legislation required the consent of legal guardians for minors below the age of 17.5 years to enter into such a commitment – a consent that was given in the case concerned.8

III. Prohibition on forced or compulsory labour Article 4 (2) contains an absolute prohibition on forced or compulsory labour. As 3 with the prohibition pursuant to Article 4 (1), any infringement of the protective scope of Article 4 (2) constitutes both a violation of this guarantee and therefore a violation of the Convention. However, Article 4 also contains a list of exemptions (Article 4 (3)).

1. The term ‘forced or compulsory labour’ The Convention does neither provide for a definition of the terms ‘forced labour’ 4 nor ‘compulsory labour’. Therefore, the Court draws upon international agreements (in particular two conventions of the International Labour Organisation) to interpret these terms.9 Forced and compulsory labour encompasses all forms of personal work or service, regardless of whether it is of a physical or an intellectual nature,10 provided that the obligation is not entered into voluntarily. Furthermore, it needs to be considered whether the labour is unjust or oppressive or entails hardships.11 Moreover, a considerable and unreasonable imbalance between the aim pursued and the obligations undertaken in order to achieve that aim – with regard to a vocational training for instance – must be taken into account.12 Thus, the coercive effect of a work duty is taken into account a weighting is given to the coercive effect of a work 6 Cf. the definition in the Slavery Convention of 25.9.1929, UNTS 60, 253; for further sources on international law. 7 ECtHR, 26/7/2005, Siliadin v FRA, No. 73316/01, §§ 121 et seq. 8 EComHR, 19/7/1968, W., X., Y. a. Z. v UK, No. 3435/67 et al. 9 See ECtHR, 23/11/1983, ECtHR, 23/11/1983, van der Mussele v BEL, No. 8919/80, § 32; Dremczewski, The European Convention on Human Rights, YEL 3 (1983), p. 439 (446 et seq). 10 ECtHR, 23/11/1983, van der Mussele v BEL, No. 8919/80, § 33. 11 EComHR, 17/12/1963, I. v NOR, No. 1468/62. 12 ECtHR, 23/11/1983, van der Mussele v BEL, No. 8919/80, § 39.

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Art. 4

4–7

Article 4 – Prohibition of slavery and forced labour

duty when it is assessed whether the factual requirements of this absolute guarantee are met.13 In the aforementioned case of a young African woman who was forced to work as a ‘household slave’ in a French family against her will and without remuneration, while they kept her in constant fear of getting arrested for being in the country illegally, the Court found that it constituted a case of forced or compulsory labour within the meaning of Article 4 (2).14 5 Apart from this case, the Court was primarily concerned with legal duties of freelancers. The Commission, for instance, dealt with the obligation of a dentist to render public dental service in certain areas.15 The Court for its part was, for instance, concerned with the duty of lawyers in-training to provide pro bono legal counsel without receiving any remuneration or without being reimbursed their expenses16 or the obligation for a lawyer to act as an unpaid legal guardian to a mentally ill person.17 In case of forced or compulsory labour the Court found no violation of the prohibition of forced or compulsory labour as it held the duties in question to be the consequence of a voluntarily chosen profession, of secondary significance and a common practice in these professions. Based on the facts of the case, these instances rather constitute an interference with the freedom to practice a particular profession, which is not explicitly protected by the Convention.

2. Exceptions to Article 4 (3) 6

Article 4 (3) contains a list of four exemptions from the prohibition of forced or compulsory labour. Article 4 (3) forms a whole with Article 4 (2) and indicates what must not to be regarded as ‘forced or compulsory labour’.18 Thus, Article 4 (3) limits the scope of application of the absolute prohibition by limiting the protective scope of this fundamental right.19

a) Work performed during detention 7

Work performed during detention does not constitute forced or compulsory labour, provided that it is performed in the ordinary course of detention. It is a precondition that the detention is not in violation of Article 5, the right to liberty and security of person.20 However, in light of its specific purpose forced labour is prohibited during pre-trial detention. Labour performed in a workhouse is permissible if it is imposed by means of a court ruling under criminal law. Vagrants detained pursuant to Article 5 (1) (e) may be obliged to perform labour if their detention is deemed to be in compliance with the Convention.21 The prohibition of imposing

13

Cf. also Dremczewski, YEL 3 (1983), pp. 446 et seq. ECtHR, 26/7/2005, Siliadin v FRA, No. 73316/01, §§ 113 et seq. 15 EComHR, 17/12/1963, I. v NOR, No. 1468/62. 16 Cf. ECtHR, 23/11/1983, van der Mussele v BEL, No. 8919/80, §§ 34 et seq. 17 ECtHR, 18/10/2011, Graziani-Weiss v AUT, No. 31950/06, §§ 23 et seq. 18 ECtHR, 23/11/1983, van der Mussele v BEL, No. 8919/80, §§ 38 et seq. 19 ECtHR, 23/11/1983, van der Mussele v BEL, No. 8919/80, § 38; cf. Andrews, Current Survey, Council of Europe, ELR 1984, p. 132 (134). 20 See Article 5, m.n. 1 et seq. 21 ECtHR, 18/6/1971, De Wilde, Ooms and Versyp v BEL, No. 2832/66 et al, § 44 et seq. 14

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III. Prohibition on forced or compulsory labour

7–9

Art. 4

particular work22 on certain detainees is the corollary of allowing compulsory work in the ordinary course of detention. An entitlement to remuneration of working prisoners cannot be derived from Article 4. Neither are prisoners entitled to an affiliation to the old-age pension system.23

b) Military service Article 4 (3) (b) states that compulsory military service, in particular general 8 conscription, does not constitute prohibited forced or compulsory labour within the meaning of Article 4 (2). This exemption also includes military service performed by soldiers who join the armed forces of their own volition. Moreover, Article 4 (3) explicitly exempts any service exacted instead of compulsory military service. According to decisions of the EComHR, Article 4 (3) (b) was construed as not imposing upon States the obligation to recognise conscientious objection to military service.24 Hence, Article 4 (3) (b) did not provide for a right to ‘alternative national service’. Relying on the Travaux pre´paratoires, the ECtHR for his part noted that Article 4 neither recognises nor excludes a right to conscientious objection and thereby explicitly renounced the earlier interpretation of Article 4.25 The question of whether Convention rights have been violated in cases where a person liable to military service is forced, against his religious conviction, to perform military service and not granted the right to conscientious objection has to be assessed based on the freedom of religion pursuant under Article 9.26 In case of the abolishment of the compulsory military service, a substitute mandatory ‘social service’ would not be covered by Article 4 (3) (b).

c) Services exacted in case of emergency In case of an emergency or calamity threatening the life or well-being of the 9 community, contracting parties may impose upon their citizens the obligation to provide emergency services; i. e. they may force citizens to perform certain services without violating the prohibition of forced or compulsory labour pursuant to Article 4 (2). Unlike the emergency rule of Article 15, which applies only to the nation as a whole, Article 4 (3) (b) permits compulsory service also with regard to emergencies at local level. The Commission permitted such an obligation to emergency services, for instance, with regard to game tenants of a certain administrative district, who were, for the prevention and control of rabies, forced to participate in gassing fox-holes.27

22

ECtHR, 18/6/1971, De Wilde, Ooms and Versyp v BEL, No. 2832/66 et al, § 89 et seq; ECtHR, 24/6/1982, van Droogenbroeck v BEL, No. 7906/77, § 59. 23 ECtHR, 7/7/2011, Stummer v Austria (GC), No. 37452/02, § 132. 24 EComHR, 2/4/1963,G.Z. v AUT, No. 5591/72; EComHR, 9/5/1984, A. v SUI, No. 10640/83; the ECtHR leaves open the issue of whether general conscription without the option of conscientious objection would be in violation of Article 9, ECtHR, 6/4/2000, Thlimmenos v GRE, No. 34369/97, § 43. 25 ECtHR, Bayatyan v ARM (GC), No. 23459/03, § 98 et seq. 26 See Article 9, m.n. 32. 27 EComHR, 4/10/1984, S. v GER, No. 9686/82.

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Art. 4

10–13

Article 4 – Prohibition of slavery and forced labour

d) Normal civic obligations 10

Any work or service within the scope of normal civic obligations under Article 4 (3) (d) does not either constitute prohibited forced or compulsory labour pursuant to Article 4 (2). Such civic obligations include i. e. obligations to contribute to the maintenance of a dike and fire fighting services.28 The obligation of an employer to pay taxes and social security contributions are also covered by the exemption provided for in Article 4 (3) (d).29 In Karlheinz Schmidt v Germany, the obligation of men to serve as firemen or pay a fire service levy instead was subsumed under Article 4 (3) (d) in order to presume discrimination of men with regard to this civic obligation in breach of Article 14.30

IV. Prohibition of trafficking in human beings The wording of Article 4 does not explicitly include a prohibition of trafficking in human beings. The Court, however, established such a prohibition based on the very nature of human trafficking and the aim of exploitation without determining whether it constituted ‘slavery’, ‘servitude’ or ‘forced or compulsory labour’.31 The Court held that trafficking doubtlessly threatened human dignity and fundamental freedoms of victims and that it could not be compatible with a democratic society and the values expounded in the Convention. It reasoned that with regard to its ‘obligation to interpret the Convention in light of present-day conditions’ it was unnecessary to subsume trafficking in human beings under any of the explicitly mentioned prohibitions.32 Article 5 EU Charter basically corresponds to Article 4 of the Convention but explicitly includes a prohibition of trafficking in human beings. 12 The Court defines the term ‘trafficking in human beings’ and thus the scope of application of this prohibition, which was derived from Article 4, by referring to the Palermo Protocol on Trafficking in Persons.33 It is considered a main characteristic that it aims at exploiting a person, over whom powers comparable to the right of ownership are exercised. Victims are treated and traded as goods and forced to labour – usually of sexual nature – for little or no remuneration. Another feature of human trafficking is, according to the Court, the close surveillance of the victim, who therefore has a limited scope for action. Moreover, it is common to use threat or violence against the victims who live and work under the cruellest conditions.34 13 According to the Court’s case law, the scope of protection of Article 4 extends also to trafficking in human beings, which was included in the Palermo Protocol and later adopted by the Council of Europe Convention on Action against Trafficking in Human Beings. The implementation of effective measures against 11

28

Cf. ECtHR, 18/7/1994, Karlheinz Schmidt v GER, No. 13580/88, § 23, 28 et seq; Warbrick, The European Convention on Human Rights, YEL 14 (1994), p. 601 (652 et seq). 29 EComHR, 27/9/1976, Four companies v AUT, No. 7427/76. 30 ECtHR, 18/7/1994, Karlheinz Schmidt v GER, No. 13580/88, § 23. 31 ECtHR, 7/1/2010, Rantsev v CYP a. RUS, No. 25965/04, § 272 et seq, 279. 32 ECtHR, 7/1/2010, Rantsev v CYP a. RUS, No. 25965/04, § 282. 33 Protocol to Prevent, Surpress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime of 15/11/2000 (Palermo Protocol). 34 ECtHR, 7/1/2010, Rantsev v CYP a. RUS, No. 25965/04, § 89.

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V. Positive obligations

13, 14

Art. 4

human trafficking, in particular against cross-border trafficking, is desirable. However, this approach goes beyond the limits of interpretation. By extending the scope of protection of Article 4 to trafficking in human rights, it is now possible to enforce the Palermo Protocol and the Council of Europe Convention on Action against Trafficking in Human Beings by making use of the system of legal protection of the Convention, which the treaties precisely do not include.35 Moreover, a new obligation is imposed upon Member States, which they have not agreed upon and which may bind them only after ratification of a corresponding additional protocol. The applicant in the Rantsev Case was a Russian national, Ms Rantseva, who arrived in Cyprus with an ‘artiste’ visa, where she was working in a ‘cabaret’. After she attempted to flee she was taken to the police by her employer for expulsion. The police refused to detain her as she did not appear to be illegal and left her to her former employer. Ms Rantseva’s employer brought her to an apartment where he kept her locked up in a room. Soon after, Ms Rantseva was found dead in the street below the apartment, which lied in the 6th floor. The Court does not directly object to the implementation of the Palermo Protocol in Cyprus but rather closely examines the legal and administrative framework – in particular the rights of foreigners – with regard to the enforceability of the prohibition of trafficking in human beings and sexual exploitation. By referring to the reports of the Council of Europe’s Human Rights Commissioner and the Cypriot Ombudsman, the Court particularly objects to the existing regime of artiste visas, in which the entry permit is applied for by the employer and a bank guarantee deposited to cover any future expenses that eventually arise. This system renders the ‘artistes’, mostly young women, dependent on their employer and thus increase their risk of falling into the hands of trafficking networks. The Court concluded that, for these reasons, the Cypriot system of ‘artiste’ visas would not guarantee appropriate and effective protection from trafficking in human beings and exploitation.36 The Court further concluded that the particular measures taken by Cyprus State to protect Ms Rantseva had not been sufficient. Cypriot authorities were aware of the fact that many women were being trafficked to Cyprus on ‘artistes visas’ and there sexually exploited by ‘cabaret owners’ and ‘managers’. In the case at hand, Ms Rantseva was handed over to the police by her employer, who, while knowing of her profession as a ‘cabaret artiste’, left her to her employer. In doing so, the authorities have violated the State’s positive obligation to conduct effective investigations and to take operational measures to protect Ms Rantseva from trafficking; this despite circumstances had given credible suspicion of a real and immediate risk for the victim.37

V. Positive obligations Like from Articles 2 and 3, the Court derives positive obligations of Member 14 States from Article 4. In Siliadin, the Court considers it a State’s obligation to

35 Allain, Rantsev v Cyprus and Russia: The European Court of Human Rights and Trafficking as Slavery, HRLR 2010, p. 546 (550 et seq). 36 ECtHR, 7/1/2010, Rantsev v CYP a. RUS, No. 25965/04, § 290 et seq. 37 ECtHR, 7/1/2010, Rantsev v CYP a. RUS, No. 25965/04, § 294 et seq.

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Art. 4

14

Article 4 – Prohibition of slavery and forced labour

effectively investigate and punish the perpetrators of acts prohibited by Article 4.38 In the Rantsev Case, the Court extended its case law and derived positive obligations from Article 4 that only concerned trafficking in human beings but that may well be applied also to the explicit prohibitions of Article 4. These positive obligations encompass prevention, the victim’s protection in a situation of immediate danger, prosecution and punishment as well as investigation and procedural obligations. Thus, Member States are required to establish a legal and administrative framework that prohibits and punishes trafficking in human beings. Additionally, they are bound to implement operational measures to protect victims and potential victims as soon as they learn about circumstances that give credible suspicion of a person being or having been at real and immediate risk. Consequently, the Court considers that for an obligation to have arisen in a case, it must be satisfied that complaints to the domestic authorities gave rise to a credible suspicion that a person had been held in domestic servitude.39 A breach of Article 4 therefore occurs when a State fails to take all measures within the scope of its powers to protect a person from the criminal acts of another individual.40 In the C.N. and V. Case the Court concluded that an underage girl had been subjected to forced or compulsory work by her aunt and uncle and found that the authorities failed to combat forced labour as it had not put in place a legislative and administrative framework making it possible to fight effectively against servitude and forced labour.41 Member States are also required to investigate potential cases of trafficking in human beings or other conduct prohibited under Article 4. However, this obligation only arises when the threatening situation has come to the national authority’s attention. If so, authorities must conduct investigations of their own motion, which must be effective and independent and fulfil all conditions required by Articles 2 and 3.42 In cross-border trafficking cases all Member States are obliged to investigate into the events that have occurred on their territory – the country of origin, transit states and the country of destination. In addition, these States are subject to a duty to cooperate effectively with the competent authorities of other States concerned in the investigation.43 In Rantsev, also Russia where the trafficking originated was condemned by the Court. It held that Russia had been required to take protective measures as already the recruitment of victims for trafficking in human beings is punishable under the Palermo Protocol and the Council of Europe Convention on Action against Trafficking in Human Beings.44 38

ECtHR, 26/7/2005, Siliadin v FRA, No. 73316/01, § 112. ECtHR, 13/11/2012, C.N. v UK, No. 4239/08, § 71. 40 ECtHR, 7/1/2010, Rantsev v CYP a. RUS, No. 25965/04, § 219. 41 ECtHR, 11/10/2012, C.N. a. V. v FRA, No. 67724/09, §§ 104 et seq. 42 ECtHR, 7/1/2010, Rantsev v CYP a. RUS, No. 25965/04, § 288. 43 ECtHR, 7/1/2010, Rantsev v CYP a. RUS, No. 25965/04, § 289. 44 ECtHR, 7/1/2010, Rantsev v CYP a. RUS, No. 25965/04, § 308. 39

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Article 5 – Right to liberty and security

Art. 5

Article 5 – Right to liberty and security 1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a) the lawful detention of a person after conviction by a competent court; (b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law; (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; (d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority; (e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of un-sound mind, alcoholics or drug addicts or vagrants; (f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition. 2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him. 3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial. 4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. 5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation. Article 5 – Droit a` la liberte´ et a` la suˆrete´ 1. Toute personne a droit a` la liberte´ et a` la suˆrete´. Nul ne peut eˆtre prive´ de sa liberte´, sauf dans les cas suivants et selon les voies le´gales: a. s’il est de´tenu re´gulie`rement apre`s condamnation par un tribunal compe´tent;

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Art. 5

2.

3.

4.

5.

Article 5 – Right to liberty and security

b. s’il a fait l’objet d’une arrestation ou d’une de´tention re´gulie`res pour insoumission a` une ordonnance rendue, conforme´ment a` la loi, par un tribunal ou en vue de garantir l’exe´cution d’une obligation prescrite par la loi; c. s’il a e´te´ arreˆte´ et de´tenu en vue d’eˆtre conduit devant l’autorite´ judiciaire compe´tente, lorsqu’il y a des raisons plausibles de soupçonner qu’il a commis une infraction ou qu’il y a des motifs raisonnables de croire a` la ne´cessite´ de l’empeˆcher de commettre une infraction ou de s’enfuir apre`s l’accomplissement de celle-ci; d. s’il s’agit de la de´tention re´gulie`re d’un mineur, de´cide´e pour son e´ducation surveille´e ou de sa de´tention re´gulie`re, afin de le traduire devant l’autorite´ compe´tente; e. s’il s’agit de la de´tention re´gulie`re d’une personne susceptible de propager une maladie contagieuse, d’un alie´ne´, d’un alcoolique, d’un toxicomane ou d’un vagabond; f. s’il s’agit de l’arrestation ou de la de´tention re´gulie`res d’une personne pour l’empeˆcher de pe´ne´trer irre´gulie`rement dans le territoire, ou contre laquelle une proce´dure d’expulsion ou d’extradition est en cours. Toute personne arreˆte´e doit eˆtre informe´e, dans le plus court de´lai et dans une langue qu’elle comprend, des raisons de son arrestation et de toute accusation porte´e contre elle. Toute personne arreˆte´e ou de´tenue, dans les conditions pre´vues au paragraphe 1.c du pre´sent article, doit eˆtre aussitoˆt traduite devant un juge ou un autre magistrat habilite´ par la loi a` exercer des fonctions judiciaires et a le droit d’eˆtre juge´e dans un de´lai raisonnable, ou libe´re´e pendant la proce´dure. La mise en liberte´ peut eˆtre subordonne´e a` une garantie assurant la comparution de l’inte´resse´ a` l’audience. Toute personne prive´e de sa liberte´ par arrestation ou de´tention a le droit d’introduire un recours devant un tribunal, afin qu’il statue a` bref de´lai sur la le´galite´ de sa de´tention et ordonne sa libe´ration si la de´tention est ille´gale. Toute personne victime d’une arrestation ou d’une de´tention dans des conditions contraires aux dispositions de cet article a droit a` re´paration.

Bibliography: Charrier, Code de la Convention Europe´enne des Droits de l’homme, 2000; Harris/ O’Boyle/Warbrick, Law of the European convention on Human Rights, 2nd ed., 2009; Krenc, L’arreˆt Lelie`vre c. Belgique – Double regard sur un arreˆt contraste´, RTDH 2008, 857; Massias, Peine perpe´tuelle obligatoire et maintien de la de´tention, RTDH 2003, p. 945; Murdoch, Safeguarding the Liberty of the person: recent Strasbourg Jurisprudence, ICLQ 1993 (Vol. 42) p. 494 Trechsel, Liberty and Security of Person, in: Macdonald/Matscher/Petzold (ed.), The European System for the Protection of Human Rights, 1993, p. 277; Wildhaber, The European Court of Human Rights: The Past, the Present, the Future, AUILR 2007 (Vol. 22, No. 4), p. 521. Leading cases: ECtHR, 24/10/1979, Winterwerp v NED, No. 6301/73 (deprivation of liberty of a person of unsound mind); ECtHR, 6/11/1980, Guzzardi v ITA, No. 7367/76 (detention of a person who is suspected of belonging to the mafia on an island); ECtHR, 29/2/1988, Bouamar v BEL, No. 9106/80 (deprivation of liberty for educational supervision); ECtHR, 25/6/1996, Amuur v FRA, No. 19776/92 (violation of the right to liberty by holding persons in the transit zone of an airport); ECtHR, 6/4/2000, Labita v ITA, No. 26772/95 (detention of a person who is suspected of belonging to the mafia); ECtHR, 28/5/2002 (GC), Stafford v UK, No. 46295/99 (revocation of release on licence for commitment of another offence); ECtHR, 12/5/2005 (GC), ¨ calan v TUR, No. 46221/99 (arrest on foreign territory); ECtHR, 11/5/2004, Brand v NED, O No. 49902/99 and ECtHR, 11/5/2004, Morsink v NED, No. 48865/99 (detention of mentally disordered prisoners); ECtHR, 16/6/2005, Storck v GER, No. 61603/00 (positive obligations in

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I. Introduction

1

Art. 5

case of confinement to private clinic); ECtHR, 29/1/2008 (GC), Saadi v UK, No. 13229/03 (detention pending extradition for reasons of administrative efficiency); ECtHR, 17/12/2009, M. v GER, No. 19359/04 (retrospective extension of preventive detention); ECtHR, 13/1/2011 (GC), Haidn v GER, No. 6587/04 (preventive detention); ECtHR, 7/6/2011, S.T.S. v NED, No. 277/05 (practical effectiveness of preventive or reparative remedy); ECtHR, 7/7/2011 (GC), Al-Jedda v UK, No. 27021/08 (continued preventive detention on the basis of a UN Security Council Resolution; conflicting obligations under UN Security Council resolutions and duties under the Convention); ECtHR, 24/11/2011, O.H. v GER, No. 4646/08 (preventive detention in prison of person allegedly of unsound mind; requirements for medical assessment); ECtHR, 17/1/ 2012, Othman (Abu Quatada) v UK, No. 8139/09 (expulsion; ‘flagrant denial of justice’); ECtHR, 17/1/2012 (GC), Stanev v BUL, No. 36760/06 (lawfulness of placement in social care home for persons with mental disorders; special procedural safeguards); ECtHR, 23/2/2012 (GC), Creanga˘ ˘I v ROM, No. 29226/03 (awareness of legal status and the guarantees arising therefrom); ECtHR, 15/3/2012 (GC), Austin a. o. v UK, No. 39692/09 et al (containment of peaceful demonstrators within a police cordon); ECtHR, 22/5/2012 (GC), Idalov v RUS, No. 5826/03 (several nonconsecutive periods of detention on remand; reasonable time requirement); ECtHR, 18/9/2012 (GC), James, Wells a. Lee v UK, No. 25119/09 et al (access to rehabilitative treatment where necessary for release); ECtHR, 13/12/2012 (GC), El-Masri v MKD, No. 39630/09 (unacknowledged detention); ECtHR, 8/1/2013, Willcox a. Hurford v UK, No. 43759/10 et al (continued enforcement in the UK of lengthy sentence imposed by Thai courts; ‘flagrant denial of justice’); ECtHR, 23/7/2013, Suso Musa v MLT, No. 42337/12 (‘unauthorised entry’; unreasonably lengthy period of detention pending determination of asylum application). Outline I. II. III. IV.

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Scope of protection. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Interferences. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Compatibility of deprivations of liberty with Article 5 . . . . . . . . . . . . . . . . . . . 1. Legal basis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Compliance with a procedure prescribed by law . . . . . . . . . . . . . . . . . . . . . . . 3. The absence of arbitrariness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. Exceptions to the prohibition of deprivation of liberty. . . . . . . . . . . . . . . . a) Detention after conviction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b) Arrest or detention for non-compliance with a lawful court order or a legal obligation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . c) Detention on remand . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . d) Detention of a minor. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . e) Detention for medical or social reasons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . f) Arrest or detention of foreigners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. The rights of persons deprived of their liberty. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Prompt information. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Speedy proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. The right to review of lawfulness of arrest or detention . . . . . . . . . . . . . . 4. The right to compensation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5. Positive obligations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 2 5 7 8 9 10 11 12 13 15 22 23 26 30 30 31 38 43 44

I. Introduction Article 5 contains the right to liberty and security. It protects individuals from 1 being arbitrarily deprived of their liberty and guarantees that any measure of deprivation of liberty will be judicially reviewed as to its lawfulness. The right to liberty is a basic component of both national and international charters of funda-

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Art. 5

1–3

Article 5 – Right to liberty and security

mental rights.1 In EU law, it is Article 6 of the EU Charter which provides for the right to liberty and security. Unlike most other Convention guarantees, Article 5 is worded in a detailed manner.2 It contains an exhaustive list of exceptions to the prohibition of deprivation of liberty and sets the conditions under which arrest or detention is permitted. The guarantees of Article 5 are threefold. Article 5 (1) first sentence provides for the general right to liberty of person; the second sentence lays down the conditions that need to be satisfied in order for a deprivation of liberty to be permissible. Article 5 (2) to (5) lays down procedural safeguards specifically relating to deprivations of liberty and the right to review of the lawfulness of such measures.3

II. Scope of protection Article 5 protects the right to personal liberty of ‘everyone’, meaning that all natural persons,4 irrespective of their age,5 enjoy the liberty to a ‘change of physical location’ and to freely determine one’s immediate whereabouts. Article 5 protects from arbitrary deprivation of liberty, but does not determine the conditions of arrest and detention and neither provides for a right to treatment appropriate to one’s condition.6 These issues are protected by Articles 3 and 8. 3 The wording of Article 5 (1) seems to refer to two different protected goods, namely ‘liberty’ and ‘security’ of persons. However, the expression ‘liberty and security of person’ must be read as a single right and, consequently, ‘security’ should be understood in the context of ‘liberty’. In particular, the notion ‘security’ cannot be interpreted so as to impose an obligation on the States to protect a person’s security nor does it establish an individual right to security of person. Originally, the right to security did not have any independent significance.7 Today, it constitutes the basis of the requirement that any deprivation of liberty must comply with the rule of law and, in particular, the general principle of legal certainty.8 The right to security is affected, for instance, where an individual is arrested by the authorities of one State on the territory of another State without the consent of the latter.9 Thus, the right to security provides to a certain extent for protection from deprivation of liberty outside of the territory of a particular Member State. Member States have no obligation towards individuals who seek protection from threats to their safety from State or non-State organisations. Accordingly, Article 5 2

1

Grabenwarter/Pabel, § 21 m.n. 1 with further references. Grabenwarter/Pabel, § 21 m.n. 1 with further references (including the German, Austrian and Swiss law). 3 As to that see m.n. 30 et seq below. 4 ECtHR, 2/3/1987, Weeks v UK, No. 9787/82, § 40. 5 ECtHR, 28/11/1988, Nielsen v DEN, No. 10929/84, § 58. 6 ECtHR, 24/10/1979, Winterwerp v NED, No. 6301/73, § 51; ECtHR, 28/5/1985, Ashingdane v UK, No. 8225/78, § 44; ECtHR, 2/8/2001, Vittorio a. Luigi Mancini v ITA, No. 44955/98, § 16; cf. also Trechsel, Liberty and Security of Person, in: Macdonald/Matscher/Petzold (ed.), The European System for the Protection of Human Rights, 1993, p. 277 (285). 7 Cf. ECtHR, 1/6/2004, Altun v TUR, No. 24561/94, § 57; In the judgment ECtHR, 18/12/1986, Bozano v FRA, No. 9990/82, §§ 54, 60, the Court expressly mentions the ‘right to security’, though without drawing any conclusions from it. 8 ECtHR, 13/1/2009, Giorgi Nikolaishvili v GEO, No. 37048/04, § 53. 9 ECtHR, 12/5/2005 (GC), O ¨ calan v TUR, No. 46221/99, § 85. 2

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III. Interferences

3–5

Art. 5

does neither provide for a right of entry, nor for a right not to be expelled, or a general right to asylum of persons whose safety is threatened in their country of origin. In this sphere, it is primarily the prohibition of torture and inhuman or degrading treatment or punishment under Article 3 which grants rights to individuals against the Member States.10 However, in the case of Somalian refugees coming from Syria which were held in the transit zone of a Parisian airport, the Court concluded that the restrictions suffered by them were equivalent in practice to a deprivation of liberty and that Article 5 (1) was therefore applicable.11 As to the problem of potentially conflicting obligations under UN Security 4 Council resolutions and duties under the Convention, the Court held in the AlJedda Case that, in the absence of clear and express provisions to the contrary, the presumption when interpreting such resolutions had to be that the Security Council did not intend to impose any obligation on UN Member States to breach fundamental principles of human rights.12 In the event of ambiguity in the terms of a Security Council resolution, the Court therefore had to choose the interpretation which was most in harmony with the requirements of the Convention and which avoided any conflict of obligations under international law. Accordingly, where there is no conflict of obligations under the UN Charter and the Convention, the provisions of Article 5 (1) are not displaced.13

III. Interferences Any deprivation of liberty by the State interferes with the rights under Article 5 (1). 5 Deprivation of liberty comprises the objective element of a person’s confinement to a certain limited space for a not negligible length of time and, additionally, the subjective element that the person deprived of his liberty has not validly consented to the confinement in question.14 Article 5 (1) in its subparas. (a) to (f) provides for a catalogue of exceptions to the general prohibition of deprivation of liberty. The starting point for determining whether circumstances amount to a deprivation of liberty is the concrete situation of the individual concerned and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question.15 The difference between deprivation of and restriction upon liberty16 is merely one of degree or intensity.17 In certain cases, it may be difficult to determine whether short-term restrictions on the liberty of movement amount to a deprivation of liberty within the meaning 10

Cf. Article 3, m.n. 11. ECtHR, 25/6/1996, Amuur v FRA, No. 19776/92, § 48. 12 ECtHR, 7/7/2011 (GC), Al-Jedda v UK, No. 27021/08, §§ 102 et seq. 13 ECtHR, 7/7/2011 (GC), Al-Jedda v UK, No. 27021/08, §§ 102 et seq. 14 ECtHR, 16/06/2005, Storck v GER, No. 61603/00, §§ 74 et seq. 15 ECtHR, 8/6/1976, Engel a. o. v NED, No. 5100/71 et al, § 59; ECtHR, 6/11/1980, Guzzardi v ITA, No. 7367/76, § 92; ECtHR, 28/5/1985, Ashingdane v UK, No. 8225/78, § 41; ECtHR, 5/10/2004, H. L. v UK, No. 45508/99, § 89; ECtHR, 23/2/2012 (GC), Creanga˘ v ROM, No. 29226/03, § 91. 16 Restrictions upon liberty are protected under Article 2 of Protocol No. 4; for further details see m.n. 6 below. 17 ECtHR, 6/11/1980, Guzzardi ITA, No. 7367/76, § 93; ECtHR, 5/10/2004, H. L. v UK, No. 45508/99, § 89; as to that Murdoch, Safeguarding the Liberty of the person: recent Strasbourg Jurisprudence, ICLQ 1993 (Vol. 42) p. 494 (494 et seq). 11

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of Article 5. What is particularly difficult to classify are cases in which individuals are detained by the police for carrying out police actions, such as the establishment of identity, the taking of blood samples or an interrogation if the main purpose of the detention is to take the respective police action. The classification of such measures as a deprivation of liberty within the meaning of Article 5 is of particular importance as, if it is considered as such, the requirements for lawful deprivation of liberty will regularly not be satisfied.18 When determining whether short-term restrictions on an individual’s liberty of movement interfered with his right to personal liberty, the main purpose of the measure might be decisive. If the deprivation of liberty is not the purpose of the measure but rather an inevitable side effect, it does not interfere with Article 5. Notwithstanding a short duration of a measure, an element of coercion in the exercise of police powers may be indicative of a deprivation of liberty.19 In general, an important factor to be taken into account is the context in which it was imposed.20 In the Austin Case which concerned crowd control measures adopted by the police on public order grounds, the Court found that commonly occurring restrictions on movement (such as travel by public transport or on the motorway, or attendance at a football match), so long as they were rendered unavoidable as a result of the circumstances beyond the control of the authorities and were necessary to avert a real risk of serious injury or damage, and were kept to the minimum required for that purpose, could not be described as deprivations of liberty.21 6 Questions of delineation arise in relation to Article 2 of Protocol No. 4 which safeguards the liberty of movement. Both Article 2 of Protocol No. 4 and Article 5 protect the physical liberty of persons. However, they protect against different potential interferences: Article 5 prohibits deprivation of liberty, whereas Article 2 of Protocol No. 4 prohibits restrictions on the liberty of movement.22 The distinction between the two is merely one of degree or intensity.23 Moreover, the rights under Article 2 of Protocol No. 4 and under Article 5 serve the purpose of averting two different means of state interference, which becomes obvious when considering the requirements under which interferences are permissible. Decisive criteria in the determination of whether restrictions on liberty amount to a deprivation of liberty are the size of the area around which the individual can move; the degree of supervision over him; his opportunities for social contacts and, lastly, the duration of the measure in question.24 18

Grabenwarter/Pabel, § 21 m.n. 3 with further references. ECtHR, 24/6/2008, Foka v TUR, No. 28940/95, §§ 74 et seq; ECtHR, 12/1/2010, Gillan a. Quinton v UK, No. 4158/05, § 57; ECtHR, 21/6/2011 Shimovolos v RUS, No. 30194/09, § 50; see, however, ECtHR, 15/3/2012 (GC), Austin a. o. v UK, No. 39692/09 et al, §§ 64, 68, where the Court, due to the specific and exceptional facts of the case, found that Article 5 was inapplicable despite the high degree of coercion exercised by the police in the context of crowd control by ‘kettling’. 20 ECtHR, 15/3/2012 (GC), Austin a. o. v UK, No. 39692/09 et al, §§ 58 et seq. 21 ECtHR, 15/3/2012 (GC), Austin a. o. v UK, No. 39692/09 et al, § 59. 22 ECtHR, 8/6/1976, Engel a. o. v NED, No. 5100/71 et al, § 58; ECtHR, 6/11/1980, Guzzardi v ITA, No. 7367/76, § 92; ECtHR, 25/6/1996, Amuur v FRA, No. 19776/92, § 42; see also Article 2 of Protocol No. 4. 23 ECtHR, 6/11/1980, Guzzardi v ITA, No. 7367/76, § 93; ECtHR, 5/10/2004, H. L. v UK, No. 45508/99, § 89; ECtHR, 07/01/2010, Rantsev v. CYP a. RUS, No. 25965/04, § 314; ECtHR, 17/1/2012 (GC), Stanev v BUL, No. 36760/06, § 115. 24 Cf. ECtHR, 6/11/1980, Guzzardi v ITA, No. 7367/76, §§ 92 et seq. 19

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Restrictions on the right to liberty of foreigners due to their residence status do not have to be considered in the light of Article 5.25 Nocturnal curfews do not interfere with the right to liberty either.26 The obligation of a prisoner released on parole to report to the police on a regular basis or to wear an electronic shackle does not constitute a measure of deprivation of liberty either. Lastly, military service does not on its own in any way constitute a deprivation of liberty since it is expressly sanctioned in Article 4 (3) (b).27 A person’s consent to admission to a mental health facility for in-patient treatment can be regarded as valid for the purpose of the Convention only where there is sufficient and reliable evidence suggesting that the person’s mental ability to consent and comprehend the consequences thereof has been objectively established in the course of a fair and proper procedure and that all the necessary information concerning placement and intended treatment has been adequately provided to him.28 Thus, medical practitioners are required to pay particular attention to the validity of decisions made by persons whose mental health is questionable.29 As to the validity of the consent to a deprivation of liberty, the Court found that the fact that a person lacked legal capacity did not mean that he was de facto unable to understand and consent to his situation.30 However, there are situations where the wishes of a person with impaired mental faculties may validly be replaced by those of another person acting in the context of a protective measure.31 In the Stanev Case – unlike in the H. M. Case where the applicant was placed in a nursing home purely in her own interest and where, after her arrival there, she agreed to stay32 – did domestic law attach a certain weight to an individual’s wishes in connection with his placement and the applicant appeared to be well aware of his situation.33 Moreover, he explicitly expressed his desire to leave the home, both to psychiatrists and through his applications to the authorities to have his legal capacity restored and to be released from guardianship. At no point had he, either expressly or tacitly, agreed to his placement in the home. The lack of the applicant’s consent, taken together with, in particular, the involvement of the authorities in the decision to place the applicant in the social care home for persons with mental disorders and its implementation, the rules on leave of absence and the duration of the placement led to the finding that a deprivation of liberty within the meaning of Article 5 (1) had occurred.34

IV. Compatibility of deprivations of liberty with Article 5 Interferences with the right to liberty of person are only compatible with the 7 Convention if, firstly, the general requirements of Article 5 (1) for deprivation of 25

EComHR, 2/3/1994, S.F. v SUI, No. 16360/90. Grabenwarter/Pabel, § 21 m.n. 6 with further references. 27 ECtHR, 8/6/1976, Engel a. o. v NED, No. 5100/71 et al, § 59. 28 ECtHR, 19/4/2012, M v. UKR, No. 2452/04, §§ 75 et seq. 29 ECtHR, 19/4/2012, M v. UKR, No. 2452/04, §§ 75 et seq. 30 ECtHR, 17/1/2012 (GC), Stanev v BUL, No. 36760/06, § 130; ECtHR, 27/03/2008, Shtukaturov v RUS, No. 44/009/05, § 108; ECtHR, 14/2/2012, D. D. v LTU, No. 13469/06, § 150. 31 ECtHR, 17/1/2012 (GC), Stanev v BUL, No. 36760/06, § 130. 32 ECtHR, 26/2/2002, H. M. v SUI, No. 39187/98, §§ 47 et seq. 33 ECtHR, 17/1/2012 (GC), Stanev v BUL, No. 36760/06, §§ 130 et seq. 34 ECtHR, 17/1/2012 (GC), Stanev v BUL, No. 36760/06, §§ 130 et seq. 26

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liberty are satisfied, and secondly if one of the grounds for detention under subparas. (a) to (f) is given. The general requirements are a legal basis, compliance with the procedure prescribed by law and compliance with the prohibition of arbitrariness. Imprisonment for debt is generally prohibited under Article 1 of Protocol No. 4.35

1. Legal basis 8

Interferences with the right to personal liberty firstly require a domestic legal basis authorising the deprivation of liberty. Most Member States require formal statutory provisions as the legal basis for the deprivation of liberty; however, in the Court’s view, even common law doctrines may constitute a sufficient legal basis for interferences with the liberty of person.36 As with any other legal act limiting the rights set forth in the Convention, the legal basis for the deprivation of liberty must be sufficiently precise so as to enable individuals – if need be with appropriate legal advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail.37 A lack of clarity in the legal rules regulating the essential conditions for lawfulness of deprivation of liberty violates as such Article 5.38 The legal provisions must stipulate details as to the conditions for ordering, and set time limits for detention.39 In this context, the Court points out the importance of the principle of legal certainty, a principle which is implied in the Convention and which constitutes one of the basic elements of the rule of law.40 Long-standing and well-established case law on the interpretation of law can make up for insufficiently precise statutory provisions.41 Police discretion in the deprivation of liberty of persons, if governed by administrative practice alone and, in the absence of precise statutory provisions or case law, lacks the necessary regulatory framework. This holds particularly true if the administrative practice is in conformity with the professional rules and instructions to police personnel, especially if they have not been made accessible to the public.42 International law instruments which have not yet entered into force do not meet the ‘lawfulness’ requirement of Article 5 (1).43 An ad hoc agreement between two States in the form of a diplomatic note cannot serve as a legal basis either, since it cannot be said to be sufficiently precise and as it fails to meet the conditions of foreseeability.44

35

See also Article 1 of Protocol No. 4. ECtHR, 5/10/2004, H. L. v UK, No. 45508/99, §§ 116 et seq. 37 ECtHR, 23/9/1998, Steel a. o. v UK, No. 24838/94, § 54; ECtHR, 28/3/2000, Baranowski v POL, No. 28358/95, §§ 52, 56; ECtHR, 23/2/2012 (GC), Creanga˘ v ROM, No. 29226/03, § 120. 38 ECtHR, 5/11/2009, Kolevi v BUL, No.1108/02, § 178. 39 ECtHR, 22/9/2009, Abdolkhani a. Karminia v TUR, No. 30471/08 § 133; ECtHR, 13/4/2010, Teherani a. o. v TUR, No. 32940/08 et al, § 70; ECtHR, 10/2/11, Kharchenko v UKR, No. 40107/02, § 74. 40 ECtHR, 28/3/2000, Baranowski v POL, No. 28358/95, § 56; ECtHR, 13/7/2004, Ciszewski v POL, No. 38668/97, § 29. 41 ECtHR, 8/11/2001, Laumont v FRA, No. 43626/98, § 51; ECtHR, 29/11/2011, A. a. o. v BUL, No. 51776/08, § 68. 42 ECtHR, 8/6/2004, Hilda Hafsteindo ´ ttir v ISL, No. 40905/98, § 56. 43 ECtHR, 7/10/2009, Grori v ALB, No. 25336/04, §§ 158 et seq. 44 ECtHR, 29/3/2010 (GC), Medvedyev a. o. v FRA, No. 3394/03, §§ 99 et seq. 36

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2. Compliance with a procedure prescribed by law Arrest and detention are lawful only if they are effected in compliance with the 9 relevant procedure under domestic law. However, domestic law must itself be in conformity with the Convention, including the general principles expressed or implied therein. This means that the States must have implemented the requirements of Article 5 into domestic law and that the procedure prescribed by law must in fact be respected in each case.45 It is in the first place for the national authorities, notably the courts, to interpret and apply domestic law. However, since the Convention refers directly back to domestic law46 and, consequently, under Article 5 (1) failure to comply with domestic law entails a breach of the Convention, the Court claims to exercise a certain power of review of whether domestic law has been complied with, especially if the supreme court of a State has no jurisdiction over a case.47 Article 5 contains precise specifications for the drafting of national law. This implies a close review exercised by the Court. For the assessment of compliance with Article 5 (1) a basic distinction has to be made between ex facie invalid detention orders and detention orders which are prima facie valid and effective unless and until they have been overturned by a higher court. A detention order must be considered as ex facie invalid if the flaw in the order amounts to a ‘gross and obvious irregularity’ in the exceptional sense indicated by the Court’s case law.48 A ‘gross and obvious irregularity’ occurs, for instance, where the detention order is given by a court in excess of jurisdiction, where the interested party did not have proper notice of the hearing, in case of failure to hear the detainee or failure to give reasons for his detention.49 Accordingly, unless they constitute a gross and obvious irregularity, defects in detention orders may be remedied by domestic appeal courts in the course of judicial review proceedings.50 Particular difficulties arise where an arrest is made by the authorities of one State on the territory of another State, notably when the State to which the applicant has been transferred is not a party to the Convention. Such measures must generally be considered in the light of international law. The Convention does not prevent co-operation between States within the framework of extradition treaties or in matters of deportation. It does not, either, contain provisions concerning the circumstances in which extradition may be granted, or the procedure to be followed before extradition may be granted. The Court is under 45

ECtHR, 24/11/1994, Kemmache (No. 3) v FRA, No. 17621/91, § 37. ECtHR, 24/10/1979, Winterwerp v ED, No. 6301/73, § 46; ECtHR, 18/12/1986, Bozano v FRA, No. 990/82, § 58; ECtHR, 29/2/1988, Bouamar v BEL, No. 9106/80, § 48; ECtHR, 24/11/1994, Kemmache (No. 3) v RA, No. 17621/91, § 37; ECtHR, 10/6/1996 (GC), Benham v UK, No. 19380/92, §§ 39 et seq.; ECtHR, 1/3/2005, Beet a. o. v UK, No. 47676/99 et al, §§ 26 et seq. 47 ECtHR, 30/6/2005, Nakach v NED, No. 5379/02, §§ 37 et seq; ECtHR, 23/2/2012 (GC), Creanga˘ v ROM, No. 29226/03, § 101. 48 ECtHR, 6/12/2007, Liu v RUS, No. 42086/05, § 81; ECtHR, 9/7/2009 (GC), Mooren v GER, No. 11364/03, § 75. 49 In lieu of many judgments: ECtHR, 8/11/2005, Khudoyorov v RUS, No. 6847/02, § 129; ECtHR, 31/5/2011, Khodorkovskiy v RUS, No. 5829/04, §§ 155 et seq (no ‘gross and obvious irregularity’ if authorities err in the interpretation of domestic law, e.g. if proceedings are not held in public [a requirement which does not exist under the Convention] as would be required under domestic law. 50 ECtHR, 9/7/2009 (GC), Mooren v GER, No. 11364/03, § 75. 46

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no obligation to secure the sovereignty of the State in which the individual was arrested. If, however, proof is adduced to the Court that the authorities of the Member State to which the applicant has been transferred have acted extraterritorially in a manner that is inconsistent with the sovereignty of the host State and therefore contrary to international law, and the respondent Member State to which the burden of proof shifts cannot prove otherwise, the measure will be found to be in violation of Article 5 (1).51 If, on the other hand, an individual is arrested in one Member State following a request for his extradition by another Member State, the responsibility to ensure that the arrest warrant and extradition request are valid as a matter of both substantive and procedural law lies with the requesting State. The requested State cannot be expected to notice technical irregularities, such as that the arrest warrant has been issued by a non-competent court. The unlawful deprivation of liberty consequently must be attributed to the State that has issued the arrest warrant.52

3. The absence of arbitrariness 10

The Court derives from Article 5 an implicit prohibition of arbitrariness that adds to the requirement of lawfulness.53 A deprivation of liberty is ‘arbitrary’ where, despite complying with the letter of national law, there has been an element of bad faith or deception on the part of the authorities. Moreover, both the order to detain and the execution of the detention must genuinely conform with the purpose of the restrictions permitted by the relevant subparagraph of Article 5. Even if the letter of national law is complied with, a deprivation of liberty may be unlawful and contrary to Article 5 (1) if the outer purpose of the arrest or detention differs from the real one.54 There must in addition be some relationship between the ground of permitted deprivation of liberty relied on and the place and conditions of detention.55 Unacknowledged detention is a complete negation of guarantees against arbitrary detention and discloses a very grave violation of Article 5.56 The absence of a record of such matters as the date, time and location of detention, the name of the detainee, the reasons for the detention and the name of the person effecting must be seen as incompatible with the requirement of lawfulness and the very purpose of Article 5, and thus with the prohibition of arbitrariness.57 Moreover, the freedom from arbitrariness requires compliance with

¨ calan v TUR, No. 46221/99, §§ 85 et seq. ECtHR, 12/5/2005 (GC), O ECtHR, 14/9/2009, Stephens v MLT (No. 1), No. 11956/07, § 52. 53 See m.n. 8 et seq above. 54 ECtHR, 31/05/2011, Khodorkovskiy v RUS, No. 5829/04, § 142 (apprehension of the applicant as a witness; however, the investigator’s real intent was to charge him as a defendant); see also ECtHR, 18/12/1986, Bozano v FRA, No. 9990/82, § 60 (disguised form of extradition); ECtHR, 21/4/2011, Nechiporuk a. Yonkalo v UKR, No. 42310/04, §§ 173, 178, 181 (the applicant’s detention based on an administrative offence suspicion while he was being treated as a suspect in a murder case). 55 ECtHR, 29/1/2008 (GC), Saadi v UK, No. 13229/03, § 69 with references to the Court’s case law. 56 In lieu of many judgments ECtHR, 5/2/2009, Khadisov a. Tsechoyev v RUS, No. 21519/02, § 138; ECtHR, 17/9/2009, Asadulayeva a. o. v RUS, No. 15569/06, § 120; ECtHR, 13/12/2012 (GC), El-Masri v MKD, No. 39630/09, §§ 233, 236 et seq (confinement outside any judicial framework). 57 ECtHR, 2/10/2008, Belousov v RUS, No. 1748/02, § 72; ECtHR, 13/12/2012 (GC), El-Masri v MKD, No. 39630/09, § 176. 51 52

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the principle of proportionality, whose requirements vary with the type of detention:58 The notion of arbitrariness in the contexts of subparas. (b), (d) and (e) includes an assessment of whether detention was necessary to achieve the stated aim. The detention of an individual is justified only as a last resort where other, less severe measures have been considered and found to be insufficient to safeguard the individual or public interest. Furthermore, it requires that the detention must be proportional in the strict sense, meaning that a balance must be struck between the importance in a democratic society of securing the immediate fulfilment of the obligation in question and the importance of the right to liberty. The duration of the detention is a relevant factor in striking such a balance. For the purpose of deprivation of liberty under subpara. (a) it suffices that the general conditions of the prohibition of arbitrariness are satisfied. As long as the detention follows and has a sufficient causal connection with a lawful conviction, the decision to impose a sentence of detention and the length of that sentence are matters for the national authorities rather than for the Court under Article 5 (1).59 Proportionality under Article 5 (1) (c) requires that the detention must be necessary in the circumstances, and thus a reasoned decision balancing the relevant arguments for and against release.60 The arguments must be supported by factual evidence.61 A very important factor in the balancing is a person’s age.62 In cases of detention with a view to deportation under subpara. (f), States are not required to apply the necessity test but to apply the principle of proportionality to the extent that the detention should not continue for an unreasonable length of time: Any deprivation of liberty under Article 5 (1) (f) will be justified only for as long as deportation proceedings are in progress and prosecuted with due diligence.63 Restrictions on judicial discretion in sentencing do not per se render any ensuing detention arbitrary. However, a genuine correlation between the aim of the detention and the detention itself must be ensured.64 This is all the more compelling where a person is assumed by operation of a statutory presumption to pose a risk to the public, where there is little scope to counter that assumption and where, risk having been established, the sentencing court has no power but to impose a specific sentence.65

58

ECtHR, 29/1/2008 (GC), Saadi v UK, No. 13229/03, §§ 70 et seq. ECtHR, 29/1/2008 (GC), Saadi v UK, No. 13229/03, § 71. 60 ECtHR, 18/3/2008, Ladent v POL, No. 11036/03, § 55; ECtHR, 19/1/2012, Korneykova v UKR, No. 39884/05, §§ 43 et seq. 61 ECtHR, 4/10/2005, Becciev v MOL, No. 9190/03, §§ 56, 59; ECtHR, 19/1/2012, Korneykova v UKR, No. 39884/05, § 43. 62 Pre-trial detention of minors should be used only as a measure of last resort and for the shortest possible period: ECtHR, 10/1/2006, Selçuk v TUR, No. 21768/02, §§ 35 et seq, ECtHR, 6/5/2008, Nart v TUR, No. 20817/04, §§ 31, 33 and ECtHR, 19/1/2012, Korneykova v UKR, No. 39884/05, §§ 43 et seq. 63 Cf., however, ECtHR, 2/10/2008, Rusu v AUT, No. 34082/02, § 58 (detention under subpara. (f) is justified only where other less severe measures have been considered and found to be insufficient to safeguard the individual or public interest). 64 ECtHR, 18/9/212 (GC), James, Wells a. Lee v UK, No. 25119/09 et al, § 204. 65 Cf. ECtHR, 18/9/2012 (GC), James, Wells a. Lee v UK, No. 25119/09 et al, § 204. 59

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All the examples and groups of cases mentioned above show that the absence of arbitrariness is in most cases covered by other requirements of Article 5, especially the legal basis under national law.

4. Exceptions to the prohibition of deprivation of liberty 11

Article 5 (1) (a) to (f) contains a list of exceptions to the prohibition of deprivation of liberty. The list is exhaustive66 and must be interpreted strictly.67 Consequently, no deprivation of liberty will be lawful unless it falls within one of the grounds set out in subparas. (a) to (f) of Article 5. However, the applicability of one ground does not necessarily preclude that of another; depending on the circumstances, a deprivation of liberty may be justified under one or more subparagraphs.68

a) Detention after conviction 12

Article 5 (1) (a) permits the ‘lawful detention of a person after conviction by a competent court’. The notion of ‘conviction’ is an autonomous concept, which must be interpreted independent of national law.69 ‘Conviction’ signifies a finding of guilt of an offence and the imposition of a – criminal or disciplinary – penalty or other measure involving deprivation of liberty.70 It does not require that the conviction must be final but also encompasses detention after conviction at first instance. The word ‘after’ does not simply mean that the detention must follow the ‘conviction’ in point of time: in addition, the detention must result from, follow and depend upon or occur by virtue of the ‘conviction’. In short, there must be a sufficient causal connection between the conviction and the deprivation of liberty at issue.71 The non-existence of a causal link between conviction and preventive detention caused a violation of the Convention in a case under German law where the preventive detention of a mentally-ill person had retrospectively been extended. The applicant’s initial preventive detention, which at the material time was limited by law to a maximum of ten years, was justified under Article 5 (1) (a). However, there was no sufficient causal link between the applicant’s initial conviction and the retrospective extension of his preventive detention to an unlimited period of time which was made possible only by a subsequent change in the law.72 Such inter66

Consistent case law, see e.g. ECtHR, 18/1/1978, IRL v UK, No. 5310/71, § 194. ECtHR, 29/2/1988, Bouamar v BEL, No. 9106/80, § 43; ECtHR, 22/2/1989, Ciulla v ITA, No. 11152/84, § 41; ECtHR, 22/3/1995, Quinn v FRA, No. 18580/91, § 42; ECtHR, 20/3/1997, Lukanov v BUL, No. 21915/93, § 41. 68 ECtHR, 2/9/1998, Erkalo v NED, No. 23807/94, § 50; ECtHR, 4/4/2000, Witold Litwa v POL, No. 26629/95, § 49; this does not apply in cases where the decision of national authorities only allow for the deprivation of liberty under one subpara., ECtHR, 4/8/2005, Zeciri v ITA, No. 55764/00, § 41 (detention after conviction and detention pending expulsion). 69 ECtHR, 8/6/1976, Engel a. o. v NED, No. 5100/71 et al, § 68. 70 ECtHR, 6/11/1980, Guzzardi v ITA, No. 7367/76, § 100; ECtHR, 28/3/1990, B. v AUT, No. 11968/86, § 38; ECtHR, 17/12/2009, M. v GER, No. 19359/04, § 100; Trechsel, in: Macdonald/ Matscher/Petzold, p. 297. 71 ECtHR, 18/12/1986, Bozano v FRA, No. 9990/82, § 53; ECtHR, 2/3/1987, Weeks v UK, No. 9787/82, § 42; ECtHR, 2/3/1987, Monnell a. Morris v UK, No. 9562/81 et al, § 40; ECtHR, 28/3/1990, B. v AUT, No. 11968/86, § 38; ECtHR, 17/12/2009, M. v GER, No. 19359/04, §§ 96 et seq. 72 ECtHR, 17/12/2009, M. v GER, No. 19359/04, §§ 96 et seq; ECtHR, 21/10/2010, Grosskopf v GER, No. 24478/03, §§ 45 et seq; ECtHR, 24/11/2011, O.H. v GER, No. 4646/08, § 82. 67

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ference cannot even be justified by reference to any positive obligation of the State to take preventive operational measures to protect individuals from the criminal acts of another individual since States when exercising their powers must fully respect the Convention guarantees, in particular Article 5 (1).73 The Convention is complied with if the possibility to extend the preventive detention is part of the sentence imposed on the applicant.74 As to the requirement of a causal link, particular problems have arisen with regard to English law. As a matter of English law, it was inherent in the applicant’s life sentence that, whether he was inside or outside prison, his liberty was at the discretion of the executive for the rest of his life. He could be re-detained, for instance, in case of recidivism. The Court found that the causal link might be broken if the decision not to release or to re-detain was based on grounds that were inconsistent with the objectives of the sentencing court. Accordingly, it concluded that the decision to re-detain a person for a second offence must not be deemed unreasonable in terms of the objectives of the sentence imposed for the first offence, if for example the person’s continued liberty were to constitute a danger to the public and to himself.75 In the Stafford Case, even though the Court took into account the change in English law which was not least influenced by its case law, it found a violation of Article 5 (1) too. The Court found that no sufficient causal connection existed between the original sentence for murder and the possible commission of other non-violent offences. Accordingly, the applicant’s continued detention under the mandatory life sentence after expiry of the second sentence could not be regarded as justified by his punishment for the original murder.76 Article 5 (1) (a) does not grant a right to suspension of a sentence, such as for example in cases of life imprisonment.77 Indeterminate detention for public protection as under UK law can be justified under Article 5 (1) (a), too.78 If it is justified solely by reference to public protection (e.g. after the expiry of the tariff period), in order for the detention not to be arbitrary, regard must be had to the need to encourage rehabilitation of those offenders. Resource implications are relevant in the context of providing prisoners with access to rehabilitative treatment. Restrictions or delays in the access to treatment caused by inadequate resources must, however, be reasonable in all the circumstances of the case, bearing in mind that whether a particular course is made available depends entirely on the actions of the authorities.79 In the James, Wells and Lee Case, the failure of the authorities to make available the necessary resources had the consequence that the applicants had no realistic chance of making objective progress towards a real reduction or elimination of the risk they posed by the time their tariffs had expired. The Court found that this circumstance became all the more 73 ECtHR, 14/4/2011, Jendrowiak v GER, No. 30060/04, § 37; ECtHR, 24/11/2011, O.H. v GER, No. 4646/08, § 94. 74 ECtHR, 13/10/2009, De Schepper v BEL, No. 27428/07, § 42; ECtHR, 13/1/2011 (GC), Haidn v GER, No. 6587/04, § 88 (no sufficient causal connection where the order placing a person in preventive detention refers to the detainee’s prior conviction for a serious criminal offence and is made while the sentence is still being served). 75 ECtHR, 2/3/1987, Weeks v UK, No. 9787/82, §§ 42, 50 et seq. 76 ECtHR, 28/5/2002 (GC), Stafford v UK, No. 46295/99, § 81; as to that Massias, Peine perpe´tuelle obligatoire et maintien de la de´tention, RTDH 2003, p. 945 (945 et seq). 77 Grabenwarter/Pabel, § 21 m.n. 12 with further references. 78 ECtHR, 18/9/2012 (GC), James, Wells a. Lee v UK, No. 25119/09 et al, § 218. 79 ECtHR, 18/9/2012 (GC), James, Wells a. Lee v UK, No. 25119/09 et al, § 218.

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pressing once the applicants’ continued detention was justified solely on the grounds of the risk they posed to the public.80 A mere formal justification of a deprivation of liberty by conviction does suffice for the purposes of Article 5 (1) (a).81 Within the context of Article 5, the question of culpability and the appropriateness of punishing an individual with imprisonment are determined solely by domestic law. A national court’s decision to set aside a conviction does not retroactively affect the ‘lawfulness’ of the detention following conviction.82 It is not for the Court to review the appropriateness of the original sentence but to examine the sufficiency of the grounds on which the applicant’s detention was based.83 Article 5 (1) (a) permits the lawful detention of a person after conviction by a competent court. The word ‘court’ denotes bodies which are independent of the executive and of the parties to a case and which exhibit the guarantees of judicial procedure.84 Furthermore, in order to be considered competent, the composition of a court must be ‘established by law’.85 In cases where Member States to the Convention enforced judgments issued by non-Member States, the Court found that the Member States were not obliged to verify whether the proceedings which resulted in the conviction were compatible with all the procedural requirements of the Convention.86 If, however, a conviction by a court of a non-Member State was the result of proceedings which were a ‘flagrant denial of justice’, i. e. ‘manifestly contrary to the provisions of Article 6 or the principles embodied therein’, the resulting deprivation of liberty cannot be justified under Article 5 (1) (a).87 ‘Flagrant denial of justice’ is a stringent test of unfairness, which goes beyond mere irregularities or lack of safeguards in the trial procedures such as might result in a breach of Article 6 if occurring within the Member State itself. What is required is a breach of the principles of a fair trial guaranteed by Article 6 which is so fundamental as to amount to a nullification, or destruction of the very essence of the right guaranteed by that Article.88 The term ‘flagrant denial of justice’ refers to forms of serious unfairness, such as conviction in absentia with no possibility subsequently to obtain a fresh determination of the merits of the charge; a trial which is summary in nature and conducted with a total disregard for the rights of the defence; detention without any access to an independent and impartial tribunal to have the legality the detention reviewed; the deliberate and systematic refusal of access to a lawyer,

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ECtHR, 18/9/2012 (GC), James, Wells a. Lee v UK, No. 25119/09 et al, § 220. Harris/O’Boyle/Warbrick, Law of the European convention on Human Rights, 2nd ed., 2009, pp. 138 et seq. 82 EComHR, 14/7/1977, Krzycki v GER, No. 7629/76. 83 ECtHR, 2/3/1987, Weeks v UK, No. 9787/82, § 50. 84 ECtHR, 18/6/1971, De Wilde, Ooms a. Versyp v BEL, No. 2832/66 et al, § 78; ECtHR, 8/6/1976, Engel a. o. v NED, No. 5100/71 et al, § 68; cf. as to that Harris/O’Boyle/Warbrick, p. 139. 85 ECtHR, 12/2/2013, Yefimenko v RUS, No. 152/04, §§ 108 et seq (execution of prison sentence during several years imposed by a court not established by law). 86 ECtHR, 26/6/1992, Drozd a. Janousek v FRA a. ESP, No. 12747/87, § 110. 87 ECtHR, 24/03/2005, Stoichkov v BUL, No. 9808/02, § 51; ECtHR, 17/1/2012, Othman (Abu Quatada) v UK, No. 8139/09, § 259; ECtHR, 8/1/2013, Willcox a. Hurford v UK, No. 43759/10 et al, § 95. 88 ECtHR, 17/1/2012, Othman (Abu Quatada) v UK, No. 8139/09, § 260; ECtHR, 8/1/2013, Willcox a. Hurford v UK, No. 43759/10 et al, § 95. 81

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especially for an individual detained in a foreign country; or the admission of evidence obtained by torture.89

b) Arrest or detention for non-compliance with a lawful court order or a legal obligation Article 5 (1) (b) contains two different grounds of permitted deprivation of 13 liberty. It allows for the arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law. The main difference between these types of deprivation of liberty lies in their nature. While arrest or detention for failure to comply with a lawful court order is of a repressive nature,90 the arrest or detention of a person to ensure the future performance of his legal obligation (e.g. the obligation to carry one’s passport91) is not punitive in character:92 As soon as the person concerned has fulfilled the obligation incumbent on him his detention is no longer permitted.93 The notion of ‘court’ corresponds to that of Article 5 (1) (a).94 Thus, in order for binding-over orders to be lawful they must be issued by a court – for example in civil proceedings –95 and must comply with domestic law and be sufficiently precise.96 The phrase ‘to secure the fulfilment of any obligation prescribed by law’ does not permit depriving individuals of their liberty for violating the general civic obligation to respect the law and order. Thereby, Article 5 (1) (b) would transform into a boundless and general authorisation for interferences with the right to liberty of person. The Court, however, rejects a wide interpretation of the phrase and holds that a deprivation of liberty under Article 5 (1) (b) is lawful only where the law permits the detention of a person to compel him to fulfil a ‘specific and concrete’ obligation which he has until then failed to satisfy and where the detention is for the purpose of securing its fulfilment.97 Specific and concrete obligations are, for instance, the obligation to perform military service or a substitute mandatory ‘social service’98 or to produce evidence of identity.99 Article 5 (1) (b) also refers to arrest or detention for ‘non-compliance’ with a ‘lawful order of a court’. The wording presumes that the person arrested or detained must have had an opportunity to comply with such an order and have failed to do so.100 A person cannot be held accountable for ‘non-compliance’ with a court order if 89 ECtHR, 17/1/2012, Othman (Abu Quatada) v UK, No. 8139/09, § 259 (and the references therein), 267; ECtHR, 8/1/2013, Willcox a. Hurford v UK, No. 43759/10 et al, § 95. 90 Grabenwarter/Pabel, § 21 m.n. 13 with further references. 91 EComHR, 13/5/1987, B. v FRA, No. 10179/82. 92 ECtHR, 8/6/1976, Engel a. o. v NED, No. 5100/71 et al, § 69; ECtHR, 22/12/2005, A. D. v TUR, No. 29986/96, § 20. 93 EComHR, 18/12/1979, X., Y. a. Z. v UK, No. 8022/77 et al. 94 As to that m.n. 12 above. 95 Examples in Harris/O’Boyle/Warbrick, pp. 142 et seq. 96 ECtHR, 23/9/1998, Steel a. o. v UK, No. 24838/94, §§ 76 et seq. 97 ECtHR, 8/6/1976, Engel a. o. v NED, No. 5100/71 et al, § 69; ECtHR 25/9/2003, Vasileva v DEN, No. 52792/99, § 36; ECtHR, 27/3/2012, Lolova-Karadzhova v BUL, No. 17835/07, § 29. 98 EComHR, 14/10/1985, Johansen v NOR, No. 10600/83. 99 EComHR, 13/5/1987, B. v FRA, No. 10179/82. 100 EComHR, 18/12/1979, X., Y. a. Z. v UK, No. 8022/77 et al; ECtHR, 29/11/2011, Beiere v LAT, No. 30954/05, § 49.

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he has never been informed of it.101 The notion ‘lawfulness’ under Article 5 (1) (b) has a broad meaning. It is a notion of fair and proper procedure, namely that any measure depriving a person of his liberty should be issued and executed by an appropriate authority and that the person concerned must be granted sufficient protection against a potentially arbitrary deprivation of his liberty.102 The obligation to pay debts does not constitute an ‘obligation prescribed by law’ within the meaning of Article 5 (1) (b). This conclusion derives from Article 1 of Protocol No. 4 which expressly prohibits imprisonment for debt. 14 It is contended whether Article 5 (1) (b) permits deprivations of liberty for short periods of time in situations where a breach of the legal order has not yet been established but where the arrest or detention serves the very purpose of investigating whether such a breach has occurred. Examples of such judicial investigation are, for instance, the taking of blood samples and producing evidence of identity. Specific and concrete obligations to submit to certain investigative actions do not only arise expressly but may also arise implicitly from the legislation. What is decisive is that specific circumstances warrant the use of detention as a means of securing the fulfilment of the obligation and that the period of detention is only of a short duration.103 In the Soare Case, the Court, taking into account the absence of manifest periods of inactivity on the part of the authorities, found no violation in the circumstances where, in the interest of the administration of justice, witnesses had been kept at the authority’s disposal for up to eight hours until five o’clock in the morning in order to ‘collect’ their statements.104

c) Detention on remand 15

Article 5 (1) (c) allows the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so.105 Detention on remand begins with the arrest of an individual and ends with the judgment at first instance.106 The procedural and substantive requirements laid down in the legal orders of the Member States regularly go beyond the requirements of the Convention. Article 5 (1) (c) thus provides for minimum standards for a lawful deprivation of liberty. Preventive detention and detention on remand serve the purpose of securing criminal investigations and are permitted only in connection with criminal proceedings.107 The purpose of the arrest and detention must genuinely be to bring the person before the competent legal authority.108 The wording of 101

ECtHR, 29/11/2011, Beiere v LAT, No. 30954/05, § 50. ECtHR, 24/10/1979, Winterwerp v NED, No. 6301/73, § 45; ECtHR, 27/03/2008, Shtukaturov v RUS, No. 44/009/05, § 113; ECtHR, 29/11/2011, Beiere v LAT, No. 30954/05, § 52. 103 EComHR, 18/12/1979, X., Y. a. Z. v UK, No. 8022/77 et al; EComHR, 13/5/1987, B. v FRA, No. 10179/82; cf. also Harris/O’Boyle/Warbrick, p. 144; Trechsel, in: Macdonald/Matscher/Petzold, p. 302. 104 ECtHR, 22/02/2011, Soare a. o. v FRA, No. 24329/02, §§ 237 et seq. 105 As to the particularly difficult application of this provision against the background of the various legal traditions of the Member States, cf. Harris/O’Boyle/Warbrick, p. 145. 106 Grabenwarter/Pabel, § 21 m.n. 15 with further references. 107 ECtHR, 22/2/1989, Ciulla v ITA, No. 11152/84, § 38. 108 ECtHR, 1/7/1961, Lawless (No. 3) v IRL, No. 332/57, §§ 13 et seq; ECtHR, 18/1/1978, IRL v UK, No. 5310/71, § 199; ECtHR, 28/10/1994, Murray v UK, No. 14310/88, § 68. 102

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subpara. (c) must be read in conjunction with subpara. (a) and with paragraph 3 of Article 5.109 Accordingly, the notion of ‘legal authority’ corresponds to the concept of ‘judge or other officer authorised by law’ in Article 5 (3). The Convention does not require that detention on remand must be ordered by a judge. It only requires that a person must immediately be brought before a ‘judge’ (Article 5 (3)).110 Apart from the requirement that a deprivation of liberty must be compatible 16 with the purpose of the restriction permitted by Article 5 (1) (c), a ground under subpara. (c) justifying the detention on remand must be given.111 According to Article 5 (1) (c), depriving an individual of his liberty for the purpose of bringing him before the competent legal authority is permitted in three cases: First, in cases where there exists a ‘reasonable suspicion’ that he has committed an offence; secondly, where arrest or detention is reasonably considered necessary to prevent his committing an offence; and, thirdly, where arrest or detention is reasonably considered necessary to prevent his fleeing after he has committed an offence. Article 5 (1) (c) authorises arrest or detention of a person for the purpose of 17 bringing him ‘before the competent legal authority’ on the ground that there exists a ‘reasonable suspicion’ that he ‘has committed an offence’. Moreover, the procedural guarantees of Article 5 (3) must be complied with. Article 5 (3) clearly implies that the persistence of suspicion does not suffice to justify the prolongation of the detention after a reasonable time has been exceeded.112 Having a ‘reasonable suspicion’ presupposes the existence of facts or information which would satisfy an objective observer that the person concerned may have committed an offence.113 What may be regarded as ‘reasonable’ depends on the particular circumstances of a case. Incriminating information coming only from a single source must be corroborated by other evidence; this applies, in particular, if the source is a less reliable one.114 The facts which raise a suspicion need not be of the same level as those necessary to justify a conviction or even the bringing of a charge.115 The reasonable suspicions must relate to the commitment of a criminal offence. Whether a certain act constitutes an offence is determined by national law.116 It is primarily for national authorities to ascertain whether the facts of a case give 18 rise to the suspicion that an individual has committed an offence. The Court confines itself to examine whether national authorities have acted in an arbitrary manner.117 109 This does not mean, however, that the standards under Article 5 (3) can automatically be extrapolated to Article 5 (1) (c): See expressly in ECtHR, 31/5/2011, Khodorkovskiy v RUS, No. 5829/04, § 159 (neither can the standards under Article 5 (4)) with reference to ECtHR, 24/10/1979, Winterwerp v NED, No. 6301/73, § 53 and ECtHR, 04/8/1999 (GC), Douiyeb v NED, No. 31464/96, § 57. 110 EComHR, 18/5/1977, X. v AUT, No. 7755/77. 111 ECtHR, 28/10/1994, Murray v UK, No. 14310/88, § 55. 112 ECtHR, 10/11/1969, Sto ¨ gmu¨ller v AUT, No. 1602/62, § 4; as to the procedural guarantees under Article 5 (3) see m.n. 30 et seq below. 113 ECtHR, 30/8/1990, Fox, Campbell a. Hartley v UK, No. 12244/86 et al, §§ 32 et seq; ECtHR, 16/10/2001, O’Hara v UK, No. 37555/97, §§ 35 et seq; ECtHR, 6/4/2000, Labita v ITA, No. 26772/95, § 155. 114 ECtHR, 6/4/2000, Labita v ITA, No. 26772/95, §§ 156 et seq. 115 ECtHR, 6/12/2011, Rafig Aliyev v AZE, No. 45875/06, § 75; ECtHR, 29/11/1988, Brogan a. o. v UK, No. 11209/84 et al, § 53; ECtHR, 22/10/1997, Erdago¨z v TUR, No. 21890/93, § 51. 116 Grabenwarter/Pabel, § 21 m.n. 15 with further references. 117 Cf. ECtHR, 30/8/1990, Fox, Campbell a. Hartley v UK, No. 12244/86 et al, § 34; ECtHR, 22/10/1997, Erdago¨z v TUR, No. 21890/93, §§ 51 et seq.

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Detention on remand must be ordered in accordance with a procedure prescribed by law and the States must furnish at least some facts or information which provide a plausible and objective basis for suspicion.118 It does not suffice, however, to rely on statutory presumptions without corroborating the suspicion with evidence.119 The Court further examines whether a ‘reasonable suspicion’ persisted until the end of the detention on remand. Even if ultimately no charges are brought against the person concerned, the objective standard of ‘reasonable suspicion’ laid down in Article 5 (1) (c) may still be met in the particular circumstances of a case.120 Terrorist crimes fall into a special category. The Court takes account of the difficulties inherent in the investigation and prosecution of terrorist-type offences and thus finds that the ‘reasonableness’ of the suspicion justifying arrests or detentions cannot always be judged according to the same standards as are applied in dealing with conventional crime. It accepts that the police may frequently have to arrest a suspected terrorist on the basis of information which is reliable but which cannot be revealed to the suspect or produced in court to support a charge without putting in jeopardy the source of the information. However, the essence of the safeguard secured by Article 5 (1) (c) must not be impaired. Accordingly, certain facts must nonetheless be presented to a court in order for a deprivation of liberty to be justified.121 19 A reasonable suspicion is the minimum requirement for depriving an individual of his liberty under the Convention. Article 5 (1) (c) requires a ‘lawful arrest or detention’. Lawfulness implies conformity with the substantive and procedural rules of domestic law and with the purpose of Article 5 of protecting individuals from arbitrariness. If the national standard of protection goes beyond the standard laid down by the Convention, the higher national standard must be satisfied.122 Consequently, requirements for lawful detention on remand are not only the reasonable suspicion of an offence or the risk of absconding but, if provided for in domestic law, also classical grounds for detention such as the risk of collusion and the risk of recurrence.123 20 Moreover, arrest or detention for the purpose of bringing a person before the competent legal authority is lawful if it is reasonably considered necessary to prevent his committing an offence. The risk of an offence being committed already suffices for the purposes of Article (1) (c); preventive detention does not require a risk of recurrence. In order for a preventive detention to be lawful, there must be concrete and specific offences – relevant in the context of Article 5 (1) (c)

118 ECtHR, 6/11/1980, Guzzardi v ITA, No. 7367/76, § 102; ECtHR, 30/8/1990, Fox, Campbell a. Hartley v UK, No. 12244/86 et al, § 32; ECtHR, 28/10/1994, Murray v UK, No. 14310/88, § 55. 119 ECtHR, 26/7/2001, Ilijkov v BUL, No. 33977/96, §§ 83 et seq; ECtHR, 8/4/2004, Hamanov v BUL, No. 44062/98, § 71. 120 ECtHR, 29/11/1988, Brogan a. o. v UK, No. 11209/84 et al, §§ 52 et seq; ECtHR, 28/10/1994, Murray v UK, No. 14310/88, §§ 50 et seq. 121 ECtHR, 30/8/1990, Fox, Campbell a. Hartley v UK, No. 12244/86 et al, § 32; ECtHR, 16/10/2001, O’Hara v UK, No. 37555/97, § 34; as to ‘Human Rights and Terrorism’ see also Wildhaber, The European Court of Human Rights: The Past, the Present, the Future, AUILR 2007 (Vol. 22, No. 4), p. 521 (534 et seq). 122 ECtHR, 24/11/1994, Kemmache (No. 3) v FRA, No. 17621/91, § 42. 123 Grabenwarter/Pabel, § 21 m.n. 19 with further references.

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– which a person has to be prevented from committing.124 Detention of persons or groups of persons based on general suspicions is, however, not permitted. If national law lays down stricter requirements for preventive detention, it is the higher standard that must be complied with. Detention for the purpose of bringing a person before the competent legal 21 authority is also permitted to prevent his fleeing after having committed an offence. Since Article 5 (1) (c) permits detention on a reasonable suspicion without any further grounds, this ground only applies where authorities are dealing with the question of prolonging detention on remand. The Court’s case law does not provide an abstract definition of the risk of absconding. Rather it applies various criteria, which are also known from domestic legal orders, which are to be examined in each individual case in order to ascertain whether there exists a risk of absconding.125 Such decisive factors are, inter alia, the personality of the person involved, his home, his occupation, his assets, his family ties and all kinds of links with the country in which he is being prosecuted. Another factor encouraging an accused to flee may be the severity of the sentence which he may expect in the event of conviction.126 The risk of absconding usually decreases with continued detention on remand.127 The Court expressed its doubts about the compatibility with Article 5 if a person, when making his statement, is unaware of his legal status and the guarantees arising therefrom.128 What is particularly problematic is if an authority orders detention on grounds such as the failure to testify or admit his guilt as this runs counter to the individual’s basic right to a fair trial, such as the freedom from self-incrimination and the presumption of innocence.129

d) Detention of a minor Article 5 (1) (d) permits the detention of a minor by lawful order for the purpose 22 of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority. More specifically, it provides for the deprivation of liberty in the interest of minors regardless of whether they are suspected of having committed a criminal offence or of whether they are simply children ‘at risk’.130 Minors are persons under the age of 18.131 The order to detain a minor may also be issued by administrative authorities.132 ‘Educational supervision’ within the meaning of Article 5 (1) (d) includes measures of care and juvenile criminal law.133 Accordingly, subpara. (d) does not preclude an interim custody measure being used as a 124 ECtHR, 6/11/1980, Guzzardi v ITA, No. 7367/76, §§ 102 et seq; ECtHR, 22/2/1989, Ciulla v ITA, No. 11152/84, § 40; ECtHR, 17/12/2009, M. v GER, No. 19359/04, §§ 89, 102; ECtHR, 21/06/2011 Shimovolos v RUS, No. 30194/09, § 54 et seq (vague reference to ‘offences of an extremist nature’ is not specific enough). 125 Grabenwarter/Pabel, § 21 m.n. 21 with further references. 126 Cf. ECtHR, 27/6/1968, Neumeister v AUT, No. 1936/63, § 10; ECtHR, 27/6/1968, Wemhoff v GER, No. 2122/64, § 14. 127 ECtHR, 31/7/2001, Zannouti v FRA, No. 42211/98, § 45. 128 ECtHR, 23/2/2012 (GC), Creanga ˘ v ROM, No. 29226/03, § 106. 129 ECtHR, 3/7/2012, Lutsenko v UKR, No. 6492/11, § 72. 130 ECtHR, 29/11/2011, A. a. o. v BUL, No. 51776/08, § 66. 131 ECtHR, 12/10/2000, Koniarska v UK, No. 33670/96. 132 Grabenwarter/Pabel, § 21 m.n. 22 with further references. 133 ECtHR, 29/2/1988, Bouamar v BEL, No. 9106/80, §§ 50, 52.

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preliminary to a regime of supervised education, without itself involving any supervised education. In such circumstances, however, the imprisonment must be speedily followed by actual application of such a regime.134 The hospitalisation of a minor solely at the request of a parent does not fall within the ambit of Article 5.135 Article 5 (1) (d) further permits the detention of a minor for the purpose of bringing him before the competent legal authority. It derives from the systematic context that such measures may only be imposed on minors which could also be put under ‘educational supervision’.136 This is, for instance, minors that have to be taken out of their families for social reasons.

e) Detention for medical or social reasons 23

Article 5 (1) (e) permits the lawful detention of persons for the prevention of the spreading of infectious diseases. This particularly includes quarantines. In order to justify such deprivation of liberty the existence of infectious diseases must be established by objective medical reports.137 Article 5 (1) (e) further permits the detention of persons of unsound mind, alcoholics or drug addicts or vagrants. It does not expressly contain requirements for the detention of these groups of persons. However, the Court has developed three minimum conditions which have to be satisfied in order for a detention of persons of unsound mind to be lawful. First, it must reliably be established before the competent national authority by objective medical report that a true mental disorder exists and, secondly, that the mental disorder is of a kind or degree warranting compulsory confinement. Thirdly, the validity of continued confinement depends on the persistence of the disorder.138 Only in emergency cases, especially in cases of violent behaviour, it may be acceptable that an individual is deprived of his liberty without prior consultation of a medical expert.139 National authorities must be competent to examine the very question of whether a person suffers from a true mental disorder and not only whether, for instance, he poses a danger to the public or whether his reintegration into society could be better promoted in a psychiatric hospital; this applies even if the decision includes the finding of a mental illness.140 When taking the decision to detain a person in a psychiatric hospital there must be sufficient evidence at the disposal of the domestic courts to justify his detention. The requirement of a thorough scrutiny requires, in particular, that less severe measures than detention be considered and be found insufficient.141 Where a person is subjected to the supervision of a psychiatrist, the aim of such supervision must be to provide an assessment at regular intervals of 134

ECtHR, 29/2/1988, Bouamar v BEL, No. 9106/80, § 50. ECtHR, 28/11/1988, Nielsen v DEN, No. 10929/84, § 72. 136 Grabenwarter/Pabel, § 21 m.n. 22 with further references. 137 Cf. ECtHR, 24/10/1979, Winterwerp v NED, No. 6301/73, § 39; ECtHR, 5/11/1981, X. v UK, No. 7215/75, § 40; ECtHR, 23/2/1984, Luberti v ITA, No. 9019/80, § 27; ECtHR, 28/5/1985, Ashingdane v UK, No. 8225/78, § 37. 138 ECtHR, 24/10/1979, Winterwerp v NED, No. 6301/73, § 39; ECtHR, 24/3/2009, Puttrus v GER, No. 1241/06; ECtHR, 17/1/2012 (GC), Stanev v BUL, No. 36760/06, § 145. 139 ECtHR, 20/4/2010, C. B. v ROM, No. 21207/03, § 48. 140 ECtHR, 13/1/2011 (GC), Haidn v GER, No. 6587/04, §§ 91 et seq; ECtHR, 24/11/2011, O.H. v GER, No. 4646/08, § 86. 141 ECtHR, 26/5/2011, T ˇ upa v CZE, No. 39822/07, §§ 56–57, 60. 135

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whether the individual still needs to be kept in the institution for the purposes of Article 5 (1) (e).142 The relevant time at which it must be reliably established that a person is of 24 unsound mind is the date of the adoption of the measure depriving a person of his liberty.143 In the Stanev Case, the Court held that a period of more than two years that had elapsed between the expert psychiatric assessment relied on by the authorities and the individual’s placement in a social care home for persons with mental disabilities, during which time his guardian had not checked whether there had been any change in his condition and had not met or consulted him, was excessive and that the respective medical opinion could not be regarded as reliably reflecting the state of the individual’s mental health at the time of his placement in the home. The Court stated in this connection that the lack of a recent medical assessment would be sufficient to conclude that the placement in a home had not been lawful.144 It is in the first place for the national authorities to evaluate the lawfulness of the detention.145 Their failure to comply with the procedural and substantive rules under national law entails a violation of Article 5 (1).146 What is more, there must be some relationship between the ground of permitted deprivation of liberty relied on and the place and conditions of detention. Consequently, the ‘detention’ of a person as a mental health patient will, in principle, only be ‘lawful’ if effected in a hospital, clinic or other appropriate institution.147 Member States may be obliged under Article 5 (1) (e) to put in place appropriate institutional facilities with sufficient capacity so that persons in preplacement detention in ordinary remand centres will be admitted to custodial clinics within a reasonable time and thus be deprived of their liberty for the rightful purpose.148 Nevertheless, a certain friction between available and required capacity in custodial clinics is considered inevitable and must be regarded as acceptable.149 However, if there is an identified structural lack of capacity in custodial clinics, the reasonable time for admitting persons to such facilities is exceeded.150 A person’s conduct or attitude, such as his refusal of treatment in an institution appropriate to his mental illness, does not exempt the domestic 142 ECtHR, 17/1/2012 (GC), Stanev v BUL, No. 36760/06, § 158; ECtHR, 22/1/2013, Mihailovs v LAT, No. 35939/10, § 146. 143 ECtHR, 23/2/1984, Luberti v ITA, No. 9019/80, § 28; ECtHR, 24/11/2011, O.H. v GER, No. 4646/08, § 78; ECtHR, 17/1/2012, Biziuk (No. 2) v POL, No. 24580/06, § 54; ECtHR, 22/1/2013, Mihailovs v LAT, No. 35939/10, § 146. 144 ECtHR, 17/1/2012 (GC), Stanev v BUL, No. 36760/06, § 156. 145 ECtHR, 24/10/1979, Winterwerp v NED, No. 6301/73, § 40; ECtHR, 5/11/1981, X. v UK, No. 7215/75, § 43; ECtHR, 24/9/1992, Herczegfalvy v AUT, No. 10533/83, § 63. 146 ECtHR, 14/10/2003, Tka ´ cik v SVK, No. 42472/98, § 34 et seq. 147 ECtHR, 20/5/2003, Hutchison Reid v UK, No. 50272/99, § 49; ECtHR, 18/9/2012 (GC), James, Wells a. Lee v UK, No. 25119/09 et al, § 194; ECtHR, 2/10/2012, L.B. v BEL, No. 22831/08, § 93. 148 Cf. ECtHR, 11/5/2004, Brand v NED, No. 49902/99, §§ 65 et seq; ECtHR, 11/5/2004, Morsink v NED, No. 48865/99, §§ 68 et seq; the Court in its prior case law still negated a violation of Article 5 (1) in such circumstances. It found that the detention of a drug trafficker in the ordinary prison and not, as the law required, in a medical facility had no bearing on the ‘lawfulness’ of a deprivation of liberty: ECtHR, 15/11/1996, Bizzotto v GRE, No. 22126/93, §§ 32 et seq; ECtHR, 5/4/2011, Nelissen v NED, No. 6051/07, §§ 59 et seq. 149 ECtHR, 11/5/2004, Brand v NED, No. 49902/99, § 64; ECtHR, 11/5/2004, Morsink v NED, No. 48865/99, § 67. 150 ECtHR, 11/5/2004, Brand v NED, No. 49902/99, § 66; ECtHR, 11/5/2004, Morsink v NED, No. 48865/99, § 69.

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authorities from providing persons detained as mental health patients with appropriate medical and therapeutic environment.151 25 The detention of these groups of persons is permitted primarily for reasons of public safety but may also be in their own interest.152 The term ‘persons of unsound mind’ is continually evolving as research in psychiatry progresses, an increasing flexibility in treatment is developing and society’s attitude to mental illness changes.153 In any event, Article 5 (1) (e) does not permit the detention of a person simply because his views or behaviour deviate from the norms prevailing in a particular society. To hold otherwise would not be reconcilable with the text of Article 5 (1) which sets out an exhaustive list.154 As to the denotation of the word ‘alcoholics’ in Article 5 (1) (e), the Court concluded that the provision, when read in the light of its object and purpose, cannot be interpreted as only allowing the detention of medically diagnosed ‘alcoholics’. Rather also persons whose conduct and behaviour under the influence of alcohol pose a threat to public order or themselves can be taken into custody for the protection of the public or their own interest.155 Detention of an individual for the mere reason that his physical appearance, under the influence of alcohol, presents an insult to public morals is incompatible with the purpose of Article 5 (1) (e) as this would be close to introducing a system of confinement for any abnormal appearance which might by some be perceived as offensive or insulting.156 Mere public intolerance or animosity can thus not justify the deprivation of a person’s liberty. The authority of a State in the exercise of its police powers to regulate the management and use of alcohol with a view to preventing or limiting harm which an intoxicated person is capable of causing to himself or to public order is indisputable.157 State regulation in this context can take a number of valid forms: States may establish a programme of compulsory treatment for the persons addicted to alcohol or introduce measure of requiring short periods of involuntary confinement for intoxicated persons. However, any such measure is justified only by the interest of the protection of the individual concerned or the public.158

f) Arrest or detention of foreigners 26

Article 5 (1) (f) provides for three permitted grounds for deprivation of liberty: arrest or detention of a person to prevent his effecting an unauthorised entry into the country, and of a person against whom action is being taken with a view to deportation or extradition. The lawfulness of a detention under subpara. (f) 151 ECtHR, 24/11/2011, O.H. v GER, No. 4646/08, § 89; cf. also ECtHR, 10/1/2013, Claes v BEL, No. 43418/09, § 119 and ECtHR, 10/1/2013, Swennen v BEL, No. 53448/10, § 80. 152 ECtHR, 6/11/1980, Guzzardi v ITA, No. 7367/76, § 98; ECtHR, 4/4/2000, Witold Litwa v POL, No. 26629/95, § 60. 153 ECtHR, 24/10/1979, Winterwerp v NED, No. 6301/73, § 37; ECtHR, 28/10/2003, Rakevich v RUS, No. 58973/00, § 26; ECtHR, 24/11/2011, O.H. v GER, No. 4646/08, § 77. 154 ECtHR, 24/10/1979, Winterwerp v NED, No. 6301/73, § 37. 155 ECtHR, 4/4/2000, Witold Litwa v POL, No. 26629/95, §§ 60 et seq; as to that effect also ECtHR, 8/6/2004, Hilda Hafsteindo´ttir v ISL, No. 40905/98, § 42; ECtHR, 3/2/2011, Kharin v RUS, No. 37345/03, §§ 34, 40 et seq. 156 ECtHR, 4/4/2000, Witold Litwa v POL, No. 26629/95, § 62; ECtHR, 3/2/2011, Kharin v RUS, No. 37345/03, § 43. 157 See ECtHR, 3/2/2011, Kharin v RUS, No. 37345/03, § 42. 158 ECtHR, 3/2/2011, Kharin v RUS, No. 37345/03, § 42.

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presupposes that the procedural and substantive rules of domestic law and the overall purpose of Article 5, namely to protect individuals from arbitrariness, are complied with.159 In order to prevent any abuse of the exception, a detention under this heading may only be effected if action is being taken with a view to deportation or extradition.160 Until a State has ‘authorised’ entry to the country – e.g. by granting a residence permit or approving an application for asylum – any entry is ‘unauthorised’ for the purposes of Article 5 (1) (f) and provides a ground for deprivation of liberty. The fact that an asylum seeker surrenders himself to the immigration authorities does not turn an ‘unauthorised’ entry into an ‘authorised’ entry. If, however, a Member State goes beyond its obligations under the Convention in creating further rights or a more favourable position and enacts legislation explicitly authorising the entry or stay of immigrants pending an asylum application, an ensuing detention for the purpose of preventing an unauthorised entry may raise an issue as to the lawfulness of detention under Article 5 (1) (f).161 Unlike Article 5 (1) (c) which requires the existence of certain facts, Article 5 (1) (f) only presupposes that expulsion or deportation proceedings are in progress. In view of the prohibition of arbitrariness162 it must not be examined whether the detention was reasonably considered necessary, for example to prevent a person from committing an offence or from fleeing. Thus, detention under Article 5 (1) (f) may be justified for the purpose of facilitating the necessary administrative proceedings.163 In the Saadi Case, the Court found that, given the difficult administrative problems (escalating flow of huge numbers of asylum-seekers), it was not incompatible with Article 5 (1) (f) to detain the applicant for seven days in suitable conditions to enable his claim to asylum to be processed speedily. Furthermore, regard was had to the fact that the provision of a more efficient system of determining large numbers of asylum claims rendered unnecessary recourse to a broader and more extensive use of detention powers.164 The lawfulness of the expulsion or extradition is irrelevant for the application of Article 5 (1) (f).165 National law does not have to provide for a time limit for detention pending extradition proceedings. However, if such proceedings are not prosecuted with due diligence, the detention will cease to be permissible as soon as the reasonable length of time is exceeded.166 The Court also takes into account further requirements under domestic law.167 Due diligence includes that the authorities when requesting a travel document for a person detained under subpara. (f) pursue the matter vigorously or endeavour entering into negotiations with the authorities of the destination country to expedite its delivery; or they have to make efforts to secure the detainee’s admission to a third country.168 159 ECtHR, 15/11/1996, Chahal v UK, No. 22414/93, § 129; ECtHR, 9/10/2003 (GC), Slivenko v LAT, No. 48321/99, § 147. 160 ECtHR, 15/11/1996, Chahal v UK, No. 22414/93, § 112. 161 ECtHR, 23/7/2013, Suso Musa v MLT, No. 42337/12, § 97. 162 See m.n. 10 above. 163 ECtHR, 29/1/2008 (GC), Saadi v UK, No. 13229/03, §§ 72, 74. 164 ECtHR, 29/1/2008 (GC), Saadi v UK, No. 13229/03, § 80. 165 The lawfulness of deportation and expulsion proceedings is determined by Article 1 of Protocol No. 7. 166 ECtHR, 8/1/2009, Khudyakova v RUS, No. 13476/04, § 59. 167 ECtHR, 9/10/2003 (GC), Slivenko v LAT, No. 48321/99, § 151. 168 ECtHR, 11/10/2011, Auad v BUL, No. 46390/10, §§ 130 et seq.

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The reasonable length of proceedings depends, inter alia, on the conditions of detention. Periods of three months of detention pending the determination of an asylum application have already been considered to be unreasonably lengthy when coupled with inappropriate conditions, and hence the detention up to the date of determination of the asylum application not compatible with Article 5 (1) (f).169 27 The place and conditions of detention should be appropriate, bearing in mind that the measure is applicable to aliens who, often fearing for their lives, have fled from their own country and the length of the detention must be reasonable in view of the purpose pursued.170 Article 5 (1) (f) was violated in a case where asylum seekers were held in the transit zone of an international airport. The conditions of their holding there were not subject to review by ordinary courts. Moreover, they were not provided with legal, humanitarian or social assistance.171 In cases concerning Russian law governing detention pending extradition, the Court found that they did not grant adequate safeguards against arbitrariness and were neither precise nor foreseeable in their application. Accordingly, detention pending extradition under the respective provisions could not be considered ‘lawful’ for the purposes of Article 5.172 Article 5 (1) (f) was particularly violated where throughout detention the Russian law-enforcement system was unable to identify the competent body responsible for authorisation of the detention, to point to the applicable legal provisions and to determine the time limits of such detention.173 Minors kept in detention pending expulsion are considered to be in a ‘position of extreme vulnerability’. Thus, the conditions of their detention have to be adapted to their special situation.174 This applies even if the minor is accompanied by a parent.175 28 Article 5 applies to detention with a view to expulsion, too.176 Member States act in violation of Article 5 where the person to be expelled is at real risk of a flagrant breach of Article 5 in the receiving State. However, the threshold applying is a high one.177 29 The application of an interim measure indicated by the Court under Rule 39 of the Rules of Court, which temporarily suspends the procedure for a person’s 169 ECtHR, 13/12/2012, Kanagaratnam a. o. v BEL, No. 15297/09, §§ 94–95; ECtHR, 23/7/2013, Suso Musa v MLT, No. 42337/12, §§ 102–103. 170 ECtHR, 25/6/1996, Amuur v FRA, No. 19776/92, § 43; ECtHR, 29/1/2008 (GC), Saadi v UK, No. 13229/03, § 74; ECtHR, 19/2/2009 (GC), A. a. o. v UK, No. 3455/05, § 164. 171 ECtHR, 25/6/1996, Amuur v FRA, No. 19776/92, § 53; ECtHR, 24/1/2008, Riad a. Idiab v BEL, No. 29787/03 et al, §§ 78 et seq. 172 ECtHR, 11/10/2007, Nasrulloyev v RUS, No. 656/06, §§ 76 et seq; ECtHR, 24/4/2008, Ismoilov v RUS, No. 2947/06, §§ 140 et seq; ECtHR, 12/6/2008, Shchebet v RUS, No. 16074/07, §§ 69 et seq; ECtHR, 19/6/2008, Ryabikin v RUS, No. 8320/04, §§ 129 et seq. 173 ECtHR, 19/6/2008, Ryabikin v RUS, No. 8320/04, §§ 129 et seq. 174 ECtHR, 12/10/2006, Mubilanzila Mayeke a. Kaniki Mitunga v BEL, No. 13178/03, § 103; ECtHR, 19/1/2012, Popov v FRA, No. 39472/07, § 119. 175 ECtHR, 12/10/2006, Mubilanzila Mayeke a. Kaniki Mitunga v BEL, No. 13178/03, §§ 74 et seq; ECtHR, 19/1/2010, Muskhadzhiyeva a. o. v BEL, No. 41442/07, § 75; ECtHR, 13/12/2012, Kanagaratnam a. o. v BEL, No. 15297/09, §§ 86 et seq. 176 ECtHR, 17/1/2012, Othman (Abu Quatada) v UK, No. 8139/09, § 233, 235 (bringing the applicant to trial within 50 days from his being detained fell far short of the length of detention required for a flagrant breach). 177 ECtHR, 17/1/2012, Othman (Abu Quatada) v UK, No. 8139/09 § 233, 235.

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deportation, does not have an impact on the lawfulness of the detention as such, provided that the authorities are still envisaging his deportation and that the extension of the detention is reasonable.178 The detention cannot, however, be based on the likelihood that the Court will deliver its ruling within the time limit laid down in domestic law. Even if the statutory time limit has not been exceeded, authorities are obliged to consider less dramatic measures, such as granting temporary leave to remain. This is in order not to breach the link between an individual’s detention and the State’s aim of securing his removal from the country.179

V. The rights of persons deprived of their liberty 1. Prompt information Article 5 (2) grants to everyone who is arrested the right to be informed of the 30 reasons for his arrest and of any charge against him. The person concerned must be informed promptly and in a language which he understands. According to the wording of Article 5 (2), the right to be informed is granted only in the event of ‘arrest’. However, the right is enjoyed by everyone who is deprived of his liberty under Article 5 (1).180 The nature and extent of the information to be given depends on the circumstances of each individual case. The requirements of Article 5 (2) are, however, less demanding than the requirements under Article 6 (3) (a).181 Any person arrested must be told, in simple, non-technical language that he can understand, the essential legal and factual grounds for his arrest,182 so as to be able, if he sees fit, to apply to a court to challenge its lawfulness in accordance with Article 5 (4).183 It does not correspond to the requirements of Article 5 (2) to simply inform about the legal ground for the arrest without giving further details184 or if the person deprived of his liberty only coincidentally gains knowledge of the reasons for his arrest.185 However, Article 5 (2) does not require that the information must consist of a complete list of the charges held against the arrested person.186 The Court found a violation of Article 5 (2) where, at the time of the initial arrest, there was no clearly announced suspicion against the individual concerned and the person was treated

178 ECtHR, 14/6/2011, S.P. v BEL, No. 12572/08; ECtHR, 20/12/2011, Yoh-Ekale Mwanje v BEL, No. 10486/10, § 120. 179 ECtHR, 20/12/2011, Yoh-Ekale Mwanje v BEL, No. 10486/10, §§ 123 et seq. 180 ECtHR, 5/11/1981, X. v UK, No. 7215/75, § 66; ECtHR, 21/2/1990, van der Leer v NED, No. 11509/85, §§ 27et seq. 181 Grabenwarter/Pabel, § 21 m.n. 27 with further references. 182 ECtHR, 5/11/1981, X. v UK, No. 7215/75, § 66; ECtHR, 21/2/1990, van der Leer v NED, No. 11509/85, §§ 27et seq; ECtHR, 30/8/1990, Fox, Campbell a. Hartley v UK, No. 12244/86 et al, § 40; ECtHR, 21/4/2011, Nechiporuk a. Yonkalo v UKR, No. 42310/04, § 208; ECtHR, 3/7/2012, Lutsenko v UKR, No. 6492/11, § 77. 183 ECtHR, 30/8/1990, Fox, Campbell a. Hartley v UK, No. 12244/86 et al, § 40; ECtHR, 5/4/2001, H. B. v SUI, No. 26899/95, § 49. 184 ECtHR, 18/1/1978, IRL v UK, No. 5310/71, § 198. 185 ECtHR, 21/2/1990, van der Leer v NED, No. 11509/85, § 31. 186 EComHR, 13/12/1978, X. v GER, No. 8098/77.

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as a criminal suspect while being formally detained on suspicion of an administrative offence.187 When a person is arrested with a view to extradition and deportation, the information given may be less complete.188 In cases of extradition it is sufficient to inform the applicant that he is wanted by the authorities of the State to which he will be extradited.189 In cases of deportation it is sufficient to inform the person concerned of the legal basis for, and the essential facts relevant to the lawfulness of his detention.190 The information must be conveyed ‘promptly’ (French: ‘dans le plus court de´lai’), meaning that it must be given at the very moment of the arrest or during interrogation within a few hours of the arrest. In this context, regard must be had to the particular circumstances of the case concerned.191

2. Speedy proceedings 31

Article 5 (3) complements the requirements of Article 5 (1) (c) for lawful detention pending trial by two guarantees: Everyone arrested or detained should be brought promptly before a judge or other officer and, in case of continued detention on remand, is entitled to a trial within reasonable time, which entails the right to obtain a judgment within reasonable time. The purpose of bringing a person before a judge or other officer is that the decision to deprive him of his liberty is reviewed by a sufficiently independent and impartial judicial authority.192 The review must be automatic and cannot depend on the application of the person concerned.193 The individual must be heard in person194 and must be informed of the reasons of his arrest. The Court requires that judicial authorities when giving the reasons for a deprivation of liberty must display ‘special diligence’ in the conduct of the proceedings.195 The person arrested or detained must be brought before a ‘judge’ or ‘other officer’ authorised by law to exercise judicial power. Article 5 (3) thereby leaves the Member States a choice between two categories of authorities.196 The judge or officer must at least be independent of the executive and of the parties197 and have the power to make binding decisions.198 Independence and impartiality may appear open to doubt if the ‘officer’ may intervene in subse-

187

ECtHR, 21/4/2011, Nechiporuk a. Yonkalo v UKR, No. 42310/04, § 209. EComHR, 5/7/1984, K. v BEL, No. 10819/84. 189 ECtHR, 8/2/2005, Bordovskiy v RUS, No. 49491/99, §§ 56 et seq. 190 EComHR, 3/3/1978, Caprino v UK, No. 6871/75. 191 ECtHR, 30/8/1990, Fox, Campbell a. Hartley v UK, No. 12244/86 et al, § 42 (no violation in case of a delay of seven hours); ECtHR, 28/10/1994, Murray v UK, No. 14310/88, § 78 (no violation in case of a delay of three hours); cf. also Trechsel, in: Macdonald/Matscher/Petzold, p. 317. 192 ECtHR, 8/4/2004, Belchev v BUL, No. 39270/98, § 67. 193 ECtHR, 18/3/2008, Ladent v POL, No. 11036/03, § 74. 194 ECtHR, 25/3/1999 (GC), Nikolova v BUL, No. 31195/96, § 49. 195 ECtHR, 6/4/2000, Labita v ITA, No. 26772/95, §§ 152 et seq; ECtHR, 6/4/2004, J. G. v POL, No. 36258/97, § 51; ECtHR, 8/4/2004, Belchev v BUL, No. 39270/98, § 74. 196 ECtHR, 4/12/1979, Schiesser v SUI, No. 7710/76, § 27. 197 ECtHR, 4/12/1979, Schiesser v SUI, No. 7710/76, § 31; ECtHR, 25/3/1999 (GC), Nikolova v BUL, No. 31195/96, § 49. 198 ECtHR, 25/3/1999 (GC), Nikolova v BUL, No. 31195/96, §§ 49, 51; ECtHR, 11/12/2003, Yankov v BUL, No. 39084/97, § 166. 188

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quent criminal proceedings on behalf of the prosecuting authority.199 In the 1984 cases of Dutch soldiers, the Court found that an ‘auditeur-militair’ did not enjoy the kind of independence demanded by Article 5 (3) since he was not ‘independent of the parties’. The individual must be brought before a judge ‘promptly’. The scope for 32 flexibility in interpreting and applying the notion of ‘promptness’ is very limited.200 The notion of ‘promptness’ does not require the instant but immediate (French: ‘aussitoˆt’) bringing of an individual before a judge or other officer.201 This requirement is generally satisfied if the appearance before the judge takes place no later than 24 to 48 hours after the arrest or detention.202 The Court found a violation of Article 5 (3) in numerous cases where an individual was deprived of his liberty for several days without obtaining a judicial decision.203 Longer periods of detention without bringing the individual concerned before a judge may be justified in exceptional cases, such as where the legitimate aim is to protect a community from terrorism.204 However, this does not mean that the investigating authorities, whenever they choose to assert that terrorism is involved, have a carte blanche under Article 5 to impair the essence of the guarantee under Article 5.205 The Court found a violation of Article 5 (1) (c) for lack of sufficient judicial control in a case where the applicants had been handed back to the police for questioning after being placed in pre-trial detention, whereby they circumvented the applicable legislation on the permitted periods of detention.206 According to Article 5 (3) second sentence the arrested or detained person is 33 entitled to trial within a reasonable time or to release pending trial. Member States do not enjoy a freedom of choice in this respect. Article 5 (3) second sentence grants the right to be released pending trial if the reasons given by national authorities are no longer relevant and sufficient so as to justify continued detention.207 Consequently, the Court does not only examine whether the length of pretrial detention can be considered ‘reasonable’ but also whether the continued detention is lawful.208 Thus, it examines the compatibility of the detention with the Convention in two respects.209 199 ECtHR, 23/10/1990, Huber v SUI, No. 12794/87, § 43; ECtHR, 26/11/1992, Brincat v ITA, No. 13867/88, §§ 20 et seq. 200 ECtHR, 29/11/1988, Brogan a. o. v UK, No. 11209/84 et al, § 62. 201 ECtHR, 18/1/1978, IRL v UK, No. 5310/71, § 199. 202 Grabenwarter/Pabel, § 21 m.n. 29 with further references. 203 E.g. ECtHR, 18/12/1996, Aksoy v TUR, No. 21987/93, § 78 (14 days); ECtHR, 26/11/1997, Sakik a. o. v TUR, No. 23878/94 et al, §§ 45 et seq (12 and 14 days); ECtHR, 23/9/1998, Demir v TUR, No. 21380/93 et al, § 40 (16 and 23 days); ECtHR, 16/10/2001, O’Hara v UK, No. 37555/97, § 46 (6 days); ECtHR, 10/1/2006, Bora a. o. v TUR, No. 39081/97, §§ 27 et seq. 204 ECtHR, 29/11/1988, Brogan a. o. v UK, No. 11209/84 et al, § 62; ECtHR, 22/7/2003, Ayse Tepe v TUR, No. 29422/95, § 52 (despite the special features of the case the period of detention of 4 days and 6 hours violated Article 5 (3)). 205 ECtHR, 27/7/2004, Ikincisoy v TUR, No. 26144/95, § 102; as to this topic see also Wildhaber, AUILR 2007 (Vol. 22, No. 4), pp. 534 et seq. 206 ECtHR, 17/6/2008, Karaduman a. o. v TUR, No. 8810/03, §§ 89 et seq. 207 ECtHR, 27/6/1968, Wemhoff v GER, No. 2122/64, § 12. 208 ECtHR, 26/1/1993, W. v SUI, No. 14379/88, § 30; ECtHR, 13/7/1995, van der Tang v ESP, No. 19382/92, § 55; ECtHR, 18/12/1996, Scott v ESP, No. 21335/93, § 74; ECtHR, 4/10/2001, Ilowiecki v POL, No. 27504/95, § 58; cf. also ECtHR, 27/6/1968, Wemhoff v GER, No. 2122/64, § 10. 209 Murdoch, ICLQ 1993 (42) p. 509.

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Where a person’s detention on remand is broken into several non-consecutive periods, the reasonableness of the length of each distinct period should be assessed separately.210 This applies provided that while at liberty the individual is free to lodge complaints about his pre-trial detention. The time already spent in custody pending the same set of criminal proceedings will be taken into account by the Court in its assessment of the sufficiency and relevance of the grounds justifying the subsequent period of pre-trial detention.211 Where an accused is detained pending trial under two or more detention orders in parallel sets of criminal proceedings, the reasonable time requirement requires a global assessment of the cumulative period.212 In principle, neither Article 5 (3) nor any other provision of the Convention creates a general obligation for the States to take into account the length of pre-trial detention suffered in a third State when determining whether the maximum period of detention on remand had been exceeded.213 34 The persistence of reasonable suspicion that the person arrested has committed an offence is a conditio sine qua non for the lawfulness of the continued detention, but after a certain lapse of time it no longer suffices.214 The Court must then establish whether the other grounds given by the judicial authorities are ‘relevant’ and ‘sufficient’ to continue to justify the deprivation of liberty.215 Such other grounds are, for instance, serious indications of the guilt,216 the risk of absconding,217 the risk of collusion218 or the risk of recurrence.219 Another accepted ground for detention might be the need to ensure the proper conduct of the proceedings.220 The personal situation of an individual, such as for example that he is one of the richest people in the country and, unofficially, a politically influential person, may justify detention 210

ECtHR, 22/5/2012 (GC), Idalov v RUS, No. 5826/03, § 129. ECtHR, 22/5/2012 (GC), Idalov v RUS, No. 5826/03, §§ 129 et seq; the Court adopts a similar line of reasoning concerning the reasonable time requirement under Article 6. 212 ECtHR, 17/04/2012, Piechowicz v POL, No. 20071/07, § 188. 213 ECtHR, 20/12/2011, Zandbergs v LAT, No. 71092/01, § 63 (detention pending extradition in the USA). 214 ECtHR, 10/11/1969, Sto ¨ gmu¨ller v AUT, No. 1602/62, § 4; ECtHR, 28/3/1990, B. v AUT, No. 11968/86, § 42; ECtHR, 6/4/2000, Labita v ITA, No. 26772/95, § 153; ECtHR, 26/7/2001, Ilijkov v BUL, No. 33977/96, § 77; ECtHR, 4/10/2001, Ilowiecki v POL, No. 27504/95, § 59; ECtHR, 20/1/2003, G. K. v POL, No. 38816/97, § 82; ECtHR, 2/12/2003, Imre v HUN, No. 53129/99, § 43; ECtHR, 2/12/2003, Matwiejczuk v POL, No. 37641/97, § 77; ECtHR, 10/3/2009 (GC), Bykov v RUS, No. 4378/02, § 64; ECtHR, 22/5/2012 (GC), Idalov v RUS, No. 5826/03, § 140. 215 ECtHR, 26/6/1991, Letellier v FRA, No. 12369/86, § 35; ECtHR, 24/11/1994, Kemmache (No. 3) v FRA, No. 17621/91, § 45; ECtHR, 12/12/1991, Clooth v BEL, No. 12718/87, § 36; ECtHR, 12/12/1991, Toth v AUT, No. 11894/85, § 67; ECtHR, 27/8/1992, Tomasi v FRA, No. 12850/87, § 84; ECtHR, 26/1/1993, W. v SUI, No. 14379/88, § 30; ECtHR, 13/7/1995, van der Tang v ESP, No. 19382/92, § 55; ECtHR, 17/3/1997, Muller v FRA, No. 21802/93, § 35; ECtHR, 22/5/2012 (GC), Idalov v RUS, No. 5826/03, §§ 140, 144. 216 ECtHR, 27/8/1992, Tomasi v FRA, No. 12850/87, § 89; ECtHR, 13/7/1995, van der Tang v ESP, No. 19382/92, § 63; ECtHR, 18/12/1996, Scott v ESP, No. 21335/93, § 78. 217 ECtHR, 27/6/1968, Wemhoff v GER, No. 2122/64, §§ 14 et seq; ECtHR, 27/6/1968, Neumeister v AUT, No. 1936/63, § 10; ECtHR, 28/3/1990, B. v AUT, No. 11968/86, § 44. 218 ECtHR, 12/12/1991, Clooth v BEL, No. 12718/87, § 43; ECtHR, 26/1/1993, W. v SUI, No. 14379/88, § 35. 219 ECtHR, 10/11/1969, Matznetter v AUT, No. 2178/64, § 9; ECtHR, 12/12/1991, Clooth v BEL, No. 12718/87, § 40; ECtHR, 17/3/1997, Muller v FRA, No. 21802/93, § 44. 220 ECtHR, 20/1/2003, G. K. v POL, No. 38816/97, § 84. 211

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for a certain period of time as well.221 Illegal residency in a Member State can be a specific reason for continued detention in that State, too.222 In the Clooth Case, the Court found that the length of the detention on remand of the applicant, who was suspected of having committed murder and arson, exceeded the reasonable time referred to in Article 5 (3). As it held, nine months after the beginning of the detention the fear that the accused would commit similar offences had become immaterial, or he should have been provided psychiatric treatment for his mental disorder. After 15 months of investigations the risk of collusion ceased to exist as did the risk of absconding 31 months after the applicant’s arrest. Thus, the applicant should have been released.223 In the Imre Case, the Court considered that with the passage of time the risk of collusion became less relevant, in particular in view of the fact that the applicant’s two accomplices had been arrested.224 In the Zandbergs Case, the Court found that the fact that an individual had already absconded from justice and tried to hide abroad, together with the seriousness of the alleged crime and the absence of a fixed residence on state territory could provide a valid ground for keeping him in detention for a reasonable time.225 The issue of whether the period of detention is reasonable in view of the 35 grounds given by the judicial authorities cannot be assessed in abstracto but must be assessed in each case according to its special features.226 A mere listing of the grounds for detention without substantiating them with relevant and sufficient reasons does not suffice for the purposes of Article 5 (3).227 There is no catalogue of relevant factors but the Court strikes a fair balance between the public interest in detaining a person and, notwithstanding the presumption of innocence, the respect for individual liberty under Article 5 in each case.228 It falls in the first place to the national judicial authorities to examine the reasonableness of the length of a detention.229 However, they are obliged to envisage the possibility of imposing other 221

ECtHR, 31/5/2011, Khodorkovskiy v RUS, No. 5829/04, § 189. ECtHR, 18/1/2007, Estrikh v LAT, No. 73819/01, § 122; ECtHR, 24/11/2009, Shannon v LAT, No. 32214/03, § 58. 223 ECtHR, 12/12/1991, Clooth v BEL, No. 12718/87, §§ 40, 48 et seq. 224 ECtHR, 2/12/2003, Imre v HUN, No. 53129/99, § 45; also the ground that the applicant, before his arrest, had attempted to abscond gradually loses its relevance as the trial proceeds and is in itself not sufficient to justify keeping him in custody for a period of four years: ECtHR, 18/7/2006, Kozik v POL, No. 25501/02, § 38. 225 ECtHR, 20/12/2011, Zandbergs v LAT, No. 71092/01, § 72. 226 E.g. ECtHR, 6/4/2000, Labita v ITA, No. 26772/95, §§ 152 et seq; ECtHR, 2/12/2003, Imre v HUN, No. 53129/99, § 43; ECtHR, 2/12/2003, Matwiejczuk v POL, No. 37641/97, § 77; ECtHR, 20/1/2004, D. P. v POL, No. 34221/96, § 83; ECtHR, 22/5/2012 (GC), Idalov v RUS, No. 5826/03, § 139. 227 ECtHR, 10/3/2009 (GC), Bykov v RUS, No. 4378/02, § 65. 228 ECtHR, 6/4/2000, Labita v ITA, No. 26772/95, §§ 152 et seq; ECtHR, 26/10/2000 (GC), Kudła v POL, No. 30210/96, § 110; ECtHR, 5/7/2001, Erdem v GER, No. 38321/97, § 39; ECtHR, 2/12/2003, Imre v HUN, No. 53129/99, § 41; ECtHR, 2/12/2003, Matwiejczuk v POL, No. 37641/97, § 75. 229 ECtHR, 27/6/1968, Neumeister v AUT, No. 1936/63, § 5; ECtHR, 27/6/1968, Wemhoff v GER, No. 2122/64, § 12; ECtHR, 26/6/1991, Letellier v FRA, No. 12369/86, § 35; ECtHR, 24/11/1994, Kemmache (No. 3) v FRA, No. 17621/91, § 45; ECtHR, 12/12/1991, Toth v AUT, No. 11894/85, § 67; ECtHR, 27/8/1992, Tomasi v FRA, No. 12850/87, § 84; ECtHR, 13/7/1995, van der Tang v ESP, No. 19382/92, § 55; ECtHR, 8/6/1995, Yagci a. Sargin v TUR, No. 16419/90 et al, § 50; ECtHR, 8/6/1995, Mansur v TUR, No. 16026/90, § 52; as to the difference to Article 6 cf. ECtHR, 10/11/1969, Sto¨gmu¨ller v AUT, No. 1602/62, § 5. 222

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preventive measures on the applicant, such as bail or police supervision.230 Justification for any period of detention, no matter how short, must be convincingly demonstrated by the authorities.231 Only in exceptional cases is the Court prepared to tolerate an implicit rejection of alternative measures at the initial stage of the investigation232 and can the ‘unavailability of bail’ be self-evident.233 The gravity of the charges cannot by itself serve to justify long periods of detention on remand.234 In cases where persons are suspected of terrorism, longer periods of detention on remand may be justified.235 The specific nature of the phenomenon of organised crime may justify longer periods of pre-trial detention, too.236 Reasons given in decisions which only refer to the applicant’s ‘character’ without explaining what the character actually is and why it makes the detention necessary are sufficient if they are reasonable.237 However, where individuals are repeatedly re-detained on the basis of insufficiently reasoned decisions, the total period of detention may become unreasonable and thereby violate Article 5 (3).238 Preventing the risk of pressure on female witnesses by the detained person who is suspected of acting in an organised criminal group is in itself not enough to justify his continued imprisonment for over three years.239 36 Where the grounds for deprivation of liberty are relevant and sufficient, the Court further ascertains whether the competent national authorities displayed ‘special diligence’ in the conduct of the proceedings.240 In this context, in analogy to its case law on the reasonableness of the length of proceedings under Article 6 (1), the Court takes into account the complexity of the case and whether a possible delay in the proceedings is attributable to the conduct of the applicant or of the 230 ECtHR, 20/1/2003, G. K. v POL, No. 38816/97, § 85; ECtHR, 4/7/2006, Dzyruk v POL, No. 77832/01, § 41 (as regards the securing of the proper conduct of the criminal proceedings); ECtHR, 22/12/2008, Aleksanyan v RUS, No. 46468/06, § 180; ECtHR, 22/5/2012 (GC), Idalov v RUS, No. 5826/03, § 140. 231 ECtHR, 9/1/2003, Shishkov v BUL, No. 38822/97, § 66; ECtHR, 22/5/2012 (GC), Idalov v RUS, No. 5826/03, § 140. 232 ECtHR, 31/5/2011, Khodorkovskiy v RUS, No. 5829/04, §§ 195 et seq. 233 ECtHR, 3/10/2006 (GC), McKav v UK, No. 543/03, § 46; ECtHR, 31/5/2011, Khodorkovskiy v RUS, No. 5829/04, §§ 195; see mutatis mutandis ECtHR, 17/07/2008, Galuashvili v GEO, No. 40008/ 04, §§ 6 et seq; see also ECtHR, 04/05/2006, Celejewski v POL, No. 17584/04, §§ 35 et seq and ECtHR, 24/10/2006, Kusyk v POL, No. 7347/02, § 37. 234 ECtHR, 31/7/2000, Jecius v LTU, No. 34578/97, § 94; ECtHR, 26/7/2001, Ilijkov v BUL, No. 33977/96, § 81; ECtHR, 24/7/2003, Smirnova v RUS, No. 46133/99 et al, § 70; ECtHR, 11/12/2003, Yankov v BUL, No. 39084/97, § 172; ECtHR, 6/11/2007, Patsuria v GEO, No. 30779/04, § 77; ECtHR, 22/5/2012 (GC), Idalov v RUS, No. 5826/03, § 145. 235 ECtHR, 29/11/1988, Brogan a. o. v UK, No. 11209/84 et al, § 61; of a different opinion Tanca, Human Rights, Terrorism and Police Custody: The Brogan Case, ELR 1990/91, 268 (273). 236 ECtHR, 6/11/2003, Pantano v ITA, No. 60851/00, §§ 69 et seq; ECtHR, 17/4/2012, Piechowicz v POL, No. 20071/07, §§ 195 et seq (where, even taking into account the difficult task of trying an organised criminal group, the grounds given by the authority – reference to the risk in general terms and likelihood of a severe sentence being imposed – could not justify the length of the detention). 237 ECtHR, 6/4/2000, Labita v ITA, No. 26772/95, § 163; ECtHR, 24/7/2003, Smirnova v RUS, No. 46133/99 et al, § 70. 238 ECtHR, 24/7/2003, Smirnova v RUS, No. 46133/99 et al, § 71. 239 ECtHR, 10/1/2006, Swierzko v POL, No. 9013/02, § 32. 240 Cf. ECtHR, 26/7/2001, Kreps v POL, No. 34097/96, §§ 42 et seq; ECtHR, 31/7/2001, Zannouti v FRA, No. 42211/98, § 46; ECtHR, 2/12/2003, Imre v HUN, No. 53129/99, § 43; ECtHR, 2/12/2003, Matwiejczuk v POL, No. 37641/97, §§ 78 et seq; ECtHR, 5/11/2009, Shabani v SUI, No. 29044/06, §§ 64 et seq.

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judicial authorities.241 In particular, the proceedings must be conducted with due expedition and must not be delayed due to difficulties within the authority.242 The complexity of a case is less relevant in the assessment of the reasonableness of the length of detention under Article 5 (3) than in the examination of the reasonableness of the length of proceedings under Article 6 (1).243 According to Article 5, release may be conditioned by guarantees to appear for 37 trial; in other words, an individual may be released on bail. When the only remaining reason for continued detention – apart from the suspicion that he has committed an offence – is the fear that the accused will abscond, he must be released if he is in a position to provide adequate guarantees to ensure that he will appear for trial, for example by lodging a security.244 In such circumstances, Member States do not enjoy a margin of appreciation when deciding on a release. The detained person is also entitled to release if the danger of him suborning witnesses has receded with the lapse of time.245 The amount set for bail must be sufficiently reasoned in the decision and must be assessed by reference to the detainee’s personal situation, his assets and his relationship with the persons who are to provide the security. In other words, the amount must be assessed to the degree of confidence that is possible that the prospect of loss of security in the event of the detainee’s non-appearance at a trial will act as a sufficient deterrent to dispel any wish on his part to abscond.246 The authorities must take as much care in fixing appropriate bail as in deciding whether or not the accused’s continued detention is indispensable. The accused must faithfully furnish sufficient information, that can be checked if need be, about the amount of bail to be fixed.247 As a general rule, the damage caused is irrelevant for the fixing of the amount of the bail. This is because the guarantee under Article 5 (3) is designed to ensure not the reparation of loss but the presence of the accused at the hearing.248 In the Mangouras Case, the Court concluded that the bail in the amount of EUR 3,000,000 set for the release of the captain of an oil tanker which was flying the flag of the Bahamas did not violate Article 5. It found that the circumstances of the case, namely that large quantities of oil were spilled and caused an ecological disaster and that the applicant’s bail was paid by the shipowner’s insurers, lent the 241

ECtHR, 29/7/2004, Cevizovic v GER, No. 49746/99, §§ 43 et seq. ECtHR, 12/12/1991, Toth v AUT, No. 11894/85, §§ 76 et seq; ECtHR, 2/12/2003, Matwiejczuk v POL, No. 37641/97, § 85 (the period of 18 months without a hearing in a criminal case shows a lack of diligence and violates Article 5 (3)); ECtHR, 29/7/2004, Cevizovic v GER, No. 49746/99, §§ 50 et seq (inadequate organisation of the proceedings); ECtHR, 10/11/2005, Dzelili v GER, No. 65745/01, §§ 78 et seq (part of the criminal trial was repeated after two lay judges had fallen ill; inadequate organisation of the proceedings); ECtHR, 8/11/2007, Lelie`vre v BEL, No. 11287/03, §§ 107 et seq (almost two years passed between the transmission of the investigation file and the opening of the trial), as to that Krenc, L’arreˆt Lelie`vre c. Belgique – Double regard sur un arreˆt contraste´, RTDH 2008, p. 857 (857 et seq). 243 ECtHR, 28/3/1990, B. v AUT, No. 11968/86, §§ 50 et seq; ECtHR, 26/1/1993, W. v SUI, No. 14379/88, § 42. 244 ECtHR, 27/6/1968, Wemhoff v GER, No. 2122/64, § 15; ECtHR, 26/6/1991, Letellier v FRA, No. 12369/86, § 46. 245 ECtHR, 31/7/2003, Hristov v BUL, No. 35436/97, § 105. 246 ECtHR, 28/10/2010 (GC), Mangouras v ESP, No. 12050/04, §§ 78 et seq with reference to ECtHR, 27/6/1968, Neumeister v AUT, No. 1936/63, § 14. 247 ECtHR, 15/11/2001, Iwan ´ czuk v POL, No. 25196/94, § 66. 248 ECtHR, 27/6/1968, Neumeister v AUT, No. 1936/63, § 14. 242

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case an ‘exceptional’ character and justified taking into account not only the seriousness of the offence of which the applicant was accused but also his professional environment.249 This approach clearly contravenes the Court’s previous case law and the criteria developed by it for fixing the appropriate amount of a bail.250 In cases where a domestic authority decides that a person must be released from detention, some delay in carrying out the decision is often inevitable (e.g. due to relevant administrative formalities); however, the delay must be kept to a minimum.251 A delay caused by the competent officer’s absence does not comply with the requirements of Article 5.252

3. The right to review of lawfulness of arrest or detention Article 5 (4) stipulates that everyone who is deprived of his liberty is entitled to a review of the lawfulness of his arrest or detention. This guarantee originates in the Anglo-Saxon doctrine of habeas corpus. The right to review of lawfulness applies to all types of deprivation of liberty under Article 5 (1). The ‘lawfulness’ has to be determined in the light not only of domestic law but also of the text of the Convention, the general principles embodied therein and the aim of the restriction permitted by Article 5 (1), as well as international law.253 The right to review of lawfulness is granted in any case where the decision to deprive a person of his liberty is taken by an administrative body.254 If detention is ordered by a court, it must be distinguished between detention after ‘conviction by a competent court’ and detention on remand. In general, the review required by Article 5 (4) is incorporated in the decision depriving a person of his liberty when that decision is made by a court at the close of judicial proceedings.255 In cases of continued detention, the possibility of subsequent review of the lawfulness of detention by a court is required where the reasons initially warranting confinement may cease to exist due to new issues arising and affecting the lawfulness of the detention.256 However, the person deprived of his liberty must request his release.257 39 Article 5 (4) proclaims the right to a speedy judicial decision on the lawfulness of detention.258 As do Article 5 (3) and Article 6 (1), Article 5 (4) stipulates a reasonable time requirement. However, the reasonable time requirement under Article 5 38

249

ECtHR, 28/10/2010 (GC), Mangouras v ESP, No. 12050/04, §§ 83 et seq. See also the joint separate opinion of Judge Rozakis and six other Judges in ECtHR, 28/10/2010 (GC), Mangouras v ESP, No. 12050/04. 251 ECtHR, 1/7/1997, Giulia Manzoni v ITA, No. 19218/91, § 25. 252 ECtHR, 6/4/2000, Labita v ITA, No. 26772/95, § 172. 253 ECtHR, 2/3/1987, Weeks v UK, No. 9787/82, § 57; ECtHR, 15/11/1996, Chahal v UK, No. 22414/93, § 127; see also Grabenwarter/Pabel, § 21 m.n. 34 with further references. 254 ECtHR, 18/6/1971, De Wilde, Ooms a. Versyp v BEL, No. 2832/66 et al, § 76; ECtHR, 8/6/1976, Engel a. o. v NED, No. 5100/71 et al, § 77; ECtHR, 23/2/1984, Luberti v ITA, No. 9019/80, § 31. 255 ECtHR, 24/10/1995, Iribarne Pe ´rez v FRA, No. 16462/90, § 30; ECtHR, 20/1/2004, Ko¨nig v SVK, No. 39753/98, § 19. 256 ECtHR, 24/10/1979, Winterwerp v NED, No. 6301/73, § 55; ECtHR, 24/6/1982, van Droogenbroeck v BEL, No. 7906/77, §§ 45 et seq; ECtHR, 24/10/1995, Iribarne Pe´rez v FRA, No. 16462/90, § 30. 257 ECtHR, 18/6/1971, De Wilde, Ooms a. Versyp v BEL, No. 2832/66 et al, §§ 82 et seq; ECtHR, 29/2/1988, Bouamar v BEL, No. 9106/80, § 55. 258 ECtHR, 28/3/2000, Baranowski v POL, No. 28358/95, § 68; ECtHR, 9/7/2009 (GC), Mooren v GER, No. 11364/03, § 106. 250

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(4) is stricter than the one under Article 6 (1). It is incumbent on the national judicial authorities that they make the necessary administrative arrangements to ensure that urgent matters are dealt with speedily, which is particularly necessary where an individual’s liberty is at stake.259 The relevant period to be taken into account begins with the request for release260 or the lodging of an appeal against the detention order261 and ends with the decision on the lawfulness of detention. The concept of ‘reasonable time’ cannot be defined in the abstract. The question of whether periods of detention fall within the meaning of ‘reasonable time’ under Article 5 (4) must be determined in the light of the circumstances of each case.262 The circumstances to be taken into account may include the complexity of the proceedings, the conduct by the authorities and by the applicant and what was at stake for the latter.263 Given the need for a court of appeal to gather information from a variety of sources and to allow a variety of parties to participate effectively in the proceedings, a period of 63 days to reach a decision does not, in isolation, raise an issue under the reasonable time requirement.264 The elapse of almost four months265 or five months and 17 days respectively (for proceedings at first and appeal instance)266 before any court ruled on the request for release did not satisfy the requirement of speedy determination laid down by Article 5 (4) as there were no exceptional grounds justifying the length of the proceedings. Proceedings for reviewing the lawfulness of a deprivation of liberty must be practically effective.267 In the S.T.S. Case, the Court found that the lack of a final decision before the validity of the authorisation for the applicant’s custodial placement expired was in itself sufficient to deprive his appeal on points of law of its practical effectiveness as a preventive or even reparative remedy.268 The lawfulness of detention must be reviewed at reasonable intervals.269 The Court does not lay down a maximum period of time between reviews which should automatically apply, but finds that the system must be flexible so as to reflect the realities of the situation.270 A delay of more than six months in the review of the lawfulness of the detention of a person confined to a psychiatric institution for reasons 259

Instead of many ECtHR, 7/6/2011, S.T S. v NED, No. 277/05, § 48. ECtHR, 3/6/2003, Pantea v ROM, No. 33343/96, §§ 250 et seq. 261 ECtHR, 31/5/2011, Khodorkovskiy v RUS, No. 5829/04, § 247. 262 ECtHR, 3/6/2003, Pantea v ROM, No. 33343/96, § 253 and ECtHR, 9/7/2009 (GC), Mooren v GER, No. 11364/03, §§ 103 et seq (where the decision to remit the case to the lower court so that it newly decided on the merits caused an unjustified delay in the judicial review proceedings); ECtHR, 7/6/2011, S.T.S. v NED, No. 277/05, § 43. 263 ECtHR, 30/11/2000, G. B. v SUI, §§ 34 et seq; ECtHR, 30/11/2000, M. B. v SUI, No. 28256/95, §§ 38 et seq; ECtHR, 7/6/2011, S.T.S. v NED, No. 277/05, § 43; ECtHR, 17/1/2012, Biziuk (No. 2) v POL, No. 24580/06, § 54 (reference to the complexity of medical issues). 264 ECtHR, 7/6/2011, S.T.S. v NED, No. 277/05, § 46. 265 ECtHR, 3/6/2003, Pantea v ROM, No. 33343/96, § 252; the same applied in case of a decision on the request to be released from a psychiatric institution, ECtHR, 27/10/2005, Mathieu v FRA, No. 68673/01, §§ 32 et seq. 266 ECtHR, 24/7/2001, Rutten v NED, No. 32605/96, §§ 50 et seq. 267 ECtHR, 28/3/2000, Baranowski v POL, No. 28358/95, § 76; ECtHR, 19/2/2009 (GC), A. a. o. v UK, No. 3455/05, § 202; ECtHR, 7/6/2011, S.T.S. v NED, No. 277/05, §§ 58 et seq. 268 ECtHR, 7/6/2011, S.T.S. v NED, No. 277/05, § 60. 269 ECtHR, 24/10/1979, Winterwerp v NED, No. 6301/73, § 55; ECtHR, 24/7/2001, Hirst v UK, No. 40787/98, §§ 37 et seq. 270 ECtHR, 24/10/1979, Winterwerp v NED, No. 6301/73, § 55; ECtHR, 24/7/2001, Hirst v UK, No. 40787/98, §§ 37 et seq. 260

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39–41

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of staff shortage in the clinic and for having reached the annual ceiling for medical reports under the relevant legislation was not held to comply with Article 5 (4).271 40 The lawfulness of detention must be reviewed by a ‘judge or other officer authorised by law to exercise judicial power’.272 Even though Article 5 (4) does not expressly stipulate further requirements, the court examining an appeal against detention must provide guarantees of a judicial procedure comparable to those under Article 6 (1).273 The tribunal must be established by law274 and satisfy the requirements of independence and impartiality.275 The tribunal reviewing the lawfulness must not only act in an advisory capacity but must be competent to issue a binding decision. As the wording of Article 5 (4) clearly suggests, it must, in particular, be competent to release a person deprived of his liberty.276 It does not comply with the provision if domestic law provides for an arrangement whereby a finding of unlawful detention can lead indirectly to release.277 41 As to the requirement of procedural fairness under Article 5 (4), the Convention does not impose a uniform, unvarying standard to be applied irrespective of the context, facts and circumstances.278 Although the judicial proceedings referred to in Article 5 (4) need not always be attended by the same guarantees as those required under Article 6, it must have a judicial character and provide guarantees appropriate to the type of deprivation of liberty in question.279 If a Member State decides to institute a second level of jurisdiction, it must in principle accord the same procedural guarantees on appeal as at first instance.280 The proceedings must always ensure ‘equality of arms’.281 In particular, the person detained must be heard.282 Mental illness cannot justify impairing the very essence of that right.283 Article 5 (4) does not as a general rule require a public hearing for the review of the lawfulness of detention; however, public hearings may be required in particular circumstances.284 In order to 271

ECtHR, 20/12/2005, Magalhaes Pereira (No. 2) v POR, No. 15996/02, §§ 27 et seq. ECtHR, 26/5/1993, Brannigan a. McBride v UK, No. 14553/89 et al, § 58. 273 As to that see Article 6, m.n. 39 et seq. 274 ECtHR, 28/11/2002, Lavents v LAT, No. 58442/00 (with reference to the rule of law); ECtHR, 9/2/2006, Freimanis a. Lidums v LAT, No. 73443/01 et al, § 102. 275 ECtHR, 18/6/1971, De Wilde, Ooms a. Versyp v BEL, No. 2832/66 et al, § 78; ECtHR, 29/3/2001, D. N. v SUI, No. 27154/95, § 42; ECtHR, 26/9/2002, Benjamin a. Wilson v UK, No. 28212/95, § 33. 276 ECtHR, 28/5/2002 (GC), Stafford v UK, No. 46295/99, §§ 88 et seq; ECtHR, 7/10/2003, Bu ¨ low v UK, No. 75362/01, § 24; ECtHR, 16/10/2003, Wynne (No. 2) v UK, No. 67385/01, § 26; ECtHR, 27/4/2004, Hill v UK, No. 19365/02, § 22; ECtHR, 25/10/2012, Buishvili v CZE, No. 30241/11, § 39. 277 ECtHR, 25/10/2012, Buishvili v CZE, No. 30241/11, §§ 41 et seq. 278 ECtHR, 19/2/2009 (GC), A. a. o. v UK, No. 3455/05, § 203; ECtHR, 5/62012, Soliyev v RUS, No. 62400/10, § 55. 279 ECtHR, 24/10/1979, Winterwerp v NED, No. 6301/73, § 60; ECtHR, 19/2/2009 (GC), A. a. o. v UK, No. 3455/05, § 203; ECtHR, 22/5/2012 (GC), Idalov v RUS, No. 5826/03, § 161. 280 ECtHR, 30/3/2010, Allen v UK, No. 18837/06, § 39; ECtHR, 7/6/2011, S.T.S. v NED, No. 277/05, § 43. 281 ECtHR, 13/2/2001, Scho ¨ ps v GER, No. 25116/94, § 44; ECtHR, 31/7/2003, Hristov v BUL, No. 35436/97, § 118; ECtHR, 20/1/2003, G. K. v POL, No. 38816/97, §§ 91 et seq; as to the principle of equality of arms see also Article 6, m.n. 91 et seq. 282 ECtHR, 24/10/1979, Winterwerp v NED, No. 6301/73, § 60; ECtHR, 25/3/1999 (GC), Nikolova v BUL, No. 31195/96, § 58; ECtHR, 20/1/2003, G. K. v POL, No. 38816/97, §§ 93 et seq; ECtHR, 22/6/2004, Ta´m ECtHR SVK, No. 50213/99, § 67. 283 ECtHR, 24/10/1979, Winterwerp v NED, No. 6301/73, § 60. 284 ECtHR, 15/11/2005, Reinprecht v AUT, No. 67175/01, §§ 40 et seq; ECtHR, 31/5/2011, Khodorkovskiy v RUS, No. 5829/04, § 159. 272

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secure the requirement of ‘equality of arms’, it is necessary to inform a person of the reasons for his arrest or detention and that within adequate time and in an appropriate manner access to the case files285 and the prosecution’s motion for continued detention on remand is made available to him or his legal counsel.286 Denial of access to information must not concern material that may call into question the suspicion against the detainee and which is essential for the assessment of the lawfulness of his detention.287 Difficulties caused by the non-disclosure of documents in the case file which form the basis of the prosecution must be counterbalanced in a way that the individual still has a possibility to effectively challenge the allegations against him.288 The judge examining appeals against detention must take into account the concrete facts invoked by the detainee and capable of putting in doubt the existence of the conditions essential for the ‘lawfulness’ of the detention.289 Equality of arms further requires that the detainee must be given the opportunity to be present at the same time as the prosecutor in order to be able to respond to its findings.290 Special procedural safeguards may be called for where the protection of interests of persons who, on account of their mental disabilities, are not fully capable of acting for themselves, so require.291 The same applies in respect of legally incapacitated persons.292 Article 5 (4) grants the right to legal assistance.293 In the Lebedev Case, the Court found that as a rule a judge may decide not to wait until a detainee avails himself of legal assistance, and that the authorities are not obliged to provide him with free legal aid in the context of the detention proceedings. In view of the specific features of the case, namely that the applicant was not in his normal state of health (he was brought before the judge almost directly from the hospital), legal representation was at least desirable. Even though States have no positive duty to secure legal assistance to detainees, they have the negative obligation not to hinder effective assistance from legal counsels.294 In this connection, it should be noted that respect for lawyerclient confidentiality is equally important under Article 5 (4) as it is in the context of both Article 6 (1) and (3) (c) and Article 5 (3).295 285 ECtHR, 13/2/2001, Scho ¨ ps v GER, No. 25116/94, § 44; ECtHR, 13/2/2001, Lietzow v GER, No. 24479/94, § 47; ECtHR, 13/2/2001, Garcia Alva v GER, No. 23541/94, § 42. 286 ECtHR, 5/7/2005, Osva ´ th v HUN, No. 20723/02, §§ 18 et seq. 287 ECtHR, 11/3/2008, Falk v GER, No. 41077/04 (inadmissibility decision); ECtHR, 31/5/2011, Khodorkovskiy v RUS, No. 5829/04, § 159. 288 ECtHR, 19.2.2009 (GC), A. a. o. v UK, No. 3455/05, § 220; ECtHR, 17/4/2012, Piechowicz v POL, No. 20071/07, § 203. 289 ECtHR, 11/12/2003, Yankov v BUL, No. 39084/97, § 186; ECtHR, 8/4/2004, Hamanov v BUL, No. 44062/98, § 83. 290 ECtHR, 22/6/2004, Wesolowski v POL, No. 29687/96, § 66; ECtHR, 24/6/2004, Frommelt v LIE, No. 49158/99, § 36; ECtHR, 19.2.2009 (GC), A. a. o. v UK, No. 3455/05, § 220. 291 ECtHR, 17/1/2012 (GC), Stanev v BUL, No. 36760/06, § 170 et seq; ECtHR, 22/11/2012, Sy´kora v CZE, No. 23419/07, §§ 66 et seq, 82 et seq; ECtHR, 14/2/2012, D.D. v LTU, No. 13469/06, § 163. 292 ECtHR, 22/1/2013, Mihailovs v LAT, No. 35939/10, §§ 151, 156 et seq. 293 Grabenwarter/Pabel, § 21 m.n. 37 with further references. 294 ECtHR, 25/10/2007, Lebedev v RUS, No. 4493/04, §§ 84 et seq. 295 ECtHR, 31/05/2011, Khodorkovskiy v RUS, No. 5829/04, § 198 with further references to the Court’s case law; see also Article 6 m.n. 138.

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Both paragraphs 3 and 4 of Article 5 grant certain procedural guarantees.296 Thus, the proceedings must be adversarial and must always ensure ‘equality of arms’ between the parties. Appropriate time must be afforded to the individual concerned to study the materials brought by the prosecution and to prepare his defence.297 Lawyer-client confidentiality is equally important in the context of both Article 6 (1) and (3) (c) and Article 5 (3) and (4).298 Furthermore, as mentioned above, the period of detention must comply with the reasonable time requirement.299 In general, although the principles governing detention proceedings under Article 5 (3) and (4) are broadly similar, the extent of the procedural guarantees may sometimes vary and, in any event, cannot be the same as under Article 6 of the Convention.300

4. The right to compensation 43

Article 5 (5) grants the right to compensation to everyone who has been deprived of his liberty in contravention of the Convention. In order for the right to compensation to be enforceable it is required that the arrest and detention was effected in conditions contrary to Article 5 (1) to (4) and that the person concerned therefore suffered a pecuniary or non-pecuniary damage.301 The applicability of Article 5 (5) does not depend on a domestic finding of a deprivation of liberty contrary to the Convention.302 According to the Court’s consistent case law, it is in violation of Article 5 (5) if the applicant is afforded an enforceable claim for compensation neither before nor after the finding of his unlawful detention.303 Where domestic legal orders incorporate the Convention guarantees, claims to compensation may be made directly on the head of Article 5 (5).304 If this is not the case in a Member State, it must be ensured with a sufficient degree of certainty that there is an enforceable right to compensation in domestic law for unlawful deprivation of liberty.305 This obligation is not complied with if there is no comparable case in which an action 296 ECtHR, 3/7/2012, Lutsenko v UKR, No. 6492/11, §§ 90, 96; ECtHR, 31/05/2011, Khodorkovskiy v RUS, No. 5829/04, § 198. 297 ECtHR, 3/7/2012, Lutsenko v UKR, No. 6492/11, § 90, 96. 298 ECtHR, 31/05/2011, Khodorkovskiy v RUS, No. 5829/04, § 198 with further references to the Court’s case law, see also m.n. 41 above. 299 E.g. ECtHR, 22/5/2012 (GC), Idalov v RUS, No. 5826/03, § 139; for further details see m.n. 31 et seq. 300 ECtHR, 24/10/1979, Winterwerp v NED, No. 6301/73, § 60; ECtHR, 19/2/2009 (GC), A. a. o. v UK, No. 3455/05, § 203; ECtHR, 22/5/2012 (GC), Idalov v RUS, No. 5826/03, § 161. 301 ECtHR, 29/11/1988, Brogan a. o. v UK, No. 11209/84 et al, § 67; ECtHR, 27/9/1990, Wassink v NED, No. 12535/86, § 38; ECtHR, 29/5/1997, Tsirlis v GRE, No. 19233/91 et al, §§ 64 et seq. 302 ECtHR, 25/10/1990, Thynne, Wilson a. Gunnell v UK, No. 11787/85 et al, § 82; ECtHR, 16/10/2003, Wynne (No. 2) v UK, No. 67385/01, § 31. 303 ECtHR, 30/8/1990, Fox, Campbell a. Hartley v UK, No. 12244/86 et al, § 46; ECtHR, 29/11/1988, Brogan a. o. v UK, No. 11209/84 et al, § 67; ECtHR, 17/1/2012 (GC), Stanev v BUL, No. 36760/06, §§ 183 et seq. 304 Charrier, Code de la Convention Europe ´enne des Droits de l’homme, 2000, Art. 5 m.n. 45; the Human Rights Act 2000 does not entitle to compensation for unlawful deprivation of liberty, ECtHR, 1/3/2005, Beet a. o. v UK, No. 47676/99 et al, §§ 33 et seq. 305 ECtHR, 22/2/1989, Ciulla v ITA, No. 11152/84, § 44; ECtHR, 26/11/1997, Sakik a. o. v TUR, No. 23878/94 et al, § 60.

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for compensation has been tried successfully in circumstances similar to the applicant’s case.306 Non-pecuniary damage is assessed according to the principles of Article 41.307

5. Positive obligations Referring to the Court’s case law on Articles 2, 3 and 8 and having regard to the 44 importance of the right to liberty of person in a democratic society, positive obligations of the States are derived from Article 5 (1) first sentence. States are obliged to take measures providing effective protection of vulnerable persons, including reasonable steps to prevent a deprivation of liberty of which the authorities have or ought to have knowledge.308 In this context, unlike with other Convention guarantees (or in progressive development of the case law), criminal sanctions (even if an offence is punishable by a long term imprisonment) and claims to damages under civil law do not suffice for the purposes of Article 5 (5). Such retrospective measures in themselves do not provide effective protection for individuals in vulnerable positions, such as for example mentally deficient persons confined to psychiatric institutions. States are, in particular, obliged to inspect and supervise private psychiatric institutions. Such institutions, in particular those where persons are held without a court order, need not only a licence, but also competent supervision on a regular basis of whether the confinement and medical treatment is justified.309 306

ECtHR, 4/8/2005, Zeciri v ITA, No. 55764/00,§ 50. ECtHR, 7/6/2011, Hadzˇic´ a. Suljic´ v BIH, No. 39446/06 et al, § 49 with further references; mutatis mutandis ECtHR, 7/7/2011 (GC), Al-Jedda v UK, No. 27021/08, § 114; ECtHR, 6/12/2011, Zˇúbor v SLO, No. 7711/06, § 65. 308 ECtHR, 16/6/2005, Storck v GER, No. 61603/00, §§ 98, 102. 309 ECtHR, 16/6/2005, Storck v GER, No. 61603/00, §§ 103, 105. 307

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Art. 6

Article 6 – Right to a fair trial

Article 6 – Right to a fair trial 1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice. 2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. 3. Everyone charged with a criminal offence has the following minimum rights: (a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; (b) to have adequate time and facilities for the preparation of his defence; (c) to 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; (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; (e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court. Article 6 – Droit a` un proce`s e´quitable 1. Toute personne a droit a` ce que sa cause soit entendue e´quitablement, publiquement et dans un de´lai raisonnable, par un tribunal inde´pendant et impartial, e´tabli par la loi, qui de´cidera, soit des contestations sur ses droits et obligations de caracte`re civil, soit du bien-fonde´ de toute accusation en matie`re pe´nale dirige´e contre elle. Le jugement doit eˆtre rendu publiquement, mais l’acce`s de la salle d’audience peut eˆtre interdit a` la presse et au public pendant la totalite´ ou une partie du proce`s dans l’inte´reˆt de la moralite´, de l’ordre public ou de la se´curite´ nationale dans une socie´te´ de´mocratique, lorsque les inte´reˆts des mineurs ou la protection de la vie prive´e des parties au proce`s l’exigent, ou dans la mesure juge´e strictement ne´cessaire par le tribunal, lorsque dans des circonstances spe´ciales la publicite´ serait de nature a` porter atteinte aux inte´reˆts de la justice. 2. Toute personne accuse´e d’une infraction est pre´sume´e innocente jusqu’a` ce que sa culpabilite´ ait e´te´ le´galement e´tablie. 3. Tout accuse´ a droit notamment a`:

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(a) eˆtre informe´, dans le plus court de´lai, dans une langue qu’il comprend et d’une manie`re de´taille´e, de la nature et de la cause de l’accusation porte´e contre lui; (b) disposer du temps et des facilite´s ne´cessaires a` la pre´paration de sa de´fense; (c) se de´fendre lui-meˆme ou avoir l’assistance d’un de´fenseur de son choix et, s’il n’a pas les moyens de re´mune´rer un de´fenseur, pouvoir eˆtre assiste´ gratuitement par un avocat d’office, lorsque les inte´reˆts de la justice l’exigent; (d) interroger ou faire interroger les te´moins a` charge et obtenir la convocation et l’interrogation des te´moins a` de´charge dans les meˆmes conditions que les te´moins a` charge; (e) se faire assister gratuitement d’un interpre`te, s’il ne comprend pas ou ne parle pas la langue employe´e a` l’audience. Bibliography: Bro¨hmer, State Immunity and the Violation of Human Rights, 1997; Caflisch, Immunite´ des e´tats et droits de l’homme: Evolution re´cente, in: Bro¨hmer (ed.) Internationale Gemeinschaft und Menschenrechte, Studies in honour of Georg Ress, 2005, p. 935; Cremona, The public character of trial and judgment in the jurisprudence of the European Court of Human Rights, in Matscher/Petzold (ed.), Protecting Human Rights: The European Dimension, Studies in honour of Ge´rard J. Wiarda, 1988, p. 107; van Dijk, Access to Court, in: Macdonald/Matscher/ Petzold (ed.), The European System for the Protection of Human Rights, 1993, p. 345; Leigh, The Right to a Fair Trial and the European Convention on Human Rights, in: Weissbrodt/Wolfrum (ed.), The Right to a Fair Trial, 1997, p. 645; Matscher, La notion de “de´cision d’une contestation sur un droit ou une obligation (de caracte`re civil)” au sens de l’article 6 § 1 de la Convention europe´enne des Droits de l’Homme, Studies in honour of Ge´rard J. Wiarda, p. 400; Stavros, The Guarantees for Accused Persons under Art. 6 of the European Convention on Human Rights, 1993, p. 9; Tomuschat, L’immunite´ et droits de l’homme, RGDIP 2005, p. 51; Trechsel, Human Rights in Criminal Proceedings, 2005. Leading cases: ECtHR, 8/6/1976, Engel a. o. v NED, No. 5100/71 et al. (applicability of Article 6 to disciplinary law); ECtHR, 28/6/1978, Ko¨nig v GER, No. 6232/73 (civil rights); ECtHR, 28/11/1978, Luedicke, Belkacem a. Koç v GER, No. 6210/73 et al. (right to the free assistance of an interpreter); ECtHR, 8/12/1983, Pretto a.o. v ITA, No. 7984/77 (public pronouncement of a judgment); ECtHR, 24/11/1986, Unterpertinger v AUT, No. 9120/80 (equality of arms in the right to examine witnesses); ECtHR, 19/12/1989, Kamasinski v AUT, No. 9783/82 (information about the nature and cause of the accusation); ECtHR, 21/9/1993, Kremzow v AUT, No. 12350/86 (equality of arms, adequate time for the preparation of the defence, right to be present at the hearing); ECtHR, 16/9/1996, Su¨ssmann v GER, No. 20024/92 (length of proceedings); ECtHR, 15/11/1996, Domenichini v ITA, No. 15943/90 (adequate time for the preparation of the defence, communication with a legal counsel); ECtHR, 17/12/1996, Saunders v UK, No. 19187/91 (fair trial, nemo tenetur); ECtHR, 18/2/1999, Waite a. Kennedy v GER, No. 26083/94 (access to a tribunal, immunity of international organisations); ECtHR 10/10/2000, Daktaras v LIT, No. 42095/98 (presumption of innocence); ECtHR, 7/6/2001, Kress v FRA, No. 39594/98 (equality of arms, Conseil d’Etat); ECtHR, 21/11/2001 (GC), Al-Adsani v UK, No. 35763/97 (access to a tribunal, state immunity); ECtHR, 19/10/2005 (GC), Roche v UK, No. 32555/96 (legal basis in domestic law); ECtHR, 15/12/2005 (GC), Kyprianou v CYP, No. 73797/01 (impartiality); ECtHR, 8/6/2006 (GC), Su¨rmeli v GER, No. 75529/01 (length of proceedings, organisation of the judicial system); ECtHR, 11/7/2006 (GC), Jalloh v GER, No. 54810/00 (use of evidence obtained in violation of the Convention, nemo tenetur); ECtHR, 29/6/2007 (GC), O’Halloran a. Francis v UK, No. 15809/02 (nemo tenetur, obligations of the registered keeper of a vehicle); ECtHR, 15/10/2009 (GC), Micallef v MLT, No. 17056/06 (applicability of Article 6 to interim measures); ECtHR, 17/9/2009 (GC), Enea v ITA, No. 74912/01 (special restrictions in the high-security wing of a prison, civil rights); ECtHR, 1/6/2010 (GC), Ga¨fgen v GER, No. 22978/05 (use of a confession obtained in violation of Article 3); ECtHR, 15/12/2011 (GC), Al-Khawaja a. Tahery v UK, No. 26766/05 et al (absent witnesses); ECtHR, 20/11/2012, Harabin v SVK, No. 58688/11 (impartiality).

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Article 6 – Right to a fair trial Outline I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 II. Scope of protection. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 1. Determination of ‘Civil Rights’. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 2. Determination of a ‘Criminal Charge’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 III. Guarantees of Article 6 in detail . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 1. ‘Tribunals’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 2. Access to an independent and impartial tribunal . . . . . . . . . . . . . . . . . . . . . . 66 3. Fair hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80 4. Length of proceeding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92 5. Public hearing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98 6. Special procedural guarantees in criminal proceedings. . . . . . . . . . . . . . . . 124 7. Presumption of innocence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153

I. Introduction 1

Article 6 is influenced by the principle of “due process of law” in AngloAmerican law; thus, the guarantee of Article 6 is worded in more detail and gives rise to a greater number of cases before the Court than the classical civil rights and liberties. The so-called judicial and procedural rights under Article 6 encompass various legal positions. Their common denominator is the principle of effective legal protection; a principle reflecting the European constitutional principle of the rule of law. The guarantee of Article 6 is based on the idea of the separation of powers and the independence of the judiciary. Hence, it is not surprising that comparable rights are laid down in Articles 10 and 11 of the UDHR, in Article 14 of the ICCPR and in Article 8 of the ACHR.1 Guarantees comparable to the one under Article 6 can also be found in constitutions of member states and in EU law. Articles 47 and 48 of the EU-Charta contain corresponding guarantees, however, without the limitation of the scope of application of Article 6. According to the case law of the CJEU the principle of a fair trial, such as the requirement of effective judicial control as laid down in Article 6 and 13 of the Convention, reflects a general principle of law.2 The idea of the separation of powers in a state is particularly shown in the obligation to comply with decisions of administrative tribunals.3 The Court determined in this respect that administrative authorities form one element of a state who is subject to the rule of law, and that their interests thus coincide with the need for the proper administration of justice. Where administrative authorities refuse or fail to comply with judgments, or delay doing so, the guarantees under Article 6 afforded during the judicial phase of proceedings are rendered devoid of purpose.4

1

Cf. Nowak, CCPR Commentary, 2nd ed., 2005, Article 14 m.n. 1. E.g. CJEU, 15.5.1986, Case 222/84 (Johnston), § 18. 3 ECtHR, 13/01/2011, Ku ¨ bler v GER, No. 32715/06, § 66; this also applies in respect of interim measures. 4 ECtHR, 19/03/1997, Hornsby v GRE, No. 18357/91, § 40 et seq. 2

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II. Scope of protection

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II. Scope of protection Article 6 applies to proceedings concerning ‘civil rights and obligations’ as well as 2 concerning ‘criminal charge[s]’. The guarantees of Article 6 (1) apply to both types of proceedings, while Article 6 (2), which provides for the principle of the presumption of innocence, and the various guarantees of Article 6 (3) apply only to criminal proceedings. Article 6 does not apply to proceedings that can neither be classified as civil nor criminal.

1. Determination of ‘Civil Rights’ The application of Article 6 in civil proceedings in the broadest sense requires a 3 ‘determination of […] rights’ in the proceedings or a decision on a ‘legal dispute’ over civil rights and obligations (‘contestations sur ses droits et obligations’5). In this context it is essential to distinguish between substantive rights and procedural legal positions. A prerequisite for the application of the procedural safeguards of Article 6 is a substantive (civil) right with a legal basis in domestic law.6 The concept of ‘civil right’ is interpreted autonomously by the Court. The point of reference for assessing whether there is a substantive right is, however, the relevant domestic legislation as interpreted by national courts.7 A right to compensation, as was for example granted to the victims of the National Socialist period under bilateral agreements between Poland and Germany, may constitute a (civil) right within the meaning of Article 6 (1). States are free to establish a compensation scheme and to determine the scope of its beneficiaries. However, once a general scheme has been adopted and once a claimant could be reasonably considered to have complied with the eligibility conditions, an individual has a “civil right” under Article 6 (1).8 What is decisive is not a specific domestic legal classification but the material effect of the domestic legal situation. Hence, it is not solely determining whether a legal order grants an individual a locus standi in proceedings or a certain legal position as a subjective right with corresponding procedural means of enforcement.9 Rather, even if domestic law expressly precludes the applicant from having a locus standi, the Court examines whether the substantive content of the applicant’s right was limited.10 Yet, a certain dependence on domestic law remains since the dispute the applicant wishes to bring before the Court has to be of a genuine and serious nature.11 A dispute is serious if it can be said that it is recognised under 5

There is no equivalent in the English text. ECtHR, 19/10/2005 (GC), Roche v UK, No. 32555/96, §§ 116 et seq under reference to the Court’s earlier case law. 7 Insofar problematic ECtHR, 27/6/2006, Coorplan-Jenni GmbH a. Hascic v AUT, No. 10523/02, §§ 56 et seq; ECtHR, 27/7/2006, Jurisic a. Collegium Mehrerau v AUT, No. 62539/00, §§ 58 et seq on the ‘civil right’ of a foreign employee who applied for an employment permit in Austria. 8 ECtHR, 18/5/2010, Szal v POL, No. 41285/02, § 34. 9 Velu/Ergec, m.n. 418; Matscher, Studies in honour of Ge ´rard J. Wiarda, pp. 400 et seq; cf. ECtHR, 23/10/1990, Moreira de Azevedo v POR, No. 11296/84, §§ 66 et seq. 10 ECtHR, 27/6/2006, Coorplan-Jenni GmbH a. Hascic v AUT, No. 10523/02, §§ 56 et seq; ECtHR, 27/7/2006, Jurisic a. Collegium Mehrerau v AUT, No. 62539/00, §§ 58 et seq. 11 ECtHR, 5/10/2000, Mennitto v ITA, No. 33804/96, §§ 22 et seq; ECtHR, 15/10/2009 (GC), Micallef v MLT, No. 17056/06, § 74. 6

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Art. 6

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Article 6 – Right to a fair trial

domestic law.12 It is sufficient if the applicant can claim on arguable grounds to have a right under domestic law.13 4 National jurisdiction is of particular importance. A construction of national law is arguable if a higher court determines that the applicant has a certain ‘right’.14 In case a superior national court has analysed in a comprehensive and convincing manner the precise nature of the impugned restriction of a right while it was taking into account the relevant case law and principles developed by the Court, the Court substitutes its own views for those of the national court on a question of interpretation of domestic law only for strong reasons.15 5 In order to examine whether a certain right was based on arguable grounds it is enough to ascertain whether the applicant’s arguments were sufficiently tenable.16 Administrative authorities, in disputes before them, are frequently granted discretionary powers. The Court held in the affirmative that Article 6 was applicable in proceedings in which authorities were left discretion,17 even in the context of planning.18 In some cases the Court did not accept a right within the meaning of Article 6 because the discretion was not sufficiently determined. In a number of cases concerning Swedish administrative law it held that Article 6 also applies in cases of unfettered discretion.19 In a case where the applicant after having been acquitted claimed to be entitled to compensation for unlawful pre-trial detention the Court held exceptionally that the grant of discretion to a public authority to such an extent that it was for the authority to decide whether ‘reasons in equity’ existed for the awarding of compensation indicated that no actual right was recognised in domestic law, thus that the dispute was not over a ‘civil right’.20 If, according to national law, prison leave is a privilege whose granting ultimately remains at the discretion of the competent authority, thus no right to prison leave exists even when certain criteria are met, it constitutes no ‘right’ for the purposes of Article 6.21 6 Based on the wording in both authentic languages (‘civil rights and obligations’ and ‘droits et obligations de caracte`re civil’) Article 6 allows that it is construed as including certain rights under public law in addition to civil rights in the narrow sense.22 The English term in particular is not limited to the ‘classical’ civil law in law systems on the continent. 12 Matscher, Studies in honour of Ge ´rard J. Wiarda, p. 404; ECtHR, 30/1/2001, Dudova´ a. Duda v CZE, No. 40224/98; ECtHR, 23/9/2008, Athinen v FIN, No. 48907/99, § 38. 13 E.g. ECtHR, 8/7/1987, Baraona v POR, No. 10092/82, §§ 38 et seq; the legal basis may as well be conditions and obligations imposed upon by decisions of authorities, ECtHR, 25/11/1993, Zander v SWE, No. 14282/88, § 24; as regards rights recognised under international treaties, ECtHR, 24/11/1994, Beaumartin v FRA, No. 15287/89, § 28. 14 ECtHR, 10/8/2006, Yanakiev v BUL, No. 40476/98, § 61 (the right to purchase a state-entity owned flat). 15 ECtHR, 28/9/1995, Masson a. o. v NED, No. 15346/89, § 49; ECtHR, 19/10/2005 (GC), Roche v UK, No. 32555/96, § 120. 16 ECtHR, 27/4/1989, Neves e Silva v POR, No. 11213/84, § 37; ECtHR, 26/3/1992, Editions Pe´riscope v FRA, No. 11760/85, § 38; ECtHR, 28/9/1995, Procola v LUX, No. 14570/89, § 37. 17 ECtHR, 28/6/1990, Obermeier v AUT, No. 11761/85, § 66 et seq. 18 ECtHR, 28/6/1990, Mats Jacobsson v SWE, No. 11309/84, § 32. 19 ECtHR, 27/10/1987, Pudas v SWE, No. 10426/83, § 34. 20 ECtHR, 28/9/1995, Masson a. o. v NED, No. 15346/89, § 51; however, the Court recognised a right in ECtHR, 7/4/2009, Mendel v SWE, No. 28426/06, § 54. 21 ECtHR, 3/4/2012 (GC), Boulois v LUX, No. 37575/04, §§ 95 et seq. 22 Velu/Ergec, m.n. 421; Grabenwarter/Pabel, § 24 m.n. 7.

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II. Scope of protection

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Difficulties arise in particular when seperating civil from public rights. The Court’s case law shows a number of approaches to define civil rights, which are not homogenous.23 However, they provide a sound basis for most decisions. All approaches are based on a differentiation according to the substance of a right and are guided by the classical continental European concepts, which are developed on the basis of a comparison of private and public law as it is understood in the legal orders of the Member States.24 The reference to the substance of a right is established in various manners. Pursuant to the case law of the Court three main groups of ‘civil rights’ may be distinguished: There are, first, cases in which decisions have effects on civil-law positions, secondly, cases where the attribution is based on a ‘balancing’ of the civil and public legal aspects of a dispute, and, thirdly, cases over rights ‘pecuniary’ in nature.25 In cases with effects on civil-law positions mainly property rights and contractual legal relationships within the scope of protection of the freedom of profession and to carry on a business and the freedom to transfer property are affected.26 There is also a group of cases concerning decisions that have repercussions on a persons private or family life.27 The right to property and the freedom of profession are considered a civil right under Article 6 (1), too.28 Disputes over the entitlement of a person to use a public service may as well be of a civil nature.29 The second group concerns cases where the attribution depends on the weighing of civil and public legal aspects of a dispute. It comprises mainly disputes in social security law. After balancing all civil and public legal aspects of a claim under social security law the Court usually concludes that the civil elements (e.g. as regards sickness allowances and a widower’s or widow’s supplementary pension) usually outweigh the public legal elements. The Court classifies social insurance benefits as an extension or a substitute for contractual salaries; they share the nature of a contract.30 A third group is formed by actions over subject-matters ‘pecuniary’ in nature or founded on an alleged infringement of rights, which are likewise pecuniary rights. Notwithstanding the origin of a dispute and a jurisdiction of administrative courts, 23

Critical van Dijk/Viering, in: van Dijk/van Hoof/van Rijn/Zwaak, pp. 538 et seq. Harris, The Application of Article 6 (1) of the European Convention on Human Rights to Administrative Law, BYIL 1974/75 (Vol. 47) pp. 161 et seq; Sperduti, Recherche d’une me´thode approprie´e aux fins de la de´termination de la notion de “droits et obligations de caracte`re civil” dans la convention europe´enne des Droits de l’Homme, RDI 1989, 761 (766). 25 For a list of proceedings on ‘civil rights’ cf. van Dijk/Viering, in: van Dijk/van Hoof/van Rijn/ Zwaak, pp. 525 et seq. 26 E.g. ECtHR, 16/7/1971, Ringeisen v AUT, No. 2614/65; ECtHR, 28/6/1978, Ko ¨ nig v GER, No. 6232/73; ECtHR, 23/6/1981, Le Compte a. o. v BEL, No. 6878/75; ECtHR, 28/6/1990, Obermeier v AUT, No. 11761/85; ECtHR, 24/2/2005, Nowicky v AUT, No. 34983/02; ECtHR, 29/6/2006, Brunnthaler v AUT, No. 45289/99; ECtHR, 27/6/2006, Coorplan-Jenni GmbH a. Hascic v AUT, No. 10523/02; ECtHR, 27/7/2006, Jurisic a. Collegium Mehrerau v AUT, No. 62539/00; also Grabenwarter/Pabel, § 24 m.n. 9. 27 ECtHR, 17/9/2009 (GC), Enea v ITA, No. 74912/01, §§ 103 et seq; ECtHR, 6/7/2010, Pocius v LIE, No. 35601/04, § 43; ECtHR, 20/11/2012, Alexandre v POL, No. 33197/09, §§ 51 et seq. 28 ECtHR, 8/1/2004, Voggenreiter v GER, No. 47169/99, § 44. 29 E.g. ECtHR, 23/9/2008, Emine Araç v TUR, No. 9907/02, §§ 22 et seq (enrolment at a university). 30 E.g. Mann/Kurth, The Notion of “Civil Rights” in Article 6 of the European Convention on Human Rights, GYIL 1992, 81 (89). 24

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they also constitute ‘civil rights’ within the meaning of Article 6.31 Not only the effects on pecuniary rights32 but also a right being the object of proceedings may be subsumed under the third category. Claims related to perjury and defamation thus are civil claims.33 The criterion of a pecuniary right coalesces with the two abovementioned approaches and serves as a catch-all category. 11 There is one important exception from the scope of Article 6, namely as regards proceedings relating to matters at the very heart of public law. Such matters are criminal law (including the pecuniary relevant imposition of a fine), and proceedings on the deprivation of liberty provided that it is ordered only based on a public interest and not connected with any further decisions.34 Proceedings concerning the ‘usual’ rights and duties of citizens are at the very heart of public law.35 This includes, for example the obligation to pay taxes36, proceedings concerning the duty to perform compulsory military service or an alternative national service, and rights within the political field (e.g. voting rights cases) as well as a determination of the active or passive right to vote37 or the prohibition or dispersal of assemblies. As a counter-exception, the right to register an association creates a civil-law position if the question of obtaining legal existence is thereby decided upon.38 In the Court’s view detention in high-security units restricting the prisoner’s contact with his family and affecting his pecuniary rights clearly is a matter civil in nature.39 The same applies in proceedings on the lawfulness of detention in psychiatric institutions.40 Proceedings on the granting of asylum, the recognition or denial of a residence permit in a state territory41

31 ECtHR, 26/3/1992, Editions Pe ´riscope v FRA, No. 11760/85, § 40; ECtHR, 19/3/1997, Paskhalidis a. o. v GRE, No. 20416/92 et al, § 30. 32 ECtHR, 27/10/1987, Bode ´n v SWE, No. 10930/84, § 32. 33 ECtHR, 20/3/2009 (GC), Gorou (No. 2) v GRE, No. 12686/03, § 26. 34 Grabenwarter/Pabel § 24 m.n. 13; differently Viering, Het toepassingsgebied van artikel 6 EVRM, 1994, p. 141. 35 Lemmens, Geschillen over burgerlijke rechten en verplichtingen, 1989, p. 244; against the application of Article 6: EComHR, 8/5/1987, Nicolussi v AUT, No. 11734/85; EComHR, 14/10/ 1985, Johansen v NOR, No. 10600/83; EComHR, 13/4/1989, Zelisse v NED, No. 12915/87. 36 ECtHR, 12/7/2002, Ferrazzini v ITA, No. 44759/98, § 29; cf. Velu/Ergec, m.n. 429; Lemmens, Geschillen, p. 243; Gerin, Alcune osservazioni sulla competenza degli organi giurisdizionali della Convenzione Europea dei diritti dell’uomo in materia di diritti civili, in: Ballon/Hagen (ed.), Verfahrensgarantien im nationalen und internationalen Prozessrecht, Studies in honour of Franz Matscher, 1993, p. 157 (160 et seq); Yernault, Le fisc, ses amendes et la matie`re pe´nale, RTDH 1995, 427 (428, 433); Grabenwarter/Pabel, § 24 m.n. 13; van Dijk/Viering, in: van Dijk/van Hoof/van Rijn/Zwaak, pp. 528 et seq; for a comprehensive assessment of the Court’s case law cf. Baker, Taxation and the European Convention on Human Rights, European Taxation 2000, 298 (306 et seq); cf. also ECtHR, 13/7/2006, Stork v GER, No. 38033/02, § 28: Contributions for the construction of a particular road are no taxes if the contributions in question are destined to finance a specific project and the persons on which they are imposed have a personal interest in and take advantage of the construction. 37 Lemmens, Geschillen, p. 236; Viering, Toepassingsgebied, p. 142; as to a dispute concerning the right to sit in the UK House of Lords: EComHR, 7/12/1978, X. v UK, No. 8208/78. 38 ECtHR, 5/10/2000, Apeh U ¨ ldo¨zo¨tteinek Szo¨vetse´ge a. o. v HUN, No. 32367/96, § 36; as to the proceedings concerning the request for recognition as a religious society: ECtHR, 31/7/2008, Religionsgemeinschaft der Zeugen Jehovas a. o. v AUT, No. 40825/98, §§ 107 et seq. 39 ECtHR, 17/9/2009 (GC), Enea v ITA, No. 74912/01, §§ 103 et seq. 40 ECtHR, 11/12/2008, Shulepova v RUS, No. 34449/02, §§ 59 et seq. 41 Van Dijk/Viering, in: van Dijk/van Hoof/van Rijn/Zwaak, pp. 530 et seq.

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II. Scope of protection

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including proceedings on measures terminating the residence of foreigners42 and proceedings on the grant or denial of citizenship43 do not constitute ‘civil rights’ either.44 Disputes related to civil service follow a special approach.45 Since the Pellegrin 12 Case, the Court takes a functional approach when balancing all aspects based on the nature of the employee’s duties and responsibilities.46 According to the Court it was decisive whether a certain post in the public-service sector involves responsibilities in the general interest or whether it is associated with a participation in the exercise of powers conferred by public law. Since the holders of such ‘public administration’ posts wield a portion of the state’s sovereign powers, they are required a special bond of trust and loyalty by the states. The duties of such public servants typify the specific activities of the public service in so far as the latter is acting as the depositary of public authority responsible for protecting the general interests of the state or other public authorities. Typical activities within this meaning are, for instance, exercised by the police and armed forces.47 Disputes of these public servants ought to be excluded from the scope of Article 6. In the Eskelinen Case the Court’s established a new approach leaving behind the previous case law; it is based on a general presumption that Article 6 applies. Even against the background of the special nature of the relationship between the state and its public servants, the Court, in principal, sees no justification for excluding ordinary labour disputes from the safeguards afforded by Article 6, such as disputes over salaries, pensions or similar entitlements. In order to justify an exception to Article 6 two conditions need to be fulfilled: – The post or category of public servants concerned has to be expressly barred from access to court under domestic law.48 – The exclusion must be justified on objective grounds in the state’s interest.49

42 ECtHR, 5/10/2000, Maaouia v FRA, No. 39652/98, §§ 35 et seq; this also applies to proceedings which are closely connected with asylum proceedings: ECtHR, 13/10/2009, Panjeheighalehei v DEN, No. 11230/07. 43 EComHR, 15/12/1988, S. v SUI, No. 13325/87. 44 Cf. also the ‘list’ in van Dijk/Viering, in: van Dijk/van Hoof/van Rijn/Zwaak, pp. 528 et seq; Grabenwarter/Pabel, § 24 m.n. 13; Harris/O’Boyle/Warbrick, pp. 213 et seq. 45 Cf. van Dijk/Viering, in: van Dijk/van Hoof/van Rijn/Zwaak, pp. 531 et seq. 46 ECtHR, 8/12/1999, Pellegrin v FRA, No. 28541/95, §§ 64 ff.; ECtHR, 27/6/2000, Frydlender v FRA, No. 30979/96, 27 et seq; ECtHR, 12/4/2006 (GC), Martinie v FRA, No. 58675/00, § 30. 47 ECtHR, 5/12/2000, Mosticchio v ITA, No. 41808/98, § 11. 48 A public servant is not barred from access to court if he may lodge a complaint with a constitutional court or if the decision has been issued by an independent authority satisfying the criteria of a tribunal within the meaning of Article 6, ECtHR, 5/2/2009, Olujic´ v CRO, No. 22330/05, §§ 35 et seq (application of Article 6 despite an express exclusion of the access to court by law); ECtHR, 14/1/2010, Vanjak v CRO, No. 29889/04, §§ 31 et seq (dismissal from the police service); ECtHR, 1/4/2010, Gabriel v AUT, No. 34821/06, § 25; EctHR, 20/11/2012, Harabin v SVK, No. 58688/11, § 123. 49 ECtHR, 19/4/2007 (GC), Eskelinen v FIN, No. 63235/00, § 62; reaffirmed in ECtHR, 30/9/2008, Melek Sima Y{lmaz v TUR, No. 37829/05, § 19 (application of Article 6 to disciplinary proceedings against a Turkish teacher); differently ECtHR, 9/2/2006, Rabus v GER, No. 43371/02 (non-application of Article 6 (1) to proceedings on the temporary reduction of the salary of civil servants due to the different significance, purpose and procedure of disciplinary proceedings originating from the special relationship between a state and its public servants).

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The first criterion authorises the state to ‘draw the line’, the second (‘objective grounds’) establishes an uncertain criterion, while additionally the burden of proof is imposed upon a state. At any rate, proceedings concerning allowances do fall within the scope of Article 6 since with retirement the special relationship between a state and a public servant ceases.50 13 Another condition for the application of Article 6 is a ruling on a ‘legal dispute’ (French: ‘contestation’). The mentioning of the word ‘contestation’ in the French version of the Convention serves as a linguistic bridge between the ‘determination’ of a court and the ‘rights’ to be determined. This does not represent an additional criterion (not contained in the English version) which adds to the others.51 The ‘dispute’/’contestation’ criterion only serves as a feature for delimiting proceedings in which a ‘dispute’ is to be decided upon from those in which it is not. The outcome of proceedings must be directly decisive for the right at issue;52 a tenuous connection or remote consequences do not suffice for Article 6 (1).53 14 Pursuant to the previous case law, decisions on temporary injunctions generally do not suffice for the purposes of Article 6 (1) since this decision does not coincide with, or forestall any final decision on a right in the main proceedings.54 In the Micallef Case the Court has explicitly departed from this position and now generally sees proceedings on interim measures as included by Article 6. Against the background of the considerable backlog in overburdened justice systems the decision of a tribunal on an injunction was often tantamount to a decision on the merits of a claim for a substantial period of time, even permanently in exceptional cases. The Court thus held that Article 6 was applicable if, first, the right at stake in both the main and the injunction proceedings was ‘civil’ within the meaning of Article 6 (1), and, secondly, the interlocutory measure could be considered effectively to determine the civil right or obligation at stake, notwithstanding the length of time it is in force.55 In this context the Court accepted that in exceptional cases not all requirements of Article 6 may be immediately complied with. While it determined that the independence and impartiality of the tribunal concerned was indispensable and inalienable, it held that other procedural safeguards may apply only to the extent compatible with the nature and purpose of the interim proceedings at issue.56 15 Article 6 applies to enforcement procedures in which decisions on civil claims are to be executed since the determination of a civil right is constituted at the 50

ECtHR, 8/12/1999, Pellegrin v FRA, No. 28541/95, § 67. Cf. van Dijk/Viering, in: van Dijk/van Hoof/van Rijn/Zwaak, pp. 519 et seq. 52 This might lead to the application of Article 6 under the title of a ‘determination of civil rights’ to criminal proceedings initiated by a civil party if compensation for damages may not simultaneously be sought before civil courts, cf. ECtHR, 21/11/1995, Acquaviva v FRA, No. 19248/91, § 47; also ECtHR, 23/10/1990, Moreira de Azevedo v POR, No. 11296/84, §§ 66 et seq; similarly ECtHR, 8/4/2008, Gra˘dinar v MOL, No. 7170/02, §§ 91 et seq (The acquittal of the applicant’s deceased husband in criminal proceedings was the precondition for claiming compensation for his unlawful detention and conviction). 53 ECtHR, 10/2/1983, Albert a. Le Compte v BEL, No. 7299/75, § 47; ECtHR, 26/8/1997, BalmerSchafroth v SUI, No. 22110/93, § 32; ECtHR, 15/10/2009 (GC), Micallef v MLT, No. 17056/06, § 74. 54 ECtHR, 8/11/2007, Saarekallas OU ¨ v EST, No. 11548/04, §§ 45 et seq; as to exceptions cf. e.g. ECtHR, 23/10/2001, Markass Hire Ltd. v CYP, No. 51591/01. 55 ECtHR, 15/10/2009 (GC), Micallef v MLT, No. 17056/06, §§ 83 et seq. 56 ECtHR, 15/10/2009 (GC), Micallef v MLT, No. 17056/06, §§ 86. 51

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II. Scope of protection

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moment when the right asserted actually becomes effective.57 It does not apply, however, to provisional measures adopted prior to the proceedings on the merits.58 The Court stresses that the notion of ‘contestation’ ‘should not be construed too 16 technically and that it should be given a substantive rather than a formal meaning’, while it refers to the non-existing counterpart of the word in the English Convention text.59 Any proceedings which are decisive for rights and obligations of a civil nature comply with the requirements of Article 6 (1).60 However, a civil right is not yet ‘determined’ when a tribunal recognizes the existence of an entitlement to damages, but only then when it fixes the amount.61 In many cases the existence of a dispute is not expressly examined.62 The quality of a decision-making organ and the content of applicable procedural 17 law are not decisive for the question of whether there is a dispute.63 Article 6 may also be applicable to administrative procedures as well as to proceedings before administrative and constitutional courts. Article 6 applies to proceedings before administrative courts even when they concern generally binding administrative rules with external effects (regulations, statues) as also here decisions on disputes over rights may be due. This holds particularly true for proceedings on generally binding administrative acts in the field of planning law. Article 6 may also apply to parallel or subsequent proceedings before constitutional courts.64 According to the Court’s well-established case law, constitutional proceedings (even if the constitutionality of legal acts is to be examined) fall within the ambit of Article 6 if their outcome is directly decisive for civil rights and obligations.65 Such close relationship between constitutional and civil proceedings exists when a ruling of the constitutional court is directly decisive for the applicant’s ‘civil right’ or when a competent court in a civil law case lodged an application with the constitutional court for a ruling on constitutionality.66 Proceedings before a constitutional court concerning a dispute over the right of political parties to continue their political activities are neither a dispute over a civil right nor do they concern criminal charges.67 57 ECtHR, 21/4/1998, Estima Jorge v POR, No. 24550/94, §§ 37 et seq; this also applies to exequatur proceedings, i. e. proceedings relating to the execution of a foreign court’s decision: ECtHR, 18/12/ 2008, Saccoccia v AUT, No. 69917/01, § 60, cf. the admissibility decision of 5/7/2007. 58 ECtHR, 8/11/2007, Saarekallas OU ¨ v EST, No. 11548/04, §§ 45 et seq. 59 ECtHR, 23/6/1981, Le Compte a. o. v BEL, No. 6878/75, § 45. 60 ECtHR, 16/7/1971, Ringeisen v AUT, No. 2614/65, § 94; ECtHR, 28/6/1978, Ko ¨ nig v GER, No. 6232/73, § 90; ECtHR, 5/10/2000, Mennitto v ITA, No. 33804/96, § 27. 61 ECtHR, 1/7/1997, Torri v ITA, No. 26433/95, § 19. 62 ECtHR, 22/10/1984, Sramek v AUT, No. 8790/79, § 34; ECtHR, 23/4/1987, Ettl a. o. v AUT, No. 9273/81, § 32. 63 ECtHR, 15/10/2009 (GC), Micallef v MLT, No. 17056/06, § 74. 64 See Velu/Ergec, m.n. 398 et seq; Grewe, Proce `s e´quitable et justice constitutionnelle, in: Delmas-Marty a. o. (ed.), Variations autour d’un droit commun, 2001, p. 53 (55 et seq). 65 ECtHR, 23/6/1993, Ruiz-Mateos v ESP, No. 12952/87, § 59 where the subject of the constitutional proceedings was an expropriation carried out under a law; ECtHR, 16/9/1996, Su¨ßmann v GER, No. 20024/92§§ 39 et seq; ECtHR, 27/4/2004, Gorraiz Lizarraga a. o. v ESP, No. 62543/00, §§ 45 et seq. 66 ECtHR, 7/7/2009, Padalevic ˇius v LTU, No. 12278/03, § 47. 67 ECtHR, 9/4/2002, Yazar a. o. v TUR, No. 22723/93 et al, § 66 with reference to the (unpublished) admissibility decision in the Refah Partisi (The Welfare Party) a. o. Case.

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2. Determination of a ‘Criminal Charge’ 18

19

20

21

22

The concept of ‘determination of a criminal charge’ (‘bien-fonde´ de toute accusation pe´nale’) is also to a large extent influenced by the terminology used in domestic legal orders. In order not to leave the scope of the guarantee at the discretion of domestic legislators the Court in its case law adopted an autonomous interpretation of the term.68 In particular states are prevented from excluding the operation of Articles 6 and 7 by classifying an offence as ‘regulatory’ instead of criminal.69 When deciding whether there is a ‘criminal charge’ for the purposes of Article 6 the Court refers to three criteria set out in the Engel judgment of 197670 (so called ‘Engel criteria’). These are, first, the classification of a norm under domestic law, secondly, the nature of an offence, and, thirdly, the nature and severity of a penalty.71 These criteria are alternative, i. e. it suffices if only one criterion is fulfilled. In some cases, however, in particular as regards the second and third criterion, a cumulative approach is adopted.72 (a) When ascertaining whether a ‘criminal charge’ within the meaning of Article 6 exists, the classification of a question as criminal by the state concerned serves as a starting point.73 It encompasses at least the criminal law of the Member States.74 In practice this criterion plays a less important role.75 (b) The second criterion, the ‘nature of the offence’ (‘nature de l’infraction’) is of greater importance. The criterion refers to the nature of an offence expressed in the content of an applicable national provision. A penalty, which might be imposed under a penal provision, that is of a dissuasive (preventive) and repressive nature falls within the ambit of Article 6.76 The basis for this attribution is the penal provision itself and not the criminal offence subsumable under the respective provision. In theory the legal situation in all Member States should be considered.77 There are various aspects that may be taken into account when assessing the notion of an offence. First, it is the subject-matter and in particular the personal and material scope of application that are significant. What is mainly decisive is the subjects to which a provision threatening a certain conduct with a penalty is addressed. It is an indicator for the criminal nature of a conduct if provisions are directed (at least potentially) at the general public. Moreover, with a view to the legal consequences set out in a provision the nature and the purpose of a penalty are 68 ECtHR, 28/6/1978, Ko ¨ nig v GER, No. 6232/73, § 88; ECtHR, 26/3/1982, Adolf v AUT, No. 8269/78, §§ 30 et seq; ECtHR, 27/2/1980, Deweer v BEL, No. 6903/75, 42; ECtHR, 23/9/1998, Malige v FRA, No. 27812/95, 34. 69 ECtHR, 21/2/1984, O ¨ ztu¨rk v GER, No. 8544/79, § 49. 70 ECtHR, 8/6/1976, Engel a. o. v NED, No. 5100/71 et al, §§ 83 et seq; expressly reaffirmed in ECtHR, 23/11/2006 (GC), Jussila v FIN, No. 73053/01, §§ 30 et seq. 71 Cf. ECtHR, 29/8/1997, A.P., M.P. a. T.P. v SUI, No. 19958/92, § 39. 72 ECtHR, 23/7/2002, Janosevic v SWE, No. 34619/97, § 67; ECtHR, 1/5/2005, Ziliberberg v MDA, No. 61821/00, § 31. 73 ECtHR, 26/3/1982, Adolf v AUT, No. 8269/78, § 30. 74 Grabenwarter/Pabel, § 24 m.n. 18. 75 ECtHR, 23/11/2006 (GC), Jussila v FIN, No. 73053/01, § 37. 76 ECtHR, 21/2/1984, O ¨ ztu¨rk v GER, No. 8544/79, § 53. 77 Grabenwarter/Pabel, § 24 m.n. 19; Kidd, Disciplinary Proceedings and the Right to a Fair Criminal Trial under the European Convention on Human Rights, ICLQ 1987, 856 (858 et seq).

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relevant. In this context it depends largely on the function of a penalty in a domestic legal system. The penalty imposed in a specific case and the nature or amount of a penalty, which may be imposed under the circumstances, are only relevant insofar as thereby a provision criminal in its nature is applied. Finally, the procedure to prosecute an offence (e.g. interrogations by criminal investigators of the police or the competence of criminal chambers of courts) may give a hint about the indications of the criminal nature of an offence.78 The Court denied the criminal nature of an offence in respect of provisions governing the operation of armed forces79, of rules on prison discipline80, and of sanctions for disorderly conduct in court proceedings81. In this context it is irrelevant whether a conduct that constitutes an offence under disciplinary law also constitutes an offence under general criminal law.82 Also administrative criminal law as it exists in various Member States is covered by Article 6.83 With a view to the legal consequences, the Court – in order to distinguish it from civil claims for damages – considered defamatory libel against parliament to be of a criminal nature.84 Coercive sanctions, on the other hand, aim at enforcing the conduct required and not at repressing conduct prohibited by law85 and can thus not be classified as ‘criminal’ for the purposes of Article 6. (c) The third criterion (the nature and severity of the penalty of the offence) 23 refers to the severity of any adverse consequences that might possibly be faced by the suspect86 and is interrelated with the second criterion (nature of the offence), in particular with the legal consequences. The nature of the penalty within the meaning of the third criterion covers (potential) impacts of a penalty on the suspect, the type of penalty (imprisonment or other measures depriving of liberty, fines etc.), the maximum penalty that could have been awarded and the modalities of enforcement. When assessing the applicability of Article 6, not the penalty actually incurred 24 but the penalty that could be pronounced, which generally is the maximum penalty, is decisive. It does not depend on the outcome of proceedings but on the 78

ECtHR, 1/5/2005, Ziliberberg v MDA, No. 61821/00, § 34. ECtHR, 8/6/1976, Engel a. o. v NED, No. 5100/71 et al, § 84; see also van Dijk/Viering, in: van Dijk/van Hoof/van Rijn/Zwaak, pp. 543 et seq. 80 ECtHR, 28/6/1984, Campbell a. Fell v UK, No. 7819/77 et al, § 71. 81 ECtHR, 23/3/1994, Ravnsborg v SWE, No. 14220/80, § 34. 82 ECtHR, 28/6/1984, Campbell a. Fell v UK, No. 7819/77 et al, § 71; ECtHR, 23/3/1994, Ravnsborg v SWE, No. 14220/80, § 34. 83 Established case law since ECtHR, 23/10/1995, Gradinger v AUT, No. 15963/90, §§ 34 et seq; ECtHR, 4/10/2008, Balsyte˙-Lideikiene˙ v LTU, No. 72956/01, § 56; ECtHR, 21/4/2009, Marttinen v FIN, No. 19235/03, § 65. 84 ECtHR, 27/8/1991, Demicoli v MLT, No. 13057/87, § 33: The relevant law mainly related to the internal regulation and orderly functioning of the parliament. However, the imposition of a penal sanction potentially affected the whole population and did neither depend on a membership of parliament nor on where the defamatory libel took place. 85 ECtHR, 2/6/1993, K. v AUT, No. 16002/90, §§ 38 et seq. 86 This seems obvious since the Court, in the disciplinary cases Engel and Campbell a. Fell, had to assess various measures depriving the liberty of persons who were already limited in their liberty due to a link with certain facilities (military service, detention facility). It also comprises the assessment of whether the penalty liable to be imposed may actually be executed; cf. Stavros, The Guarantees for Accused Persons under Art. 6 of the European Convention on Human Rights, 1993, 9. 19; van Dijk/Viering, in: van Dijk/van Hoof/van Rijn/Zwaak, pp. 551 et seq; recencly ECtHR, 9/10/2003 (GC), Ezeh a. Connors v UK, No. 39665/98 et al, § 130. 79

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importance of what was initially at stake.87 However, the Court frequently refers to the penalty awarded in a particular case and its amount in order to ascertain the severity of a penalty for the purposes of the third criterion;88 this does not lower the relevance of what was initially at stake.89 This approach was qualified by the Court when it later held that the presumption of a severe penalty, which followed from the maximum penalty possible, could be rebutted entirely exceptionally, though in individual cases by the penalty actually imposed on the applicant in question.90 25 As regards the penalties which an individual risks to incur it needs to be distinguished between the various types of penalties. Imprisonment generally establishes the applicability of Article 6.91 In exceptional cases, such as when deprivations of liberty liable to be imposed do not – by their nature, duration or manner of execution – have a substantial negative effect on the individual concerned, Article 6 does not apply.92 However, a decision to convert a fine not being substantial itself into imprisonment may entail the applicability of Article 6.93 26 The leading case on disciplinary law, the Engel Case, gives examples for exceptions. In the present case the Court found that the two-day strict arrest which in theory threatened the applicant was of too short a duration to belong to ‘criminal’ law, not least because the applicant did not have to undergo this penalty at the close of the proceedings since he had already served it.94 By contrast, it classified the conviction of a soldier to nine months’ detention as such a substantial deprivation of liberty that, in its view, it clearly came within the ‘criminal’ sphere.95 It equally considered a three or four months’ committal of soldiers to a disciplinary unit to be severe enough to require the application of Article 6.96 Also the forfeiture of a remission of a sentence for slightly less than three years and the concurrent subjection to other penalties for a period up to one year97, as well as the threat with imprisonment for a period not exceeding sixty days in addition to the imposition of a fine amount to a ‘criminal charge’ sufficed for these purposes.98 A disciplinary ban on the exercise of a profession obliges to apply the safeguards of Article 6 if it is not only temporary.99 87

Already in ECtHR, 8/6/1976, Engel a. o. v NED, No. 5100/71 et al, § 85. E.g. ECtHR, 28/6/1984, Campbell a. Fell v UK, No. 7819/77 et al, §§ 72 et seq; ECtHR, 24/2/ 1994, Bendenoun v FRA, No. 12547/86, § 47; ECtHR, 10/6/1996, Benham v UK, No. 19380/92, § 56; ECtHR, 12/10/1999, Perks a. o. v UK, No. 25277/94, § 76. 89 ECtHR, 8/6/1976, Engel a. o. v NED, No. 5100/71 et al, § 82. 90 ECtHR, 9/10/2003 (GC), Ezeh a. Connors v UK, No. 39665/98 et al, §§ 126 et seq. 91 ECtHR, 28/6/1984, Campbell a. Fell v UK, No. 7819/77 et al, §§ 72 et seq; ECtHR, 27/8/1991, Demicoli v MLT, No. 13057/87, §§ 34 et seq; ECtHR, 26/2/2002, Morris v UK, No. 38784/97, § 38. 92 ECtHR, 8/6/1976, Engel a. o. v NED, No. 5100/71 et al, § 82; ECtHR, 18/11/1970, De Wilde, Ooms a. Versyp (‘Vagrancy’) v BEL, No. 2832/66 et al, § 79: The Court does not require a general application of Article 6 to cases where persons are deprived of their liberty. It only requires that the procedure guarantees should not ‘markedly [be] inferior to those existing in criminal matters in the member States of the Council of Europe’. 93 ECtHR, 23/3/1994, Ravnsborg v SWE, No. 14220/80, § 35; ECtHR, 22/2/1996, Putz v AUT, No. 18892/91, § 37: The severity of a penalty also depends on whether it enters in the criminal record. 94 ECtHR, 8/6/1976, Engel a. o. v NED, No. 5100/71 et al, § 85. 95 ECtHR, 26/2/2002, Morris v UK, No. 38784/97, § 38. 96 ECtHR, 8/6/1976, Engel a. o. v NED, No. 5100/71 et al, § 85. 97 ECtHR, 28/6/1984, Campbell a. Fell v UK, No. 7819/77 et al, § 72. 98 ECtHR, 27/8/1991, Demicoli v MLT, No. 13057/87, § 34. 99 The Court in its established case law does not answer the question of whether a ban on the exercise of a profession is a sufficiently severe penalty, but declares Article 6 to be applicable as it 88

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There is no generally valid level which needs to be attained so that the amount of 27 a possible fine can be classified as a ‘criminal’ sanction requiring the application of Article 6. In this regard it applies equally that it suffices if the imposition of the penalty threatened with has adverse consequences on the suspect, which – in their severity – amount to a more than short-term imprisonment.100 Since generally the level by which a fine constitutes a ‘criminal charge’ cannot be specified, only rough guidelines may be drawn from the Court’s case law.101 According to case law at the end of the 20th century a fine that could amount to 500 Swiss francs (then about EUR 400) obliges to afford the guarantees of Article 6,102 whereas a fine of 1,000 Swedish kronor (then about EUR 100) which were ¨ ztu¨rk Case the Court actually imposed was considered to be too low.103 In the O insinuated that a possible fine of up to 1,000 Deutschmarks (then about EUR 500) relatively lacked seriousness but that nonetheless the contravention committed by the applicant could not be divested of its inherently criminal character.104 Tax surcharges amounting to 1 million French francs (about EUR 150,000) made the ‘charge’ a ‘criminal’ one.105 In view of the average income differing between the Member States the assessment regularly has to be oriented towards the income level of the state concerned. Due to the content of the three Engel criteria and their significance in the 28 jurisdiction of the Court it holds true only to a limited extent to assume that they are to be examined separately and that the satisfaction of one of the criteria is enough to cause the application of the Convention. Generally, it is sufficient if a conduct is classified as criminal under domestic law or if a conduct is considered to be of a criminal character measured by its nature and in view of its objective scope of application and the legal consequences. However, there is an interrelation between the second and third criterion, which in certain cases amounts to a cumulative consideration,106 in particular where an isolated examination of the two criteria does not lead to clear results.107 In conformity with this principle the Court differentiated, for example, claims for punitive damages from penal sanctions.108 Consistently, it found in the Bendenoun Case that the deterrent purpose of a penalty and the level of the tax surcharges taken together cumulatively require the application of Article 6.109 concludes that such a ban constitutes the determination of a civil right: e.g. ECtHR, 23/6/1981, Le Compte a. o. v BEL, No. 6878/75, § 53; ECtHR, 26/9/1995, Diennet v FRA, No. 18160/91, § 28; Harris/O’Boyle/Warbrick, p. 207. 100 Grabenwarter/Pabel, § 24 m.n. 22. 101 Against the application of Article 6 in cases of penalties not depriving of liberty Zimmermann, Les sanctions disciplinaires et administratives au regard de l’article 6 CEDH, RDA 1995, 335 (339). 102 ECtHR, 22/5/1990, Weber v SUI, No. 11034/84, § 34. 103 ECtHR, 23/3/1994, Ravnsborg v SWE, No. 14220/80, § 35. 104 ECtHR, 21/2/1984, O ¨ ztu¨rk v GER, No. 8544/79, § 54. 105 ECtHR, 24/2/1994, Bendenoun v FRA, No. 12547/86, § 47. 106 Woehrling, Le juge administratif français et les dispositions de la Convention europe ´enne des droits de l’Homme relatives aux accusations “en matie`re pe´nale”, RFDA 1994, p. 414 (417 et seq); also ECtHR, 23/7/2002, Janosevic v SWE, No. 34619/97, § 67; ECtHR, 1/5/2005, Ziliberberg v MDA, No. 61821/00, § 31. 107 ECtHR, 23/11/2006 (GC), Jussila v FIN, No. 73053/01, §§ 31 et seq. 108 ECtHR, 27/8/1991, Demicoli v MLT, No. 13057/87, § 33. 109 ECtHR, 24/2/1994, Bendenoun v FRA, No. 12547/86, § 47.

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The concept of ‘charge’ is subject to an autonomous interpretation. The Court considers that the applicant is under a ‘criminal charge’ as soon as he receives the official notification of an allegation that he has committed a criminal offence.110 The respective measure must ‘substantially affect’ the suspect’s situation.111 It thus suffices but is not necessarily obligatory that the suspect is formally charged with a criminal offence.112 Not of importance is whether the suspect was actually served the notification113 or whether he was informed in a language that he understood.114 In some instances the ‘criminal charge’ may also take the form of other measures than an official notification which carry the implication of an allegation and which likewise substantially affect the situation of the suspect.115 When determining measures of authorities one must look behind the appearances and examine the realities of a procedure.116 The determinative criterion is always whether the suspect is affected by the measure in question. Such measures are, for example, the placing of seals on a flat,117 the issuance of a search and seizure warrant118 as well as the request to lift the applicant’s immunity.119 However, the measure has to be part of official investigations.120 Internal authority procedures thus do not satisfy this requirement. The point of reference in the Court’s earlier judgments which it considered as the relevant moment for ascertaining whether a ‘criminal charge’ has been stated were the moment of arrest, the moment of the accusation, and the opening of preliminary investigations respectively.121 30 Article 6 is only applicable to proceedings that determine the criminal charge itself, thus the decision on the question of guilt or innocence of a suspect. Proceedings do not determine a criminal charge and thus fall out of the scope of protection of Article 6 if only measures of the ongoing criminal proceeding are being reviewed. This is, for instance, decisions concerning the applicant’s detention on remand122, or proceedings to secure or prevent.123 Such proceedings are indeed of a criminal nature but do not concern the validity of a charge. Article 6 applies even if – as it is the case in UK criminal proceedings – the accused confesses a criminal offence and only the amount of the penalty remains to be fixed.124 29

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ECtHR, 27/2/1980, Deweer v BEL, No. 6903/75, 46. ¨ ztu¨rk v GER, ECtHR, 27/2/1980, Deweer v BEL, No. 6903/75, 46; ECtHR, 21/2/1984, O No. 8544/79, § 55, with reference to ECtHR, 10/12/1982, Foti a. o. v ITA, No. 7604/76 et al, § 52 and ECtHR, 10/12/1982, Corigliano v ITA, No. 8304/78, § 34. 112 ECtHR, 27/2/1980, Deweer v BEL, No. 6903/75, 42. 113 ECtHR, 19/2/1991, Pugliese (No. 1) v ITA, No. 11840/85, § 14; ECtHR, 12/2/1985, Colozza v ITA, No. 9024/80, § 28. 114 ECtHR, 19/12/1989, Brozicek v ITA, No. 10964/84, § 38. 115 ECtHR, 21/2/1984, O ¨ ztu¨rk v GER, No. 8544/79, § 55; ECtHR, 10/12/1982, Foti a. o. v ITA, No. 7604/76 et al, § 52; ECtHR, 10/12/1982, Corigliano v ITA, No. 8304/78, § 34. 116 ECtHR, 26/3/1982, Adolf v AUT, No. 8269/78, § 30. 117 ECtHR, 18/7/1994, Vendittelli v ITA, No. 14804/89, § 21. 118 ECtHR, 15/7/1982, Eckle v GER, No. 8130/78, § 75. 119 ECtHR, 19/2/1991, Frau v ITA, No. 12147/86, § 14. 120 ECtHR, 15/7/1982, Eckle v GER, No. 8130/78, § 74. 121 ECtHR, 27/6/1968, Neumeister v AUT, No. 1936/63, § 18; ECtHR, 27/6/1968, Wemhoff v GER, No. 2122/64, § 19; ECtHR, 16/7/1971, Ringeisen v AUT, No. 2614/65, § 110. 122 ECtHR, 27/6/1968, Neumeister v AUT, No. 1936/63, § 23. 123 ECtHR, 6/11/1980, Guzzardi v ITA, No. 7367/76, § 108. 124 EComHR, 23/3/1972, X.v UK, No. 5076/71, CD 40, 64. 111

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III. Guarantees of Article 6 in detail

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Furthermore, measures in criminal procedings following a conviction and sentence are analogous to initial determination of the penalty, and thus form part of the initial criminal proceedings.125 As a general rule, Article 6 (1) does not apply to proceedings concerning a 31 transfer request of the applicant that the sentence be executed in his home country. Article 6 (1) applies, however, if criminal proceedings and transfer proceedings are exceptionally closely connected so that the transfer proceedings have to be regarded as an integral part of the criminal proceedings.126 Proceedings concerning the execution of a forfeiture order issued by a foreign court cannot be classified as ‘criminal’ if the question examined is whether the acts committed by the applicant were also punishable under domestic law, and if the amount of the assets to be confiscated has already been fixed.127 Criminal proceedings instituted by means of a private complaint fall within the 32 ambit of Article 6.128 The decisive factor is that also this conduct of the prosecution falls under the code of criminal procedure and that the proceedings may lead to penalties in the shape of a fine or even imprisonment, which will be entered in the judicial criminal records.129 Civil parties generally enjoy the safeguards of Article 6 since the civil limb of proceedings is closely linked to the criminal limb.130 If the outcome of proceedings is decisive for the ‘civil right’ of the civil party, Article 6 may be applicable even in the absence of a claim for financial reparation.131 For this, the civil party has to exercise its right to bring civil proceedings in domestic law, even if only to secure symbolic reparation or to protect a civil right (such as the right to a ‘good reputation’); the waiver of such a right must be established in an unequivocal manner.132

III. Guarantees of Article 6 in detail The scope of the Article 6 guarantees can be divided into three areas, namely 33 ‘tribunals’ (a), the right to access to tribunal (b), and procedural guarantees in the narrow sense (the principle of a fair hearing) (c).

1. ‘Tribunals’ According to Article 6 all proceedings falling within its scope of application have 34 to be decided by independent and impartial tribunals established by law. The notion of ‘tribunal’ is to be interpreted autonomously. It follows from this that the 125 ECtHR, 5/7/2001, Phillips v UK, No. 41087/98, §§ 32, 39 and ECtHR, 23/9/2008, Grayson a. Barnham v UK, No. 19955/05 et al, § 37 (application to proceedings on the confiscation of the benefit drawn from drug trafficking) 126 ECtHR, 1/4/2010, Buijen v GER, No. 27804/05, § 42; ECtHR, 1/4/2010, Smith v GER, No. 27801/05, § 41. 127 ECtHR, 18/12/2008, Saccoccia v AUT, No. 69917/01, §§ 77 et seq. 128 ECtHR, 25/3/1983, Minelli v SUI, No. 8660/79, § 18. 129 ECtHR, 25/3/1983, Minelli v SUI, No. 8660/79, § 28. 130 ECtHR, 17/1/2002 (GC), Calvelli a. Ciglio v ITA, No. 32967/96, § 62; ECtHR, 12/2/2004 (GC), Perez v FRA, No. 47287/99, § 67. 131 ECtHR, 12/2/2004 (GC), Perez v FRA, No. 47287/99, § 65. 132 ECtHR, 12/2/2004 (GC), Perez v FRA, No. 47287/99, §§ 70 et seq.

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classification of a domestic institution as a ‘tribunal’ does neither depend on the concept used for it in domestic law nor on its domestic legal classification. Domestic decision-making organs are ‘tribunals’ as far as they satisfy the requirements set out in Article 6, even if they are not formally courts under domestic law. The requirements are relatively strictly defined in the Convention and interpreted autonomously by the Court; hence Member States practically have no margin of appreciation in this respect. 35 First, courts of ordinary jurisdiction are considered ‘tribunals’ within the meaning of Article 6. Furthermore, and irrespective of the domestic terminology tribunals under Article 6 in the substantive sense encompass all decision-making organs which have the competence to determine matters on the basis of legal rules, and after proceedings conducted in a prescribed manner, and governed by corresponding safeguards.133 The organ must be competent to exercise judicial functions.134 36 Moreover, the organ must be competent to take a decision binding on the parties,135 to establish itself the facts of a case and to apply the legal provisions to the facts. In case of doubt even appearances may be of relevance.136 Finally, a tribunal’s decision must not be altered by a non-judicial authority to the detriment of a party.137 An organ competent to clear up the facts of a case and to make only a proposal for a decision does not merit the description ‘tribunal’. The principle of fair trial requires at least that the decision-making organ be competent to issue a binding decision on questions of fact and on questions of law.138 Thus, organs deciding only on a request to re-open proceedings, and ordering the re-opening of proceedings do not fall within the scope of Article 6, provided that they do not undertake a full review of measures but decide only on the admissibility of such a request.139 The grant of discretion140 or the simultaneous performance of other duties do not impair the quality of a tribunal.141 37 Members of the tribunal do not have to be exclusively professional judges. Also lay judges – elected, for example, for their specialised experience – may sit as judges.142 133 ECtHR, 29/4/1988, Belilos v SUI, No. 10328/83, § 64; ECtHR, 22/10/1984, Sramek v AUT, No. 8790/79, § 36; ECtHR, 28/6/1984, Campbell a. Fell v UK, No. 7819/77 et al, § 76; ECtHR, 16/7/ 1971, Ringeisen v AUT, No. 2614/65, § 95; ECtHR, 6/4/2004, Rozsa v AUT, No. 67950/01. 134 ECtHR, 23/6/1981, Le Compte a. o. v BEL, No. 6878/75, § 55; ECtHR, 27/6/1968, Neumeister v AUT, No. 1936/63, § 24. 135 ECtHR, 28/6/1984, Campbell a. Fell v UK, No. 7819/77 et al, § 80; ECtHR, 23/10/1985, Benthem v NED, No. 8848/80, § 40. 136 ECtHR, 29/4/1988, Belilos v SUI, No. 10328/83, § 67, in which the Court held that it is important whether the ordinary citizen will tend to see a certain person as a member of the police force. 137 ECtHR, 28/10/1999 (GC), Brumarescu v ROM, No. 28342/95, § 63; ECtHR, 22/5/1998, Vasilescu v ROM, No. 27053/95, §§ 39 et seq; also ECtHR, 26/2/2002, Morris v UK, No. 38784/97, § 73: The principle can also be seen as a component of the ‘independence’, cf. ECtHR, 25/2/1997, Findlay v UK, No. 22107/93, § 77 and ECtHR, 19/4/1994, Van de Hurk v NED, No. 16034/90, § 45. 138 ECtHR, 23/6/1981, Le Compte a. o. v BEL, No. 6878/75, § 51 b, 60. 139 ECtHR, 23/9/1982, Sporrong a. Lo ¨ nnroth v SWE, No. 7151/75 et al, § 86. 140 Grabenwarter/Pabel, § 24 m.n. 29. 141 ECtHR, 23/10/1985, Benthem v NED, No. 8848/80, § 40. 142 ECtHR, 22/10/1984, Sramek v AUT, No. 8790/79, § 39; ECtHR, 23/6/1981, Le Compte a. o. v BEL, No. 6878/75, § 55; ECtHR, 22/6/1989, Langborger v SWE, No. 11179/84, § 30; ECtHR, 23/4/ 1987, Ettl a. o. v AUT, No. 9273/81, §§ 37 et seq.

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What is decisive is that a tribunal may consider submissions on their merits, 38 point by point, without ever having to decline jurisdiction in replying to them or in ascertaining various facts.143 Apart from the competence to review granted by law three other factors are decisive as to the question whether the scope of the competence to review satisfies the requirements of Article 6:144 the subject of an administrative decision (requirement of expert evidence and conferral of discretion); procedural guarantees in proceedings on the enactment of administrative acts; the subject of a dispute, including concrete grounds for legal remedy. While this case law so far only applied to ‘civil rights’ cases the Court recently adopted a flexible approach in criminal cases. In a case concerning the judicial review of an administrative decision imposing a penalty in the field of competition law, the Court took into account that the national court exercising the judicial review was able to verify whether the administrative authority had made proper use of its powers and that it was able to verify that the penalty imposed was fit the offence and could have changed it if necessary. According to the Court the national courts in question had thus full jurisdiction.145 A tribunal within the meaning of Article 6 must be ‘established by law’. The 39 purpose of this criterion is to prevent special courts, i. e. chambers established ad hoc by law or administrative act.146 In particular, this legal reservation covers the composition of the bench of a tribunal,147 its organisation in other respects, as well as its competence.148 It constitutes one of the main prerequisites of a democratic state under the rule of law and secures among others the independence of tribunals.149 The notion of ‘law’ is to be construed autonomously, too. As with the notion of 40 ‘tribunal’, the term ‘law’ is characterised by a functional aspect as the elements of a ‘law’ in the substantive sense have priority over the concept of ‘law’ in the formal sense of a particular national constitution.150 However, certain minimum requirements have to be fulfilled. A ‘law’ within the meaning of Article 6 is a generally binding provision vested with a higher degree of legal validity, and is thereby capable of preventing arbitrational conduct.151 A tribunal’s legal basis is missing if not even the constitution of a court is, in its main features, based on a parliamentary law. A tribunal is ‘prescribed by law’ if it was set up under the constitution152 143 ECtHR, 21/9/1993, Zumtobel v AUT, No. 12235/86, § 32; van Dijk/Viering, in: van Dijk/van Hoof/van Rijn/Zwaak, pp. 561 et seq. 144 ECtHR, 21/7/2011, Sigma Radio Television Ltd v CYP, No. 32181/04 et al, § 154. 145 ECtHR, 27/9/2011, Menarini Diagnostics S.r.l. v ITA, No. 43509/08, §§ 64 et seq. 146 Grabenwarter/Pabel, § 24 m.n. 29. 147 ECtHR, 4/3/2003, Posokhov v RUS, No. 63486/00, § 39; ECtHR, 11/7/2006, Gurov v MOL, No. 36455/02, § 35. 148 The Court in exceptional cases accepts that the highest judicial bodies of Member States, which are competent to interpret the law, can take decisions, which are not strictly provided by the law if the court in question gives clear and plausible reasons for the exceptional departure from its usual competence. In the present case, however, the Supreme Court of Ukraine did not give any reasons for taking a decision, exceeding its jurisdiction in deliberate breach of the Code of Commercial Procedure. Moreover, the taking of such decisions became a usual practice of the court: ECtHR, 20/7/2006, Sokurenko a. Strygun v UKR, No. 29458/04, § 27. 149 EComHR, 12/10/1978, Zand v AUT, No. 7360/76; ECtHR, 21/6/2011, Fruni v SVK, No. 8014/07, § 134. 150 Grabenwarter/Pabel, § 24 m.n. 31. 151 Grabenwarter/Pabel, § 24 m.n. 31. 152 ECtHR, 23/6/1981, Le Compte a. o. v BEL, No. 6878/75, § 56.

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or by provisions of public international law applicable in a state.153 Within the given legal framework the executive may be authorized to lay down rules in regulations as regards matters of detail.154 The requirement of a tribunal ‘prescribed by law’ also refers to the composition of a tribunal in each individual case.155 A tribunal composed of professional and lay judges has no sufficient legal basis in domestic law if there are no provisions concerning the selection and appointment of lay judges or their rights and obligations.156 41 Special tribunals,157 such as for example certain courts martial, are compatible with Article 6 as long as the procedural safeguards are sufficiently provided with.158 Legal courts of arbitration prescribed by law and with compulsory jurisdiction do also fall within the scope of Article 6, even if only established for a limited number of cases. These have to be distinguished from private, under circumstances even institutional arbitral courts which derive their decision-making competence from the parties’ subjection. The requirements of Article 6 do not apply to proceedings where the parties have waived their institutional and procedural guarantees under Article 6 in the arbitration agreement. However, the minimum requirements under the rule of law have to be complied with also by private courts of arbitration.159 42 A tribunal has to be independent. The independence of a tribunal is, inter alia, assessed on the basis of the manner of appointment of its members and their term of office, as well as of the existence of guarantees against outside pressure and the question of whether the body appears to be independent.160 It first has to be examined whether a tribunal is independent of the executive and of the parties.161 This requirement refers primarily to the tribunal as a whole. Independence has also to be granted in the relation between the individual members of a tribunal. 43 The appointment of the members of a tribunal by the executive or by parliament is not per se in conflict with the requirement of independence. It is decisive whether they sit in an individual capacity and perform their duties free from

153 ECtHR, 12/7/2007, Jorgic v GER, No. 74613/01, §§ 66 et seq (competence for sentencing a war criminal based on an interpretation of the applicable rules in the light of public international law, namely the Genocide Convention). 154 ECtHR, 5/10/2010, DMD Group, A. S. v SVK, No. 19334/03, § 60. 155 ECtHR, 4/5/2000, Buscarini v SMR, No. 31657/96; ECtHR, 4/3/2003, Posokhov v RUS, No. 63486/00, § 39; cf. also ECtHR, 11/7/2006, Gurov v MOL, No. 36455/02, § 35 (practice of allowing judges to exercise their functions for an undetermined period of time after the expiry of their terms of office without a legal basis); ECtHR, 10/6/2010, Zakharkin v RUS, No. 1555/04, § 146. 156 ECtHR, 27/10/2009, Pandjikidze ´ a. o. v GEO, No. 30323/02, § 109. 157 E.g. the Swedisch Housing and Tenancy Court, cf. ECtHR, 22/6/1989, Langborger v SWE, No. 11179/84, §§ 30 et seq; a constitutional court as a criminal court, cf. EComHR, 18/12/1980, Crociani a. o. v ITA, No. 8603/79 et al. 158 Recently, ECtHR, 26/2/2002, Morris v UK, No. 38784/97, § 59; ECtHR, 16/12/2003, Grieves v UK, No. 57067/00, § 100; ECtHR, 16/12/2003, Cooper v UK, No. 48843/99, § 71; ECtHR, 12/5/2005 ¨ calan v TUR, No. 46221/99, §§ 112 et seq. (GC), O 159 See in more detail m.n. 86. 160 ECtHR, 22/11/1995, Bryan v UK, No. 19178/91, § 37; ECtHR, 22/6/1989, Langborger v SWE, No. 11179/84, § 32; ECtHR, 28/6/1984, Campbell a. Fell v UK, No. 7819/77 et al, § 78; ECtHR, 25/2/1997, Findlay v UK, No. 22107/93, § 73; ECtHR, 23/6/1981, Le Compte a. o. v BEL, No. 6878/75, § 55; ECtHR, 2/9/1998, Lauko v SVK, No. 26138/95, § 63. 161 ECtHR, 27/6/1968, Neumeister v AUT, No. 1936/63, § 24; ECtHR, 16/7/1971, Ringeisen v AUT, No. 2614/65, § 95; ECtHR, 28/6/1984, Campbell a. Fell v UK, No. 7819/77 et al, § 78.

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instructions by the executive.162 Also it is permissible that the tribunal is appointed by the parliament.163 If judges are appointed by the executive it may give indications of the independence and impartiality when the previous consultation of judicial organs, or an obligation to comply with appointment proposals made by the judiciary, or when general selection criteria have been established. On the other hand, it may cause legitimate doubts as to the independence and impartiality of members of a court if these members have been appointed or nominated by an interest group, and the court has to decide on the interests of this group or its members respectively.164 The independence of a court is significantly determined by the duration of the 44 term of office, the general irremovability and the freedom from instructions. The judges’ term of office does not have to be for life but generally for a set period of time to guarantee certain stability. A minimum term of office of five years usually satisfies the requirements of Article 6.165 Short terms of office are mainly justified if there are understandable reasons for it, such as that the members of a court perform their duty as a secondary function.166 The possibility to remove a judge does in itself not imply a lack of indepen- 45 dence.167 During their term of office judges may be removed in exceptional cases and for specific reasons only, which have to be laid down in detail in (legal) provisions.168 The practical irremovability of judges suffices for the presumption of independence provided that the irremovability is recognized in fact and that the other necessary guarantees are present.169 The non-re-election of a judge – in particular a supreme court judge – by the decision-making organ does not raise an issue under the head of independence. The allocation of other tasks within the judicial branch does not cause doubts as regards the independence of a judge.170 Their simultaneous employment in other state functions is not precluded but limited depending on the nature of the task. Moreover, the independence of a tribunal carrying out its judicial function has to 46 be guaranteed. Judges must be free from instructions and may not be subject to

162 ECtHR, 28/6/1984, Campbell a. Fell v UK, No. 7819/77 et al, § 79; ECtHR, 22/10/1984, Sramek v AUT, No. 8790/79, § 38. 163 ECtHR, 16/7/1971, Ringeisen v AUT, No. 2614/65, § 95; ECtHR, 28/6/1984, Campbell a. Fell v UK, No. 7819/77 et al, §§ 78 et seq; ECtHR, 1/10/1982, Piersack v BEL, No. 8692/79, § 27. 164 ECtHR, 22/6/1989, Langborger v SWE, No. 11179/84, § 35 (appointment of an arbitration court); ECtHR, 29/4/1988, Belilos v SUI, No. 10328/83, § 67. 165 ECtHR, 22/10/1984, Sramek v AUT, No. 8790/79, §§ 38, 26; ECtHR, 28/6/1984, Campbell a. Fell v UK, No. 7819/77 et al, § 80. 166 ECtHR, 28/6/1984, Campbell a. Fell v UK, No. 7819/77 et al, § 80. 167 ECtHR, 28/6/1984, Campbell a. Fell v UK, No. 7819/77 et al, § 80; ECtHR, 8/6/1976, Engel a. o. v NED, No. 5100/71 et a, § 68; ECtHR, 22/10/1984, Sramek v AUT, No. 8790/79, § 38. 168 ECtHR, 21/7/2009, Luka v ROM, No. 34197/02, § 44; ECtHR, 30/11/2010, Henryk Urban a. Ryszard Urban v POL, No. 23614/08, 3 53. 169 ECtHR, 28/6/1984, Campbell a. Fell v UK, No. 7819/77 et al, § 80; ECtHR, 8/6/1976, Engel a. o. v NED, No. 5100/71 et a, § 68; ECtHR, 22/10/1984, Sramek v AUT, No. 8790/79, § 38; this question is not answered in ECtHR, 22/6/1989, Langborger v SWE, No. 11179/84, § 22; ECtHR, 16/7/1971, Ringeisen v AUT, No. 2614/65, § 95; more recently ECtHR, 26/2/2002, Morris v UK, No. 38784/97, § 68. 170 ECtHR, 1/10/1982, Piersack v BEL, No. 8692/79, § 30.

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accountability.171 This is meant to guarantee that a judge may come to a decision in accordance with law and conscience. A hierarchical structure within the ambit of service law does in itself not vitiate independence. If officials or office-holders are installed as judges it is necessary to examine in each single case whether their independence is – or at least appears to be – called into question by obligations under service law.172 47 The Court neither had doubts as to the independence of the Belgian disciplinary court for medical practitioners as it was composed of exactly the same number of medical practitioners and members of the judiciary, while one of the latter had the casting vote in the event of equality of votes.173 The Court takes also into account that the assistance of lay judges with special experience may contribute to adequate decision-making in a tribunal.174 In social insurance cases the Court noted that the tribunals cannot be considered ‘independent’ for three reasons: the appointment of their decision-making organs was controlled by the executive, these organs had the legal status of employees, and there were no guarantees against outside pressures.175 48 In cases under military law the independence and impartiality of a tribunal and thus Article 6 was considered to be violated for various reasons.176 It was deemed problematic that due to multiple competences a so-called convening officer played a central role in military proceedings.177 The officer in question played, among others, a key prosecuting role and at the same time appointed the members of the court martial, who were subordinate in rank to him and fell within his chain of command. The officer also played an essential role during the proceedings as, among others, his agreement was usually sought before charges were withdrawn. The Court reached the conclusion that these defects could not even be corrected by any subsequent review proceedings. It reasoned that due to the serious criminal charges the applicant was faced with he was entitled to a first-instance tribunal which already fully met the requirements of Article 6 (1).178 Furthermore, it violates the independence of military judges if they are also sitting as members of state courts.179 The requirements of independence and impartiality are neither fulfilled when civilians, charged with 171 ECtHR, 28/6/1984, Campbell a. Fell v UK, No. 7819/77 et al, § 78; ECtHR, 22/10/1984, Sramek v AUT, No. 8790/79, § 38; ECtHR, 8/7/1986, Lithgow a. o. v UK, No. 9006/80 et al, § 202; ECtHR, 24/11/1994, Beaumartin v FRA, No. 15287/89, §§ 38 et seq; as to the accountability of the judge in question: EComHR, 22/2/1984, Sutter v SUI, No. 8209/78. 172 E.g. ECtHR, 22/10/1984, Sramek v AUT, No. 8790/79, §§ 40 et seq (as to a rapporteur who had, in his position as a member of a regional authority, a subordinate status vis-a`-vis a party to the proceedings). 173 ECtHR, 23/6/1981, Le Compte a. o. v BEL, No. 6878/75, § 57. 174 ECtHR, 28/1/2010, Puchstein v AUT, No. 20089/06, §§ 53 et seq; ECtHR, 28/1/2010, Stechauner v AUT, No. 20087/06, §§ 52 et seq. 175 ECtHR, 2/9/1998, Lauko v SVK, No. 26138/95, § 64; ECtHR, 2/9/1998, Kadubec v SVK, No. 27061/95, § 57. 176 The Court holds that the concepts of independence and objective impartiality are closely linked and therefore considered them together in the present cases, cf. ECtHR, 25/2/1997, Findlay v UK, No. 22107/93, § 73; ECtHR, 26/2/2002, Morris v UK, No. 38784/97, § 58. 177 ECtHR, 25/2/1997, Findlay v UK, No. 22107/93, §§ 74 et seq. 178 ECtHR, 24/9/1997, Coyne v UK, No. 25942/94, § 57; ECtHR, 2/9/1999, Smith a. Ford v UK, No. 37475/97 et al, § 23; ECtHR, 29/9/1999, Moore a. Gordon v UK, No. 36529/97, § 22; ECtHR, 5/7/2001, Mills v UK, No. 35685/97, § 25. 179 ECtHR, 6/3/2001, Mehdi Zana v TUR, No. 29851/96, § 22; ECtHR, 9/6/1998, Incal v TUR, No. 22678/93, § 72; ECtHR, 28/10/1998, Ciraklar v TUR, No. 19601/92, § 39; ECtHR, 30/9/2004, Murat Kilic v TUR, No. 40498/98, § 19.

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offences relating to military service, stand trial before a court made up exclusively of military officers.180 The same is true in cases where a person who is, under national law, already a serviceman but claims to be a conscientious objector and who is required to appear before a military court.181 Problems of independence regularly arise in the relations between a court and a prosecution authority. The independence of the Belgian Court of Cassation is not adversely affected by the presence of a procurator general who has no voting power at the court’s deliberations.182 The Court reasoned that the prosecutor general was concerned with ensuring the observance of the law and not with the question of the guilt of the accused. Thus, the prosecutor general is not the adversary of the applicant even if the decision is to the detriment of the applicant. He is rather an adjunct and adviser of the Court who – due to his supervising function – discharges a function of a quasi-judicial nature. It is compatible with Article 6 if a court is bound by the decision of an administrative authority on a preliminary question; this, however, only applies if there is a judicial review of the preliminary question – if it has direct effect on their civil rights and obligations – in court proceedings conducted in accordance with the requirements of Article 6.183 Tribunals may likewise be regarded as independent if a court is required to report to an administrative authority on the progress in proceedings.184 If, however, proceedings are particularly closely linked to the executive, the proceedings are classified as not judicial but administrative in nature, even if the decision-making organ is competent to issue a final and binding decision. The scope of the State’s obligation to ensure a trial by an ‘independent and impartial tribunal’ is not limited to the judiciary. It also implies obligations on the executive, the legislature and any other State authority, regardless of its level, to respect and abide by the judgments and decisions of the courts, even when they do not agree with them. Thus, the State’s respect for the authority of the courts is an indispensable precondition for public confidence in the courts and, more broadly, for the rule of law. For this to be the case, the constitutional safeguards of the independence and impartiality of the judiciary do not suffice. They must be effectively incorporated into everyday administrative attitudes and practices.185 The third criterion for a tribunal is impartiality. Purpose of this requirement is to assure that the person concerned may trust in the impartiality of a tribunal which determines of the question of right or wrong. The concepts of independence and impartiality are closely interrelated and often used in connection with 180

ECtHR, 22/11/2011, Ercep v TUR, Application no. 43965/04, §§ 68 et seq. ECtHR, 12/6/2012, Savda v TUR, No. 42730/05, § 111. 182 ECtHR, 17/1/1970, Delcourt v BEL, No. 2689/65, §§ 32 et seq; the Court expressly reaffirmed this finding in the subsequent case ECtHR, 30/10/1991, Borgers v BEL, No. 12005/86, §§ 22 et seq. However, having regard to the requirements of the rights of the defence and of the principle of equality of arms, it held that the participation of the advocate general in the deliberations was in violation of Article 6 (1). As to the principle of equality of arms see m.n. 81 et seq. 183 Grabenwarter/Pabel, § 24 m.n. 38; corresponding ECtHR, 28/6/1990, Obermeier v AUT, No. 11761/85, § 70; ECtHR, 19/5/1994, British-American Tobacco Company Ltd v NED, No. 19589/92, §§ 82 et seq: as to an authority of appeal and a first instance authority which were composed from a single pool of members all belonging to the same administrative body. 184 EComHR, 4/10/1966, X. v AUT, No. 1706/62, CD 21, 34 (43). 185 ECtHR, 6/10/2011, Agrokompleks v UKR, No. 23465/03, § 136. 181

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each other.186 There is a functional connection between the two since independence is a prerequisite for impartiality.187 Furthermore, the objectivity of proceedings depends on the impartiality and on the independence of the members of the decision-making organ. Thus, in individual cases it might be difficult to dissociate the two criteria.188 What is decisive to assess the impartiality of a tribunal is the actual and procedural circumstances and the specific questions in the individual stages of proceedings of each individual case.189 Impartiality is, however, an independent procedural requirement insofar as it concerns the objectivity of judicial conduct and the assessment of this conduct. In fact, it is impartiality which forms the core of the right to a trial before a tribunal within the meaning of the Convention; the criteria of independence and a legal basis serve to formally secure the guarantee: Impartiality of a tribunal cannot be presumed if it is not prescribed by law.190 The individual concerned may waive his/her right to an impartial judge. Commensurate to the special importance of procedural rights a waiver is effective only if certain minimum requirements are satisfied. A waiver is deprived of any validity if it was given by a defendant without prior advice by a legal counsel since in the Court’s view a legal layperson may not fully assess a question of law.191 If established in an unequivocal manner procedural rights may be waived even implicitly.192 Minimum requirements are, however, that the individual concerned was notified in a sufficient manner so that he was able to deliberately waive his/her rights, and that the waiver does not run counter to any important public interest; a mere presumption of a waiver by authorities is not enough.193 Hence, the applicant may not appeal to the tribunal’s partiality if he was sufficiently notified and had the right to challenge its composition but refrained from doing so.194 The Court separately assesses the personal and objective impartiality of a tribunal. In the subjective approach it ascertains whether the judge is prejudiced or partial. In an objective approach it determines, apart from the personal conduct of a judge, whether there are ascertainable facts that may raise doubts as to the impartiality of the decision-making body, and whether the judge offered sufficient guarantees to exclude any legitimate doubt in this respect.195 The Court clarifies that a watertight division between subjective and objective impartiality is not always possible.196 The mere fact that a party requests the exclusion of a judge for bias does not automatically have a consequence that the judge should withdraw or be excluded. 186 E.g. ECtHR, 8/2/2005, Miller v SWE, No. 55853/00, § 28; ECtHR, 9/10/2008, Moiseyev v RUS, No. 62936/00, § 175; ECtHR, 6.10.2011, Agrokompleks v UKR, No. 23465/03, § 128. 187 Grabenwarter/Pabel, § 24 m.n. 39. 188 ECtHR, 22/6/1989, Langborger v SWE, No. 11179/84, § 32. 189 Cf. ECtHR, 24/2/1993, Fey v AUT, No. 14396/88, § 27. 190 Cf. EComHR, 1/2/1983, Bramelid a. Malmstro ¨ m v SWE, No. 8588–89/79. 191 ECtHR, 25/2/1992, Pfeifer a. Plankl v AUT, No. 10802/84§ 37 et seq. 192 ECtHR, 23/5/1991, Oberschlick v AUT, No. 11662/85, § 51; ECtHR, 6/12/1988, Barbera `, Messegue´ a. Jabardo v ESP, No. 10590/83, § 82. 193 ECtHR, 12/2/1985, Colozza v ITA, No. 9024/80, § 28; ECtHR, 24/4/2008, Dorozhko a. o. v EST, No. 14659/04 et al, §§ 45 et seq. 194 ECtHR, 22/2/1996, Bulut v AUT, No. 17358/90, § 34. 195 Cf. ECtHR, 15/10/2009 (GC), Micallef v MLT, No. 17056/06, § 74; ECtHR, 15/12/2005 (GC), Kyprianou v CYP, No. 73797/01, §§ 118 et seq, both with reference to previous case law. 196 ECtHR, 15/10/2009 (GC), Micallef v MLT, No. 17056/06, § 95.

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However, the question as to whether there is any need and justification for not excluding a judge, for example in order to maintain the capacity to determine the case, can only arise after the parties arguments are answered and it is established whether or not the challenges to the judges are justified.197 In order to ascertain whether a given judge was partial in a particular case his 57 relations with the parties to the case have to be examined.198 The judge’s conduct may not be seen isolated but has to be seen in the overall context.199 Irrespective of the subject of proceedings, the personal impartiality of a judge must be presumed until there is proof to the contrary.200 This rule of presumption reflects the principle that the decision of a tribunal is final and binding unless set aside by a superior court.201 What is problematic is that impartiality as an inner state is hard to proof. In order to proof any hostility or ill-will of a judge towards an applicant it is insufficient to refer only to the applicant’s subjective feelings; rather the allegation of partiality has to be objectively justified.202 A civil judge may not be considered personally impartial based only on the fact that he sat as administrator in the criminal proceedings against the same applicants, even if there was a factual nexus between the two appeals, and the administrator (in performance of his function) first postponed the hearing on the accusation and finally adjourned it indefinitely.203 Most judgments of the Court on personal impartiality concern members of jury 58 tribunals, on which Article 6 is applicable just as it is on professional and lay judges.204 It is natural that a presiding judge should strive to ensure that the composition of the jury is beyond any reproach whatsoever. However, in the event of doubt the personal impartiality of a juror is not proofed by the fact that the presiding judge would probably have dismissed this member from the jury had he known about the circumstances giving rise to doubt.205 If allegations of partiality are made against a juror, national tribunals are generally obliged to examine whether they are substantiated. The omission of such a check constitutes a violation of Article 6, except if the allegations are manifestly and directly ill-founded.206 A connection between a juror and a witness does not necessarily indicate a lack of impartiality of the tribunal in respect of that person’s testimony. Thus, it has to be decided in each individual case of what nature and degree the familiarity in question is.207 197

ECtHR, 20/11/2012, Harabin v SVK, No. 58688/11, §§ 136 et seq. Grabenwarter/Pabel, § 24 m.n. 43. 199 EComHR, 21/3/1975, X. v UK, No. 5574/72. 200 ECtHR, 24/5/1989, Hauschildt v DEN, No. 10486/83, § 47; ECtHR, 1/10/1982, Piersack v BEL, No. 8692/79, § 30; ECtHR, 26/10/1984, De Cubber v BEL, No. 9186/80, § 25; ECtHR, 15/12/2005 (GC), Kyprianou v CYP, No. 73797/01, § 119. 201 ECtHR, 10/6/1996, Pullar v UK, No. 22399/93, § 32. 202 ECtHR, 26/10/1984, De Cubber v BEL, No. 9186/80, § 25. 203 ECtHR, 24/11/1986, Gillow v UK, No. 9063/80, § 73. 204 ECtHR, 25/11/1993, Holm v SWE, No. 14191/88, § 30. 205 ECtHR, 10/6/1996, Pullar v UK, No. 22399/93, § 36. 206 ECtHR, 23/4/1996, Remli v FRA, No. 16839/90, § 48; see also Viennot, Actualite ´s et perspectives ouvertes par la jurisprudence re´cente de la cour europe´enne des droits de l’homme en matie`re d’impartialite´, RTDH 2008, 179 (189 et seq). 207 ECtHR, 10/6/1996, Pullar v UK, No. 22399/93, § 36; ECtHR, 20.12.2011, Hanif a. Khan v UK, No. 52999/08 et al; §§ 142 et seq (presence of a police officer on the jury). 198

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The personal impartiality of a tribunal may be violated, for instance, if one or more jurors in proceedings against foreigners make racist comments.208 In some cases, dismissing the jury as a whole and appointing new jurors may be the only means to achieve a fair trial.209 If, however, the allegation of bias is vague and imprecise, it may be sufficient that the judge deals with it by means of a firmly worded redirection to the jury, provided that no further comparable remarks follow.210 59 Within the framework of objective impartiality it has to be examined whether the internal organization and the functions exercised give rise to doubt the independence of a judge.211 In order to ensure objective impartiality the legislator is obliged to adopt procedural laws which adequately guarantee that no partial judge is involved in proceedings. A violation of objective impartiality occurs, for instance, if a close family relationship, such as between siblings, is not considered a case of partiality.212 Moreover, impartiality has to be guaranteed in specific proceedings. A mere departure from the internal court practice does in itself not provide a legitimate reason to doubt the impartiality if the court gives a plausible explanation.213 When assessing partiality, appearances may be of a certain importance.214 It suffices to hold that there has been a violation if ascertainable facts may raise doubts as to the impartiality. The purpose of this principle is to uphold the confidence which the courts in a democratic society must inspire in the public.215 Thus, a court needs to check whether a tribunal is partial if the grounds do not appear to be manifestly devoid of merit.216 On the other hand, any judge in respect of whom there is a legitimate reason to fear a lack of impartiality must withdraw.217 The standpoint of the accused is important but not decisive; rather there must exist a legitimate reason to fear a lack of impartiality.218 60 Adverse publicity in advance of trial or a virulent media campaign can in certain circumstances undermine the fairness of a trial by influencing public opinion and thus the jury which is called upon to decide on the culpability of the accused.219 However, in the Court’s view in the majority of cases the nature of the trial process 208 ECtHR, 9/5/2000, Sander v UK, No. 34129/96, § 33; cf. also ECtHR, 23/4/1996, Remli v FRA, No. 16839/90, § 47 et seq. 209 ECtHR, 9/5/2000, Sander v UK, No. 34129/96, § 34. 210 ECtHR, 25/2/1997, Gregory v UK, No. 22299/93, §§ 47, 49; see also ECtHR, 21/9/2010, Szypusz v UK, No. 8400/07, §§ 82 et seq. 211 ECtHR, 26/10/1984, De Cubber v BEL, No. 9186/80, § 26; ECtHR, 25/7/2000, Tierce a. o. v SMR, No. 24954/94 et al, § 78; ECtHR, 6/6/2000, Morel v FRA, No. 34130/96, § 45. 212 ECtHR, 15/10/2009 (GC), Micallef v MLT, No. 17056/06, § 100. 213 ECtHR, 4/4/2000, Academy Trading Ltd. a. o. v GRE, No. 30342/96, § 46. 214 ECtHR, 26/10/1984, De Cubber v BEL, No. 9186/80, § 26; ECtHR, 6/6/2000, Morel v FRA, No. 34130/96, § 42; ECtHR, 15/10/2009 (GC), Micallef v MLT, No. 17056/06, § 98. 215 ECtHR, 21/12/2000, Wettstein v SUI, No. 33958/96, § 44; ECtHR, 4/4/2000, Academy Trading Ltd. a. o. v GRE, No. 30342/96, § 45; ECtHR, 28/10/1998, Castillo Algar v ESP, No. 28194/95, § 45; ECtHR, 10/10/2000, Daktaras v LIT, No. 42095/98, § 32. 216 ECtHR, 23/4/1996, Remli v FRA, No. 16839/90, § 48. 217 ECtHR, 24/5/1989, Hauschildt v DEN, No. 10486/83, § 48. 218 ECtHR, 1/10/1982, Piersack v BEL, No. 8692/79, § 31; ECtHR, 24/5/1989, Hauschildt v DEN, No. 10486/83, § 48; ECtHR, 24/8/1993, Nortier v NED, No. 13924/88, § 33; ECtHR, 20/5/1998, Gautrin a. o. v FRA, No. 21257/93 et al, § 58; ECtHR, 6/5/2003 (GC), Kleyn a. o. v NED, No. 39343/98 et al, § 194; ECtHR, 26/10/2004, AB Kurt Kellermann v SWE, No. 41579/98, §§ 67 et seq; ECtHR, 15/12/2005 (GC), Kyprianou v CYP, No. 73797/01, § 118. 219 ECtHR, 5/12/2002, Craxi v ITA (No. 1), No. 34896/97, § 98.

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and, in particular, the role of the trial judge in directing the jury will ensure that the proceedings are fair.220 It may violate impartiality, for instance, if several jurors are or have been active members of a political party.221 The Court, however, did not find a violation of objective impartiality in a case where representatives of a labour market organisation were members of the court while representatives of an employers’ association were not represented since the applicant was not affiliated to any.222 Family ties between the presiding judge and a person significantly involved in the pre-trial investigation of the applicant’s case or the opposing party’s advocate may as well objectively justify doubts as to the impartiality of a tribunal.223 A tribunal likewise lacks impartiality if the plaintiff is the chairman of a regional council of judges and in this function has the possibility to influence other judges by way of threatening them with disciplinary proceedings or taking other career-related decisions.224 Doubts as to impartiality are legitimate where there is some confusion between the functions of prosecutor and judge.225 The requirement of impartiality thus is violated if the judge performs the function of a public prosecutor who is absent from the main trial, in particular from the examination of the evidence.226 In criminal trials judges that have already – before the main proceedings – formed 61 an opinion shall not be involved in a case.227 An important point of reference is whether a judge was already concerned with a question that is connected with the issue to be dealt with in the main proceedings before they have started.228 According to the Court’s case law a judge in criminal trials is, for example, to be considered personally biased if he, after holding a function in the public prosecutor’s department where he may have dealt with a given matter in the course of his duties, subsequently sits in the same case as a judge.229 The mere fact that a judge has already ruled on similar but unrelated criminal charges or that he has already tried a co-accused in 220

ECtHR, 18/1/2011, Akay (Abu Hamza) v UK, No. 31411/07, § 39. ECtHR, 25/11/1993, Holm v SWE, No. 14191/88, §§ 30 et seq. 222 ECtHR, 26/10/2004, AB Kurt Kellermann v SWE, No. 41579/98, §§ 67 et seq; the Court did not even find a violation of the Convention in the close relation between the French National Council of the Medical Council and the disciplinary section of the National Council, which decided on the applicant’s complaint about the Medical Council’s dependency and partiality. The Court noted that the members of the disciplinary section were irremovable throughout their term of office, and therefore independent and by no means in hierarchical dependence on them. Furthermore, the disputed composition had been chaired by an independent professional judge. In particular, the Court noted that the ordinary members of the disciplinary section had withdrawn from the sitting at which the National Council of the Medical Council had decided to bring a complaint against the applicant: ECtHR, 27/7/2006, Gubler v FRA, No. 69742/01, § 28. 223 ECtHR, 24/4/2008, Dorozhko a. o. v EST, No. 14659/04 et al, §§ 56 et seq; ECtHR, 15/10/2009 (GC), Micallef v MLT, No. 17056/06, §§ 56 et seq: Doubts may not be removed by legal rules which only list first degree family relationships as a ground for challenge. 224 ECtHR, 15/7/2010, Gazeta Ukraina-Tsentr v UKR, No. 16695/04, § 34. 225 ECtHR, 18/5/2010, Ozerov v RUS, No. 64962/01, § 50. 226 ECtHR, 18/5/2010, Ozerov v RUS, No. 64962/01, § 54. 227 ECtHR, 26/10/1984, De Cubber v BEL, No. 9186/80, § 29; ECtHR, 27/8/1991, Demicoli v MLT, No. 13057/87, § 41: The Court held that the judges, whose behaviour as members of parliament had been criticised by the applicant and who then decided on the applicant’s guilt and the sentencing, were partial. 228 ECtHR, 6/6/2000, Morel v FRA, No. 34130/96, § 48; see al so Trechsel, Human Rights in Criminal Proceedings, 2005, pp. 66 et seq. 229 ECtHR, 1/10/1982, Piersack v BEL, No. 8692/79, § 30. 221

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separate criminal proceedings is in itself not sufficient to cast doubts on that judge’s impartiality in a subsequent case. It is, however, a different matter if the earlier judgments contain findings that actually prejudge the question of the guilt of an accused in such subsequent proceedings.230 Also the imposition of a fine for contempt of court may objectively justify fears as to the bias of the judge (against which the contempt was aimed personally), and thus may lead to impartiality.231 Furthermore, in the Court’s view, due to appearance it gives grounds to legitimate doubts if the investigating judge subsequently exercises the function of a trial judge. Impartiality was, among others, identified based on the far-reaching competences of the respective judge to make decisions in the preparatory judicial investigation, and based on the fact that in the investigative phase a judge had to obey orders by the public prosecutor.232 However, a judge is not yet considered impartial if he is to take a decision on pretrial detention and on other questions concerning a trial. A detailed knowledge of the case before trial in itself does not suffice to presume partiality of the judge when the case comes to trial.233 What matters is the scope and nature of the measures taken by the judge before the trial.234 According to the Court the involvement of the judge in question in preliminary proceedings does not harm as long as he was not responsible for the indictment or the decision on the question of guilt of the applicant. The undertaking of certain pre-trial measures, such as the collecting of simple information and transmitting of a case-file, are not held as justifying fears as to impartiality.235 The summarily assessment of available data in order to ascertain whether prima facie the police have grounds does neither justify legitimate doubts since suspicion and a formal finding of guilt are not to be treated as being the same.236 Nevertheless, special circumstances may lead to a violation of the principle of impartiality, namely when an extension of pre-trial detention may only be ordered in cases of a ‘particularly confirmed suspicion’.237 As the difference between this assessment and the question the judge will have to settle when giving judgment at the trial becomes tenuous the Court therefore is of the view that the impartiality of the tribunal was capable of appearing to be open to doubt.238 230

ECtHR, 24/3/2009, Poppe v NED, No. 32271/04, § 26. ECtHR, 15/12/2005 (GC), Kyprianou v CYP, No. 73797/01, §§ 123 et seq; the situation is different, however, if the amount of sanctions for disorderly conduct in proceedings does not attain a level such as to make them ‘criminal’ sanctions, and if there’s a possibility to appeal against the decision imposing the fine: ECtHR, 23/3/1994, Ravnsborg v SWE, No. 14220/80, §§ 35 et seq. 232 ECtHR, 26/10/1984, De Cubber v BEL, No. 9186/80, § 29; see also ECtHR, 10/8/2006, Schwarzenberger v GER, No. 75737/01, §§ 43 et seq: The applicant’s concerns pertained to two judges, who had previously given a judgment against his alleged accomplice, which contained the alleged accompliced’s statements on the applicant’s character and role in the offence. 233 ECtHR, 6/6/2000, Morel v FRA, No. 34130/96, § 45; ECtHR, 22/4/1994, Saraiva de Carvalho v POR, No. 15651/89, § 38. 234 ECtHR, 24/8/1993, Nortier v NED, No. 13924/88, § 33; ECtHR, 24/2/1993, Fey v AUT, No. 14396/88, § 30; ECtHR, 6/6/2000, Morel v FRA, No. 34130/96, § 45. 235 ECtHR, 24/2/1993, Fey v AUT, No. 14396/88, § 32; cf. also ECtHR, 24/5/1989, Hauschildt v DEN, No. 10486/83, § 50, in which the Court held that judges generally is not responsible for preparing the case for trial. 236 ECtHR, 24/5/1989, Hauschildt v DEN, No. 10486/83, § 50; ECtHR, 16/12/1992, Sainte- Marie v FRA, No. 12981/87, § 32; ECtHR, 22/4/1994, Saraiva de Carvalho v POR, No. 15651/89, § 38. 237 ECtHR, 24/5/1989, Hauschildt v DEN, No. 10486/83, § 51; ECtHR, 16/12/1992, Sainte- Marie v FRA, No. 12981/87, § 32; ECtHR, 24/8/1993, Nortier v NED, No. 13924/88, § 35. 238 ECtHR, 24/5/1989, Hauschildt v DEN, No. 10486/83, § 52; cf. ECtHR, 31/7/2007, Ekeberg a. o. v NOR, No. 11106/04 et al, §§ 34 et seq (the Court held that the allegedly partial judge had a role to 231

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The criterion of impartiality does not generally require a superior court to send 62 back a case to a different jurisdictional authority or to a differently composed branch of that authority if it set aside an administrative or judicial decision. The fact that a judge participated in the taking of the first as well as the second decision does not justify any objective doubts as to the impartiality.239 The same applies if there is not a case of remission but of reopening a trial when the judges retry in the defendant’s presence a case that they have first had to try in absentia on the basis of the evidence that they had available to them at the time as they are in no way bound by their first decision.240 Article 6 is, however, violated if a judge who had participated in the judgment at first instance also participated in the hearing of an appeal against the same judgment. If this decision is subject to subsequent control by a judicial body that has full jurisdiction and provides the guarantees of Article 6 no violation occurs.241 When a supreme criminal court submits a petition to quash or amend a lower court’s judgment and at the same time recommends that a particular decision be adopted or quashed the guarantee of impartiality is violated, as thereby the presiding judge necessarily becomes the defendant’s ally or opponent. This holds particularly true if the formerly presiding judge chooses the members of the retrying chamber from amongst those judges of the criminal division which he heads.242 In a number of cases, the Court was concerned with the question of whether it 63 was compatible with Article 6 if judges were having two functions at the same time. It is in breach of the principle of impartiality if a lay judge, in addition to its function as judge in proceedings against the applicant, acts as legal representative of the opposing party in parallel proceedings, even if there is no material link between the cases. In such a case the applicant’s fears are, according to the Court, objectively justified since he could have had reason for concern that the respective judge would continue to see in him the opposing party.243 The simple fact that a judge is also a practising lawyer does not suffice.244 Article 6 is not violated if a tribunal sits in almost the same composition in civil and criminal proceedings between which a factual nexus exists but which relate to different people and different questions.245 If members of an authority carry out both advisory and judicial functions in the same case the question of a violation of Article 6 depends on the circumstances of play in the applicant’s conviction insofar as without the endorsement of the jury’s verdict by the professional judges the applicant could not have been convicted, since the professional judges, if they had found against the jury’s verdict that there was insufficient evidence for finding the person guilty, could have decided that the case shall be tried anew by other judges). 239 ECtHR, 16/7/1971, Ringeisen v AUT, No. 2614/65, § 97; ECtHR, 26/9/1995, Diennet v FRA, No. 18160/91, § 37. 240 ECtHR, 10/6/1996, Thomann v SUI, No. 17602/91, § 35. 241 ECtHR, 26/8/1997, De Haan v NED, No. 22839/93, §§ 47, 51, in which the presiding judge was solely responsible for taking the decision, even when he does no more than ratify the opinion of the permanent medical expert; ECtHR, 23/6/1981, Le Compte a. o. v BEL, No. 6878/75, § 58; ECtHR, 29/7/2004, San Leonard Band Club v MLT, No. 77562/01, §§ 61 et seq. 242 ECtHR, 10/10/2000, Daktaras v LIT, No. 42095/98, § 35. 243 ECtHR, 21/12/2000, Wettstein v SUI, No. 33958/96, § 46. 244 ECtHR, 19/5/2005, Steck-Risch a. o. v LIE, No. 63151/00, § 44. 245 ECtHR, 24/11/1986, Gillow v UK, No. 9063/80, § 73.

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each individual case: It is capable of casting doubt on the impartiality if the majority of judges had to rule on the lawfulness of a regulation which they had previously scrutinised in their advisory capacity. In such a case the applicant has legitimate grounds for fearing that the tribunal’s members feel bound by the opinion previously given. A respective composition of a tribunal is thus in breach of Article 6.246 It does not meet the requirements of independence and impartiality if in court martial proceedings the convening officer to whom the members of the court-martial are subordinate also acts as confirming officer.247 A command structure may raise legitimate doubts as to the impartiality of the judges.248 Such organisational defects in courts-martial cannot be corrected by any subsequent review procedure that could be initiated by the applicant.249 Furthermore, from an objective perspective, the status as members of the military vitiates impartiality of military judges who are simultaneously sitting as members of a state court.250 It is also a problem of independence and impartiality if civilians stand trial before a court made up exclusively of military officers.251 64 Apart from that a tribunal lacks independence and impartiality if the replacement of judges has no legal basis and is not circumscribed by procedural safeguards.252 Doubts as to the independence and impartiality of a trial court may also be objectively justified if the presiding judge is replaced for unascertainable reasons and this is not circumscribed by any procedural safeguards.253 Moreover, it violates Article 6 if, in view of the severity of any adverse consequences that might possibly be faced by the applicant, a law prohibits that he is informed about the tribunal’s composition. The Court held that this fact was of a nature capable of raising doubts as to the tribunal’s impartiality.254 The failure to disclose the identity of all the members of a tribunal that hear the case is capable of casting doubts on its impartiality, too.255 65 The Court examines the question of neutrality of court appointed experts in terms of the principle of equality of arms inherent in the concept of a fair trial. Particular regard must be had to the expert’s procedural position and role in the relevant

246 ECtHR, 28/9/1995, Procola v LUX, No. 14570/89, §§ 45 et seq; different in its conclusion: ECtHR, 6/5/2003 (GC), Kleyn a. o. v NED, No. 39343/98 et al, §§ 199 et seq. 247 ECtHR, 6/2/2001, Wilkinson a. Allen v UK, No. 31145/96 et al, §§ 21 et seq; ECtHR, 2/9/1999, Smith a. Ford v UK, No. 37475/97 et al, § 23; ECtHR, 29/9/1999, Moore a. Gordon v UK, No. 36529/97, § 22; ECtHR, 25/2/1997, Findlay v UK, No. 22107/93, §§ 75 et seq; ECtHR, 24/9/ 1997, Coyne v UK, No. 25942/94, §§ 56 et seq; ECtHR, 28/10/1998, Ciraklar v TUR, No. 19601/92, §§ 38 et seq; ECtHR, 18/2/1999, Cable a. o. v UK, No. 24436/94, §§ 20 et seq. 248 ECtHR, 6/2/2001, Wilkinson a. Allen v UK, No. 31145/96 et al, § 21. 249 Cf. to the independence m.n. 42 et seq above ECtHR, 6/2/2001, Wilkinson a. Allen v UK, No. 31145/96 et al, § 24; ECtHR, 24/9/1997, Coyne v UK, No. 25942/94, §§ 56 et seq; ECtHR, 2/9/ 1999, Smith a. Ford v UK, No. 37475/97 et al, § 23; ECtHR, 29/9/1999, Moore a. Gordon v UK, No. 36529/97, § 22. 250 ECtHR, 6/3/2001, Mehdi Zana v TUR, No. 29851/96, § 22; ECtHR, 9/6/1998, Incal v TUR, No. 22678/93, § 70; ECtHR, 28/10/1998, Ciraklar v TUR, No. 19601/92, § 38. 251 ECtHR, 22/11/2011, Ercep v TUR, No. 43965/04, §§ 68 et seq. 252 ECtHR, 9/10/2008, Moiseyev v RUS, No. 62936/00, §§ 177 et seq. 253 ECtHR, 3/5/2011, Sutyagin v RUS, No. 30024/02, § 192. 254 ECtHR, 20/1/2011, Vernes v FRA, No. 30183/06, §§ 41 et seq. 255 ECtHR, 20/1/2011, Vernes v FRA, No. 30183/06, §§ 42 et seq.

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proceedings,256 and the opportunity of the parties in proceedings to challenge and question expert opinions.

2. Access to an independent and impartial tribunal The access to an independent and impartial court prescribed by law is one of the 66 main points of the procedural guarantees of Article 6. Within its scope of application Article 6 (1) guarantees a right to obtain a decision by an independent court.257 In the light of the special significance of the right to a fair trial in a democratic society the Court stresses that the right of access to court has to be ‘practical and effective’ and not ‘theoretical or illusory’. Member States are therefore required to set up an appeal system which grants each individual an effective access to the court. In certain cases it might be necessary to provide for free legal assistance, though the Member States enjoy a wide margin of appreciation.258 While Article 6 (3) (c) expressly grants a right to free legal assistance in criminal proceedings when the interests of justice so require, Article 6 (1) does not contain a comparable guarantee for civil proceedings. The Court is therefore reluctant to determine a violation of the right of access to court when the applicant is refused legal aid.259 The guarantee of an independent and impartial tribunal prescribed by law is, 67 however, – even within the scope of protection of Article 6 – not absolute. Limitations are formulated within the scope of the right of access to court, which is granted with the provision of proportionate restriction only.260 Such limitations are permissible as long as they pursue a legitimate aim and there is a reasonable relationship between the means employed and the aim sought to be achieved. They must not, however, restrict or reduce the right in such a way or to such an extent that the very essence of the right is impaired.261 The access to court may in other words be subject to limitations which, with regard to the aim pursued, comply with the principle of proportionality. The Court’s case law provides multiple indications of the legitimate aims and the interests to be balanced. Since the Golder Case the Court has held in its consistent case law that the right of access to court by its very nature calls for regulation by the state, which may vary in time and place according to the needs and resources of the community and of individuals.262 256

ECtHR, 5/7/2007, Sara Lind Eggertsdottir v ISL, No. 31930/04, §§ 47 et seq. The Court found that legislative measure hindering the applicant’s company to have its civil claim for damages decided by a civil court constituted a violation of Article 6 (1) in so far as it ordered that all proceedings concerning claims for damage caused by the members of the Croatian army or police when acting in their official capacity during the Homeland War in Croatia were to be stayed until new provisions were enacted to regulate that matter: ECtHR, 10/7/2003, Multiplex v CRO, No. 58112/00, §§ 45 et seq. 258 ECtHR, 19/9/2000, Gnahore v FRA, No. 40031/98, § 38; ECtHR, 26/2/2002, Del Sol v FRA, No. 46800/99, § 21. 259 ECtHR, 26/2/2002, Del Sol v FRA, No. 46800/99, §§ 23 et seq; ECtHR, 21/9/2004, Santambrogio v ITA, No. 61945/00, §§ 51 et seq; but cf. ECtHR, 9/10/1979, Airey v IRL, No. 6289/73, §§ 26 et seq. 260 Van Dijk/Viering, in: van Dijk/van Hoof/van Rijn/Zwaak, pp. 573 et seq. 261 ECtHR, 28/5/1985, Ashingdane v UK, No. 8225/78, § 57; ECtHR, 8/7/1986, Lithgow a. o. v UK, No. 9006/80 et al, § 194; ECtHR, 27/8/1991, Philis v GRE, No. 12750/87 et al, § 59; ECtHR, 15/11/2007, Khamidov v RUS, No. 72118/01, §§ 155 et seq; van Dijk/Viering, in: van Dijk/van Hoof/van Rijn/Zwaak, pp. 573 et seq. 262 ECtHR, 21/2/1975, Golder v UK, No. 4451/70, § 38. 257

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Limitations of the access to court may pursue aims which may vary with the type of limitation, with the nature of the tribunal and depending on the legal order concerned. The limitation might be for protecting from abusive and repetitive litigations263 or for avoiding the overloading of a Court‘s list by cases of lesser importance264 as well as for preventing negotiations and arbitration being rendered unworkable by a multiplicity of individual claims of stockholders in cases of a farreaching measure of nationalization.265 Measures to contribute to trade and economic development may as well be a legitimate aim in the public interest.266 The Court found the limitation of the access to court with respect to investigations into the care of a child to be justified since it was necessary to ensure expediency and efficiency of investigations in order to protect the best interests of children.267 It constitutes a disproportionate restriction on the right of access to a tribunal if authorities invoke the concerns for the protection of national security expressed by a minister as the reason for not applying a legal act granting the right of access.268 The request for initiating proceedings for restoration of legal capacity is one of the fundamental rights of a person partially deprived of legal capacity. Thus, in such cases limitations of the access to court are not compatible with Article 6. Individuals partially legally incapacitated must be granted direct access to court so that they may seek the restoration of their legal capacity.269 69 Conditions for admissibility of actions and remedies, such as a time limit, (absolute or relative) mandatory legal representation, formalities, the permissibility of conducting a case270, also limit the access to court. The Court in the past generally regarded most restrictions as being proportionate. However, the manner in which conditons such as time limits are applied in a particular case may give rise to a breach of Article 6 (1).271 It amounts to a disproportionate limitation of the access to court if authorities unlawfully do not leave appeal instructions as to whether a decision can be appealed against and, if so, how to appeal, if the applicant asked how to obtain redress.272 The imposition of court fees equal to an average annual salary (in the respective country) on the applicant constitutes a disproportionate restriction on his right of access to court, too.273 Apart from the level of the court fee with respect to the applicant’s earning capacity it is decisive for the proportionality assessment whether the fee to be secured served the interests of protecting the other party against irrecoverable legal costs, or whether it exclusively went to the state treasury. The imposition of a fee of EUR 250 by a constitutional 68

263

ECtHR, 28/5/1985, Ashingdane v UK, No. 8225/78, § 58. ECtHR, 27/11/2012, Bayar a. Gu¨rbu¨z v TUR, No. 37569/06, § 43. 265 ECtHR, 8/7/1986, Lithgow a. o. v UK, No. 9006/80 et al, § 197. 266 ECtHR, 15/10/2009, Kohlhofer a. Minarik v CZE, No. 32921/03 et al, § 98. 267 ECtHR, 25/9/2008, K.T. v NOR, No. 26664/03, §§ 98, 101 – The Court held that it could arguably be maintained, in view of the scope of the Norwegian Supreme Court’s review of the case – as the only court to review the case on the merits –, that this review complied with the requirements of Article 6. 268 ECtHR, 10/7/1998, Tinnelly v UK, No. 20390/92 et al, §§ 76 et seq; ECtHR, 19/3/2002, Devenney v UK, No. 24265/94, §§ 25 et seq. 269 ECtHR, 17.1.2012, Stanev v BUL, Application no. 36760/06, §§ 241 et seq. 270 ECtHR, 28/5/1985, Ashingdane v UK, No. 8225/78, § 59. 271 ECtHR, 14/6/2011, Mercieca a. o. v MLT, No. 21974/07, § 47. 272 ECtHR, 7/4/2009, Mendel v SWE, No. 28426/06, §§ 77 et seq. 273 ECtHR, 19/6/2001, Kreuz v POL, No. 28249/95, §§ 61 et seq; ECtHR, 17/7/2007, Mehmet a. Suna Yı¯g˘¯ıt v TUR, No. 52658/99, §§ 36 et seq. 264

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court for abuse of process was not considered to be disproportionate.274 Finally, restrictions on access to court which are of a purely financial nature and which are completely unrelated to the merits of the claim or its prospects of success should be subject to a particularly rigorous scrutiny from the point of view of the interests of justice.275 It is proportionate to oblige an applicant to deposit a fee already imposed upon him as a condition for being able to lodge an appeal.276 Article 6 does not, however, entitle to legal aid.277 The state has to be particularly concerned as to whether access to court is practically ineffective due to the financial status of an applicant. In this context it is for the state to develop the modalities.278 Statutory limitation periods are generally recognized by the Court as pursuing the legitimate aim of ensuring legal certainty. This, however, applies only if it is practically possible for the applicant to initiate proceedings.279 Time-limits for appeals serve the legitimate aim of ensuring the proper administration of justice and legal certainty. However, they should not prevent litigants from making use of an available remedy.280 A time-limit for appeals as short as, for example, five days violates the right of access to court.281 It is also in breach of Article 6 if time-limits are missed due to a delay of the transfer of a case to the court of appeal caused by the first instance court.282 Generally the regulations on the admissibility criteria for appeals must be sufficiently coherent and clear.283 It violates the right of access to court if an excessively formalistic procedure leads to the declaration of inadmissibility of an application for non-compliance with formalities, while the applicant additionally may not be held responsible for not complying.284 In particular, the applicant should not suffer any detriment on account of a court’s failure, such as for example the order to pay the difference between the court fees that had been paid and the fees that corresponded to the established values of the claim.285 Moreover, domestic courts fall short of their obligations under Article 6 if a legal274 ECtHR, 13/10/2009, Hermann Matterne v GER, No. 4041/06, § 31; ECtHR, 7/12/2010, Spahiu v GER, No. 24376/02; as to the access to the Czech Constitutional Court see ECtHR, 14/2/2008, Glaser v CZE, No. 55179/00, §§ 32 et seq. 275 ECtHR, 10/1/2006, Teltronic-CATV v POL, No. 48140/99, §§ 60 et seq; ECtHR, 31/7/2007, FC Mretebi v GEO, No. 38736/04, § 47. 276 ECtHR, 30/6/2009, Schneider v FRA, No. 49852/06; ECtHR, 9/12/2010, Urbanek v AUT, No. 35123/05, §§ 55 et seq (a creditor who paid the court fees in insolvency proceedings). 277 Article 47 (3) EU Charter, however, grants the right to legal aid and expressly establishes a connection with the right of access to the courts: Case C-279/09, DEB Deutsche Energiehandels-und Beratungsgesellschaft mbH v Bundesrepublik Deutschland (22/12/2010), ECR 2010, m.n. 52 et seq. 278 Cf. ECtHR, 9/10/1979, Airey v IRL, No. 6289/73, §§ 20 et seq; ECtHR, 26/10/2010, Marina v LAT, No. 46040/07, §§ 55 et seq. 279 ECtHR, 7/7/2009, Stagno v BEL, No. 1062/07, §§ 25 et seq. 280 ECtHR, 28/3/2006, Melnyk v UKR, No. 23436/03, § 23; ECtHR, 10/6/2010, Demerdz ˇieva a. o. v MKD, No. 19315/06, § 25. 281 ECtHR, 10/7/2001, Tricard v FRA, No. 40472/98, §§ 29 et seq; ECtHR, 16/3/2010, Mamikonyan v ARM, No. 25083/05, §§ 27 et seq; ECtHR, 12/10/2010, Adamicˇek v CZE, No. 35836/05, § 58. 282 ECtHR, 26/10/2000, Leoni v ITA, No. 43269/98, §§ 23 et seq; similarly ECtHR, 19/7/2007, Freitag v GER, No. 71440/01, §§ 39 et seq (transfer of the case to the competent court). 283 ECtHR, 20/5/2008, Santos Pinto v POR, No. 39005/04, § 44. 284 ECtHR, 16/11/2000, Sotiris a. Nikos Koutras ATTEE v GRE, No. 39442/98, §§ 20 et seq; cf. also ECtHR, 21/9/2004, Zwiazek Nauczyciestwa Polskiego v POL, No. 42049/98, §§ 37 et seq; ECtHR, 30/7/2009, Dattel (No. 2) v LUX, No. 18522/06, §§ 44 et seq; ECtHR, 29/03/2011 (GC), RTBF v BEL, No. 50084/06, §§ 71 et seq. 285 ECtHR, 21/9/2010, Garzic ˇic´ v MNE, No. 17931/07, § 33.

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aid counsel fails to duly submit an appeal within the given time-limit and domestic law does – for such cases – not provide for any possibility to restore the time-limit for appeal or to reopen the criminal proceedings.286 Technical hindrances for the access to court, such as the refusal to register actions electronically filed due to a lack of technical equipment to process them, disproportionately interfere with the right of access to court if the possibility of electronic filing is provided for in domestic law and if the electronic filing, due to the volume of the actions, cannot be considered an abuse of process or otherwise inappropriate.287 70 A legal provision prohibiting patients the access to and to make copies of their medical records imposes a disproportionate limitation of the access to court if the patient refrains from lodging an action as he considers that the evidential situation resulting from the legal provisions in force prevents him from effectively seeking redress before a court or renders the seeking of such judicial protection difficult.288 Limitations of the right to access to court by law in the shape of an impossibility to seek the setting aside of a general meeting resolution after it has been registered with the commercial register violates Article 6.289 The same is true, if, in the context of organizational changes of authorities, the duty of identifying the competent authority against which a claim is to be brought is shifted onto the applicant.290 71 Moreover, immunities may constitute reasonable limitations of the access to court. Immunities of defendants in civil proceedings are based on various grounds and are determined partly by the particularities of domestic law, partly by rules under international law. They have to comply with the principle of proportionality, whereas, however, the margin of appreciation of Member States is larger; thus, the Court exercises a lower degree of scrutiny. Until now the Court has recognized with only a few exceptions that limitations pursued a legitimate aim and were reasonable. 72 A group of cases concerns comparatively far-reaching immunities of UK state authorities. As regards inspectors appointed to investigate in economic affairs it was recognized to be a legitimate aim to secure the independence of the reporting system of these controlling bodies over the management of certain corporations.291 British public liability law which excluded liability of police for acts and omissions to prevent disorder or crime constituted a disproportionate restriction on the applicants’ right of access to court in cases of grave negligence of the police in failing to protect life of a person.292 Strong reactions among British lawyers followed, in reaction to that the Court took a step back in a case concerning social services. The Court then held that the restriction on access to court did not flow from immunity but from the applicable principles governing the substantive right of action in domestic law.293 A second group of cases concerns immunity of parliament, whose aim it is to maintain functionality and independence of parliament. The Court generally grants a wide margin of appreciation to the Member States as regards immunity of parliament 286

ECtHR, 22/11/2011, Andreyev v EST, No. 48132/07, §§ 65 et seq. ECtHR, 16/6/2009, Lawyer Partners, A. S. v SVK, No. 54252/07 et al, §§ 53 et seq. 288 ECtHR, 28/4/2009, K.H. v SVK, No. 32881/04, § 66. 289 ECtHR, 15/10/2009, Kohlho ¨ fer a. Minarik v CZE, No. 32921/03, §§ 102, 105. 290 ECtHR, 26/07/2011, Georgel a Georgeta Stoicescu v ROM, No. 9718/03, §§ 75 et seq. 291 ECtHR, 21/9/1994, Fayed v UK, No. 17101/90, § 70. 292 ECtHR, 28/10/1998, Osman v UK, No. 23452/94, §§ 150 et seq. 293 ECtHR, 10/5/2001, Z. a. o. v UK, No. 29392/95, § 100; for a critical approach on the change in the case law, cf. Kloth, Immunities and the Right of Access to Court under the European Convention on Human Rights, EHRLR 2002, 33 et seq. 287

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as part of parliamentary law. The farther-reaching immunities are the more compelling justification grounds have to be. The Court exercises a lower degree of scrutiny if parliamentary immunity is granted for activities that have no direct link with parliamentary activities.294 However, it restricted the access to court in a non-justifiable manner when parliamentary immunity was afforded to a former Italian President against a civil action for a statement that bore no relationship with his activities as senator for life.295 The Court held the same in respect of a parliamentarian’s statements at an election meeting since they were not connected with the exercise of parliamentary functions in the strict sense but rather seemed to be more consistent with a personal quarrel.296 The access to court is disproportionately restricted if – in proceedings on the regulation of contact with a child of a member of parliament – immunity creates an imbalance in treatment between the parties involved.297 Parliamentary immunity also limits the right to access to court of parliamentarians who allegedly committed criminal offences before their election. However, the Court did not identify a breach of Article 6. Immunity is not a personal privilege for the benefit of parliamentarians that can be waived by the beneficiary. What is more, immunity is limited in time to the duration of a parliamentarian’s term and may be lifted in accordance with a procedure prescribed by law.298 Immunities of international organisations were up to now as well deemed to be 73 reasonable limitations of the right to access to court. They pursue the legitimate aim of ensuring the proper functioning of an organisation, free from unilateral interference by a single government. The Court found no infringement of Article 6 in two judgments against decisions of German courts that declared actions inadmissible on the grounds of immunity of the ESA (European Space Agency). It deemed the limitation proportionate since and insofar as alternative means to protect effectively Convention rights in internal disputes (within the organisation) were available.299 However, in its decision in the case of Stichting Mothers of Srebrenica a. o. the Court stated that these judgments cannot be interpreted in such absolute terms that in the absence of an alternative remedy the recognition of immunity is ipso facto constitutive of a violation of the right of access to a court.300 Finally, also state immunity under international law constitutes a limitation of 74 the access to court.301 A legitimate aim is also pursued here, namely compliance with international law, more precisely the principle par in parem non habet imperium, according to which no state shall be subjected to the jurisdiction of 294

ECtHR, 3/12/2009 (GC), Kart v TUR, No. 8917/05, § 81; as to that Muylle, L’autonomie parlementaire a`bri des droits de l’homme?, RTDH 2010, 705 et seq; already ECtHR, 17/12/2002, A. v UK, No. 35373/97, §§ 75 et seq; as to that Krenc, La re`gle de l’immunite´ parlementaire a` l’e´preuve de la Convention europe´enne des droits de l’homme, RTDH 2003, 813 et seq. 295 ECtHR, 30/1/2003, Cordova (No. 1) v ITA, No. 40877/98, §§ 61 et seq. 296 ECtHR, 30/1/2003, Cordova (No. 2) v ITA, No. 45649/99, § 63; see also ECtHR, 20/4/2006, Patrono, Cascini a. Stefanelli v ITA, No. 10180/04, § 62. 297 ECtHR, 11/2/2010, Syngelidis v GRE, No. 24895/07, § 48. 298 ECtHR, 3/12/2009 (GC), Kart v TUR, No. 8917/05, §§ 97 et seq. 299 ECtHR, 18/2/1999, Waite a. Kennedy v GER, No. 26083/94, §§ 59 et seq; ECtHR, 18/2/1999 (GC), Beer a. Regan v GER, No. 28934/951, §§ 58, 63. 300 ECtHR, 11/6/2013, Stichting Mothers of Srebrenica a. o. v NED, No. 65542/12, § 164. 301 As to that see Bro ¨ hmer, State Immunity and the Violation of Human Rights, 1997, pp. 178 et seq; Grabenwarter/Pabel, § 24 m.n. 56; Caflisch, Immunite´ des e´tats et droits de l’homme: Evolution re´cente, Studies in honour of Georg Ress, 2005, p. 935 (938 et seq).

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another state. The assessment of proportionality that the Court made in three of its judgments is comparatively detailed: The Court must be mindful of the Convention’s special character as a human rights treaty, and it must also take the relevant rules of international law into account. Measures taken by a state which reflect generally recognised rules of public international law on state immunity cannot in principle be regarded as imposing a disproportionate restriction on the right of access to court.302 The Court found no violation in case of an action claiming for damages, including exemplary and punitive damages, in respect of the allegation of wrongful use of a gun.303 In the Al-Adsani Case the decision of the Court was identical but more tersely: The applicant in Great Britain unsuccessfully tried to claim for damages in respect of acts of torture by Kuwaiti organs. The additional argument that state immunity has to step back behind the prohibition of torture as part of jus cogens was not followed by the narrow majority of the Grand Chamber (9:8 votes) by referring to the nonexistence of a corresponding state practice.304 Disputes in connection with employment contracts of members of diplomatic staff in foreign countries form an exception from state immunity. Against the background of the drafts of the ILC and Article 11 of the UN Convention on Jurisdictional Immunities of States and their Property of 2004 this case constitutes a limitation of state immunity under international customary law.305 It is limited, however, by the exceptions under Article 11 (2) of the UN Convention, namely, for example, in respect of disputes over recruitment, renewal of employment or reinstatement of an individual, as well as regards disputes with own nationals, and when the employer state and the employee otherwise agreed in writing. The state must give reasons for such an exception.306 75 According to Article 6 it is sufficient if one court decides in one procedure. There is no right to appeal or cassation.307 If, however, a state sets up a court of appeal or cassation it is required to ensure that persons amenable to the law enjoy before these courts the fundamental guarantees under Article 6.308 The waiver of a right to appeal is, in principle, permissible if it is established in an unequivocal manner. Moreover, such waiver, in order to be effective for Convention purposes, requires minimum guarantees. It has to be guaranteed, for example, that a person is not unduly influenced by the court when waiving his right to appeal.309 76 Mandatory legal representation before a supreme court does not violate the right to access to court.310 It is a restriction of the right to access to court when a lawyer 302

ECtHR, 21/11/2001, McElhinney v IRL, No. 31253/96, §§ 35 et seq. ECtHR, 21/11/2001, McElhinney v IRL, No. 31253/96, §§ 38 et seq. 304 ECtHR, 21/11/2001 (GC), Al-Adsani v UK, No. 35763/97, §§ 61 et seq; Tomuschat, L’immunite´ et droits de l’homme, RGDIP 2005, 51 (57 et seq); in this context, cf. also ECtHR, 12/12/ 2002, Kalogeropoulou a. o. v GRE, No. 59021/00. 305 ECtHR, 23/3/2010 (GC), Cudak v LTU, No. 15869/02§§ 66 et seq. 306 ECtHR, 18/1/2011, Guadagnino v ITA a. FRA, No. 2555/03, § 71; ECtHR, 29/6/2011 (GC), Sabeh el Leil v FRA, No. 34869/05, §§ 60 et seq. 307 As to the right of appeal in criminal matters cf. Article 2 of Protocol No. 7 below. 308 ECtHR, 17/1/1970, Delcourt v BEL, No. 2689/65, §§ 25 et seq; ECtHR, 23/10/1996, Levages Prestations v FRA, No. 21920/93, § 44; ECtHR, 31/7/2007, FC Mretebi v GEO, No. 38736/04, § 39. 309 ECtHR, 3/11/2011, Litwin v GER, No. 29090/06, §§ 37 et seq. 310 ECtHR, 17/12/1996, Vacher v FRA, No. 20368/92, §§ 24, 28; ECtHR, 22/3/2007, Staroszczyk v POL, No. 59519/00, § 128; ECtHR, 19/5/2009, Kulikowski v POL, No. 18353/03, § 60. 303

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appointed under the legal-aid scheme does not prepare a cassation appeal due to a lack of prospects of success. This only applies if the applicant had the possibility and a time-frame to find another lawyer. However, a procedural framework must ensure that the applicant be informed about what further procedural options are available to him.311 The Convention does not guarantee any right to have a case referred by a 77 domestic court to the CJEU for a preliminary ruling under Article 267 TFEU. But the refusal of a request for preliminary ruling may infringe the fairness of proceedings if it appears to be arbitrary.312 According to the Court, Article 6 (1) imposes an obligation on national courts to give reasons for any decision refusing the referral of a question to the CJEU for preliminary ruling. The Court in its reasoning referred to the CJEU’s case law.313 The right to access to court within the meaning of Article 6 (1) does not oblige 78 the Member States to submit disputes to a procedure complying with the Article’s requirements at each of its stages before ‘tribunals’. Rather, according to case law, the demands of flexibility and efficiency which are fully compatible with the protection of human rights may justify the prior intervention of administrative or professional bodies and, a fortiori, of judicial bodies which do not satisfy the said requirements in every respect.314 In particular, it is in line with the requirements of the Convention if the prosecution and punishment of minor offences is conferred on administrative authorities, provided that the person concerned is enabled to take any decision made against him before a tribunal that does offer the guarantees of Article 6.315 If such a review is not offered Article 6 is violated. An effective access to court further requires that a final and binding judicial 79 decision must be implemented; insofar, execution proceedings form an integral part of the ‘trial’. Article 6 (1) obliges Member States to organise their administrative and judicial system in a manner which ensures the enforcement of a binding decision within a reasonable time.316 A delay in the execution of a judgment may be justified in particular circumstances, but may not be such as to impair the essence of the right to access to court.317

311

ECtHR, 19/5/2009, Kulikowski v POL, No. 18353/03, §§ 67 et seq. ECtHR, 24/8/1999, Schweighofer a. o. v AUT, No. 35673/97 et al; ECtHR, 1/2/2005, Matheis v GER, No. 73711/01; ECtHR, 13/2/2007, Lutz John v GER, No. 15073/03. 313 EctHR, 20/09/2011, Ullens de Schooten a. Rezabek v BEL, No. 3989/07 et al, §§ 52 et seq. 314 Grabenwarter/Pabel, § 24 m.n. 58; ECtHR, 23/6/1981, Le Compte a. o. v BEL, No. 6878/75, § 51 a. 315 ECtHR, 21/2/1984, O ¨ ztu¨rk v GER, No. 8544/79, § 56; ECtHR, 2/9/1998, Lauko v SVK, No. 26138/95, § 64; ECtHR, 2/9/1998, Kadubec v SVK, No. 27061/95, § 57; ECtHR, 7/6/2012, Segame SA v FRA, No. 4837/06, § 54. 316 For basic considerations ECtHR, 19/3/1997, Hornsby v GRE, No. 18357/91, §§ 40 et seq; ECtHR, 22/5/2003, Kyrtatos v GRE, No. 41666/98, §§ 30 et seq; ECtHR, 8/4/2004 (GC), Assanidze v GEO, No. 71503/01, §§ 182 et seq; ECtHR, 29/6/2004, Voytenko v UKR, No. 18966/02, §§ 39 et seq; ECtHR, 27/7/2004, Romashov v UKR, No. 67534/01, §§ 42 et seq; ECtHR, 30/9/2004, Mancheva v BUL, No. 39609/98, § 61; ECtHR, 30/11/2004, Mykhaylenky v UKR, No. 35091/02 et al, §§ 51 et seq; more recently ECtHR, 15/1/2009, Burdov (No. 2) v RUS, No. 33509/04, §§ 71 et seq; ECtHR, 23/10/2012, Su¨zer a. Eksen Holding A.S. v TUR, No. 6334/05, §§ 114 et seq; as to the principle of res iudicata laid down in Article 6 see also m.n. 90 below. 317 As to the enforcement of judgments to restitute property rights see ECtHR, 6/3/2003, Jasiu ¯ niene˙ v LTU, No. 41510/98, §§ 27 et seq; ECtHR, 7/4/2005, Uzˇkure˙liene˙ v LTU, No. 62988/00, §§ 31, 36. 312

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3. Fair hearing The right to a fair hearing is at the core of the procedural guarantees. It contains a variety of guarantees aimed at proceedings in which the parties may represent their procedural position under essentially the same conditions. However, it is not the Court’s function to assess the reasons for why national courts have taken a certain decision and not another. Article 6 (1) thus does not guarantee the ‘right result’ in decisions by domestic courts.318 Part of the principle of fairness are, first, partial guarantees as the principle of equality of arms, the right to inspection of files, the right to be heard, and to reasons for decisions. Apart from that also the rights of the accused enshrined in Article 6 (2) and (3) form part of the requirement of fairness, as do the rights developed in case law, such as the principle of nemo tenetur. In some cases the Court limits itself to the finding that the proceedings in question generally did not meet the requirements of a fair trial without considering a certain partial guarantee to be violated.319 This holds particularly true in cases where the decision of a national instance in its conclusion appears to be arbitrary and incomprehensible so that in the overall context the trial seems to be unfair. In other cases the standard of review applied by the Court was the principle of fair trial in conjunction with one of the guarantees explicitly laid down in Article 6 (1).320 Occasionally the Court reviews individual partial aspects of Article 6 of the Convention after having determined that certain proceedings in their entirety are not of a fair nature.321 81 The principle of equality of arms is at the core of the requirement of fairness under Article 6 (1) and simultaneously an important aspect of the principle of equal treatment of the parties.322 Accordingly, every party must be afforded a reasonable opportunity to present his case – including evidence – under conditions that do not place him at a substantial disadvantage vis-a`-vis his/her opponent.323 The legal position of opposing parties must be essentially the same.324 80

318 ECtHR, 21/1/1999 (GC), Gracı´a Ruiz v ESP, No. 30544/96, § 28; ECtHR, 5/10/2006, Klasen v GER, No. 75204/01, § 43; ECtHR, 2/6/2009, Ditz v GER, No. 29056/06. 319 Cf. e.g. ECtHR, 12/6/2003, Van Ku ¨ ck v GER, No. 35968/97, §§ 55 et seq, 62 et seq (Assumption of a German court that the applicant had deliberately caused his/her transsexuality, and that thus the gender reassignment operation was not medically necessary; he/she was held not to be entitled to a reimbursement of the cost of the gender reassignment surgery); see also ECtHR, 8/1/2009, Schlumpf v SUI, No. 29002/06, § 57 (decision on the necessity of a gender reassignment surgery without obtaining a medical expert opinion); ECtHR, 15/11/2007, Khamidov v RUS, No. 72118/01, §§ 170 et seq. 320 See e.g. ECtHR, 20/10/2005, Groshev v RUS, No. 69889/01, § 29. 321 ECtHR, 11/7/2006 (GC), Jalloh v GER, No. 54810/00, §§ 109 et seq; as to the relationship between the general principle and partial guarantees see also Trechsel, Human Rights, 2005, pp. 86 et seq. 322 Cf. van Dijk/Viering, in: van Dijk/van Hoof/van Rijn/Zwaak, pp. 580 et seq. 323 ECtHR, 27/10/1993, Dombo Beheer B. V. v NED, No. 14448/88, § 33; ECtHR, 23/10/1996, Ankerl v SUI, No. 17748/91, § 38; ECtHR, 19/10/2004, Makhfi v FRA, No. 59335/00, §§ 39 et seq (marathon hearing in criminal proceedings). 324 As to unequal treatment in proceedings concerning the reimbursement of litigation costs see ECtHR, 6/4/2006, Stankiewicz v POL, No. 46917/99, §§ 68 et seq; ECtHR, 4/5/2010, Massmann v GER, No. 11603/06.

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Particular problems arise in cases concerning equality of arms between a private subject of fundamental rights and a public prosecutor or a representative of the public interest. The Court found a violation of the principle of a fair hearing through the participation of the procurator general in criminal proceedings,325 and of government commissioners in various systems comparable to the French Conseil d’Etat.326 The problem with the Conseil d’Etat cases lies in the publishing of the government commissioner’s opinion before the issuance of the respective judgment at whose deliberations the commissioner as part of the tribunal will be present. The benefit resulting thereof for the administration of justice may – according to the Court – not outweigh the disadvantages for the litigant, who must have a guarantee that the government commissioner will, through his presence at the deliberations, not be able to influence their outcome.327 The Court does not consider it an obvious insufficiency of protection if third parties in proceedings for a reference for a preliminary ruling may not respond to the advocate general’s opinion.328 In the Court’s view it is also in breach of the principle of equality of arms if in civil proceedings the principle that the successful party should have its costs reimbursed by the unsuccessful party is ruled out in situations where the unsuccessful party is an authority representing the financial interests of the state treasury.329 The Court takes into account the particular nature of proceedings before the constitutional court. Since not only the interests of the applicant but also in particular public interests have to be safeguarded the principle of equality of arms does not require equality in every respect, such as for example in respect of the access to files.330 Article 6 does not lay down any rules on the admissibility of evidence or the 82 way it should be assessed.331 However, from the viewpoint of ensuring a fair hearing, the Court has in individual cases established certain requirements for the obtaining and handling of evidence. In particular, courts have to take into consideration specific, pertinent and important arguments.332 An identification parade whose result is used as material evidence for the applicant’s conviction is unfair if the persons in a line-up are distinguished by striking clothing so that the witness was openly invited to identify the (alleged) perpetrator.333 The principle of fair hearing under Article 6 (1) also constitutes a limit for the use 83 of undercover agents for investigating criminal activities. It is not compatible with 325 ECtHR, 30/10/1991, Borgers v BEL, No. 12005/86, §§ 22 et seq; cf., however, ECtHR, 4/10/ 2007, Corcuff v FRA, No. 16290/04, §§ 32 et seq (no violation through the participation of the procurator general only at the information meeting for jurors). 326 E.g. ECtHR, 20/2/1996, Vermeulen v BEL, No. 19075/91, § 34; ECtHR, 20/2/1996, Lobo Machado v POR, No. 15764/89, § 32. 327 ECtHR, 7/6/2001, Kress v FRA, No. 39594/98, §§ 77 et seq; ECtHR, 21/3/2002, Immeubles Groupe Kosser v FRA, No. 38748/97, § 27. 328 ECtHR, 20/1/2009, Cooperatieve Producentenorganisatie van de Nederlandse Kokkelvisserij U. A. v NED, No. 13645/05. 329 ECtHR, 6/4/2006, Stankiewicz v POL, No. 46917/99, §§ 68 et seq. 330 ECtHR, 27/4/2004, Gorraiz Lizarraga a. o. v ESP, No. 62543/00, §§ 60 et seq. 331 ECtHR, 21/1/1999 (GC), Gracı´a Ruiz v ESP, No. 30544/96, § 28; as to the rules on witness evidence see m.n. 143 et seq. 332 ECtHR, 21.4.2011, Nechiporuk a Yonkalo v UKR, Application no. 42310/04, §§ 275 et seq. 333 ECtHR, 20/4/2010, Luska a. Lika v ALB, No. 12315/04 et al, § 66.

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the Convention when undercover agents do not confine themselves to investigating conduct possibly constituting a criminal offence but instigate an offence that without their intervention would not have been committed (‘agent provocateur’).334 There is an incitement when police action does not confine itself to ‘investigating criminal activity in an essentially passive manner’.335 In case of such an intervention and its use in the impugned criminal proceedings the principle of a fair trial is violated.336 Before deploying an undercover agent there have to be objective suspicions as to the criminal intentions of the suspect and thus good reasons for conducting the covert investigations.337 Especially in cases with a strong emphasis on the results of the covert operations and great importance for the outcome of the criminal proceedings, it is incumbent on the domestic authorities to ensure that the manner in which the test purchases of drugs are ordered and conducted exclude the possibility of abuse of power, in particular of entrapment. In general, a number of procedural safeguards are required. The authorisation of a test purchase by a simple administrative decision of the same body as the one which conducts the operation, without any independent supervision, with no need to justify the operation and virtually no formalities to follow, is in principle inadequate.338 The defendant in criminal proceedings must be given the opportunity to claim and prove the incitement of a criminal offence by undercover agents. If the defendant’s allegations are not wholly improbable it falls to the prosecution to prove that there was no incitement.339 The use of a confession or real evidence obtained in violation of Article 3 always renders a trial unfair, irrespective of whether it was due to torture, inhuman or degrading treatment. The same applies as to other evidence obtained by a treatment in breach of Article 3. Evidence gathered only indirectly by means in breach of Article 3 generally must not be used in criminal proceedings either. However, the fairness of proceedings is only at stake if the evidence had an impact on his/her conviction.340 In case an applicant claims that his confession, which was used as evidence of his guilt, was extracted in violation of Article 3 courts have to dissipate all serious doubts about the validity of the confession in order to comply 334

ECtHR, 9/6/1998, Teixeira de Castro v POR, No. 25829/94, §§ 38 et seq; ECtHR, 15/12/2005, Vanyan v RUS, No. 53203/99, §§ 46 et seq; ECtHR, 21/2/2008, Pyrgiotakis v GRE, No. 15100/06, see ECtHR, 4/11/2010, Bannikova v RUS, No. 18757/06, §§ 36 et seq. 335 The Court, inter alia, takes into account whether there is evidence that the applicant had committed any similar offences beforehand, and on whose initiative the offence was committed. ECtHR, 5/2/2008 (GC), Ramanauskas v LTU, No. 74420/01, § 67; cf. also ECtHR, 24/6/2008, Miliniene´ v LTU, No. 74355/01, §§ 37 et seq. 336 ECtHR, 9/6/1998, Teixeira de Castro v POR, No. 25829/94, § 39. 337 ECtHR, 4/11/2010, Bannikova v RUS, No. 18757/06, §§ 39 et seq. 338 ECtHR, 2/10/2012, Veselov a. o. v RUS, No. 23200/10 et al, § 126. 339 ECtHR, 5/2/2008 (GC), Ramanauskas v LTU, No. 74420/01, § 70; as to that de Valkeneer, La provocation policie`re a` la lumie`re de la jurisprudence de la Cour europe´ene des Droits de l’Homme, RTDH 2009, 211 et seq; cf. also ECtHR, 1/6/2010, Bulfinsky v ROM, No. 28823/04, §§ 41 et seq (violation of the rights of the defence and the right to equality of arms under Article 6 (1) since the court in question rejected the defence’s request to hear the undercover agent and for other evidence, e.g. to collect fingerprints). 340 ECtHR, 1/6/2010 (GC), Ga ¨ fgen v GER, No. 22978/05, §§ 166 et seq, 173, 178; intentionally still left open in ECtHR, 11/7/2006 (GC), Jalloh v GER, No. 54810/00, § 107; Beernaert, La recevabilite´ des preuves en matie`re penale dans la jurisprudence de la cour europe´enne des droits de l’homme, RTDH 2007, 81 (90 et seq).

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with the right to a fair hearing.341 If there is a ‘real risk’ that testimony made to the authorities in another state was obtained by torture or inhuman or degrading treatment, courts have to examine the arguments of the accused and convince themselves that no such risk existed, too.342 In the Ga¨fgen Case the Grand Chamber did not see the principle of fair hearing to be impaired because the applicant had been convicted by domestic courts based only on a new full confession. All other evidence admitted at the trial was either not obtained by investigations in breach of the Convention or was used only to test the veracity of the confession. The Court therefore held that there was no causal link between the methods of investigation in breach of Article 3 and the applicant’s conviction and sentence. Furthermore, the Court decided that the prohibited methods of investigation had no bearing on the applicant’s new full confession at the trial.343 Article 6 also encompasses the right to be heard. The person concerned must be 84 able to present his standpoint either in person or appropriately represented by a legal counsel. Under certain circumstances the right to be heard can only be complied with if the applicant is present himself; in such cases his/her presence has to be ensured. This might make it necessary, for example, to conduct proceedings in detention facilities.344 Each party must be afforded a reasonable opportunity to present his case.345 Tribunals are obliged to properly examine all submissions, arguments and evidence adduced by the parties.346 Judges adopting decisions with serious consequences for a person’s private life, such as those entailed by divesting someone of legal capacity, should in principle also have personal contact with those persons.347 It is a precondition for the effective exercise of the right to be heard that both parties are given the opportunity to have knowledge of the content of files and the submissions and evidence adduced by the other party.348 In this context it is relevant – in the light of the principle of equality of arms – what opportunities a party has to comment on submissions of the opponent. If one of the parties has greater knowledge in this respect he has better opportunities to respond to submissions of the other party; this regularly violates Article 6.349 The Court requires that prosecution authorities disclose all material evidence 85 in their possession for or against the accused.350 It is a matter for the defence to assess whether a submission deserves a reaction.351 In some cases it may be necessary to withhold certain evidence from the defence so as to protect competing interests, such as national security or the need to protect witnesses; it must 341

ECtHR, 24/1/2012, Iordan Petrov v BUL, No. 22926/04, §§ 142 et seq. ECtHR, 25/9/2012, El Haski v BEL, No. 649/08, § 88. 343 ECtHR, 1/6/2010 (GC), Ga ¨ fgen v GER, No. 22978/05, §§ 178 et seq. 344 ECtHR, 27/5/2010, Artyomov v RUS, No. 14146/02, § 202. 345 ECtHR, 27/10/1993, Dombo Beheer B. V. v NED, No. 14448/88, § 33. 346 ECtHR, 19/4/1994, Van de Hurk v NED, No. 16034/90, § 59. 347 ECtHR, 27/3/2008, Shtukaturov v RUS, 44009/05, §§ 71 et seq.; ECtHR, 3/11/2011, X. a. Y. v CRO, 5193/09, § 84. 348 ECtHR, 28/8/1991, Brandstetter v AUT, No. 11170/84 et al, §§ 66 et seq; ECtHR, 23/6/1993, Ruiz-Mateos v ESP, No. 12952/87, § 63; ECtHR, 16/2/2000, Rowe a. Davis v UK, No. 28901/95, § 60; ECtHR, 19/6/2001, Atlan v UK, No. 36533/97, § 40; ECtHR, 3/6/2003, Walston (No. 1) v NOR, No. 37372/97, §§ 57 et seq; as to the right of access to files of a non-legally represented party in civil proceedings see ECtHR, 14/6/2005, Menet v FRA, No. 39553/02, §§ 47 et seq. 349 ECtHR, 23/6/1993, Ruiz-Mateos v ESP, No. 12952/87, § 67. 350 ECtHR, 24/6/2003, Dowsett v UK, No. 39482/98, §§ 41 et seq. 351 ECtHR, 15/9/2009, Sharomov v RUS, No. 8927/02, § 44. 342

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then be ensured by way of complying with procedural guarantees that the accused receives a fair trial.352 Additionally, only such measures restricting the rights of the defence which are strictly necessary are permissible under Article 6 (1).353 Moreover, the applicant must be afforded the right to challenge both the authenticity and the use of evidence obtained in breach of the Convention at each level of jurisdiction.354 Where a court of appeal is called upon to newly examine a case as to the facts and the law and to make a full assessment of the question of the applicant’s guilt or innocence, the principle of fair trial requires that it make a direct assessment of the evidence given in person by the accused.355 A court must not quash a previous judgment and reassess the evidence without properly informing the interested parties and allowing them the opportunity to present their case.356 86 The right to be heard also applies to proceedings before private arbitration courts.357 The Member States are obliged to set up a ‘control system’ that ensures conformity of arbitration proceedings with the minimum standards of the rule of law.358 Part of the state obligation to supervise arbitration proceedings is to lay down in domestic law the grounds on which an arbitral award may be quashed.359 87 Also the appointment of an expert in proceedings has to be assessed in the light of the principle of equality of arms. The requirements of independence and impartiality applying to tribunals do not apply to experts. However, it has to be considered that an expert’s opinion is likely to carry significant weight in the court’s assessment of the issues.360 If a criminal conviction is essentially based on the conclusions of experts the applicant must be given the right to question the experts in order to cast any doubt on their conclusions.361 The Court bases its finding on the general and comprehensive guarantee of a fair trial within the meaning of Article 6 (1) and not on Article 6 (3) (d) (the applicant’s right to examine or have examined witnesses and experts against him). If experts are to perform a psychiatric examination their status within the respondent institution involved in the proceedings and the weight attached to the expert’s opinion in a particular case have to be taken into account.362 88 The right to be heard is linked to the right to a reasoned judgment. The existence and scope of the obligation to give reasoned judgments largely depend on the individual proceedings and the legal system concerned. Hence, the extent of the duty to give reasons varies according to the differences existing in the various 352 ECtHR, 16/2/2000, Rowe a. Davis v UK, No. 28901/95, § 61; ECtHR, 19/6/2001, Atlan v UK, No. 36533/97, § 40. 353 ECtHR, 16/2/2000 (GC), Jasper v UK, No. 27052/95, § 52; ECtHR, 9/10/2008, Moiseyev v RUS, No. 62936/00, § 216; ECtHR, 6/7/2010, Pocius v LTU, No. 35601/04, § 52. 354 ECtHR, 12/5/2000, Khan v UK, No. 35394/97, §§ 38 et seq. 355 ECtHR, 27/6/2000, Constantinescu v ROM, No. 28871/95, § 55; ECtHR, 24/11/2009, Ieremeiov v ROM, No. 75300/01, § 28. 356 ECtHR, 24/11/2009, Ieremeiov v ROM, No. 75300/01, § 30. 357 Grabenwarter/Pabel, § 24 m.n. 66. 358 Cf. EComHR, 2/12/1991, Firma Heinz Schiebler KG v GER, No. 18805/91; EComHR, 2/12/ 1991, Jakob BOSS So¨hne KG v GER, No. 18479/91. 359 EComHR, 27/11/1996, Nordstro ¨ m Janzon v NED, No. 28101/95. 360 ECtHR, 11/12/2008, Shulepova v RUS, No. 34449/02, § 62. 361 ECtHR, 4/11/2008, Bulsyte ˙-Lideikiene˙ v LTU, No. 72596/01, §§ 64 et seq. 362 ECtHR, 11/12/2008, Shulepova v RUS, No. 34449/02, §§ 64 et seq.

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states of the rule of law.363 Moreover, it is necessary to take into account the diversity of the submissions of the litigants, whether a decision was issued by a court of first instance or a court of appeal, and the degree of precision of the applicable legal act. Discretionary decisions regularly impose a stronger obligation to reason a judgment.364 At any rate it is insufficient to only repeat the content of legal provisions and to determine that they are applicable to the case.365 If the decision of a national court is contrary to established (domestic) case law, the latter requires a more substantial statement of reasons justifying the deviation.366 In certain circumstances the ECtHR concludes that the decisions reached by a national court have not been adequately reasoned, for example if obvious dicrepancies in the statements of witnesses are not at all or not sufficiently addressed. According to the Court, in such circumstances it can be said that the decisions of the national courts did not observe the basic requirement of criminal justice that the prosecution has to prove its case and were not in accordance with one of the fundamental principles of criminal law, namely, in dubio pro reo.367 Article 6 does not require jurors to give reasons for their decision. In order to protect the accused from arbitration and to ensure that the accused and the public understand the verdict appropriate measures have to be taken. Such procedural safeguards may include, for example, directions or guidance provided by the presiding judge to the jurors on the legal issues arising or the evidence adduced, and precise, unequivocal questions put to the jury by the judge, so that the applicant may recognize the evidence and facts on which the verdict was based.368 The principle of fair trial may also be violated if the legislator aims at influencing 89 the imminent outcome of proceedings by way of enacting new laws. Thus, legal acts whose real objective is to be decisive in certain proceedings are in breach of Article 6 (1).369 Moreover, it has to be assessed whether the interference in pending proceedings by the legislator is proportionate with regard to the detrimental effects of the legal amendment on the parties to the proceedings.370 The Court also draws a link between the right to a fair trial and the requirement of 90 legal certainty flowing from the rule of law. Against this background the right to a fair trial also protects from unreasonable contradictory interpretation and arbitrary changes in jurisdiction. National procedural law must provide for mechanisms which ensure legal certainty in cases of conflicting case law or of difficulties in the interpretation of laws.371 However, the requirements of legal certainty and the 363 ECtHR, 9/12/1994, Hiro Balani v ESP, No. 18064/91, § 27; ECtHR, 20/3/2009 (GC), Gorou (No. 2) v GRE, No. 12686/03, §§ 37 et seq (the public prosecutor has no duty to give reasons for rejecting the request of a civil party to criminal proceedings to appeal against an acquittal). 364 ECtHR, 30/11/1987, H. v BEL, No. 8950/80, § 53; ECtHR, 23/6/1994, De Moor v BEL, No. 16997/90, § 55. 365 ECtHR, 15/1/2004, Sakkopoulos v GRE, No. 61828/00, § 51. 366 ECtHR, 14/1/2010, Atanasovski v MKD, No. 36815/03, § 38. 367 ECtHR, 13/12/2011, Ajdaric v CRO, No. 20883/09, § 51. 368 ECtHR, 16/11/2010 (GC), Taxquet v BEL, No. 926/05, §§ 90 et seq; cf. already ECtHR, 15/11/2001, Papon v FRA, No. 54210/00. 369 ECtHR, 9/12/1994, Stran Greek Refineries v GRE, No. 13427/87, § 50. 370 ECtHR, 29/3/2006 (GC), Scordino (No. 1) v ITA, No. 36813/97, §§ 126 et seq; ECtHR, 31/5/2011, Maggio a. o. v ITA, No. 46286/09 et al, §§ 45 et seq. 371 ECtHR, 6/12/2007, Beian v ROM, No. 30658/05, §§ 33 et seq; ECtHR, 24/3/2009, Tudor Tudor v ROM, No. 21911/03, §§ 26 et seq; ECtHR, 5/10/2010, Rakic´ a. o. v SRB, No. 47460/07 et al, § 43; ECtHR, 2/11/2010, Stefa˘nica˘ a. o. v ROM, No. 38155/02, §§ 34 et seq.

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protection of the legitimate confidence of the public do not confer an acquired right to consistency of case-law. Neither is case-law development, in itself, contrary to the proper administration of justice since a failure to maintain a dynamic and evolutive approach would risk hindering reform or improvement.372 Two courts, each with its own area of jurisdiction, for example, examining different cases may very well arrive at divergent but nevertheless rational and reasoned conclusions on the same legal issue raised by similar factual circumstances. Divergences like these may be tolerated when the domestic legal system is capable of accommodating them.373 Additionally, legal certainty presupposes respect for the principle of res iudicata, the principle stating that final judgments are legally binding and may either not be reviewed or be reviewed only if it is justified by circumstances of a substantial and compelling character.374 Extraordinary legal remedies may lead to the quashing of a final judgment only under strict conditions. Their purpose should only be the correcting of judicial errors and miscarriages of justice, but not to carry out a new examination of the whole case.375 91 In extending the Convention’s personal scope of application, certain provisions are interpreted as prohibiting the Member States from contributing to possible violations of fundamental rights by third states. Article 6 is among the provisions having such an ‘indirect effect’. Thus, it is prohibited, for instance, to extradite in order to enable the enforcement of a judgment, or to open exequatur proceedings to enforce a foreign court’s decision, which do not conform to the standards of Article 6.376 In this context, Member States have to make sure that the decision to be implemented is not the result of an evident denial of justice. In certain cases, it might even be necessary that Member States examine whether third state courts complied with all requirements under Article 6.377 In addition to that, an issue might exceptionally arise under Article 6 by an extradition decision in circumstances where the individual would risk suffering a flagrant denial of a fair trial (‘a flagrant denial of justice’) in the requesting country.378 A flagrant denial of justice goes beyond mere irregularities or lack of safeguards in the trial procedures such as might result in a breach of Article 6 if occurring within the Contracting State itself. The breach of the principles of fair trial must be so fundamental as to amount to a nullification, or destruction of the very essence, of the right guaranteed by that Article.379 A mere reference to the general human rights situation in a country, however, does not suffice.380 372

ECtHR, 10/5/2012, Albu a. o. v ROM, No. 34796/09 et al, § 34. ECtHR, 20/10/2011 (GC), Nejdet Sahin a. Perihan Sahin v TUR, No. 13279/05, §§ 86 et seq. 374 For basic considerations ECtHR, 28/10/1999 (GC), Brumarescu v ROM, No. 28342/95, §§ 61 et seq; also ECtHR, 24/7/2003, Ryabykh v RUS, No. 52854/99, §§ 51 et seq; ECtHR, 12/1/2006, Kehaya a. o. v BUL, No. 47797/99, § 68; no violation, however: ECtHR, 31/7/2008, Protsenko v RUS, No. 13151/04, §§ 30 et seq (the setting aside of the final judgment was necessary to protect the rights of a third person who, due to a fault of the first instance court, had not been party to the proceedings). 375 ECtHR, 6/12/2005, Popov (No. 2) v MOL, No. 19960/04, § 47; ECtHR, 3/4/2008, Ponomaryov v UKR, No. 3236/03, §§ 40 et seq; ECtHR, 29/1/2009, Chervovenko v RUS, No. 54882/00, §§ 33 et seq. 376 Grabenwarter/Pabel, § 24 m.n. 131. 377 ECtHR, 18/12/2008, Saccoccia v AUT, No. 69917/01. 378 ECtHR, 7/7/1989, Soering v UK, No. 14038/88, § 113; ECtHR, 4/2/2005, Mamatkulov a. Askarov v TUR, No. 46827/99, §§ 90 et seq; ECtHR, 27/10/2011, Ahorugeze v SWE, No. 37075/09, §§ 113 et seq; ECtHR, 17/1/2012, Othman (Abu Qatada) v UK, No. 8139/09, §§ 258 et seq. 379 ECtHR, 17/1/2012, Othman (Abu Qatada) v UK, No. 8139/09, § 260. 380 ECtHR, 10/02/2011, Dzhaksybergenov v UKR, No. 12343/10, § 44. 373

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4. Length of proceedings According to Article 6 (1) tribunals have to come to a decision ‘within a reasonable 92 time’. This guarantee is, on the one hand, a component of the requirement of effective legal protection. On the other hand, there is a tense relationship with the individual safeguards of a fair trial as more procedural rights regularly result in a prolongation of proceedings.381 Especially with regard to criminal proceedings the time of uncertainty about the outcome of the proceedings shall be kept as short as possible. The Court is, of all guarantees under Article 6, mostly concerned with the reasonable time requirement. Many applications lodged with the Court are at least among others based on this procedural safeguard. This constitutes one of the reasons for the Court’s case overload. In civil proceedings the period to be taken into consideration in the application of 93 Article 6 (1) starts with the institution of the proceedings or the assertion of a claim respectively, thus regularly with the filing of a suit.382 In criminal proceedings the relevant period begins prior to the opening of the main trial, namely at the time when the first steps of criminal investigations that substantially affect the accused are being taken.383 In proceedings before administrative courts the length of previous proceedings may have to be taken into account.384 Enforcement proceedings have to be included in the calculation of the duration of proceedings.385 The end of proceedings is usually marked by the moment when a judgment becomes final,386 in criminal proceedings when the accused is informed that the proceedings are discontinued. Constitutional proceedings following the appeal stages are also to be considered when ascertaining the length of proceedings.387 However, when ascertaining the reasonableness of the duration of proceedings the Court takes into account the special role of constitutional courts in proceedings and as regards their tasks as compared to ordinary courts.388 The role of a constitutional court as guardian of the 381

ECtHR, 28/6/1978, Ko¨nig v GER, No. 6232/73, § 100. ECtHR, 26/3/1992, Editions Pe´riscope v FRA, No. 11760/85, § 43; cf. van Dijk/Viering, in: van Dijk/van Hoof/van Rijn/Zwaak, p. 603. 383 ECtHR, 15/7/1982, Eckle v GER, No. 8130/78, § 73; ECtHR, 10/12/1982, Corigliano v ITA, No. 8304/78, § 34; ECtHR, 19/2/1991, Manzoni v ITA, No. 11804/85, § 16; ECtHR, 2/10/2003, Hennig v AUT, No. 41444/98, § 32. Leigh, The Right to a Fair Trial and the European Convention on Human Rights, in: Weissbrodt/Wolfrum (ed.), The Right to a Fair Trial, 1997, p. 653: demands that the relevant period begins prior to the taking of any formal procedural step in order to prevent delays in the proceedings, e.g. due to the unavailability of witnesses or documents. 384 ECtHR, 28/6/1978, Ko ¨ nig v GER, No. 6232/73, § 98; ECtHR, 23/4/1987, Erkner a. Hofauer v AUT, No. 9616/81, § 64. 385 ECtHR, 23/3/1994, Silva Pontes v POR, No. 14940/89, §§ 35 et seq; ECtHR, 5/3/2009, Sandra Jankovic´ v CRO, No. 38478/05, § 68; van Dijk/Viering, in: van Dijk/van Hoof/van Rijn/Zwaak, p. 605. 386 ECtHR, 28/6/1978, Ko ¨ nig v GER, No. 6232/73, § 98; ECtHR, 15/7/1982, Eckle v GER, No. 8130/ 78, § 77; ECtHR, 23/9/1997, Robins v UK, No. 22410/93, § 28 (all stages of legal proceedings for the ‘determination of … civil rights and obligations’, including the cost proceedings have to be resolved within a reasonable time); ECtHR, 27/7/2006, Mamicˇ v SLO, No. 75778/01, §§ 27 et seq. 387 ECtHR, 27/7/2000, Klein v GER, No. 33379/96, § 39. 388 ECtHR, 16/9/1996, Su ¨ ßmann v GER, No. 20024/92, §§ 57 et seq; ECtHR, 25/2/2000, Gast a. Popp v GER, No. 29357/95, § 75; ECtHR, 27/7/2000, Klein v GER, No. 33379/96, §§ 39 et seq; ECtHR, 12/6/2001, Tricˇkovic´ v SLO, No. 39914/98, § 63; ECtHR, 10/12/2009, Almesberger v AUT, No. 13471/06, § 26. 382

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constitution may sometimes make it necessary for it to deal with cases not in a chronological order but according to the nature of a case and its importance in political and social terms.389 Legal remedies within the European Union system of legal protection are to be considered as domestic legal remedies for the purposes of Article 6. Hence, the duration of proceedings for a reference for a preliminary ruling of the CJEU has to be taken into account.390 This evaluation may change after a possible accession of the EU to the Convention. 94 The reasonableness of the length of proceedings is to be determined in each instance by reference to the particular circumstances of the case and having regard to the following four criteria:391 a. Importance of what is at stake for the applicant: Depending on what was at stake for the applicant already a short period of time may exceed the reasonable time limit. In criminal proceedings such an important personal interest is recognised when the applicant is held in detention; in civil proceedings if family law matters are concerned, or if the proceedings affect the subsistence of the applicant.392 In view of the age of the applicants proceedings concerning pension rights are of an important personal interest, too.393 Special diligence is also required as regards child custody cases since any procedural delay may result in the de facto determination of the issue.394 Due diligence is furthermore required in proceedings on the right to education395 since a period exceeding the reasonable time limit may be decisive for educational opportunities. Even if only small amounts of money are concerned proceedings may be of a special importance due to the necessity to examine the constitutionality of a regulation.396 b. Complexity of a case: If particularly complex factual or legal issues are to be determined in proceedings the length of the relevant period may be comparatively longer (e.g. in complex commercial criminal law cases or environmental criminal law cases397). Delays may be justified if, for instance, there is a great number of suspects, a number of house searches that have to be carried out at which voluminous business records are seized, if a comprehensive expert opinion is required,398 if evidence has to be taken from many witnesses,399 or if inter-state cooperation is necessary.400

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ECtHR, 16/3/2010 (GC), Orsˇusˇ v CRO, No. 15766/03, § 109. EComHR, 19/1/1989, Christiane Dufay v EEC, No. 13539/88. 391 Cf. in an exemplary manner ECtHR, 29/05/1986, Deumeland v GER, No. 9384/81, §§ 78 et seq. 392 E.g. in proceedings on labour law, see ECtHR, 29/1/2004, Kormacheva v RUS, No. 53084/99, § 56; see also ECtHR, 30/9/2004, Krastanov v BUL, No. 50222/99, § 70; cf. also ECtHR, 16/3/2010 (GC), Orsˇusˇ v CRO, No. 15766/03, § 48 (right to education). 393 ECtHR, 16/9/1996, Su ¨ ßmann v GER, No. 20024/92, § 61; cf. also ECtHR, 2/6/2009, Codarcea v ROM, No. 31675/04, § 89. 394 ECtHR, 18/2/1999 (GC), Laino v ITA, No. 33158/96, § 22; ECtHR, 4/12/2008, Adam v GER, No. 44036/02, § 66; ECtHR, 21/1/2010, Wildgruber v GER, No. 40402/05 et al, § 61. 395 ECtHR, 16/3/2010 (GC), Ors ˇusˇ v CRO, No. 15766/03, § 109. 396 ECtHR, 27/7/2000, Klein v GER, No. 33379/96, § 46. 397 ECtHR, 31/5/2001, Metzger v GER, No. 37591/97, § 40; ECtHR, 30/9/2004, Zaprianov v BUL, No. 41171/98, § 80. 398 ECtHR, 27/11/2008, Potzmader v AUT, No. 8416/05. 399 ECtHR, 16/12/2003, Mianowski v POL, No. 42083/98, § 47. 400 ECtHR, 17/2/2009, Ancel v TUR, No. 28514/04, § 54; as to proceedings on the prosecution of organised crime: ECtHR, 13/10/2009, Tunce a. o. v TUR, No. 2422/06 et al, § 30. 390

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c. Conduct of the applicant: It has to be taken into account if an applicant bears some responsibility for the delays of proceedings of which they complain. However, it may not be to the detriment of the applicant if he takes the advantage of every avenue of appeal available to him,401 or challenges the impartiality of the presiding judge.402 In particular it is not required that applicants actively co-operate with judicial authorities in criminal cases.403 On the other hand, the applicant bears responsibility for delays on account of the abusive filing of dozens of complaints404 or for delays on account of defendants asking many times for the postponement of the trial.405 d. Conduct of authorities: It is decisive whether courts (or equivalent authorities) conduct proceedings with the efficiency that can be expected or whether there have been significant periods of inactivity on their part.406 Article 6 provides for a right to acceleration of proceedings.407 State authorities bare responsibility for a delay of proceedings when they themselves repeatedly file appeals against court orders in order to postpone its enforcement.408 Delays are also attributable to the authorities if there is a conflict of competence,409 as well as in cases of poor coordination between the various authorities involved in a case,410 the nondismissal of a court appointed expert who is delayed with submitting his opinion,411 the appointment of experts who are unavailable for oral hearings,412 and if they do not take adequate steps against the repeated failure of defendants and witnesses to appear at hearings.413 When examining the reasonableness of the length of proceedings the Court 95 considers each of these four criteria in each particular case. However, they do not constitute a benchmark. The case law does not either set reasonable periods of time in the abstract for particular types of proceedings. The reasonableness of the length of proceedings always depends on the particular circumstances of a case.414 401 ECtHR, 8/12/1983, Pretto a. o. v ITA, No. 7984/77, § 34; ECtHR, 23/4/1987, Poiss v AUT, No. 9816/82, § 57; ECtHR, 11/12/2003, Girardi v AUT, No. 50064/99, § 56. 402 ECtHR, 13/7/2004, Lislawska v POL, No. 37761/97, § 34. 403 ECtHR, 15/7/1982, Eckle v GER, No. 8130/78, § 82. 404 Cf. ECtHR, 24/7/2003, Smirnova v RUS, No. 46133/99 et al, § 86; no abusive filing of complaints, however, in ECtHR, 11/12/2003, Girardi v AUT, No. 50064/99, § 57. 405 ECtHR, 20/1/2004, G.K. v POL, No. 38816/97, § 102. 406 ECtHR, 2/10/2003, Hennig v AUT, No. 41444/98, § 35 (request of another authority to transfer tax files); ECtHR, 26/7/2007, Vitzthum v AUT, No. 8140/04, § 21 (violation due to a period of inactivity for more than one year). 407 Grabenwarter/Pabel, § 24 m.n. 70. 408 ECtHR, 4/3/2004, Pibernik v CRO, No. 75139/01, §§ 56 et seq. 409 ECtHR, 4/3/2004, Lo ¨ ffler v AUT, No. 72159/01, §§ 56 et seq. 410 ECtHR, 8/7/2004, Vachev v BUL, No. 42987/98, § 96. 411 Cf. ECtHR, 8/7/2004, Wohlmeyer Bau GmbH v AUT, No. 20077/02, § 52; ECtHR, 23/9/2004, Rachevi v BUL, No. 47877/99, § 90. 412 ECtHR, 21/10/2010, Grumann v GER, No. 43155/08, § 28. 413 ECtHR, 21/9/2004, Kus ´mierek v POL, No. 10675/02, § 65; also ECtHR, 13/7/2006, Stork v GER, No. 38033/02, §§ 43 et seq: In the present case, the length of the proceedings, in four levels of jurisdiction, including the preliminary administrative proceedings, lasted over sixteen years and five months. The delay was caused by the repeated remission of the case to the lower instance courts since they had failed to provide sufficient reasons for their decisions. The Court, in view of the total duration of the proceedings, regarded the prolongation caused by the applicants by not lodging an action with the German Administrative Court for a period of two years and eight months as small. 414 Scientifically established by van Dijk/Viering, in: van Dijk/van Hoof/van Rijn/Zwaak, p. 610.

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The Court does not consider each of the established criteria in detail if the particular circumstances of a case, especially the total length of the proceedings, call for a global assessment and suffice to find a violation of Article 6.415 On the other hand, if it is a certain procedural stage that has been delayed the Court does not assess the proceedings as a whole but limits itself to find that a breach of Article 6 has occurred due to the inactivity of authorities.416 If proceedings before a tribunal of first instance have been delayed there’s a particular obligation to speed up the appeal proceedings; this, for instance, by adhering to a tight time schedule or by setting (final) time limits for the parties to ensure the swift compliance with court orders.417 Inactivity on the part of a court may be appropriate if it is for the purpose of waiting for a decision of a constitutional court (especially in cases where the inactivity can be considered to be in the applicant’s interest since without a positive decision of the constitutional court he had no prospect of success418), or if a constitutional court sets a transitional period for the legislator to pass a new bill that should be applied in the respective proceedings.419 97 The Court derives from the reasonable time requirement an obligation of the Member States to organise their legal systems in such a way that their courts obtain a final decision on disputes within a reasonable time.420 The same applies to disciplinary proceedings in which the right to continue to exercise a profession is at stake as this is considered a dispute over civil rights.421 Thus, the right to obtain a decision within a reasonable time is not only a right of individuals but also includes the Member States’ general obligation to organise their judicial systems in such a way that their courts can meet the requirements of Article 6. States may thus be required to take a range of legislative, organisational, budgetary and other measures.422 Delays in proceedings attributable to the excessive workload of a court are – in the Court’s view – acceptable for some time.423 Chronic work overload does, however, lead to a violation of the duty of a state to organise its judicial system effectively, and in the individual case to a violation of the reasonable time requirement.424 The obligation of Member States to organise their judicial systems, including proceedings before constitutional courts, in such a way that their courts hear cases within a reasonable time.425 Moreover, Member States are obliged under 96

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Cf. ECtHR, 16/12/2003, Mianowski v POL, No. 42083/98, § 46. ECtHR, 21/12/1999, G.S. v AUT, No. 26297/95, §§ 33 et seq. 417 ECtHR, 25/2/2010, Mu ¨ ller v GER, No. 36395/07, § 44. 418 ECtHR, 16/9/2010, Breiler v GER, No. 16386/07, § 31. 419 ECtHR, 10/2/2009, Niedzwiecki (No. 2) v GER, No. 30209/05. 420 ECtHR, 27/6/1997, Philis (No. 2) v GRE, No. 19773/92, § 40; ECtHR, 30/8/1998, Podbielski v POL, No. 27916/95, § 38; ECtHR, 23/3/1994, Muti v ITA, No. 14146/88, § 15; ECtHR, 16/9/1996, Su¨ßmann v GER, No. 20024/92, § 55; ECtHR, 27/7/2000, Klein v GER, No. 33379/96, § 47; cf. ECtHR, 14/1/2003, Rawa v POL, No. 38804/97, § 53 (responsibility of the state to ensure the efficiency of the system of obtaining expert opinions); ECtHR, 2/10/2003, Hennig v AUT, No. 41444/98, § 38 (complex criminal proceedings for fiscal offences); ECtHR, 8/6/2006 (GC), Su¨rmeli v GER, No. 75529/01, § 129. 421 ECtHR, 12/6/2003, Malek v AUT, No. 60553/00, § 48. 422 ECtHR, 12/5/2011, Finger v BUL, No. 37346/05, §§ 95 et seq. 423 Cf. van Dijk/Viering, in: van Dijk/van Hoof/van Rijn/Zwaak, p. 609. 424 ECtHR, 27/7/2000, Klein v GER, No. 33379/96, § 43. 425 ECtHR, 25/2/2000, Gast a. Popp v GER, No. 29357/95, § 75; ECtHR, 20/2/2003, Kind v GER, No. 44324/98, §§ 52 et seq. 416

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Article 13 to grant the right to an effective remedy against unreasonably lengthy proceedings (as to that see Article 13 m.n. 16). The reasonable-time requirement is not necessarily violated if tribunals exceed the reasonable length of proceedings. Member States may avoid a violation of Article 6 by means of compensating for the excessive duration of proceedings, namely by, for example, reducing a fine, closing criminal proceedings, or by paying a compensation.426

5. Public hearing Article 6 (1) first sentence entitles ‘to a […] public hearing’. This guarantee is to be understood comprehensively. It encompasses the right to a public trial as well as to a publicly pronounced judgment. The right to a public hearing is not only a right of the parties to proceedings. As a consequence, ‘everyone’ has the right to access to court hearings. The right to a public hearing also includes media coverage. Journalists are part of the public within the meaning of Article 6 (1) first sentence. This conclusion is confirmed by the exception contained in Article 6 (1), which allows the exclusion of the ‘press and the public’ from the trial. Electronic media are not expressly mentioned. However, this does not mean that they are excluded from the scope of application of Article 6.427 Rather, the media hold a special position since it is in particular them who ensure that proceedings, especially the course of proceedings become public. Article 6 regulates the admission of representatives of radio or television but does not provide for any rules governing the question of whether any audio or picture recording is permissible. Audio or video recording may be prohibited within the boundaries set by Article 10 or may even be required under Article 8 for the protection of the rights of the parties to proceedings. The right to a public hearing is subject to two limitations. First, the public may be excluded from hearings by decision made in the course of a trial. Second, there are cases where oral hearings need not to be held; thus, the public is excluded from the trials from the very beginning. The possibility to exclude the public in the course of proceedings finds express mentioning in Article 6 (1) second sentence. This article also provides for a list of cases where the public might be excluded from trials. However, contrary to Articles 8 to 11, it does not require that the grounds for exclusion be prescribed by law. In Member States where the Convention forms part of the internal legal order courts may apply the rules directly.428 This does not prevent the legislator from issuing respective legal acts. The grounds for exclusion however, may not go beyond what is stipulated in Article 6. On the other hand, fundamental rights, in particular Article 8 require the prescription of a certain minimum of grounds for exclusion. The legislator does not allow the exclusion of the public on grounds that do not fulfil certain minimum requirements. The exclusion of the public always constitutes, 426 For instance ECtHR, 12/2/2009, Mitterbauer v AUT, No. 2027/06; ECtHR, 7/7/2009, Stein v GER, No. 12895/05; ECtHR, 13/11/2008, Ommer (No. 1) v GER, No. 10597/03, §§ 68 et seq; also van Dijk/Viering, in: van Dijk/van Hoof/van Rijn/Zwaak, p. 611. 427 Grabenwarter/Pabel, § 24 m.n. 72. 428 Vegleris, Valeur et signification de la clause “dans une socie ´te´ de´mocratique” dans la Convention europe´enne des droits de l’homme, RDH 1968, 219 (223).

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among others, an interference with the freedom of information (Article 10) of all those people who want to attend proceedings to receive information.429 Article 6 (1) second sentence insofar constitutes lex specialis to Article 10 (2). The right to a public hearing may be limited in various regards. With respect to the personal scope it is the ‘press and the public’ that might be excluded. With regard to the subject of proceedings the public may be excluded from all or part of the trial. The substantial requirements under which the public may be excluded are laid down in Art 6 (1) second sentence. Aricle 6 (1) second sentence provides for the exclusion of the public from all or part of the trial. The authority conducting the trial may thus exclude the public from all or part of the trial, in particular from all the hearings, from one of several hearings or from part of a hearing held in the course of a trial.430 Whether or not the public may be excluded from trials and to what extent depends on the exception concerned and its requirements. In general, the exclusion of the public has to comply with the principle of proportionality as established by the Court in its case law relating to Articles 8 to 11. This conclusion is based on the concurring wording of Article 6 (1) second sentence and of paragraph 2 of Articles 8 to 11. So far the Court has only once been concerned with the question of whether the exclusion of the public had been proportional. It identified a disproportionate burden on state authorities if they were obliged to open disciplinary proceedings within prisons to the public, or if they were bound to hold disciplinary proceedings concerning convicted prisoners outside of a prison.431 The necessity test under Article 6 (1) second sentence consists of three steps: (a) One of the aims stipulated has to be pursued. (b) The exclusion of the public has to actually pursue the respective aim. Thus, in criminal trials concerning petit larceny, for instance, the public may not be excluded for the grounds of morals or national security. (c) There has to be an appropriate balance between the grounds for exclusion of the public and the interest in a public hearing. It has to be kept in mind that decisions on the exclusion of the public from trials regularly also require decisions on other basic rights under the Convention. The appropriateness of the exclusion regularly depends on the individual circumstances of a case. In this context it has to be assessed whether the exclusion of the public is necessary, or whether other less intrusive measures are sufficient to achieve the aim sought. Such less restrictive measures might be, for example, restrictions on the media to name names,432 or the anonymisation of witnesses. Article 6 itself defines the exclusion of the public from part of a trial as a less intrusive measure than the exclusion from all of the trial and thereby confirms the requirement of necessity. Article 6 (1) second sentence provides for three types of grounds for the exclusion of the public: (a) First, there are general grounds for exclusion, namely the interests of morals, public order or national security. These grounds do not depend on specific trials, 429

As to the (passive) right to freedom of information under Article 10 see Article 10 m.n. 9 et seq. Expressly held in ECtHR, 26/9/1995, Diennet v FRA, No. 18160/91, § 34. 431 ECtHR, 28/6/1984, Campbell a. Fell v UK, No. 7819/77 et al, § 87. 432 Grabenwarter/Pabel, § 24 m.n. 80. 430

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are also referred to in paragraph 2 of Articles 8 to 11, and refer to the model of a democratic society. The reference to the model of a democratic society encompasses, among others, a reference to the European standard of a constitutional democracy. The individual aims of Article 6 have a slightly different meaning than the verbatim identical aims of paragraph 2 of Articles 8 to 11: The interest of morals is of little practical significance. Morals may be endangered by both the subject of proceedings as well as the role of those appearing before the court (parties, witnesses). The main case of application is the exclusion of juveniles from proceedings, especially in proceedings concerning violent crimes or sex crimes. In addition, it is conceivable that in exceptional cases the public might be excluded when certain evidence is examined. It has to be taken into account that the public attending a trial does so voluntarily. The interests of national security do not encompass any safety risk but refer to the security interests of a state as a whole. They include, for example, the protection of state secrets, which might become public through testimony borne by members of a secret service, or the protection of military secrets in trials on military procurements. The potential danger emanating from the parties to a trial regularly does not suffice to exclude the public for reasons of national security. Only in exceptional cases might the public be excluded for such a reason, as for example in trials against alleged terrorists. The exclusion of the public in the interest of public order does not provide for a public policy clause (ordre public). A typical example of cases where the interests of public order are involved may be seen in the dangers emanating from the person of the accused. The public might be excluded for the purpose of preventing the risk of escape or of contact of the accused in pre-trial detention with the ‘outside world’.433 However, such dangers regularly do not allow an exclusion of the public434 since they might be countered with less intrusive safety precautions. Dangers emanating from the public present at a trial which exceed what is covered by the protection of the interests of justice but which do not lie within the interests of national security fall within the ambit of the interests of public order. However, under special circumstances the exclusion of the public in disciplinary proceedings against convicted persons may be justified in the interests of public order.435 (b) There are also process-related grounds for exclusion, which encompass the interests of juveniles or the protection of the private life of the parties. The wording allows an exclusion of the public if the interests ‘so require’. Article 6 (1) authorizes the exclusion of the public if it lies within the interests of juveniles. The protection of juveniles taking part in proceedings may allow an exclusion of the public in cases where the protection of the private life of the parties does not grant protection, even in cases that are not related to the protection of the private life.436 The interests of juveniles may justify exclusion if and insofar as 433 The restriction of contacts also lies in the interests of justice as far as such contacts may impede establishing the truth. 434 Cf. ECtHR, 28/6/1984, Campbell a. Fell v UK, No. 7819/77 et al, § 87. 435 Cf. ECtHR, 28/6/1984, Campbell a. Fell v UK, No. 7819/77 et al, § 87. 436 As to the requirements under the UN Convention on the Rights of the Child cf. Van Bueren, The International Law on the Rights of the Child, 1995, p. 182.

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juveniles are exposed to greater psychological pressure than adults when they give statements before tribunals. The protection of juveniles from psychological pressure relates insofar to the establishment of the truth before a tribunal as especially juvenile witnesses might feel unable to express themselves candidly in the presence of a large audience; instead it might even lower their willingness or ability to tell the truth.437 For this purpose, primarily, however, in criminal proceedings, the exclusion of the public may also aim at concealing the identity of a juvenile.438 112 Also the protection of the private life of the parties serves the purpose of securing the establishment of the truth in trials. The wording is ambiguous since it appears that only the ‘parties’ to proceedings are protected. It follows from the systematic context of Article 6 with Articles 8 and 14 that the notion also encompasses other ‘participants’ to proceedings, such as witnesses. The notion of ‘private life’ essentially corresponds to the concept of ‘private life’ under Article 8 (1).439 The protection of professional secrecy, and in particular of business secrets, is therefore included in the notion of ‘private life’ and allows the exclusion of the public.440 When assessing the question of whether the exclusion of the public is required for the protection of the private life not only procedural measures but also the legal position under civil law and media law have to be taken into consideration. The presence of public media, which usually interferes more heavily with private life, might be limited by prohibiting photographic or video reports or the naming of names, so that for the purposes of Article 6 sufficient protection is granted without the need to exclude the public as a whole.441 113 The public may also be excluded from a trial where publicity would prejudice the interests of justice. This ground for exclusion is not linked to a specific trial but concerns the jurisdiction as a whole. The requirements under which the public may be excluded are considerably stricter than with the other grounds for exclusion. It may only be excluded ‘in special circumstances’ and ‘to the extent strictly necessary in the opinion of the court’. What is protected here are public interests. However, it is not the public that is being protected from the content of proceedings as it is the case with the general grounds for exception; rather the interests of justice are protected from the public. The purpose of this exception is to counteract the possibility that the parties or witnesses will not reveal certain facts before the public, that they will make use of the right to refuse to testify (as far as it is permissible), or that they will (unlawfully) not tell the truth. The exclusion of the public for processrelated grounds may also be considered when facts lying within the scope of protection of Article 8 or statements of juveniles are concerned. 114 In order to secure an undisturbed course of proceedings the interests of justice comprise the keeping of order in the courtroom. This encompasses restrictions on 437

Cf. e.g. ECtHR, 24/4/2001, B. a. P. v UK, No. 36337/97, § 38. Article 14 (4) ICCPR explitcitly takes into account this viewpoint (not only with regard to hearings). According to this provision, the procedure shall be such as will take account of the juveniles’ age and the desirability of promoting their rehabilitation. 439 See Article 8 m.n. 9 et seq above 440 The Court has reaffirmed this for the professional secrecy of doctors (ECtHR, 23/6/1981, Le Compte a. o. v BEL, No. 6878/75, § 59; ECtHR, 10/2/1983, Albert a. Le Compte v BEL, No. 7299/75, § 34; ECtHR, 26/9/1995, Diennet v FRA, No. 18160/91, § 34) and legal counsels (ECtHR, 30/11/1987, H. v BEL, No. 8950/80, § 54; ECtHR, 23/6/1994, De Moor v BEL, No. 16997/90, § 56) by referring to the exceptions under Article 6 (1). 441 Grabenwarter/Pabel, § 24 m.n. 87. 438

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the access to trials for spatial reasons. Media representatives are of a particular importance as they report on the course of proceedings, whereby the information becomes available to the general public.442 Thereby they give consideration to the right to freedom of information of the public.443 For this reason, it is permissible to grant the media privileges when distributing seats in courtrooms.444 The most important case of an exclusion of the public is when a hearing is 115 dispensed with. Almost all case law of the Court within this ambit concerns cases where no public hearing was held before the authority of first instance or throughout the domestic proceedings. The wording of Article 6 (1) second sentence provides for grounds for the exclusion of the public but not for the dispensation of the obligation to hold a hearing. However, the jurisdiction considers that exceptional circumstances might justify dispensing with a hearing. In view of the demands of efficiency and economy oral hearings may particularly be dispensed with in trials concerning claims to benefits under social-security schemes if the disputes in question generally concern legal or technical questions and the case may better be dealt with on the basis of the files and writings submitted.445 Apart from such cases the Court rather restrains itself from identifying permissible exceptions from the right to a public hearing.446 Hearings may exceptionally be necessary before constitutional courts in disputes about the lawfulness of general legal acts if they are the only body competent to determine this aspect of a dispute, even if the applicant has not even challenged the lawfulness of the act.447 Thus, constitutional courts have to give reasons if they decide to dispense with a hearing. Reasons allowing a dispensation are the specific nature of the complaint, the submissions of an administrative authority, the procedural securing of the public and the right to be heard in the legislative process concerning a decree as well as the possibility to challenge the lawfulness of a decree before a constitutional court. In the light of the protection of infants and of the privacy of the parties concerned a public hearing in child custody cases is generally not necessary.448 It does not contravene the Convention if domestic law establishes the holding of private hearings or written procedures as absolute principles for certain proceedings as long as litigants have the opportunity of requesting a public hearing. If such an opportunity is not granted in such cases Article 6 (1) is violated.449 442

Harris/O’Boyle/Warbrick, p. 271. ECtHR, 26/4/1979, Sunday Times (No. 1) v UK, No. 6538/74, § 65. 444 Cremona, Studies in honour of Ge ´rard J. Wiarda, S. 107. 445 ECtHR, 12/11/2002, Do ¨ ry v SWE, No. 28394/95, §§ 37 et seq; ECtHR, 8/2/2005, Miller v SWE, No. 55853/00, § 29; ECtHR, 23/11/2006 (GC), Jussila v FIN, No. 73053/01, §§ 41 et seq; ECtHR, 10/12/2009, Koottummel v AUT, No. 49616/06, §§ 19 et seq. 446 C.f. ECtHR, 5/7/2005, Exel v CZE, No. 48962/99, § 55 (initiation of insolvency proceedings); ECtHR, 10/11/2005, Schelling v AUT, No. 55193/00, §§ 30 et seq; ECtHR, 26/1/2006, Brugger v AUT, No. 76293/01, §§ 22 et seq; ECtHR, 3/5/2007, Bo¨sch v AUT, No. 17912/05, § 30; However, the assessment of the various scientific approaches on the harmful effects of mobile phone base stations on health constitutes exceptional circumstances: ECtHR, 17/1/2006, Luginbu¨hl v SUI, No. 42756/02. 447 ECtHR, 14/10/2010, Kugler v AUT, No. 65631/01, §§ 49 et seq. 448 ECtHR, 14/2/2006, Kaplan v AUT, No. 45983/99. 449 ECtHR, 12/4/2006 (GC), Martinie v FRA, No. 58675/00, §§ 42 et seq. 443

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In criminal proceedings the holding of public hearings is of particular importance. They may, however, be dispensed with if a court may take a sound decision based on the files and the writings submitted and if in the process of considering evidence no issues of credibility arise. Due to the autonomous interpretation of ‘criminal law’ there are cases falling within the scope of application of Article 6 that do not fall within the ambit of ‘traditional criminal law’; cases which have a minor negative effect on the individual concerned. Oral hearings may thus be dispensed with in certain criminal proceedings under circumstances that – according to previous case law – only allowed the dispensation of oral hearings in civil proceedings.450 116 A dispensation of oral hearings may also be justified if the person entitled to the fundamental right waives his respective right of his own free will.451 In order to be valid a waiver of the right to oral and thus public proceedings has to fulfil certain requirements. A waiver may be made tacitly.452 However, a tacit waiver must be made in an unequivocal manner since an implicit waiver may be ascribed easily. These requirements are in general more strictly applied to criminal proceedings than to civil proceedings. Criminal proceedings require an express waiver,453 unless the penalty liable to be imposed is low.454 The same applies with respect to administrative offences.455 As regards civil proceedings the Court now holds in its consistent case law that a right to request a public hearing must be granted where the legislator provides for non-mandatory public hearings and leaves it to the discretion of the courts to conduct proceedings in public. A tacit waiver is impermissible if the law expressly excludes oral hearings so that a request to hold one would with certainty be unsuccessful,456 but also in cases where domestic law is silent on the reasons for excluding a case from public scrutiny, while the courts follow a long-established practice to not conduct proceedings in public.457 In civil proceedings the Court distinguishes according to the procedural situation. In proceedings that are initiated upon request only, and in cases that are initiated either upon request or ex officio the Court requires that a request is submitted by the applicant, at least in such circumstances where it is the practice of the respective court and comparable courts to generally not hear the parties.458 Otherwise the Court assumes a waiver.459 This restrictive interpretation is compa450

ECtHR, 23/11/2006 (GC), Jussila v FIN, No. 73053/01, §§ 43 et seq. Grabenwarter/Pabel, § 24 m.n. 91. 452 ECtHR, 23/6/1981, Le Compte a. o. v BEL, No. 6878/75, § 59; ECtHR, 21/2/1990, Håkansson a. Sturesson v SWE, No. 11855/85, § 66; ECtHR, 24/6/1993, Schuler-Zgraggen v SUI, No. 14518/89, § 58: So far, in all cases in which the Court concluded that an applicant had validly waived his right to an oral hearing, the waiver had not been made expressly. In the present case, the applicant had tacitly waived her right by not applying for a hearing as it was possible under the domestic rules of procedure. 453 Grabenwarter/Pabel, § 24 m.n. 91. 454 ECtHR, 23/11/2006 (GC), Jussila v FIN, No. 73053/01, § 48. 455 ECtHR, 20/12/2001, Baischer v AUT, No. 32381/96, §§ 23, 26 et seq; cf. also ECtHR, 23/9/1998, Malige v FRA, No. 27812/95, § 45. 456 ECtHR, 30/11/1987, H. v BEL, No. 8950/80, § 54; ECtHR, 26/9/1995, Diennet v FRA, No. 18160/91, § 31. 457 ECtHR, 21/9/2006, Moser v AUT, No. 12643/02, §§ 96 et seq. 458 Implicitly ECtHR, 23/2/1994, Fredin (No. 2) v SWE, No. 18928/91, § 22 (‘in such circumstances at least’); expressly ECtHR, 26/4/1995, Fischer v AUT, No. 16922/90, § 44. 459 ECtHR, 21/2/1990, Håkansson a. Sturesson v SWE, No. 11855/85, § 67; ECtHR, 24/6/1993, Schuler-Zgraggen v SUI, No. 14518/89, § 58; ECtHR, 21/9/1993, Zumtobel v AUT, No. 12235/86, § 34. 451

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tible with the wording of Article 6 and justified with a view to the purpose of the fundamental right as long as conflicting public and private interests are taken into consideration when a decision is being taken. For this reason it does not comply with the Convention if oral public hearings are generally excluded by procedural law or held only upon request. Such rules would prevent a court from conducting proceedings in the overriding public interest if the parties remain inactive. A waiver often is a necessary but not always sufficient condition for not holding 117 a hearing. At any rate it has to be examined whether there are overriding public interests requiring a public hearing. In accordance with the general requirements for a waiver of the fundamental right, the right to be waived must primarily protect private interests. In order to meet this requirement courts have to take into account the public interest in public proceedings, in equality of arms and the length of proceedings, and have to balance (based on Article 6 (1)) the public interest and the interest of the parties. Thus, for the purpose of concentrating proceedings, oral proceedings might be conducted in spite of a waiver of a party for reasons of, for example, reasonableness of the length of proceedings. A waiver must not run counter to any important public interest.460 Article 6 does not require a public hearing at every level of jurisdiction. If a 118 tribunal within the meaning of Article 6 determines a civil right or a criminal charge, already the proceedings at first instance have to comply with the requirements of Article 6.461 A less strict standard applies to the appeal proceedings.462 If an oral hearing was dispensed with at the first instance, however, the tribunal of appeal decides in accordance with all guarantees under Article 6 (including the requirement of a public hearing) the ‘defect’ at first instance is, as a general rule, remedied; thus the proceedings as a whole comply with the Convention.463 However, the authority of appeal has to be competent to determine all aspects of a matter.464 As a general rule, even if a public hearing has been held at first instance, a public 119 hearing has also to be held at the appellate level if the appeal or cassation court is competent to fully review questions of law and fact. If, however, the courts concerned do not have the task of establishing the facts of the case a public hearing may be dispensed with.465 The Court established this interpretation with regard to a number of Member State courts, including constitutional courts.466 Other aspects are relevant if courts of appeal or courts of cassation, which have a full competence to review cases on questions of fact and law, are concerned. To dispense with a public hearing in such cases constitutes an exception from the 460

ECtHR, 21/2/1990, Håkansson a. Sturesson v SWE, No. 11855/85, § 66. As to the question of at which stage of the proceedings procedural guarantees have to be fulfilled see m.n. 75 et seq above. 462 ECtHR, 12/11/2002, Do ¨ry v SWE, No. 28394/95, § 37; ECtHR, 8/2/2005, Miller v SWE, No. 55853/00, § 30. 463 Grabenwarter/Pabel, § 24 m.n. 93. 464 ECtHR, 23/6/1981, Le Compte a. o. v BEL, No. 6878/75, § 60; ECtHR, 22/5/1990, Weber v SUI, No. 11034/84, § 39; ECtHR, 26/9/1995, Diennet v FRA, No. 18160/91, § 34. 465 ECtHR, 26/5/1988, Ekbatani v SWE, No. 10563/83, § 31. 466 ECtHR, 22/2/1984, Sutter v SUI, No. 8209/78, § 30 (Swiss Military Court of Cassation); ECtHR, 8/12/1983, Axen v GER, No. 8273/78, § 28 (appeal to the German Federal Court of Justice); ECtHR, 27/11/1992, Olsson (No. 2) v SWE, No. 13441/87, §§ 152 et seq; ECtHR, 22/2/1996, Bulut v AUT, No. 17358/90, § 41 et seq (appeal on grounds of nullity to the Austrian Supreme Court). 461

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principle of public hearing, which has to be justified.467 Whether or not it is necessary to hold a hearing must be assessed in a comprehensive examination of each individual case, in which the special features of the proceedings concerned are taken into consideration. Regard has to be given to the entirety of the proceedings before the courts, to the role of the court of appeal and to the nature of the issues submitted to it.468 120 (a) The first criterion concerns the meaning and necessity of proceedings for the taking and assessing of evidence as well as for the resolution of legal questions by the appellate court. Oral hearings will be required in cases where the court of appeal needs to assess the credibility of the parties in a direct hearing, and in cases of other questions of fact which are relevant for the assessment of the applicant’s guilt or innocence.469 If, however, controversial questions in appellate proceedings may be ‘adequately resolved’ on the basis of the case-files oral hearings may as a general rule be dispensed with. Such a situation is given if disputed facts may, for example, be proved by means of a photograph or other evidence taken at first instance.470 It is not necessary to hold a hearing if a court of appeal raises a question of law which is obviously irrelevant or easy to resolve. 121 (b) The second criterion concerns the importance of the outcome of proceedings for the applicant. In this context the Court does not distinguish between proceedings on civil rights and on criminal charges.471 Civil proceedings may be of a comparable importance as criminal proceedings depending on the seriousness of what was at stake for the applicant, such as for example his professional reputation and career.472 Petty offences on the other hand usually do not require oral hearings at the appellate level. 122 Another guarantee within the scope of Article 6 is the right to a publicly pronounced judgment. The Court, by way of teleological interpretation, has reduced this right to a right to publication of a judgment in order to meet the standard in the Member States.473 The object of Article 6 (1), namely to ensure public scrutiny of judgments, may be achieved not only by way of public pronouncement of a judgment but also by other means ensuring the same degree of public scrutiny.474 This very right applies to the verdict as well as to the reasoning of the court.475 The grounds for the exclusion of the public from trials do not apply to the publication of the judgment. The right to respect for private life under Article 8 may be complied with by anonymising the judgments.

467 E.g. ECtHR, 29/10/1991, Fejde v SWE, No. 12631/87, § 34: ‘there were special features to justify the refusal to hold a public hearing’. 468 ECtHR, 29/10/1991, Helmers v SWE, No. 11826/85, § 39; similarly already in ECtHR, 26/5/1988, Ekbatani v SWE, No. 10563/83, § 33. 469 ECtHR, 29/10/1991, Helmers v SWE, No. 11826/85, § 37; ECtHR, 26/5/1988, Ekbatani v SWE, No. 10563/83, § 32. 470 ECtHR, 29/10/1991, Jan-Åke Andersson v SWE, No. 11274/84, § 29; ECtHR, 16/12/2008, Bazo Gonza´lez v ESP, No. 30643/04, §§ 33 et seq; ECtHR, 10/3/2009, Igual Coll v ESP, No. 37496/04, §§ 36 et seq. 471 Conversely, ECtHR, 29/10/1991, Helmers v SWE, No. 11826/85 (dissenting opinion judge Palm). 472 ECtHR, 29/10/1991, Helmers v SWE, No. 11826/85, § 39. 473 Grabenwarter/Pabel, § 24 m.n. 97. 474 ECtHR, 8/12/1983, Pretto a. o. v ITA, No. 7984/77, § 27. 475 ECtHR, 17/1/2008, Ryakib Biryukov v RUS, No. 14810/02, §§ 45 et seq.

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Another way to fulfil the requirement of publicity under Article 6 (1) is to not 123 pronounce a judgment in public but to make the full text of a judgment available to those who can establish an interest.476 However, it does not suffice for the purposes of Article 6 to render judgments public by way of giving persons who establish a legal interest in the case access to the files and by publishing decisions of special interest if dispensing with a public hearing was not justified in the circumstances.477

6. Special procedural guarantees in criminal proceedings Article 6 (3) provides for a non-exhaustive list of minimum rights of persons 124 charged with criminal offences. It is established in the Court’s consistent case law that these rights form part of the guarantees under Article 6 (1). Each safeguard is borne by the concept of effective defence; this happens by providing for a time limit,478 by avoiding disadvantages for reasons of language,479 by ensuring contact between the accused and the legal counsel,480 by compensating for economic drawbacks,481 or by ensuring effectiveness and equality of arms in the hearing.482 According to Article 6 (3) (a) everyone who is charged with a criminal offence has 125 the right to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him. This guarantee encompasses not only the right to be informed of the acts the accused is alleged to have committed and on which the accusation is based, but also basic legal qualification given to those acts. The Court establishes a connection to the right to a fair trial, which requires that the accused knows about the facts and the legal classification, and requires that the information given should be detailed.483 Even if the prosecution reclassifies a criminal charge which has originally been (legally) classified differently by an investigating judge the accused can be considered to have been informed of all the components of his charge if the prosecution’s submissions are based on the same facts.484 A reclassification of a charge made in the course of criminal proceedings complies with Article 6 (3) (a) if the accused had sufficient opportunity to defend himself against the criminal charges.485 This requirement is, for example, fulfilled in cases where a conviction may be reviewed by another tribunal from the relevant procedural and substantive points.486 The right to be notified of a legal reclassification is also granted to the accused who are represented by a legal counsel.487 It does not infringe 476

ECtHR, 24/4/2001, B. a. P. v UK, No. 36337/97, §§ 46 et seq. ECtHR, 21/9/2006, Moser v AUT, No. 12643/02, § 103. 478 To be informed as promptly as possible of the nature and cause of the accusation – Article 6 (3) (a); to have adequate time and facilities for the preparation of one’s defence – Article 6 (3) (b). 479 To be informed on the accusation in a language which one understands – Article 6 (3) (a); free assistance of an interpreter – Article 6 (3) (e). 480 Article 6 (3) (c). 481 Free legal aid counsel – Article 6 (3) (c); free assistance of an interpreter – Article 6 (3) (e). 482 The right to be present at the hearing – Article 6 (3) (c); equality of arms when witnesses are examined – Article 6 (3) (d). 483 ECtHR, 25/3/1999 (GC), Pe ´lissier a. Sassi v FRA, No. 25444/94, §§ 51 et seq. 484 ECtHR, 10/2/1995, Gea Catala ´ n v ESP, No. 19160/91, § 29. 485 ECtHR, 11/12/2007, Drassich v ITA, No. 25575/04, § 34; ECtHR, 27/7/2012, D.M.T. a. D.K.I. v BUL, No. 29476/06, § 75. 486 ECtHR, 1/3/2001, Dallos v HUN, No. 29082/95, § 47 et seq; ECtHR, 21/2/2002, Sipavic ˇius v LTU, No. 49093/99, § 30. 487 ECtHR, 20/4/2006, I.H. a. o. v AUT, No. 42780/98, §§ 32 et seq. 477

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Article 6 (3) (a) if the accused must have been aware of the possibility that the courts at the appellate level will find that a certain underlying factual element constitutes an aggravating circumstance for the purpose of determining the sentence.488 The accused has the right to be notified of the charges brought against him (and of a detention order) in a language which he understands.489 Apart from that, the right to translation is limited. It is not necessary to translate the whole case-file. Bills of indictment do not have to be translated if the accused received sufficient information about ‘the nature and cause of the accusation against him’ in prior interrogations which were held in the presence of interpreters, and if it can be concluded from his submissions in the proceeding that he had knowledge of the content of the indictment.490 According to Article 6 (3) (b) a person charged with a criminal offence is granted the right to have adequate time and facilities for the preparation of his defence. The time element largely depends on the individual circumstances of each single case. In exceptional cases even a period of five days between the moment of being charged with disciplinary offences and the proceedings was considered sufficient for the purposes of Article 6 since the applicant could have obtained further information by attending two non-public hearings of the disciplinary board.491 The service of the attorney general’s position paper three weeks before the hearing of the appeal proceedings was considered to be in conformity with the Convention as the accused and his legal counsel had the opportunity to consult the files prior to the transmission of the paper.492 Article 6 (3) (b) does not only guarantees adequate time to prepare the defence but also adequate facilities to do so. This encompasses, inter alia, the right to effective and confidential communication with a legal counsel. Delays in the exchange of postal correspondence, which lead to missing statutory periods, infringe the right under paragraph 3 under b.493 Adequate facilities for the preparation of defence also require a certain degree of access to evidence. The question of whether rights under the Convention have been infringed mostly depends on the circumstances of each individual case. Defence rights are not violated in cases where relevant facts are not being substantiated by expert opinions if the courts may reasonably ascertain facts based on other evidence, even if getting an expert opinion would have been desirable. In particular, it is to the detriment of the accused if he does not request to present respective evidence.494 However, it infringes Article 6 if access to a criminal file and the 488 ECtHR, 24/10/1996, De Salvador Torres v ESP, No. 21525/93, §§ 30 et seq; In case a court of appeal reclassifies the criminal acts allegedly committed by the accused and does not grant him the rights to be informed in detail of the nature and cause of the accusation and to have adequate time and facilities for the preparation of his defence, it may not validly rely on the aggravating circumstances: ECtHR, 11/12/2007, Drassich v ITA, No. 25575/04, §§ 37 et seq. 489 ECtHR, 19/12/1989, Brozicek v ITA, No. 10964/84, § 41. 490 ECtHR, 12/12/1989, Kamasinski v AUT, No. 9783/82, §§ 79 et seq. 491 ECtHR, 28/6/1984, Campbell a. Fell v UK, No. 7819/77 et al, §§ 13, 96. 492 ECtHR, 21/9/1993, Kremzow v AUT, No. 12350/86, §§ 45 et seq; no adequate time for the preparation of one’s defence, however: ECtHR, 15/11/2007, Galstyan v ARM, No. 26986/03, § 87 and ECtHR, 17/7/2008, Ashughyan v ARM, No. 33268/03, § 66 (detention of the applicant and conviction in an expedited procedure within a few hours). 493 ECtHR, 15/11/1996, Domenichini v ITA, No. 15943/90, § 39. 494 ECtHR, 7/7/1989, Bricmont v BEL, No. 10857/84, § 91.

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possibility to obtain copies of the documents in it are generally denied and a request of access to the file may only be made during the appeal proceedings.495 The right of access to files as the basis for preparing adequate defence is a right of the accused himself.496 The right of access to files is closely linked with the right to defend oneself pursuant to Article 6 (3) (c) (see below m.n. 131 et seq). The guarantee under (b) mainly aims at providing time for preparing an adequate defence for the main trial. It also applies to the lodging of appeals and to the appellate proceedings, independent of the question whether the state concerned has ratified Protocol No. 7 and thereby its Article 2, which guarantees the right of appeal in criminal matters to a higher tribunal. In this context it might be in breach of the Convention if periods of appeal are short and may not be extended. Article 6 (3) (c) contains three different guarantees aiming at the effectiveness of the defence: the right to defend oneself in person or through legal assistance (a), the right to choose one’s legal assistance (b), and the right to free legal assistance (c). (a) Article 6 (3) (c) provides for the right to defend oneself in person. This guarantee includes the right to be present at the hearing in criminal proceedings, and in particular during the main trial. The Court considers this safeguard to be of capital importance.497 The right of an accused under Article 6 (3) (c) includes the right to effective participation in his criminal trial, meaning that the defendant actually had the opportunity to be present. More precisely, the accused must be given the right to explain his version of events, point out any statements with which he disagrees and make aware of any facts which should be put forward in his defence.498 This presupposes that the accused has a broad understanding of the nature of the trial process and of what is at stake for him, including the significance of any penalty which may be imposed.499 In the context of the right to be present at the hearing, the Court also distinguishes between the nature of an offence, and the degree of the stigma a certain criminal case carries.500 In certain cases there is a positive obligation of states to ensure that the accused may follow the proceedings. Such obligations exist, for example, if the accused suffers from impaired hearing, is under the effect of medication or is not conversant with the court’s language.501 They might include the providing with assistance of, for example an interpreter, lawyer or social worker.502 Special positive obligations rest on the courts if the accused is a minor.503 An accused minor must be dealt with in a manner which takes full account of his age, level of maturity as well as intellectual and emotional capacities. Moreover, steps must be taken to promote his ability to understand and participate in the proceedings. Furthermore, courts must ensure that the accused minor has a broad understanding of what is at stake for him, including the significance of any penalty 495

ECtHR, 18/3/1997, Foucher v FRA, No. 22209/93, § 32. ECtHR, 18/3/1997, Foucher v FRA, No. 22209/93, §§ 35 et seq. 497 ECtHR, 8/4/2010, Sinichkin v RUS, No. 20508/03, § 30. 498 ECtHR, 8/1/2008, Liebreich v GER, No. 30443/03. 499 ECtHR, 14/10/2008, Timergaliyev v RUS, No. 40631/02, § 51; ECtHR, 9/4/2009, Grigoryevskikh v RUS, No. 22/03, § 78. 500 ECtHR, 12/5/2010, Kammerer v AUT, No. 32435/06, § 27. 501 ECtHR, 14/10/2008, Timergaliyev v RUS, No. 40631/02, § 56; ECtHR, 9/4/2009, Grigoryevskikh v RUS, No. 22/03, § 82. 502 ECtHR, 20/1/2009, Gu ¨ vec v TUR, No. 70337/01, § 124. 503 ECtHR, 2/3/2010, Adamkiewicz v POL, No. 54729/00, § 89. 496

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which may be imposed as well as of his rights of defence and, in particular, of his right to remain silent.504 134 In proceedings of appeal the absence of the accused does not necessarily imply a breach of Article 6 (3) (c). The Court holds that the personal attendance of the defendant does not have the same crucial significance for an appeal hearing as it does for the trial hearing.505 It has to be distinguished between appellate proceedings involving only questions of law and appellate proceedings in which also questions of fact are decided upon. In appellate proceedings involving only questions of law the attendance of the defendant in person is generally not necessary if he was present at the first-instance trial hearing. Even where a court of appeal has full jurisdiction to review a case on questions of both fact and law, Article 6 does not always entail a right to be present in person. Thus, the Court assesses on a case-to-case basis, in which it takes into account the scope of the respective court’s competence to review and to decide, the subject of proceedings, the manner in which the interests of the accused are presented and protected before the court of appeal (especially the assistance by a legal counsel) and the significance of what is at stake for the accused.506 The requirement of presence of the accused in the appeal proceedings does not only depend on the subject of proceedings but also on reasons related to the person of the accused. In view of a defendant’s affiliation with the mafia and of the mafia being a sort of criminal opposition force capable of influencing public life directly or indirectly and of infiltrating the institutions, the Court held that the applicant’s participation in the appeal hearings only by videoconference pursued legitimate aims.507 At any rate, however, it must be ensured that the applicant is able to follow the proceedings and to be heard without technical impediments and that effective and confidential communication with a legal counsel is provided for.508 Courts have to allow the absence of the defendant and may not discontinue a case based on the reason that the accused had not been present at one of several hearings if he was represented by a legal counsel, and if his attendance in person was not strictly necessary.509 135 The accused may waive his right to be present at the trial. The Court holds that neither the wording nor the object or purpose of Article 6 (3) (c) exclude that the accused waives of his own free will his right to a fair trial and, in particular, the right to be present at the hearing. In order to be valid, the waiver must be established in an unequivocal manner and be attended by minimum safeguards commensurate to its importance. Furthermore, it must not run counter to any important public interest.510 504 ECtHR, 16/12/1999 (GC), T. v UK, No. 24724/94, § 84; ECtHR, 11/12/2008, Panovits v CYP, No. 4268/04. 505 ECtHR, 8/4/2010, Sinichkin v RUS, No. 20508/03, § 31; ECtHR, 2/11/2010 (GC), Sakhnovskiy v RUS, No. 21272/03, § 96. 506 ECtHR, 8/4/2010, Sinichkin v RUS, No. 20508/03, §§ 32 et seq; also ECtHR, 21/9/1993, Kremzow v AUT, No. 12350/86, § 67; ECtHR, 3/10/2000, Pobornikoff v AUT, No. 28501/95, § 24; however, ECtHR, 3/10/2002, Kucera v AUT, No. 40072/98, §§ 27 et seq; ECtHR, 18/10/2005 (GC), Hermi v ITA, No. 18114/02, §§ 61 et seq. 507 ECtHR, 5/10/2006, Marcello Viola v ITA, No. 45106/04, § 71. 508 ECtHR, 2/11/2010 (GC), Sakhnovskiy v RUS, No. 21272/03, § 98. 509 ECtHR, 22/9/2009, Kari-Pekka Pietila ¨ inen v FIN, No. 13566/06, § 34. 510 ECtHR, 23/11/1993, Poitrimol v FRA, No. 14032/88, § 31; ECtHR, 1/3/2006 (GC), Sejdovic v ITA, No. 56581/00, § 86; ECtHR, 8/12/2009, Caka v ALB, No. 44023/02, § 86; ECtHR, 18/10/2005

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A waiver may be made either expressly or tacitly. Prior non-appearance at the hearing or the accused’s refusal to speak the court’s language do not signify that he implicitly waives his right to be present at the hearing.511 Moreover, courts may not assume an implicit waiver if they gain knowledge of the fact that a criminal trial against the defendant is pending abroad and that he is there in prison.512 Before an accused can be said to have, through his conduct, waived implicitly the right to be present at the trial, it must be shown that he could reasonably have foreseen the consequences of his conduct in this regard. This means it remains incumbent on a judge to establish that the accused could have reasonably foreseen what the consequences of his ongoing conduct would be prior to his or her decision to order his removal from the courtroom.513 There is a general obligation of courts to verify whether there has been a valid waiver or not.514 A person charged with a criminal offence must not be left with the burden of proving that he was not seeking to evade justice or that his absence was due to force majeure. At the same time, it is open to the national authorities to assess whether the accused showed good cause for his absence or whether there was anything in the case file to warrant finding that he had been absent for reasons beyond his control.515 Domestic law providing for mandatory legal assistance at certain stages of 136 the proceedings complies with Article 6 (3) (c). Such rules do not infringe the right of the accused to defend himself in person;516 though particular consideration has to be given to the procedural law standard in the various Member States. A domestic law, which provides the accused with possibilities to defend himself while the main rights (e.g. the right to plea at the end of the trial or to be delivered the opinion of the prosecution) are granted to his legal counsel, violates Article 6.517 (b) Article 6 (3) (c) also provides for the right to choose one’s legal assistance. 137 Every defendant has the right to practical and effective defence. This encompasses the whole range of services specifically associated with legal assistance, such as the discussion of the case, the organisation of the defence, the collection of evidence favourable to the accused, the preparation for questioning, the support of an (GC), Hermi v ITA, No. 18114/02, § 73; legal systems allowing a trial and conviction of deceased persons, given the obvious inability of such persons to defend themselves, generally do not comply with Article 6: as to that effect see ECtHR, 8/4/2008, Gra˘dinar v MOL, No. 7170/02, § 109; cf. Harris/O’Boyle/Warbrick pp. 247 et seq. 511 ECtHR, 25/11/1997, Zana v TUR, No. 18954/91, § 70; the summons via counsel is not in itself in violation of Article 6. However, in circumstances where an accused has not been notified in person of a hearing, particular diligence is required in assessing whether the accused has waived his right to be present: ECtHR, 27/4/2004, Yavuz v AUT, No. 46549/99, § 49; ECtHR, 8/6/2006, Kaya v AUT, No. 54698/00, § 30; ECtHR, 5/10/2009, Prezec v CRO, No. 48185/07, § 27. 512 ECtHR, 28/8/1991, F.C.B. v ITA, No. 12151/86, § 35. 513 ECtHR, 22/05/2012, Idalov v RUS, No. 5826/03, §§ 173 et seq. 514 ECtHR, 9/4/2009, Grigoryevskikh v RUS, No. 22/03, § 91. 515 ECtHR, 9/4/1984, Goddi v ITA, No. 8966/80, § 29; ECtHR, 1/3/2006 (GC), Sejdovic v ITA, No. 56581/00, § 88. 516 Cf. ECtHR, 25/9/1992, Croissant v GER, No. 13611/88, § 32. 517 ECtHR, 8/2/2000, Voisine v FRA, No. 27362/95, §§ 25 et seq; ECtHR, 27/2/2001, Adoud a. Bosoni v FRA, No. 35237/97 et al, §§ 20 et seq; more recently ECtHR, 24/9/2009, Pishchalnikov v RUS, No. 7025/04, §§ 66 et seq; ECtHR, 11/12/2008, Panovits v CYP, No. 4268/04, § 66; ECtHR, 20/10/2009, Yunus Aktas a. o. v TUR, No. 24744/03, § 42.

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accused in distress and the checking of the conditions of detention.518 The Convention does not, however, lay down how and under what conditions the right to legal assistance may be exercised. Thus, states may freely legislate on the right to legal assistance. The Court only reviews whether the rights granted comply with the requirements of a fair trial.519 The right to choose one’s legal assistance also applies to the pre-trial stage.520 The defendant, as a rule, must be granted access to a legal counsel from his first interrogation as a suspect by the police since the evidence obtained during the investigation stage determines the framework in which the offence charged will be considered at the trial.521 Restrictions of the right to choose one’s legal assistance – due to, for example, the particular features of detention facilities, or due to exclusive rights of audience in certain courts granted to certain legal counsels, – are justified only for compelling reasons.522 The risk of ‘collusion’ generally does not justify restrictions, at least not in cases where the legal counsel concerned has not been charged for a breach of professional duties and where the communication between the legal counsel and the defendant is surveyed for over seven months.523 Apart from that, it largely depends on the circumstances of each individual case whether the right to choose one’s legal assistance has been violated or not. According to the Court, the denial of access to a legal counsel during the first 48 hours of police detention infringes the right to legal assistance even in difficult circumstances, such as when fighting against terrorism, since at the material time – as it held in the context of Northern Ireland – adverse inferences can be drawn from the applicant’s silence or statements.524 The request of an accused for legal representation may not be interpreted as a request for free legal aid if it will be rejected on the grounds that the applicant is not entitled to free legal aid.525 Moreover, it interferes with the accused’s right to choose his legal assistance if a court, in the interest of justice, appoints another legal counsel. The nomination of a legal counsel against the accused’s wishes may be justified where the court gives valid reasons for why this measure is necessary; such reasons are, for instance, the interest of justice and the interest of pursuing proceedings speedily.526 There is, however, a violation of Article 6 if a court nominates another legal counsel against the wishes of the accused while compelling him to pay the fees and disbursements of the court-appointed counsel.527 Article 6

518 ECtHR, 13/10/2009, Dayanan v TUR, No. 7377/03, § 32; ECtHR, 2/3/2010, Adamkiewicz v POL, No. 54729/00, § 84. 519 ECtHR, 24/9/2009, Pishchalnikov v RUS, No. 7025/04, § 66. 520 ECtHR, 24/5/1991, Quaranta v SUI, No. 12744/87, § 36; ECtHR, 28/11/1991, S. v SUI, No. 12629/87 et al § 49; ECtHR, 24/11/1993, Imbrioscia v SUI, No. 13972/88, § 36. 521 ECtHR, 27/11/2008 (GC), Salduz v TUR, No. 36391/02, §§ 54 et seq; as to that Holzapfel, Le droit a` l’assistance d’un avocat de`s le premier interrogatoire de police consacre´ par la Cour europe´ene des Droits de l’Homme, RTDH 2010, 663 et seq. 522 Cf. ECtHR, 28/11/1991, S. v SUI, No. 12629/87 et al § 48; ECtHR, 27/11/2008 (GC), Salduz v TUR, No. 36391/02, § 55. 523 ECtHR, 28/11/1991, S. v SUI, No. 12629/87 et al, §§ 48 et seq. 524 ECtHR, 8/2/1996 (GC), John Murray v UK, No. 18731/91, §§ 61, 70. 525 ECtHR, 9/10/2003 (GC), Ezeh a. Connors v UK, No. 39665/98 et al, § 134. 526 ECtHR, 25/9/1992, Croissant v GER, No. 13611/88, § 28 et seq. 527 ECtHR, 25/9/1992, Croissant v GER, No. 13611/88, §§ 35 et seq.

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(3) (c) does not vest the accused with the right to be assigned the legal counsel of his choice as his official defence counsel.528 A main aspect of the accused’s right to choose his legal assistance is the right to 138 communicate with his counsel without hindrance, in particular in cases where he is held in detention. According to the Court, this right is part of the basic requirements of a democratic society: If a legal counsel were unable to confer with his client and receive confidential instructions from him without surveillance, his assistance would lose much of its usefulness, whereas the Convention is intended to guarantee rights that are practical and effective.529 The relationship between a legal counsel and his client should be based on mutual trust and understanding. There are inherent time and place constraints for the meetings between a detained person and his legal counsel. Nevertheless, any limitation on relations between clients and legal counsels, whether inherent or express, should not thwart the effective legal assistance.530 Under certain circumstances states may have to adopt measures in order to sufficiently compensate for the limitations of the defendant’s rights; such measures might be, for instance, organizing the opportunity of having a telephone conversation, or appointing a legal counsel who can visit the applicant in the detention centre.531 Communication by video link is only then adequately confidential if it is ensured that it is secured against any attempt at interception.532 The right of the accused to choose his legal assistance further encompasses the 139 right to presence of the legal counsel at the proceedings but also at the pre-trial hearing. However, as regards the pre-trial stage, courts do not have to act of their own motion to ensure the presence of the legal counsel.533 Rules of procedure punishing the absence of the accused by depriving him of his right to be defended by counsel generally constitute a disproportionate suppression of the respective right.534 The presence of the legal counsel and of the accused does not take on the same significance in appeal proceedings.535 Defence is essentially a matter between the defendant and his counsel, indepen- 140 dent from the State. Thus, States cannot be held responsible for every shortcoming on the part of a legal counsel. This principle applies to both legal counsels appointed under a legal aid scheme and to privately financed ones.536 In certain cases, States are under the positive obligation to ensure the right to legal assistance.

528

ECtHR, 8/12/2009, Dzankovic v GER, No. 6190/09. ECtHR, 13/5/1980, Artico v ITA, No. 6694/74, § 33; ECtHR, 9/10/2008, Moiseyev v RUS, No. 62936/00, §§ 202 et seq; ECtHR, 2/11/2010 (GC), Sakhnovskiy v RUS, No. 21272/03, § 97. 530 ECtHR, 31/1/2002, Lanz v AUT, No. 24430/94, § 52; ECtHR, 2/11/2010 (GC), Sakhnovskiy v RUS, No. 21272/03, § 102. 531 ECtHR, 2/11/2010 (GC), Sakhnovskiy v RUS, No. 21272/03, § 106. 532 ECtHR, 2/11/2010 (GC), Sakhnovskiy v RUS, No. 21272/03, §§ 104 et seq. 533 Harris/O’Boyle/Warbrick, p. 314. 534 Cf. ECtHR, 23/11/1993, Poitrimol v FRA, No. 14032/88, § 35; ECtHR, 22/9/1994, Lala v NED, No. 14861/89, § 33; ECtHR, 22/9/1994, Pelladoah v NED, No. 16737/90, § 40; ECtHR, 19/5/2009, Kulikowski v POL, No. 18353/03, §§ 56 et seq. 535 ECtHR, 14/10/2008, Timergaliyev v RUS, No. 40631/02, § 50. 536 ECtHR, 12/12/1989, Kamasinski v AUT, No. 9783/82, § 65, ECtHR, 1/3/2006 (GC), Sejdovic v ITA, No. 56581/00, § 95; ECtHR, 27/4/2006, Sannino v ITA, No. 30961/03, § 49; ECtHR, 5/10/2009, Prezec v CRO, No. 48185/07, § 30. 529

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Accordingly, courts have to verify whether a defendant knew of his right to legal assistance and actually had the possibility to receive it.537 In case a legal counsel is unable to attend a hearing, he is, according to the rules of professional conduct, obliged to ensure that he is replaced at the hearing.538 States have to intervene only if a failure by the legal aid counsel to provide effective representation is manifest or sufficiently brought to their attention in some other way.539 141 The accused may waive his right to legal representation. In order for the waiver to be valid, the same conditions apply as do in respect of a waiver of the right to be present at the trial (see m.n. 135). When examining whether a breach of the Convention has occurred, the Court normally assesses whether the accused has (expressly or tacitly) waived his right to legal assistance.540 142 (c) The third guarantee under Article 6 (3) (c) is the right to free legal assistance. In contrast to the right to choose one’s legal assistance, the right to free legal assistance is restricted in two respects: First, the defendant must lack sufficient means to pay for legal assistance; secondly, legal assistance is only granted if the interests of justice so require. Until now, the criterion of insufficient means to pay for legal assistance has not played a vital role in the Court’s case law. The interests of justice do not only require the granting of free legal aid in cases where there is proof that the outcome of the proceedings would have been differently had the accused been legally assisted.541 In general, it has to be distinguished between first instance and appeal proceedings. In first instance proceedings, consideration has to be given to the seriousness of the offence and the complexity of the case.542 The interests of justice usually require the granting of free legal aid to defendants who are held in detention.543 Procedures on the admissibility of a remedy do not necessarily require free legal assistance; this holds true, for instance, if the prosecution is absent. In appeal proceedings, the interests of justice require the granting of free legal aid to an accused if the proceedings raised a difficult question of law, which are to be assessed in an oral hearing in which the prosecution is present, and to which the defendant, without legal representation, could not make an effective contribution.544 143 Article 6 (3) (d) provides for equality of arms in a particular conflict. It vests the accused with the right to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him. Thus, it needs to be distinguished between the 537

ECtHR, 20/10/2009, Yunus Aktas a. o. v TUR, No. 24744/03, § 50. ECtHR, 22/2/1994, Tripodi v ITA, No. 13743/88, § 30; as to a case where the legal aid counsel refused to lodge a cassation appeal see ECtHR, 19/5/2009, Kulikowski v POL, No. 18353/03, §§ 60 et seq. 539 ECtHR, 27/4/2006, Sannino v ITA, No. 30961/03, § 49 (legal representation by constantly changing, insufficiently prepared legal aid counsels); ECtHR, 20/1/2009, Gu¨vec v TUR, No. 70337/01, § 131. 540 Cf. e.g. ECtHR, 5/10/2009, Prezec v CRO, No. 48185/07, § 27. 541 ECtHR, 13/5/1980, Artico v ITA, No. 6694/74, § 35. 542 Cf. ECtHR, 24/5/1991, Quaranta v SUI, No. 12744/87, §§ 33 et seq; For certain reasons lying in the interests of justice it may be required that the accused receives free legal representation despite his waiver of the right to be legally assisted: ECtHR, 10/8/2006, Padalov v BUL, No. 54784/00, § 55. 543 ECtHR, 5/10/2009, Prezec v CRO, No. 48185/07, § 32. 544 ECtHR, 28/3/1990, Granger v UK, No. 11932/86, § 47; similarly ECtHR, 25/9/1992, Pham Hoang v FRA, No. 13191/87, §§ 39 et seq; cf. also Leigh, Fair Trial, pp. 665 et seq. 538

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right to adversarial proceedings (a) and the right to summon witnesses (b). The Court has developed comprehensive case law in particular on witness and expert evidence. (a) Article 6 (3) (d) expressly provides for the right of the accused to examine or 144 have examined witnesses against him. This right constitutes an element of the right to a fair hearing. It requires that testimonies are presented at oral, public hearings (in the presence of the accused and, where necessary, the legal counsel), and that the trial is adversarial. This allows the accused to challenge the evidence adduced and, in particular, to cast doubts on the credibility of witnesses.545 A change in the composition of a court after the examination of a decisive witness normally leads to the witness being called to give evidence again.546 The term ‘witness’ has an ‘autonomous’ meaning in the Convention system. It refers to any person whose deposition may serve to a material degree as the basis for a conviction of the accused; the deposition in question thus constitutes evidence for the prosecution.547 In particular, experts are equated with witnesses.548 However, the question of whether a testimony has actually been used as evidence against the accused may only be evaluated ex post and thus does not constitute a reliable criterion for the authority conducting the proceedings. When assessing ex ante whether there is a right of the accused to examine witnesses, it comes down to the question of whether evidence may be used against the accused. In cases where the accused is not granted the right to examine witnesses, Article 6 (1) and (3) (d) have the effect of the evidence being inadmissible; if the testimony is nonetheless used as evidence, it is in breach of the principle of fairness. The accused must generally be granted in every trial the right to examine the 145 witnesses against him. His entitlement to disclose relevant evidence is not an absolute right but may be restricted;549 such restrictions follow in particular from the fact that the examining of witnesses may not be ensured in every trial.550 If objectively justified, it is exceptionally permissible to deny the accused the 146 right to examine witnesses (however, this fact must be taken into account by the court when it assesses the evidence).551 The grounds justifying such a denial have to be clearly determined. It does not suffice for the purposes of Article 6 to generally refer to the interests of justice or the effective fight against crime. The right to examine witnesses may be denied if their examination is impossible for certain legal or factual obstacles. Legal obstacles are, for instance, the right to refuse to give evidence,552 or domestic law prohibiting the examination of a 545

ECtHR, 16/2/2000, Rowe a. Davis v UK, No. 28901/95, § 61; ECtHR, 12/5/2000, Khan v UK, No. 35394/97, §§ 38 et seq; ECtHR, 24/6/2003, Dowsett v UK, No. 39482/98, §§ 41 et seq; ECtHR, 13/10/2005, Bracci v ITA, No. 36822/02, § 49 et seq. 546 ECtHR, 10/2/2005, Graviano v ITA, No. 10075/02, §§ 38 et seq. 547 ECtHR, 27/2/2001, Luca ` v ITA, No. 33354/96, § 41. 548 Cf. Grabenwarter/Pabel, § 24 m.n. 117. 549 Cf. Velu/Ergec, m.n. 616; Bourmanne, L’audition des te ´moins lors du proce`s pe´nal dans la jurisprudence des organes de la Convention europe´enne des droits de l’homme, RTDH 1995, 41 (50 et seq); Grabenwarter/Pabel, § 24 m.n. 117. 550 E.g. ECtHR, 26/4/1991, Asch v AUT, No. 12398/86, § 28; ECtHR, 3/2/2004, Laukkanen a. Manninen v FIN, No. 50230/99, § 35; as to the problem of anonymous witnesses see van Dijk/ Viering, in: van Dijk/van Hoof/van Rijn/Zwaak, p. 647 with reference to the Court’s case law. 551 Velu/Ergec, m.n. 616 (‘conside ´rations objectives’). 552 ECtHR, 24/11/1986, Unterpertinger v AUT, No. 9120/80, § 30; ECtHR, 26/4/1991, Asch v AUT, No. 12398/86, § 28.

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witness. Any legal obstacle relating to the person of the witness has to comply with the requirements of Article 6 (1) and (3) (d).553 Factual obstacles for not granting the right to examine witnesses range from death over illness of the witness to no knowledge of his whereabouts, and even to cases where a witness refuses to appear before the court although he had been properly summoned. Other factual obstacles are, for instance, the refusal of a request for mutual assistance in crime matters by the state in which the witness resides,554 or if a treaty on mutual assistance in crime matters allowing for the summoning of a witness does not exist or does not apply.555 It constitutes another factual obstacle if a witness refuses to appear before the court, and may, according to domestic law, not be forced to do so and to testify (e.g. for parliamentary immunity).556 The examination of anonymous witnesses constitutes rather a factual than a legal obstacle.557 Non-absolute obstacles (absolute obstacles being, for instance, the death of a witness) call for the competent courts or public authorities to adopt reasonable and appropriate measures to overcome the obstacles (e.g. sanctions against witnesses who do not appear before the court although they have been properly summoned).558 147 Apart from the necessary requirement of objective reasons for denying or restricting the accused’s right to examine witnesses, it is also decisive how a court has conducted the proceedings, and, in particular, whether a trial can be said to altogether have been fair and whether the rights of the defence have been respected.559 This does not require compliance with every guarantee under Article 6 (3) but refers to the object and purpose of the right of the accused to examine witnesses, which is to cast doubts on the credibility or reliability of a witness. By implication, it can be said that no violation of Article 6 occurs where the credibility or reliability of a witness may be queried by way of other means.560 148 The right of the defence may also be restricted to an extent that is incompatible with the guarantees provided by Article 6 when a conviction is based solely or to a decisive degree on depositions that have been made by a person whom the accused has had no opportunity to examine or to have examined, whether during the 553

Grabenwarter/Pabel, § 24 m.n. 117. EComHR, 13/12/1983, S. v GER, No. 8945/80. 555 EComHR, 1/6/1972, X. v AUT, No. 4428/70. 556 EComHR, 17/7/1981, X. v GER, No. 8682/79. 557 The Court held that the need to protect witnesses in itself does not suffice to sacrifice the right to a fair trial to expediency (cf. ECtHR, 20/11/1989, Kostovski v NED, No. 11454/85, § 44); ECtHR, 10/11/2005, Bocos-Cuesta v NED, No. 54789/00, §§ 69 et seq; for more information on the use of anonymous statements see Bourmanne, RTDH 1995, 49; Kerchove, La preuve en matie`re pe´nale dans la jurisprudence de la Cour et de la Commission europe´enne des droits de l’homme, RSCDPC 1992, 1 (13 et seq); see the case law ECtHR, 20/11/1989, Kostovski v NED, No. 11454/85, §§ 39 et seq; ECtHR, 27/9/1990, Windisch v AUT, No. 12489/86, §§ 26 et seq; ECtHR, 15/6/1992, Lu¨di v SUI, No. 12433/86, §§ 43 et seq; ECtHR, 20/9/1993, Saı¨di v FRA, No. 14647/89, §§ 43 et seq; ECtHR, 22/11/2005, Taal v EST, No. 13249/02, § 31; ECtHR, 29/9/2009, Dzelili v GER, No. 15065/05. 558 ECtHR, 28/8/1992, Artner v AUT, No. 13161/87, § 22. 559 ECtHR, 24/11/1986, Unterpertinger v AUT, No. 9120/80, §§ 31, 33; ECtHR, 20/11/1989, Kostovski v NED, No. 11454/85, §§ 44 et seq; ECtHR, 27/9/1990, Windisch v AUT, No. 12489/86, § 31; ECtHR, 19/12/1990, Delta v FRA No. 11444/85, § 37; ECtHR, 19/2/1991, Isgro` v ITA, No. 11339/85, §§ 31, 34; ECtHR, 26/4/1991, Asch v AUT, No. 12398/86, § 31; ECtHR, 28/8/1992, Artner v AUT, No. 13161/87, §§ 24; ECtHR, 11/12/2008, Mirilashvili v RUS, No. 6293/04, § 164. 560 Similarly Bourmanne, RTDH 1995, 51. 554

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investigation or at the trial (the so-called ‘sole or decisive rule’)561 Where a conviction is based solely or decisively on the evidence of absent witnesses, the Court subjects the proceedings to the most searching scrutiny and examines whether there were sufficient counterbalancing factors in place, including measures that permitted a fair and proper assessment of the reliability of that evidence to take place.562 The Court’s overall approach is to balance all relevant aspects: When assessing 149 the compliance of a trial with the right to examine a witness under Article 6 (3) (d), the adverse effects resulting from the restriction of the party’s (generally the accused’s) right have to be weighed against the reasons for limiting his right. The more severe the effects on the party are – and in particular the more restricted the right to examine a witness becomes – the graver the reasons for the said restriction have to be.563 In this balancing process, the reasons given by the court usually do not suffice in themselves to justify limitations of the right. Simply put, the adverse effects have to be compensated by a higher degree of due diligence when conducting a trial as compared to the usual process of assessing evidence. What is decisive is whether a decision is mainly or solely based on indirect witness evidence, or whether it is corroborated by further evidence.564 Moreover, it is relevant whether the accused was not able to examine the witness only in the (main) proceedings or at no stage of the proceedings. In certain cases it might be necessary or even indicated to examine a witness in the absence of the accused but in the presence of his legal counsel (for example to preserve the anonymity of witnesses).565 If so, it is decisive whether the accused’s legal counsel has been present at the examination of the witness in question.566 In any case of indirect witness evidence, which is decisive for the accused’s conviction, it is essential to assess whether he has had a proper and adequate opportunity to challenge the witness statements, or whether the denial of his right by the competent court was insufficiently substantiated and could have been taken into account by adopting appropriate measures.567 (b) Article 6 (3) (d) also provides for the right of the accused to obtain the 150 attendance and examination of witnesses on his behalf under the same conditions as witnesses against him. Even though the article expressly provides only for the right to summon witnesses on behalf of the accused he undoubtedly also enjoys a right to summon witnesses against him, which allows him to properly and adequately challenge the witness statements. In order to ensure the rights of the defence in criminal proceedings, it is of a special importance that witnesses attend 561 ECtHR, 15/12/2011 (GC), Al-Khawaja a. Tahery v UK, No. 26766/05 et al, §§ 119, 126 et seq, see also ECtHR, 26/3/1996, Doorson v NED, No. 20524/92, § 76. 562 ECtHR, 15/12/2011 (GC), Al-Khawaja a. Tahery v UK, No. 26766/05 et al, § 147. 563 Grabenwarter/Pabel, § 24 m.n. 120. 564 No violation on this ground in ECtHR, 19/2/1991, Isgro ` v ITA, No. 11339/85, § 35; ECtHR, 26/4/1991, Asch v AUT, No. 12398/86, §§ 28, 30; ECtHR, 28/8/1992, Artner v AUT, No. 13161/87, §§ 22 et seq. 565 EComHR, 10/7/1985, Kurup v DEN, No. 11219/84; EComHR, 16/12/1981, X. v DEN, No. 8395/78. 566 Bourmanne, RTDH 1995, 47; to that effect see also ECtHR, 19/2/1991, Isgro ` v ITA, No. 11339/85, § 36, in which a legal counsel did not attend the confrontation with the witness, but he attended the hearing with knowledge of the witnesse’s allegations and identity and could thus challenge the accuracy of those allegations and the credibility of the witness. 567 ECtHR, 10/11/2005, Bocos-Cuesta v NED, No. 54789/00, § 71.

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at hearings; thus, it is essential that national authorities take steps to track down witnesses whose whereabouts are difficult to ascertain.568 Article 6 (3) (d) governs one aspect of the principle of equality of arms provided for by Article 6, which governs the use of witness evidence in a fair trial.569 Article 6 (3) (d), according to its wording and purpose, applies only to hearings in criminal proceedings.570 Thus, the summoning of witnesses in accordance with the principle of equality of arms depends on the holding of a hearing. In case a hearing is dispensed with in accordance with the Convention, there is no independent right of the party to summon witnesses. Thus, the right to summon witnesses depends on the right to a public hearing. 151 Article 6 (3) (e) vests the accused with the right to the free assistance of an interpreter if he cannot understand or speak the language used in court. The interpretation assistance provided must enable the defendant to have knowledge of the case against him and to defend himself, notably by being able to put before the court his version of the events.571 The right to the free assistance of an interpreter, as opposed to the right to legal assistance, is an absolute right. There is no right to the free assistance of an interpreter if the accused is conversant with the court’s language, but refuses, for political reasons, to use it. The right to free assistance of an interpreter does not only apply to oral statements made at the trial hearing but also to certain documentary material and the pre-trial proceedings.572 152 Although not specifically mentioned in Article 6, it provides for the right to remain silent and the right not to incriminate oneself (‘nemo tenetur’), which lie at the heart of the notion of a fair procedure under Article 6. Moreover, the Court stresses the close link with the presumption of innocence under Article 6 (2).573 These rights presuppose that the prosecution in a criminal case seek to prove their case against the accused without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused.574 The principle of nemo tenetur is thus violated if confessions extracted from an accused by illtreatment amounting to torture within the meaning of Article 3 are admitted as evidence in his trial irrespective of the weight of the impugned confessions in the evidential basis for his conviction575 as well as if a state agent is placed in the accused’s cell in order to elicit from him, in a conversation that is the functional equivalent of an interrogation, information implicating him in the offences of 568 ECtHR, 13/11/2003, Rachdad v FRA, No. 71846/01, § 25; ECtHR, 13/4/2006, Zentar v FRA, No. 17902/02, § 26. 569 Cf. e.g. Go ¨ lcu¨klu¨, Le proce`s e´quitable et l’administration des preuves dans la jurisprudence de la Cour europe´enne des Droits de l’Homme, in: Studies in honour of Jacques Velu, vol. 3, 1992, p. 1361 (1365). 570 E.g. ECtHR, 6/12/1988, Barbera ` , Messegue´ a. Jabardo v ESP, No. 10590/83, § 78; ECtHR, 19/2/1991, Isgro` v ITA, No. 11339/85, § 34. 571 ECtHR, 24/2/2009, Protopapa v TUR, No. 16084/90, § 80. 572 ECtHR, 12/12/1989, Kamasinski v AUT, No. 9783/82, § 74; ECtHR, 24/2/2009, Protopapa v TUR, No. 16084/90, § 80. 573 ECtHR, 8/2/1996 (GC), John Murray v UK, No. 18731/91, § 45; ECtHR, 17/12/1996, Saunders v UK, No. 19187/91, § 68; ECtHR, 21/12/2000, Heaney a. Mc Guiness v IRE, No. 34720/97, § 40; ECtHR, 8/4/2004, Weh v AUT, No. 38544/97, § 46. 574 ECtHR, 17/12/1996, Saunders v UK, No. 19187/91, § 68; ECtHR, 20/10/1997, Serves v FRA, No. 38642/97, § 46; ECtHR, 21/12/2000, Heaney a. Mc Guiness v IRE, No. 34720/97, § 40. 575 ECtHR, 21/4/2011, Nechiporuk a. Yonkalo v UKR, No. 42310/04, § 260.

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which he is suspected, and if the accused discloses the information as he is subjected to psychological pressure.576 The drawing of adverse inferences from the accused’s silence may comply with the Convention under certain preconditions.577 In certain cases even the taking of an oath from the accused to speak the truth may infringe his right to remain silent.578 The guarantee applies to directly or indirectly incriminating statements of the accused579 as well as to attempts to compel the accused himself to provide the evidence of offences he has allegedly committed.580 It does not extend to the use of material which may be obtained from the accused through the use of compulsory powers, but which has an existence independent of the will of the suspect, such as, inter alia, breath, blood and urine samples and bodily tissue for the purpose of DNA testing.581 The right to remain silent is not of an absolute nature.582 It may be subjected to limitations as long as the very essence of the right is not extinguished. In order to ascertain whether this is the case, the Court takes into account, in particular, the following considerations: the nature and degree of the compulsion used to obtain the evidence, the weight of the public interest in the investigation and punishment of the particular offence, the existence of any relevant safeguards in the procedures and the use to which any material so obtained is put.583 Grave interference with the physical and mental integrity of an accused, such as for example the forcible administration of emetics through a nasogastric tube, are not justified in the public interest in securing the conviction of a small-scale street drug dealer if the accused was not given the opportunity to make use of his procedural rights, and 576 ECtHR, 5/11/2002, Allan v UK, No. 48539/99, §§ 50 et seq; In ECtHR, 10/3/2009 (GC), Bykov v RUS, No. 4378/02, § 102, the applicant, who had not been detained, had not been under any pressure to receive the undercover agent at his “guest house”, to speak to him, or to make any specific comments on the matter; as to that Kennes, Le proce`s e´quitable sous l’angle du droit au silence et de l’admissibilite´ de la preuve irre´gulie`re au cours du proce`s pe´nal, RDTH 2010, 383 et seq. 577 ECtHR, 8/2/1996 (GC), John Murray v UK, No. 18731/91, §§ 50 et seq, 54; ECtHR, 2/5/2000, Condron v UK, No. 35718/97, §§ 61 et seq; ECtHR, 5/12/2000, Randall v UK, No. 44014/98, § 2; ECtHR, 8/10/2002, Beckles v UK, No. 44652/98, §§ 62 et seq; cf. also Ashworth/Strange, Criminal Law and Human Rights, EHRLR 2004, 121 (134 et seq); in the context of the right to legal assistance: ECtHR, 6/6/2000, Magee v UK, No. 28135/95, § 43. 578 ECtHR, 14/10/2010, Brusco v FRA, No. 1466/07, §§ 52 et seq. 579 The right not to incriminate oneself cannot reasonably be confined to statements of admission of wrongdoing or to remarks which are directly incriminating. What is of essence in this context is the use to which the evidence obtained under compulsion is put in the course of the criminal trial: ECtHR, 17/12/1996, Saunders v UK, No. 19187/91, § 71. 580 ECtHR, 25/2/1993, Funke v FRA, No. 10828/84, § 44 – as opposed to e.g. Article 14 (3) (g) ICCPR. 581 ECtHR, 17/12/1996, Saunders v UK, No. 19187/91, § 69; ECtHR, 21/12/2000, Heaney a. McGuiness v IRE, No. 34720/97, § 40; ECtHR, 11/7/2006 (GC), Jalloh v GER, No. 54810/00, §§ 112 et seq: In the Court’s view, the evidence in issue, namely the drugs hidden in the applicant’s body fell into the said category. However, in the concrete case, it found that the use of the evidence had violated the right to not incriminate oneself. It held, in particular, that the administration of the emetics, for the purpose of obtaining the evidence, provoked a pathological reaction in the applicant’s body, and that the degree of force used in the present case violated Article 3. 582 ECtHR, 8/2/1996 (GC), John Murray v UK, No. 18731/91, § 47; ECtHR, 2/5/2000, Condron v UK, No. 35718/97, § 56; ECtHR, 21/12/2000, Heaney a. McGuiness v IRE, No. 34720/97, § 47; ECtHR, 8/4/2004, Weh v AUT, No. 38544/97, § 46. 583 See e.g. ECtHR, 15/6/1999, Tirado Ortiz a. Lozano Martin v ESP, No. 43486/98; ECtHR, 21/12/2000, Heaney a. Mc Guiness v IRE, No. 34720/97, §§ 51–55; ECtHR, 5/11/2002, Allan v UK, No. 48539/99, § 44; ECtHR, 11/7/2006 (GC), Jalloh v GER, No. 54810/00, §§ 101, 117.

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the evidence gained is then used for his conviction.584 Obligations to inform the authorities may restrict the right of the accused not to incriminate himself if sanctions are imposed on him based on the facts so revealed. However, the Court takes into account that obligations, such as for example the obligation to reveal one’s identity to the police upon request, as well as to disclose income and capital for the purposes of the calculation and assessment of tax are indispensable for the effective functioning of the Member States’ legal orders.585 Such obligations to disclose certain information are compatible with Article 6 (1) if proportionate to the aim sought and if the very essence of the guarantee is not extinguished.586 Article 6 (1) is not violated, for instance, if the registered keeper of a vehicle is legally obliged to give information about the driver of the vehicle.587 What is decisive is that the penalties liable to be imposed are low, and that procedural safeguards prevent the registered keeper of a vehicle to be punished if he does not know or (with regard to reasonable diligence) must not know who drove his car. The Court did not even identify a violation of the right not to incriminate oneself where proceedings were conducted against unknown offenders and not against the registered keepers of a vehicle, who were punished only on account of the fact that they had refused to give certain information to the authorities, such as on the identity of the driver of their vehicle, since the link between the obligation of the keeper of the vehicle to disclose information and the criminal proceedings remained remote and hypothetical.588 The conviction of the keeper of a vehicle for the underlying traffic offence and not for failure to disclose the identity of the driver is incompatible with the Convention if he claims to not have driven the car and no other evidence gives any indication as to the identity of the driver.589

7. Presumption of innocence The presumption of innocence is another right of accused persons, though it is separated from the right to a fair trial in Article 6 (2). It protects individuals suspected of having committed a crime against prejudgments and guarantees to them the right to be presumed innocent until proved guilty. This guarantee only covers cases, to which the criminal limb of Article 6 applies. Persons detained for other reasons (preparation of an expulsion) are not protected under Article 6.590 154 The presumption of innocence applies until the accused is ‘proved guilty according to law’.591 Thus, the specific requirements are laid down in various national legal orders. The presumption of innocence applies, at any rate, until the end of a trial; in certain cases its application extends to cases where, in spite of the 153

584

ECtHR, 11/7/2006 (GC), Jalloh v GER, No. 54810/00, §§ 118 et seq. ECtHR, 25/9/2003, Vasileva v DEN, No. 52792/99, § 34; ECtHR, 21/4/2009, Marttinen v FIN, No. 19235/03, § 68. 586 ECtHR, 21/4/2009, Marttinen v FIN, No. 19235/03, § 75. 587 As to that and to the following ECtHR, 29/6/2007 (GC), O’Halloran a. Francis v UK, No. 15809/02, §§ 56 et seq; as to that Savonet, Le droit au silence: un droit relatif?, RTDH 2009, 763 et seq; ECtHR, 10/1/2008, Lu¨ckhof a. Spanner v AUT, No. 58452/00 et al, §§ 47 et seq. 588 ECtHR, 8/4/2004, Weh v AUT, No. 38544/97, §§ 53 et seq; as to the obligation to inform fiscal authorities ECtHR, 4/10/2005, Shannon v UK, No. 6563/03, §§ 39 et seq. 589 ECtHR, 18/3/2010, Krumpholz v AUT, No. 13201/05, §§ 38 et seq. 590 Harris/O’Boyle/Warbrick, p. 299. 591 French: ‘jusqu‘a ` ce que sa culpabilite´ ait e´te´ le´galement ´etablie’. 585

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accused’s acquittal, certain presumptions of guilt remain. The presumption of innocence also applies in appeal proceedings when the accused has already been convicted at first instance. Otherwise it would run counter to the role of appeal proceedings, where the appellate court is required to re-examine the earlier decision submitted to it as to the facts and the law.592 The suspension of a sentence which is revoked by the court supervising the 155 execution of sentences based on the finding that it has obtained ‘certainty’ that the applicant has committed a criminal offence during the period of probation before the competent trial court has issued a final sentence convicting the accused of the alleged crime is in breach of Article 6 (2). A suspension may be revoked, however, if the revocation is based on the person’s admission of guilt, on the conviction of the accused or, in accordance with domestic law, on a state of suspicion on the basis of the results of preliminary investigations.593 There is no violation of the presumption of innocence if tax surcharges imposed by a non-final decision are immediately enforced, provided that it serves the purpose of exerting pressure on taxpayers to comply with their obligations under the tax laws, and if national law secures the reimbursement of any amount paid in case the applicant submits a successful remedy against the decision.594 The presumption of innocence must be respected by the members of a court. 156 Thus, there is a shift of the burden of proof. Judges must not start with the preconceived idea that the accused has committed the offence charged. In this context, there is an overlap of the principle of the presumption of innocence with the duty of (subjective) impartiality of a judge guaranteed under Article 6 (1) (see m.n. 57 et seq) and the right to a fair trial (see m.n. 60 et seq). The Court generally does not examine whether there has been a violation of Article 6 (2) if it has already found a violation of Article 6 (1).595 It follows from the principle of the presumption of innocence that the burden of proof generally rests on the prosecution and that any doubt should benefit the accused.596 In other words: It is on the prosecution to adduce evidence proving the guilt of the accused and not the duty of the accused to prove his innocence. This does not mean, however, that presumptions of fact or of law provided for in domestic law are in principle incompatible with Article 6 (2). They are permissible within reasonable limits, which take into account the importance of what is at stake and which maintain the rights of the defence. What also has to be taken into consideration is the competence of a court to assess the evidence and to rule on the accused’s guilt. Accordingly, the Court found that the presumption of guilt in the context of narcotic offences as provided for in French law did not violate the principle of the presumption of innocence as the courts in question were careful to avoid resorting automatically to the presumption of guilt based

592

ECtHR, 24/5/2011, Konstas v GRE, No. 53466/07, § 36. ECtHR, 3/10/2002, Bo¨hmer v GER, No. 37568/97, §§ 64 et seq. 594 ECtHR, 23/7/2002, Janosevic v SWE, No. 34619/97, §§ 107 et seq. 595 Cf. e.g. ECtHR, 15/12/2005 (GC), Kyprianou v CYP, No. 73797/01, §§ 136 et seq; in its conclusion still different, the previous Chamber judgment of 27/1/2004, § 54. 596 ECtHR, 6/12/1988, Barbera ` , Messegue´ a. Jabardo v ESP, No. 10590/83, § 77; ECtHR, 24/7/2008, Melich a. Beck v CZE, No. 35450/04, § 49. 593

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only on the fact that the accused was in possession of the trunk. Rather they exercised their power of assessment and based their finding on further evidence.597 157 In the field of broadcasting, the presumption of guilt of a publishing director, owing to his position, but without proof, for the dissemination of defamatory or insulting allegations and imputations remains within ‘reasonable limits’ if he has the opportunity to overturn that presumption by establishing his good faith. This is justified as a publishing director would otherwise be compelled to exercise supervision prior to the dissemination in order to prevent such defamatory or insulting allegations and imputations.598 The making of a confiscation order is different from the conviction by a criminal court if the amount to be paid depends on the benefit from past criminal conduct, in respect of which the accused has not necessarily been convicted. The Court nevertheless assesses who bears the onus of proof in terms of the presumption of innocence, which forms part of the general notion of a fair hearing under Article 6 (1).599 158 Article 6 (2) prohibits statements of courts and other public authorities at the pretrial stage as well as during criminal proceedings concerning an accused person which reflects an opinion that he was guilty before he had been proved so according to law.600 This shows that the presumption of innocence has a twofold impact: First, the public must be discouraged from believing the accused guilty prior to his conviction; secondly, the assessment of facts by the competent judicial authority must not be prejudged.601 The public appearance of a remand prisoner in prison clothing is therefore in breach of Article 6 (2).602 The principle of the presumption of innocence may not only be infringed by courts but also by other public authorities, including the legislator. Particular regard must be had to the lift of a parliamentarian’s immunity in order to enable the institution of criminal proceedings.603 Once an acquittal has become final, the voicing of any suspicions of guilt by state authorities is incompatible with the principle of the presumption of innocence.604 159 When informing the public in particular of sensational cases, in the receiving of which the public has a special interest, the police and prosecution usually walk a tightrope. Whether a statement of a public official is in breach of the principle of the presumption of innocence must be determined in the context of the particular circumstances in which the impugned statement was made.605 The allegation of a crime committed by an important political figure may justify keeping the public informed but do not undermine the importance of the choice of words by public officials. 597 ECtHR, 7/10/1988, Salabiaku v FRA, No. 10519/83, § 28; ECtHR, 25/9/1992, Pham Hoang v FRA, No. 13191/87, §§ 33 et seq. 598 ECtHR, 30/3/2004, Radio France a. o. v FRA, No. 53984/00, § 24. 599 ECtHR, 5/7/2001, Phillips v UK, No. 41087/98, § 40; ECtHR, 23/9/2008, Grayson a. Barnham v UK, No. 19955/05 et al, § 39. 600 ECtHR, 12/7/1988, Schenk v SUI, No. 10862/84, § 51; ECtHR, 29/5/2012, Shuvalov v EST, No. 39820/08 et al, § 75; Harris/O’Boyle/Warbrick, p. 303. 601 ECtHR, 10/2/1995, Allenet de Ribemont v FRA, No. 15175/89, § 41. 602 ECtHR, 16/3/2010, Jiga v ROM, No. 14352/04, §§ 101 et seq. 603 ECtHR, 26/3/2002, Butkevicius v LTU, No. 48297/99, § 53. 604 ECtHR, 25/9/2008, Paraponiaris v GRE, No. 42132/06, § 32. 605 ECtHR, 10/10/2000, Daktaras v LIT, No. 42095/98, §§ 41 et seq; ECtHR, 28/10/2004, Y.B. a. o. v TUR, No. 48173/99, §§ 44 et seq.

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The Court thus found a violation of the principle of the presumption of innocence in the Butkevicius Case when a prosecutor general, in the context of an interview to the national press, stated literally that he had ‘enough sound evidence of the guilt’ of the former Lithuanian minister and parliamentarian, and, two days later, classified the offence allegedly committed by the accused as an ‘attempt to cheat’.606 Moreover, the presentation of the accused in prison clothing before the court of appeal may create the impression of guilt.607 There is a link between the information given by public authorities and the 160 information on police investigations, indictments and criminal proceedings given by the media. The principle of the presumption of innocence may be infringed by the media, while their acts are no more attributable to the state and its organs. States are responsible for preventing criminal proceedings from being conducted in an environment of prejudgment by the media and as a consequence by the public, though not to the extent as are state officials.608 In order to fulfil their responsibility, States have to fulfil fundamental positive obligations. Apart from a thorough information policy, they must legally ensure that the media report from an objective viewpoint in order to prevent prejudgments.609 The presumption of innocence does not only apply to the court’s assessment of 161 evidence but also to other decisions issued in criminal proceedings and especially to decisions following the conclusion of criminal proceedings.610 The general aim of this second aspect of Article 6 (2) is to protect individuals who have been acquitted of a criminal charge, or in respect of whom criminal proceedings have been discontinued, from being treated by public officials and authorities as though they are in fact guilty of the offence charged.611 There is a violation of the presumption of innocence, for instance, if the reasons for the court’s decision, despite the absence of a formal finding on the accused’s guilt or innocence, show that the apportionment of costs results from an appraisal of the guilt of the accused.612 However, competent courts, acting on an equitable basis and having regard to the strong suspicions which seem to them to exist concerning an accused, that do not impose a sanction but merely refuse to order that costs and expenses or any compensation should be paid out of public funds, act in compliance with the principle of the presumption of innocence.613 The right to be presumed innocent is violated if a national court states in proceedings against co-defendants of a person that the latter had committed several criminal acts even though prosecution has been discontinued because the person committed suicide.614 The Convention does not oblige Member States, where a prosecution has been discontinued, to indemnify a person ‘charged with a criminal offence’ for any detriment he may have suffered.615 606

ECtHR, 26/3/2002, Butkevicius v LTU, No. 48297/99, §§ 50 et seq. ECtHR, 4/3/2008, Samoila a. Cionca v ROM, No. 33065/03, §§ 99 et seq. 608 ECtHR, 28/10/2004, Y.B. a. o. v TUR, No. 48173/99, § 48. 609 Grabenwarter/Pabel, § 24 m.n. 130. 610 See also van Dijk/Viering, in: van Dijk/van Hoof/van Rijn/Zwaak, p. 629. 611 ECtHR, 12/7/2013 (GC), Allen v UK, No. 25424/09, § 94, cf. §§ 98 et seq and §§ 120 et seq for an overview of previous case law on that aspect of Art 6 (2). 612 ECtHR, 25/3/1983, Minelli v SUI, No. 8660/79, § 38. 613 ECtHR, 25/8/1987, Lutz v GER, No. 9912/82, §§ 59 et seq; ECtHR, 25/8/1987, Englert v GER, No. 10282/83, § 36; ECtHR, 25/8/1987, No¨lkenbockhoff v GER, No. 10300/83, §§ 36 et seq. 614 ECtHR, 10/1/2012, Vulakh a. o. v RUS, No. 33468/03, §§ 32 ff. 615 ECtHR, 28/4/2005, A.L. v GER, No. 72758/01, §§ 35 et seq. 607

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Furthermore, Article 6 may be violated by court decisions following a final acquittal. So far, the Court identified a breach of the presumption of innocence in several cases of ‘acquittals for lack of evidence’.616 An acquittal does not preclude the establishment of civil liability in relation to the same facts in ensuing compensation proceedings. The compensation issue is subject to a separate legal assessment based on criteria and evidentiary standards which in several important respects differ from those applying to criminal liability; there is, in particular, a less strict burden of proof in civil proceedings.617 However, if the national decision on compensation contains a statement imputing the criminal liability of the respondent party, this could raise an issue falling within the ambit of Article 6 (2) and oversteps the bonds of the civil forum.618 616

Beginning with ECtHR, 25/8/1993, Sekanina v AUT, No. 13126/87, §§ 29 et seq; ECtHR, 21/3/2000, Asan Rushiti v AUT, No. 28389/95, §§ 31 et seq; ECtHR, 9/11/2004, Del Latte v NED, No. 44760/98, §§ 32 et seq; ECtHR, 7/3/2006, Yassar Hussain v UK, No. 8866/04, §§ 21 et seq; ECtHR, 25/4/2006, Puig Panella v ESP, No. 1483/02, §§ 55 et seq. 617 ECtHR, 17/9/2002, Ringvold v NOR, No. 34964/97, §§ 36 et seq. 618 ECtHR, 11/2/2003, Y. v NOR, No. 56568/00, §§ 42 et seq; ECtHR, 15/5/2008, Orr v NOR, No. 31283/04, § 51.

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Bibliography

Article 7 – No punishment without law 1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed. 2. This Article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations. Article 7 – Pas de peine sans loi 1. Nul ne peut eˆtre condamne´ pour une action ou une omission qui, au moment ou` elle a e´te´ commise, ne constituait pas une infraction d’apre`s le droit national ou international. De meˆme il n’est inflige´ aucune peine plus forte que celle qui e´tait applicable au moment ou` l’infraction a e´te´ commise. 2. Le pre´sent article ne portera pas atteinte au jugement et a` la punition d’une personne coupable d’une action ou d’une omission qui, au moment ou` elle a e´te´ commise, e´tait criminelle d’apre`s les principes ge´ne´raux de droit reconnus par les nations civilise´es. Bibliography: Bleichrodt, Freedom from retrospective effect of penal legislation (Article 7), in: van Dijk/van Hoof/van Rijn/Zwaak (ed.), Theory and Practice of the European Convention on Human Rights, 4th ed., 2006, p. 651; Cromheecke/Dhont, Geen straf zonder wet, in: vande Lanotte/Haeck (ed.), Handboek EVRM, Deel 2, 2004, p. 653; Juratovitch, Retroactive Criminal Liability and International Human Rights Law, BYBIL 2004 (Vol. 75), p. 337; Shaw, International Law, 2nd ed., 2008. Leading cases: ECtHR, 25/5/1993, Kokkinakis v GRE, No. 14307/88 (the requirement of sufficiently precise and clear criminal law); ECtHR, 9/2/1995, Welch v UK, No. 17440/90 (notion of ‘penalty’); ECtHR, 8/6/1995, Jamil v FRA, No. 15917/89 (notion of ‘punishment’); ECtHR, 22/11/1995, S.W. v UK, No. 20166/92 (law, limits to judicial powers); ECtHR, 15/11/1996, Cantoni v FRA, No. 17862/91 (precise laws, different requirements depending on the addressee of the law); ECtHR, 22/3/2001, Streletz, Kessler a. Krenz v GER, No. 34044/96 et al (German Border Guards, criminal liability under GDR law); ECtHR, 29/3/2006 (GC), Achour v FRA, No. 67335/01 (retrospective application of new legislation); ECtHR, 12/2/2008 (GC), Kafkaris v CYP, No. 21906/04 (precision of the notion ‘life imprisonment’); ECtHR, 17/9/2009 (GC), Scoppola (No. 2) v ITA, No. 10249/03 (the principle of the applicability of the more lenient criminal law); ECtHR, 17/12/2009, M. v GER, No. 19359/04 (retrospective prolongation of preventive detention). Outline I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. The scope of Article 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Scope of protection. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. No punishment without law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Prohibition of retrospective application of criminal law . . . . . . . . . . . . . . 3. The requirement of a sufficiently clear legal basis. . . . . . . . . . . . . . . . . . . . . . 4. Prohibition of retrospective imposition of heavier penalties. . . . . . . . . .

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I. Introduction Article 7 constitutes one of the main fundamental rights in states subject to the rule of law. While Article 6 aims at protecting the procedural limb of a state under the rule of law and sets a benchmark, in particular, for criminal procedural law, Article 7 provides for fundamental principles of the rule of law in the field of criminal law, such as the requirement that criminal law must be sufficiently precise and that its retrospective application is prohibited. Article 7 is thus both an essential precondition and a guarantor for legal security. Further limitations to the rights under Article 7 arise from other Convention rights. Article 7 prohibits the retrospective application of a criminal law to an accused’s disadvantage. Furthermore, it embodies the principle that an offence and the penalty must be clearly defined in law (nullum crimen, nulla poena sine lege).1 Since progressive development of criminal law through judicial law-making is permissible only within the boundaries of ‘foreseeability’, Article 7 also determines the separation of the legislative, executive and judicial branches in the Member States. The importance of Article 7 is particularly shown by its mentioning in Article 15: Article 15 stipulates that Article 7 (together with the prohibition of torture and of slavery and the right to life) may not be derogated by States in times of war or other public emergency. The Convention thus does not oblige States to protect individuals from criminal acts by such measures which are in breach of an offender’s rights under Article 7 (1).2 Article 7 should be construed and applied, as follows from its object and purpose, in such a way as to provide effective safeguards against arbitrary prosecution, conviction and punishment.3 2 At the UN level, it is the almost equally worded Article 15 ICCPR which provides for the principle of legality of criminal offences and penalties and the prohibition of retrospective application of criminal law. Both provisions go back to Article 11 (2) UDHR.4 In EU law, the most important document is the EU Charter, which includes the principle of ‘nulla poena sine lege’ too, and which in its Article 49 adopts almost all safeguards of Article 7. According to the CJEU, a comparable fundamental right exists as a general principle of EU law.5 Going beyond the guarantees of Article 7, Article 49 (1) third sentence – like Article 15 ICCPR – expressly demands that if, subsequent to the commission of a criminal offence, the law is changed and the new law provides for a lighter penalty, the more lenient penalty shall be imposed. A penalty is more lenient if either the maximum possible penalty is reduced or if the type of penalty is changed for example from imprisonment to fine.6 Moreover, Article 49 (3) expressly contains the obligation to comply with the principle of 1

1

ECtHR, 25/5/1993, Kokkinakis v GRE, No. 14307/88, § 52. ECtHR, 14/4/2011, Jendrowiak v GER, No. 30060/04, § 48; ECtHR, 24/11/2011, O.H. v GER, No. 4646/08, No. § 107. 3 ECtHR, 22/11/1995, S.W. v UK, No. 20166/92, § 35; ECtHR, 12/2/2008 (GC), Kafkaris v CYP, No. 21906/04, § 137. 4 Juratovitch, Retroactive Criminal Liability and International Human Rights Law, BYBIL 2004 (Vol. 75), p. 337 (338 et seq). 5 Case C-74/95 a. C-129/95, Criminal proceedings against X v Italy (12/12/1996). 6 As to the development of the scope of application of Article 7 see ECtHR, 17/9/2009 (GC), Scoppola (No. 2) v ITA, No. 10249/03, §§ 105 et seq. 2

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II. The scope of Article 7

2, 3

Art. 7

proportionality. This becomes significant in cases where a penalty does not interfere with civil rights and liberties which are granted subject to the principle of proportionality.

II. The scope of Article 7 Article 7 applies to criminal proceedings and offences within the meaning of 3 Article 6. Even though Article 7 does not expressly contain the notion of ‘criminal’ (French: ‘pe´nal’) as in Article 6, the notion ‘offence’ (French: ‘infraction’) under Article 7 refers to the criminal law within the meaning of the right to a fair trial.7 The scope of Article 7 thus includes classical ‘criminal offences’ as well as administrative offences (disorderly conduct) and certain disciplinary offences.8 In contrast to Article 6, the assessment of the scope of Article 7 is less guided by individual criteria than based on a comprehensive approach, which takes into account the various viewpoints and indications. Hence, criminal conduct is not only determined by the legal provision prohibiting it but also by the rules of general criminal law, such as provisions on criminal intent and negligence, or provisions on the grounds of justification or on the reasons excluding criminal responsibility.9 As regards the substance of Article 7, its application is limited to convictions and sentences (no ‘punishment’ without law). Other decisions taken in criminal proceedings, in particular on the discontinuation of the proceedings or an acquittal, do not fall within the ambit of Article 7.10 The notion ‘penalty’ has, however, the autonomous meaning as established by the Court and does not depend on the classification in domestic law.11 The starting point for assessing whether a ‘penalty’ within the meaning of Article 7 exists is whether the measure in question was imposed following a conviction for a ‘criminal offence’. Other factors to be taken into account are the nature and purpose of the measure, its characterisation under national law, the procedures involved in the making and implementation of the measure, and its severity.12 Decisions relating to the execution of a sentence, such as the aggravation of penalties, changes in prison legislation and in the conditions of release, do not fall within the scope of Article 7.13 7 Harris/O’Boyle/Warbrick, Law of the European convention on Human Rights, 2nd ed., 2009, p. 332. 8 See Article 6 of the Convention, m.n. 18 et seq. 9 Grabenwarter/Pabel, § 24 m.n. 135 with further references; Juratovitch, BYBIL 2004 (Vol. 75), pp. 344 et seq. 10 E. g. EComHR, 7/4/1994, Al Maradni a. o. v ITA, No. 16387/90; EComHR, 6/4/995, De Mitri a. De Mitri v ITA, No. 20290/92; in more detail Cromheecke/Dhont, Geen straf zonder wet, in: vande Lanotte/Haeck (ed.), Handboek EVRM, Deel 2, 2004, p. 653 (691 et seq); ECtHR, 18/12/2008, Saccoccia v AUT, No. 69917/01, § 3 (declaration of inadmissibility concerning the execution of a forfeiture order issued by United States courts). 11 ECtHR, 17/9/2009 (GC), Scoppola (No. 2) v ITA, No. 10249/03, §§ 110 et seq. 12 ECtHR, 9/2/1995, Welch v UK, No. 17440/90, §§ 27 et seq; e.g. ECtHR, 6/1/2011 (GC), Paksas v LIT, No. 34932/04, §§ 66 et seq: Removal from office and disqualification from standing for election involved the head of State’s constitutional liability. Thus, by virtue of the purpose of these measures, they were considered to lie outside the ‘criminal’ sphere. 13 ECtHR, 10/7/2003, Grava v ITA, No. 43522/98, § 51; ECtHR, 12/2/2008 (GC), Kafkaris v CYP, No. 21906/04, §§ 151 et seq.

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Art. 7 4

4, 5

Article 7 – No punishment without law

Problems of application of the right arise in particular with regard to the side effects of penalties, secondary penalties and imprisonment in default. The retrospective application of a confiscation order in the context of a conviction for drug offences falls within the scope of application of Article 7 when considered together with, inter alia, the discretion of the trial judge, in fixing the amount of the order, to take into consideration the degree of culpability of the accused.14 The same holds true for a retrospective increase of the term of imprisonment in default of payment of the fine imposed on the convicted person,15 at least if the sanction was imposed by a criminal court, was intended to be deterrent and could have led to a punitive deprivation of liberty. The eventual outcome of proceedings is not relevant. In view of the nature, purpose and severity of the penalty, an order, made in view of the applicant’s conviction, that cellular material may be taken from him in order for his DNA profile to be determined and entered into the national DNA database, does not constitute a penalty for the purposes of Article 7.16

III. Scope of protection 1. No punishment without law 5

The guarantees under Article 7 are based on the principle that criminal convictions must have a basis in criminal laws, a requirement which is best expressed in the Latin phrase ‘nulla poena sine lege’. This particular principle of legality, which applies only to criminal law, is directed at the judicial power and restricts domestic courts in the interpretation of criminal provisions. The Court accepts that many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and that thus there is an inevitable element of judicial interpretation. National courts must, however, lay down the criteria for the application of a law. What is decisive is that individuals may reasonably foresee what consequences a given action may entail.17 As with other provisions of the Convention referring to national ‘law’, criminal offences within the meaning of Article 7 may be part of the unwritten law (in particular in common law systems) as long as certain minimum requirements of clarity and foreseeability are satisfied.18 Article 7 further prohibits to extensively construe criminal law to an accused’s detriment, for instance by analogy.19

14

ECtHR, 9/2/1995, Welch v UK, No. 17440/90, §§ 33 et seq. ECtHR, 8/6/1995, Jamil v FRA, No. 15917/89, § 32. 16 ECtHR, 7/12/2006, Van der Velden v NED, No. 29514/05. 17 ECtHR, 25/6/2009, Litvik v EST, No. 12157/05, §§ 93 et seq, 100. 18 Grabenwarter/Pabel, § 24 m.n. 136 with further references; Bleichrodt, Freedom from retrospective effect of penal legislation (Article 7), in: van Dijk/van Hoof/van Rijn/Zwaak (ed.), Theory and Practice of the European Convention on Human Rights, 4th ed., 2006, p. 651 (654); see also ECtHR, 3/5/2007, Custers, Deveaux u. Turk v DEN, No. 11843/03 et al, §§ 84 et seq: Conviction of members of Greenpeace for entering into the area of a US military base in Greenland based on a regulation which had a sufficient legal basis in Danish law. 19 Instead of many ECtHR, Coe ¨me a. o. v BEL, No. 32492/96 et al, § 145; ECtHR, 12/2/2008 (GC), Kafkaris v CYP, No. 21906/04, § 138. 15

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Art. 7

The borderline between a progressive development of (new) criminal law through judicial law-making and a judicial interpretation in order to only clarify the existing criminal law may be difficult to draw. The Court holds that Article 7 cannot be read as outlawing the gradual clarification of the rules of criminal liability through judicial interpretation from case to case, provided that the development is consistent with the essence of the offence and can reasonably be foreseen. Thus, in the S.W. and C.R. Cases, the Court found that a conviction for rape in matrimony in the UK following a departure from previous case law did not violate Article 7 since both said requirements had been fulfilled.20 The Court drew a different conclusion in the Pessino Case, where an applicant carried out construction work without prior planning permission, an act that was reclassified during the proceedings as constituting a criminal offence. It found that it would have been difficult or even impossible for the applicant to foresee the departure of the French courts from precedent and therefore to realise, at the time he committed the acts, that they might carry a criminal sanction.21 Article 7 is violated too if, due to an unclear legal situation, an element of responsibility (intent or negligence) in the conduct of a person may not be disclosed.22

2. Prohibition of retrospective application of criminal law Article 7 expressly prohibits the retrospective application of criminal law. Ac- 6 cording to the provision, no one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. When assessing whether an act or omission constituted a criminal offence under 7 national law at the time when it was committed, the Member States’ courts enjoy a margin of appreciation. It is primarily for them to interpret and apply the domestic law.23 In view of the primacy of EU law and its direct applicability (Article 288 TFEU), EU law, from a Convention perspective, forms part of the domestic law of the Member States.24 If an individual pleads innocent for a criminal offence he has committed on the basis of a state practice of impunity, the Court, when examining his criminal responsibility, takes into account whether the accused himself participated in creating the state practice of impunity. In one of the German Border Guard Cases, where criminal proceedings were conducted against leading officials of the former GDR, the Court held that the persons accused were not entitled to justify their conduct which had given rise to their conviction simply by showing that such conduct did in fact take place and therefore formed a practice.25 It so held in view of the constitution of 20 ECtHR, 22/11/1995, S.W. v UK, No. 20166/92, § 36; ECtHR, 22/11/1995, C.R. v UK, No. 20190/92, § 34; also ECtHR, 30/3/2004, Radio France a. o. v FRA, No. 53984/00, § 20 as regards the criminal liability of a publishing director of a radio station; Bleichrodt, in: van Dijk/van Hoof/ van Rijn/Zwaak, p. 655, who assumes that it was relevant for the Court that subject of the proceedings were valuesprotected under the Convention. 21 ECtHR, 10/10/2006, Pessino v FRA, No. 40403/02, §§ 34 et seq. 22 ECtHR, 20/1/2009, Sud Fondi SRL v ITA, No. 75909/01, § 116. 23 ECtHR, 22/3/2001, Streletz, Kessler a. Krenz v GER, No. 34044/96 et al, §§ 49, 51, 66. 24 Grabenwarter/Pabel, § 24 m.n. 138 with further references. 25 ECtHR, 22/3/2001, Streletz, Kessler a. Krenz v GER, No. 34044/96 et al, § 74; as to the case in more detail see m.n. 11 below.

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Art. 7

7

Article 7 – No punishment without law

the former GDR which laid down principles that were very similar to those of a state governed by the rule of law, including the right to life, and since the practice of protecting the border ‘at all costs’ was in breach of various international obligations. As regards ‘continuing offences’ (i. e. a type of crime committed over a period of time), whose starting point pre-dates the entry into effect of a criminal provision, it must be ensured by clearly defined laws or judgments that the acts committed before the entry into force have no effect on the severity of the punishment or do not entail tangible negative consequences for the applicant.26 The prolongation of preventive detention of mentally-ill persons under German law, formerly limited to a maximum of ten years, following an amendment of the law does not merely concern the execution of the penalty imposed on the applicant in accordance with the law applicable when he committed his offences. Rather, it constitutes an additional penalty which was imposed on the applicant retrospectively, under a law enacted after the applicant had committed his offence.27 The retrospective extension of such limitation periods is not to be qualified as a retrospective application of criminal provisions since it draws on a criminal responsibility which has already established. Such a measure thus complies with the requirements of Article 7 as does the retrospective application of a law in the accused’s favour.28 A new law extending the statutory period for the purposes of recidivism (i. e. the time that may elapse between the two components of recidivism) can, under certain circumstances, apply to a second offence committed after its entry into force, even if the statutory period set out in the old law, calculated from the moment of the conviction for the first crime, has already elapsed. In this respect, the practice of taking past events (such as a first conviction) into consideration must be distinguished from the notion of retrospective application of the law, stricto sensu.29 According to the Court’s finding in the Achour Case, the applicant, who was deemed to be a recidivist in respect of the second offence which he committed after the entry into effect of the new law, in the light of the clear and consistent case law of domestic courts, was able to foresee the legal consequences of his actions and to adapt his conduct.30 A change in the method of calculating a sentence does not only relate to the execution of a sentence but also to the scope of a sentence where the new calculation method has a significant impact on the effective length of the sentence, to the detriment of an individual.31 In the Rio Del Prada Case, the new interpreta26

ECtHR, 21/1/2003, Veeber (No. 2) v EST, No. 45771/99, § 36; as to that effect also ECtHR, 10/2/2004, Puhk v EST, No. 55103/00, §§ 26 et seq (retrospective conviction for tax evasion and inadequate accounting). 27 ECtHR, 17/12/2009, M. v GER, No. 19359/04, §§ 135 et seq. 28 ECtHR, 27/9/1995, G. v FRA, No. 15312/89, §§ 26 et seq; ECtHR, 22/6/2000, Coe ¨me v BEL, No. 32492/96 et al, § 149. 29 ECtHR, 29/3/2006 (GC), Achour v FRA, No. 67335/01, §§ 52 et seq, 59; still different the Chamber in its judgment of 10/11/2004; for comments on the case see Bachelet, Face a` l’alternative “re´troactivite´ ou imme´diatete´ “, la Cour europe´enne ne re´cidive pas, RTDH 2007, 233 (233 et seq) and Dreyer, Le temps de la re´cidive et le juge de la loi, RTDH 2007, 733 (733 et seq). 30 ECtHR, 29/3/2006 (GC), Achour v FRA, No. 67335/01, §§ 52 et seq, 59; still different the Chamber in its judgment of 10/11/2004; for comments on the case see Bachelet, RTDH 2007, 233 et seq and Dreyer, RTDH 2007, 733 et seq. 31 ECtHR, 10/7/2012, Del Rio Prada v ESP, No. 42750/09, §§ 58 et seq (pending with the GC); mutatis mutandis ECtHR, 12/2/2008 (GC), Kafkaris v CYP, No. 21906/04, § 148.

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III. Scope of protection

7, 8

Art. 7

tion of criminal law led in practice to an increase of almost nine years in the term the applicant had to serve since all the remission to which she was entitled for work done was thus invalidated. Criminal liability may also arise under international law. National laws may 8 thus be applied retrospectively if, at the time when an offence was committed, the conduct constituted a criminal offence under international law. As with the exception under paragraph 2, the extension of the possible legal basis for an individual’s criminal liability clearly shows, too, the historical context in which this rule was established: the legal basis was extended in order to deal with the injustices of the National Socialism regime.32 International crimes are, for instance, war crimes, genocide, crimes against humanity and such like.33 This principle does not apply, however, where international law is part of the domestic legal order and in this way influences the interpretation of the national criminal law. This aspect was neglected by the Court in the German Border Guard Cases. In the Streletz, Kessler and Krenz Case,34 the Court found that at the time when they were committed the applicants’ acts constituted offences defined under domestic law. It then examined the applicants’ criminal responsibility under international law and found that their acts also constituted criminal offences defined with sufficient accessibility and foreseeability by the rules of international law on the protection of human rights.35 At no point did the Court identify a criminal provision of international law. It rejected the applicants’ impunity by holding that there were no grounds of justification in domestic law. That implies, however, an extension of the scope of Article 7 beyond the rules of international criminal law to cases of human rights violations not involving crimes under international law.36 In the Kononov Case, the Court’s Grand Chamber found that there had not been a violation of Article 7 as it deemed it reasonable to find that the applicant, a former member of the ‘Red Partisans’, could have foreseen in 1944 that the impugned acts committed in Belarus (for which he was convicted in Latvia in the final instance in 2004) could be qualified as war crimes. Despite the fact that neither the USSR nor Latvia had ratified the Hague Convention respecting the Laws and Customs of War on Land of 1907, the Court held that, at time the applicant committed the acts in question, general international law had resolved the issue of individual responsibility, and that thus, having regard to the state of international law at the material time, there was a sufficiently clear legal basis for the applicant’s conviction and punishment for war crimes as the commander of the unit.37 At the end of its conclusions, the Court recalled that it was legitimate and foreseeable for a successor state – in the present case Latvia – to bring criminal proceedings against persons 32

Grabenwarter/Pabel, § 24 m.n. 139 with further references. Criminal responsibility under international law in: ECtHR, 17/1/2006, Kolk a. Kislyiy v EST, No. 23052/04 (conviction of the applicant for the deportation of Estonian civilians to the Soviet Union in 1949); ECtHR, 17/3/2009, Ould Dah v FRA, No. 13113/03 (conviction for acts of torture committed in Mauritania by French courts); cf. Harris/O’Boyle/Warbrick, pp. 333 et seq; Shaw, International Law, 2nd ed., 2008, pp. 430 et seq. 34 For details see m.n. 11 below. 35 ECtHR, 22/3/2001, Streletz, Kessler a. Krenz v GER, No. 34044/96 et al, § 105. 36 Grabenwarter/Pabel, § 24 m.n. 139 with further references. 37 ECtHR, 17/5/2010 (GC), Kononov v LAT, No. 36376/04, §§ 227, 239. 33

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8–10

Article 7 – No punishment without law

who had committed crimes under a former regime and that successor courts could not be criticised for applying and interpreting the legal provisions in force at the material time during the former regime, but in the light of the principles governing a state subject to the rule of law and having regard to the core principles on which the Convention system is built.38 As one of the Court judges pointed out in his dissenting opinion, this conclusion raises doubts as to the foreseeability of the criminal responsibility of an individual. 9 According to Article 7 (2), this Article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations’. The Court has held in a number of cases that the two paragraphs of Article 7 are interlinked and are to be interpreted in a concordant manner.39 Thus, albeit worded as an exception, it has the same content as, and serves the same purpose as the reference to international law under paragraph 1. According to the intention of the drafters, Article 7 (2) was only a contextual clarification, included to ensure that there was no doubt about the validity of prosecutions after World War II in respect of crimes committed during that war.40 Thus, Article 7 (2) was not intended to allow for any general exception to the rule of non-retroactivity. Nowadays it has the function of excluding in certain cases the possibility of pleading innocent based on national law if the respective conduct constitutes a criminal offence under international law.41 The general principles of law recognised by civilised nations include ‘the general principles of law recognized by civilized nations’ within the meaning of Article 38 (1) (c) of the ICJ Statute. Thus, Article 7 (2) (as paragraph 1) refers to crimes against humanity and war crimes.42

3. The requirement of a sufficiently clear legal basis 10

Article 7 further provides for the requirement that an offence and the penalty provided for it must be clearly defined in the law. This requirement complements to the principle of legality. It is satisfied where the individual can know from the wording of the relevant provision and, if need be, with the assistance of the courts’ interpretation of it, what acts and omissions will make him criminally liable. Whether a criminal conviction was sufficiently foreseeable is assessed by the Court in an ex ante approach from the perspective of the accused.43 38 ECtHR, 17/5/2010 (GC), Kononov v LAT, No. 36376/04, § 241; see also ECtHR, 21/6/2011, Polednova´ v CZE, No. 2615/10 (conviction for murder of a prosecutor under the communist regime who had been involved in the elimination of opponents through a political trial). 39 ECtHR, 12/12/2002, Tess v LAT, No. 34854/02; ECtHR, 17/5/2010 (GC), Kononov v LAT, No. 36376/04, § 186; ECtHR, 18/7/2013 (GC), Maktouf a. Damjanovic´ v BIH, No. 2312/08, § 72. 40 ECtHR, 18/7/2013 (GC), Maktouf a. Damjanovic ´ v BIH, No. 2312/08, § 72. 41 Harris/O’Boyle/Warbrick, pp. 338 et seq; Grabenwarter/Pabel, § 24 m.n. 140 with further references. 42 Cromheecke/Dhont, in: vande Lanotte/Haeck, pp. 697 et seq with further references; Bleichrodt, in: van Dijk/van Hoof/van Rijn/Zwaak, pp. 661 et seq. 43 E.g. ECtHR, 17/2/2005, K. A. a. o. v BEL, No. 42758/98, § 55 (judge as the applicant); ECtHR, 13/12/2005, Witzsch v GER, No. 7485/03 (as regards an applicant who had been convicted twice for the same crime); ECtHR, 8/1/2007, Witt v GER, No. 18397/03 (a legal counsel as the applicant); ECtHR, 8/7/2008, Tolgyesi v GER, No. 554/03.

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III. Scope of protection

10, 11

Art. 7

Article 7 cannot be read as outlawing the gradual clarification of the rules of criminal liability through judicial interpretation from case to case, provided that the resultant development is consistent with the essence of the offence and can reasonably be foreseen.44 In the Kafkaris Case, the applicant had been sentenced to ‘life imprisonment’, which in the practice of the state authorities at the time when the applicant committed the offence was tantamount to imprisonment for a period of 20 years. After a change in the applicable legislation in Cyprus, ‘life imprisonment’ meant to last for life. The Court found that the issue at question was not that of a retrospective imposition of a higher penalty but a question of ‘quality of law’. It found that at the time the applicant committed the offence the relevant law taken as a whole was not formulated with sufficient precision so as to enable the applicant to discern, to a reasonable degree, the scope of the penalty of life imprisonment and the manner of its execution and that there had thus been a violation of Article 7.45 The Court found that a conviction was sufficiently foreseeable even in cases where 11 at the material time there was a state practice of impunity, and even where omitting the criminal behaviour in question entailed negative consequences for the applicant. The first of the German Border Guard Cases concerning the criminal responsibility of leading officials of the former GDR (Streletz, Kessler and Krenz), the Court had to consider whether the killings along the border between the two German States constituted, at the material time, offences defined with sufficient accessibility and foreseeability, or whether there had been a violation of the prohibition of retrospective application of criminal laws. It concluded that the GDR law had provided a sufficiently clear legal basis for the conviction of the accused. The Court took account of the fact that the state practice not only allowed such acts but politically desired them. However, as it pointed out, the applicants could not have been ignorant of the GDR’s constitution and legislation, nor of its international obligations, and gave regard to the fact that even at the material time the right to life was, internationally, the supreme value in the hierarchy of human rights.46 The Court held that the state practice flagrantly infringed the fundamental rights enshrined in the GDR’s constitution as well as its international obligation to respect human rights, which it explained, inter alia, with the ratification of the ICCPR. In doing so, the Court ignored the fact that the ICCPR had not been transposed into domestic law and thus was not binding upon the border guards.47 In the second German Border Guard Case concerning a soldier of the GDR National People’s Army (NVA) serving at the Berlin Wall (K.-H.W.), the Court took into account that the applicant, as a young soldier, had undergone the 44 ECtHR, 8/1/2007, Witt v GER, No. 18397/03; ECtHR, 22/11/1995, S.W. v UK, No. 20166/92, §§ 34 et seq; ECtHR, 17/2/2005, K.A. a. o. v BEL, No. 42758/98, § 52; ECtHR, 13/12/2005, Witzsch v GER, No. 7485/03 (as for a sufficiently foreseeable of convictions for denying Hitler’s and the NSDAP’s responsibility for the Holocaust in a private letter); ECtHR, 1/2/2000, Schimanek v AUT, No. 32307/96; ECtHR, 29/4/2008, Garagin v ITA, No. 33290/07; progressive development of criminal law in deviation from previous case law may nevertheless be in accordance with the Convention, cf. the Cases S.W. and C.R. (rape in matrimony) mentioned under m.n. 5. 45 ECtHR, 12/2/2008 (GC), Kafkaris v CYP, No. 21906/04, §§ 150, 152; as to the German legal order see ECtHR, 10/2/2009, Streicher v GER, No. 40384/04. 46 ECtHR, 22/3/2001, Streletz, Kessler a. Krenz v GER, No. 34044/96 et al, § 72. 47 Cf. Grabenwarter/Pabel, § 24 m.n. 142 with further references; Bleichrodt, in: van Dijk/van Hoof/van Rijn/Zwaak, pp. 659 et seq.

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Article 7 – No punishment without law

indoctrination of young NVA recruits and ran the risk of becoming the subject of an investigation by the military prosecution service if a fugitive succeeded in crossing the border. However, the constitution and the Criminal Code of the GDR had not been obscure regulations. Therefore, the axiom ‘ignorance of the law is no defence’ applied to the applicant, too. Moreover, he had voluntarily enlisted for a three-year period of military service and knew, as every citizen, of the nature of the border-policing regime. The applicant therefore knew or should have known that enlisting for the military service amounted to giving his allegiance to the regime in power and entailed the possibility of being posted to the border, where he would run the risk of being obliged to fire on unarmed fugitives. Not even a private soldier could show total, blind obedience to orders which flagrantly infringed not only the GDR’s own legal principles but also internationally recognised human rights, in particular the right to life, the supreme value in the hierarchy of human rights. Thus, the applicant’s conviction was not in breach of Article 7.48 In the Jorgic Case concerning the conviction of a man for setting up a paramilitary group which had participated in the arrest, detention, assault, ill-treatment and killing of Muslim men from three villages in Bosnia in 1992, and for shooting inhabitants of another village, the Court did not find a violation of Article 7 as it considered that the national courts’ interpretation of the crime of genocide could reasonably be regarded as consistent with the essence of that offence and could reasonably be foreseen by the applicant at the material time.49 In the Korbely Case, on the other hand, which concerned a retired Hungarian military officer who was charged with having committed crimes against humanity when participating in the quelling of a riot in Hungary in the 1956 revolution, it concluded that it had not been shown that it was foreseeable that the applicant’s acts constituted a crime against humanity under international law, as the killing of an insurgent in 1956 did not violate common Article 3 of the Geneva Convention. In the case concerned, the applicant’s conviction had been based on the finding that one of the victims was a non-combatant for the purposes of common Article 3 of the Geneva Convention. However, in order for the insurgent to have fallen within any of the categories of non-combatants protected by common Article 3, he would have needed to signal any intention to surrender in a clear and unequivocal way, namely by laying down arms and raising hands or at the very least by raising hands only. In the circumstances of the case, however, the Court was not satisfied that the deceased could be said to have laid down his arms or that he fell within any of the categories of non-combatants.50 The requirement of a sufficiently clear legal basis is not absolute, but varies in accordance with different criteria.51 The scope of the concepts of foreseeability and accessibility depends to a considerable degree on the content of the text in issue, the field it is designed to cover and the number and status of those to whom it is addressed. Technical or relatively vague terms, which in general might not be sufficiently clear, may be sufficiently clear if used in special fields of law applicable only to a limited number of persons, such as the disciplinary law of certain 48

ECtHR, 22/3/2001, K.-H.W. v GER, No. 37201/97, § 75. ECtHR, 12/7/2007, Jorgic v GER, No. 74613/01, § 114. 50 ECtHR, 19/9/2008 (GC), Korbely v HUN, No. 9174/02, §§ 90, 94 et seq. 51 Cromheecke/Dhont, in: vande Lanotte/Haeck, pp. 671 et seq. 49

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professional groups,52 in commercial criminal law53 or provisions sanctioning tax offences. Such terms may be used particularly in provisions applicable to acts committed by persons carrying on a professional activity, who are used to having to proceed with a high degree of caution when pursuing their occupation. They can on this account be expected to take special care in assessing the risks that such activity entails.54 A stricter standard generally applies also to persons in leading positions in the economy or in official functions in the State or other entities under public law. The requirement of a sufficiently clear legal basis also applies to cases where the legislator has to transpose a EU Directive into domestic law. In case a Directive in itself is not sufficiently precise, Member States are not hindered from transposing it into sufficiently clear national law.55

4. Prohibition of retrospective imposition of heavier penalties Article 7 (1) second sentence stipulates that a heavier penalty than the one that 12 was applicable at the time the criminal offence was committed shall not be imposed, which means that a heavier penalty may not be imposed retrospectively.56 Thus, the principle of non-retroactivity applies to both criminal provisions and the imposition of a penalty. In this context, the same questions arise as do with the retrospective establishment of criminal liability. Changes in prison legislation and in the conditions of release relate to the execution stage of the sentence and can thus not be construed as retrospectively imposing a heavier ‘penalty’ than that imposed by the trial court even if they render an individual’s imprisonment effectively harsher.57 Unlike Article 49 (1) third sentence of the EU Charter and Article 15 ICCPR, 13 Article 7, according to its wording, does not expressly provide for the right of the offender to be imposed the more lenient penalty if the maximum penalty is reduced by law after he has committed the crime. The Court in its previous established case law rejected that there was such a right. In clear deviation from its former position, it now holds that Article 7 requires the more lenient law to be retrospectively applied. The reasons given in the judgment particularly refer to EU law, which in the EU Charter contains a corresponding right. Moreover, according to the CJEU, such a right also forms part of the common constitutional traditions of the EU 52 EComHR, 14/12/1988, Delande v BEL, No. 14192/88 (legal counsel); EComHR, 21/5/1997, Klein Poelhuis v NED, No. 34970/97 (farmer); ECtHR, 28/3/1990, Groppera Radio AG a. o. v SUI, No. 10890/84, § 68 (broadcaster). 53 E.g. ECtHR, 6/10/2011, Soros v FRA, No. 50425/06, § 59 (The majority of the Court found that as a result of his status and experience as a famous institutional investor, well-known to the business community and a participant in major financial projects, the applicant could not have been unaware of the risk that he might be committing the offence of insider trading. Bearing in mind that there had been no comparable precedent, the applicant should have been particularly prudent.). 54 ECtHR, 15/11/1996, Cantoni v FRA, No. 17862/91, § 35 (‘medicinal products’). 55 ECtHR, 15/11/1996, Cantoni v FRA, No. 17862/91, § 30. 56 ECtHR, 8/6/1995, Jamil v FRA, No. 15917/89, §§ 34 et seq; ECtHR, 15/12/2009, Gurguchiani v ESP, No. 16012/06, § 40. 57 ECtHR, 12/2/2008 (GC), Kafkaris v CYP, No. 21906/04, §§ 151 et seq; for further details on the Kafkaris Case see m.n. 10 above; ECtHR, 6/9/2011, Mu¨ller v CZE, No. 48058/09 (Transfer decisions under the Convention on the Transfer of Sentenced Persons and its Additional Protocols concern the enforcement of a penalty. Any differences in the conditions for release or of detention between the respective countries fall within the sphere of execution of a penalty too).

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Member States. The wording of Article 7 does not exclude this broader understanding, which is also in line with other developments on the international level.58 14 If the sentence imposed on a person is within the latitude of both a former and the new criminal code and it cannot be said with any certainty that a lower sentence would have been imposed on him had the former code been applied, the crucial factor in the assessment of whether Article 7 (1) has been violated is whether the convict could have received a lower sentence had the code been applied in his case.59 If there exists a real possibility that the retroactive application of the newer code operates to the convict’s disadvantage as concerns the sentencing, it cannot be said that he was afforded effective safeguards against the imposition of a heavier penalty. 58 59

ECtHR, 17/9/2009 (GC), Scoppola (No. 2) v ITA, No. 10249/03, §§ 105 et seq. ECtHR, 18/7/2013 (GC), Maktouf a. Damjanovic´ v BIH, No. 2312/08, § 70.

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Bibliography

Article 8 – Right to family life 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. Article 8 – Droit au respect de la vie prive´e et familiale 1. Toute personne a droit au respect de sa vie prive´e et familiale, de son domicile et de sa correspondance. 2. Il ne peut y avoir inge´rence d’une autorite´ publique dans l’exercice de ce droit que pour autant que cette inge´rence est pre´vue par la loi et qu’elle constitue une mesure qui, dans une socie´te´ de´mocratique, est ne´cessaire a` la se´curite´ nationale, a` la suˆrete´ publique, au bien-eˆtre e´conomique du pays, a` la de´fense de l’ordre et a` la pre´vention des infractions pe´nales, a` la protection de la sante´ ou de la morale, ou a` la protection des droits et liberte´s d’autrui. Bibliography: Desgagne´, Integrating Environmental Values into the European Convention on Human Rights, AJIL 89 (1995), 263; Kiss, L’e´volution du concept de droit a` l’environnement, in: Mahoney/Matscher/Petzold/Wildhaber (ed.), Protecting Human Rights: The European Perspective, Studies in memory of Rolv Ryssdal, p. 677; Naismith, Private and Family Life, Home and Correspondence, in: de Salvia/Villiger (ed.), The Birth of European Human Rights Law, Liber Amicorum Carl Aage Nørgaard, 1998, p. 141; San Jose´, Environmental protection and the European Convention on Human Rights, 2005; Verschraegen, The right to private life and family life, the right to marry and to found a family, and the prohibition of discrimination, in: Boele-Woelki/Fuchs (ed.), Legal recognition of same-sex couples in Europe, 2003, p. 194. Leading Cases: ECtHR, 6/9/1978, Klass a. o. v GER, No. 5029/71 (telephone-tapping); Marckx v BEL, No. 6833/74 (right of succession of illegitimate children); ECtHR, 22/10/1981, Dudgeon v UK, No. 7525/76 (sexual self-determination); ECtHR, 28/5/1985, Abdulaziz a. o. v UK, No. 9214/80 (family life, expulsion); ECtHR, 18/12/1986, Johnston a. o. v IRL, No. 9697/82 (family life, illegitimate children); ECtHR, 26/3/1987, Leander v SWE, No. 9248/81 (data protection); ECtHR, 26/10/1988, Norris v IRL, No. 10581/83 (homosexuals); ECtHR, 16/12/1992, Niemietz v GER, No. 13710/88 (protection of business premises); ECtHR, 22/2/1994, Burghartz v SUI, No. 16213/90 (private life, right to a name); ECtHR, 26/5/1994, Keegan v IRL, No. 16969/90 (family life, procedual rights); ECtHR, 9/12/1994, Lo´pez Ostra v ESP, No. 16798/90 (environmental protection); ECtHR, 25/3/1998, Kopp v SUI, No. 23224/94 (correspondence); ECtHR, 2/8/2001, Boultif v SUI, No. 54273/00 (family life, expulsion); ECtHR, 13/2/2003, Odie`vre v FRA, No. 42326/98 (giving birth anonymously); ECtHR, 8/7/2003 (GC), Hatton a. o. v UK, No. 36022/97 (aircraft noise; environmental protection); ECtHR, 8/7/2003 (GC), Sommerfeld v GER, No. 31871/96 (family life; rights to access of a child’s father); ECtHR, 9/10/2003 (GC), Slivenko v LAT, No. 48321/99 (protection against expulsion); ECtHR, 24/6/2004, v. Hannover v GER, No. 59320/00 (protection of private life, rights regarding one’s image); ¨ ner v NED, No. 46410/99 (private and family life, expulsion, second ECtHR, 18/10/2006 (GC), U generation immigrants); ECtHR, 4/12/2007 (GC), Dickson v UK, No. 44362/04 (detainees access to methods of artificial fertilisation); ECtHR, 4/12/2008 (GC), S. a. Marper v UK, No. 30562/04 et. al. (storage of DNA-profils); ECtHR, 3/10/2009, Zaunegger v GER, No. 22028/04 (child custody).

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1

Article 8 – Right to family life Outline

I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Personal scope . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Natural persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Legal entities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Material scope. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Private life . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a) Physical and moral integrity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b) Protection of privacy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . c) Personal autonomy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Family life . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Home. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. Correspondence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Interferences. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Private life . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Family life . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Home. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. Correspondence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Justification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Prescribed by law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Legitimate aim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Necessary in a democratic society . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a) Private life. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b) Family life . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . c) Home . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . d) Correspondence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . VI. Positive Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Positive obligation to protect against interferences by third parties . 2. Positive obligations with regard to organisation and procedure . . . . . 3. Obligations to inform. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . VII. Case law on specific cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 3 3 4 5 6 7 9 13 19 25 27 29 29 33 37 39 42 43 50 51 52 62 66 68 72 73 81 89 92

I. Introduction 1

Article 8 contains a particular guarantee for the protection of privacy. It names four different spheres of protection: private life, family life, a person’s home and correspondence. These four spheres cannot be clearly distinguished from one another, they may rather overlap in various aspects.1 Together they form a broad guarantee for an individual’s freedom, which is indispensible for a free development of a person’s personality.2 Nevertheless, when considering the guarantee’s content or its classification within the system of rights and freedoms under the Convention, Article 8 may not be understood as ‘catch-all provision’ for cases in which an interference does not fall within the scope of the other guarantees under the Convention. The wording ‘to respect for’ does not change the fact that Article 8 is – like the other provisions under the Convention – a right primarily directed against interferences by the State: the essential purpose of the Article is to protect the individual against arbitrary interferences by the public authority with his private and family life.3 1

Harris/O’Boyle/Warbrick, p. 361. See Grabenwarter/Pabel, § 22 m.n. .1. 3 ECtHR, 23/7/1968, Case ‘relating to certain aspects of the laws on the use of languages in education in Belgium’, No. 1474/62 a. o., § 7; ECtHR, 13/6/1979, Marckx v BEL, No. 6833/74, § 31. 2

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It does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there exist positive obligations inherent in an effective respect for private and family life;4 similar to other guarantees under the Convention, Article 8 implies the obligation for the State to protect individuals from interferences with their fundamental right by third parties.5 Furthermore, the Article imposes the obligation on the State to provide for certain services such as procedural guarantees.6 In its Article 7 (1) the EU Charter adopts the right to private and family life 2 under Article 8 (1) of the Convention quite literally. In order to take into account the technological progress, the word ‘correspondence’ was replaced by ‘communication’.7 A special right to the protection of personal data, which does not exist in the Convention as a separate guarantee, was added in the form of Article 8 of the EU-Charta. On an international level the right to privacy is laid down in Article 17 of the ICCPR or Article 11 of the ACHR.8 Article 17 of the ICCPR does not contain a limitation clause similar to Article 8 (2).9 Its paragraph 2 explicitly mentiones a positive obligation to protect the individual against interferences or attacks. The same applies to Article 12 of the UDHR.

II. Personal scope 1. Natural persons All natural persons are subjects to the rights under Article 8. Especially in view of 3 the protection of family life, the question arises whether minors can rely upon the fundamental right. Since neither the individual guarantees nor Article 34, which lays down the right for individuals to file an application with the Court, allow limitations regarding the age, it is widely recognised that minors are also subjected to the fundamental right. Natural persons are entitled to file an application irrespective of their age.10 Usually minor children’s applications are filed by their legal guardian as the legal representative.11 Under certain circumstances, even a person who is not entitled under domestic law to represent another may nevertheless act before the Court in the name of the other person.12 In particular, minors 4 ECtHR, 13/6/1979, Marckx v BEL, No. 6833/74, § 31; ECtHR, 9/10/1979, Airey v IRL, No. 6289/73, § 32; ECtHR, 26/3/1985, X. a. Y. v NED, No. 8978/80, § 23. 5 See below m.n. 51 et seq. 6 ECtHR, 8/7/1987, W. v UK, No. 9749/82, § 64; ECtHR, 26/5/1994, Keegan v IRL, No. 16969/90, § 51 et seq.; ECtHR, 13/7/2000, Elsholz v GER, No. 25735/94, § 52; in detail see below m.n. 57 et seq. 7 Expl. relating to Article 7 a. 8 EU Charter, OJ C. EG 2000/C 364/01. 8 See Grabenwarter/Pabel, § 22 m.n. 2. 9 See Nowak, CCPR Commentary, 2nd ed., 2005, Article 17 m.n. 8. 10 See ECtHR, 13/6/1979, Marckx v BEL, No. 6833/74 where the ECtHR – without hesitation – assumes that the child’s right could possibly be violated. 11 See Grabenwarter/Pabel, § 22 m.n. 3. 12 ECtHR, 28/11/1988, Nielsen v DEN, No. 10929/84, § 56 et seq.; ECtHR, 13/7/2000 (GC), Scozzari a. Giunta v ITA, No. 39221/98 a. o., § 138. The father who does not have the care and custody of his child is able to file a complaint in the child’s name in a proceeding originating in differences between the parents; see ECtHR, 6/12/2001, Petersen v GER, No. 31178/96, § 1; ECtHR, 27/7/2006, Iosub Caras v ROM, No. 7198/04, § 20.

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can apply to the Court even, or indeed especially, if they are represented by a mother who is in conflict with the domestic authorities and criticises their decisions and conduct as not being consistent with the rights guaranteed by the Convention. The Court considers that otherwise in the event of a conflict over a minor’s interests between a natural parent and the person appointed by the authorities to act as the child’s guardian, there is a danger that some of those interests will never be brought to the Court’s attention and that the minor will be deprived of effective protection of his rights under the Convention. Consequently, even though the mother has been deprived of parental rights – indeed that is one of the causes of the dispute which she has referred to the Court – her standing as the natural mother suffices to afford her the necessary power to apply to the Court on the children’s behalf, too, in order to protect their interests.13

2. Legal entities 4

In view of guarantees provided by the Convention and the right to an individual application according to Article 34, it becomes clear that legal entities may invoke the rights under Article 8 of the Convention as well. Article 8 not only applies to the interests of ‘home’ and ‘correspondence’, such as in cases of seizures of offices and other premises14 or the monitoring of correspondences of a legal entity15, but also to their interest of ‘private life’ in cases of data16 or environmental protection.17

III. Material scope 5

According to the wording of Article 8, four different spheres within the scope of the right can be identified. Protected are the respect for private life and family life, a person’s home and his correspondence. Even though these individual rights may overlap in various ways, they still can be distinguished from one another to a large extent. Each of them has specific characteristics determined by the wording of Article 8 and developed by the case law of the Court. For an applicant it is sufficient to submit a violation of Article 8 without having to determine which of these interests is concerned in the individual case.18 Therefore, a strict separation is not necessary.

1. Private life 6

Article 8 guarantees the respect for private life. This provision attempts to secure to the individual a sphere within which he can freely pursue the development and fulfilment of his personality.19 In this respect Article 8 protects, generally speaking, 13

ECtHR, 13/7/2000 (GC), Scozzari a. Giunta v ITA, No. 39221/98 a. o., § 138. See m.n. 39. 15 See Grabenwarter/Pabel, § 22 m.n. 4. 16 See Grabenwarter/Pabel, § 22 m.n. 4. 17 ECtHR, 29/6/1999, Bernard a. o. v LUX, No. 29197/95, § 1; Naismith, Private and Family Life, Home and Correspondence, in: de Salvia/Villiger, p. 141 (149). 18 EComHR, 10/7/1978, X., No. 8257/78,; see also Heringa/Zwaak, in: van Dijk/van Hoof/van Rijn/Zwaak, pp. 665 et seq. 19 EComHR, 1/7/1980, Deklerck, DR 21, 116 et seq. 14

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the free development of the personality of the subject to the fundamental right. In the Court’s case law the term ‘private life’ has been interpreted widely. The Court recognises that a person’s interactions with others, even in a public context, may also fall within the scope of private life.20 There is, however, nothing in the Court’s established case-law which suggests that the scope of private life extends to activities which are of an essentially public nature. Insofar the Court draws a distinction between carrying out an activity for personal fulfilment and carrying out the same activity for a public purpose, where one cannot be said to be acting for personal fulfilment alone.21 For example, in the Friend, Countryside Alliance a. o. Case the Court considered hunting not be an activity protected under Article 8. Although it is a public activity and interpersonal relationships are developed through it, in the present case the ECtHR found that hunting was too far removed from the applicants’ personal autonomy and the interpersonal relations they relied on were too broad.22 The particular substance of the right to respect for one’s private life under Article 8 has been outlined by the Court’s case law. It may be summarised in three different categories of cases. The following parts of private life are protected: a person’s moral and physical integrity (see below m.n. 7), his privacy (see below m.n. 9) and the capacity of the individual to determine his identity (see below m.n. 13). These interests within the sphere of private life are connected to one another. The personal autonomy is often reflected in the way a person lives and requires both, the respect of moral and physical integrity and privacy.

a) Physical and moral integrity Article 8 (1) protects the individual’s right to exercise control and take decisions 7 over his own body. The object of protection is thus one’s physical and psychological integrity.23 Apart from the right to life guaranteed under Article 2 and the prohibition of torture and inhuman and degrading treatment laid down in Article 3 as fundamental rights of the Convention, Article 8 provides for physical integrity.24 The distinction between the prohibition of inhuman treatment and securing physical integrity according to Article 8 (1) is made on the basis of the severity and quality of the measure in question. Article 3 is only concerned where the interference with the physical integrity reaches a certain level of severity and at the same time reflects humiliation. Where a measure falls short of Article 3 treatment, it may, however, fall foul of Article 8 of the Convention.25 The protection of physical integrity is closely related to the right to personal autonomy as regards the sexual life. Sexual activities are part of the right to respect for private life under Article 8.26 From this it follows that the State may not restrict 20

ECtHR, 16/2/1992, Niemietz v GER, No. 13710/88, § 29; ECtHR, 16/2/2000 (GC), Amann v SUI, No. 27798/95, § 65. 21 ECtHR, 24/11/2009, Friend a. Countryside Alliance a. o. v UK, No. 16072/06 a. 27809/08, § 42 et seq. 22 ECtHR, 24/11/2009, Friend a. Countryside Alliance a. o. v UK, No. 16072/06 a. 27809/08, § 43. 23 Reid, m.n. IIB-597. 24 See Naismith, in: de Salvia/Villiger, p. 150. 25 ECtHR, 13/5/2008, Juhnke v TUR, No. 52515/99, § 69 et seq.; See also Article 3 m.n. 2. 26 ECtHR, 22/10/1981, Dudgeon v UK, No. 7525/76, § 41; ECtHR, 26/10/1988, Norris v IRL, No. 10581/83, § 38; ECtHR, 16/9/2008, Pay v UK, No. 32792/05. The Court did not answer the

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its individuals’ autonomy over their sexual life, such as the prohibition to choose a homosexual partner.27 In view of the Court, also gender re-assignment (so-called transsexuality) is an expression of a person’s autonomous control over his body and therefore a conduct protected by Article 8 (1).28 8 Article 8 protects the legal position of mothers and fathers in connection with the beginning of human life and medical interventions in that regard. This includes choices and decisions of a mother regarding abortion.29 Also the possibility to become a parent by the use of in vitro fertilisation falls within the scope of the right to private life.30 However, States are not obliged to legally permit artificial procreation.31 The right concerning the decision to become a parent incorporates the right of choosing the circumstances of becoming a parent, i. e. giving birth at home.32 The question whether or not the unborn life is protected by Article 2 (1) first sentence and at the same time to what extent the State has to comply with positive obligations regarding the respect for private life of becoming mothers has not yet been fully determined by the Court’s case law.33 In particular, it is questionable whether it must – at least in certain cases – be possible for a woman to have an abortion without being made subject to the threat of a penal sanction, due to the granted right of a woman to autonomously decide over her body under Article 8 (1). A general prohibition of abortion which may interfere with the physical integrity of pregnant women concerns the scope of protection of Article 8.34 On the occasion of a German case in 1977, the Commission stated that pregnancy and its termination are not just a matter to the private life of the mother.35 In the Case A., B. and C against Ireland, the Court emphasised that Article 8 cannot be interpreted as conferring a right to abortion. The woman’s right to respect for her private life must be weighed against other competing rights and freedoms invoked including those of the unborn child. Article 8 guarantees a right to pre-implantation diagnosis when artificial procreation and termination of pregnancy on medical grounds are allowed.36 question whether sadomasochistic pratices which may lead to considerable injuries fall within the scope of Article 8, ECtHR, 19.2.1997, Laskey, Jaggard a. Brown v UK, No. 21627/93 a. o., § 36. As to the question whether public sexual conduct is protected under Article 8, see Harris/O’Boyle/ Warbrick, p. 370 et seq. 27 ECtHR, 22/10/1981, Dudgeon v UK, No. 7525/76, § 41; ECtHR, 26/10/1988, Norris v IRL, No. 10581/83, § 38. 28 CF. the judgments ECtHR, 17/10/1986, Rees v UK, No. 9532/81, § 37; ECtHR, 27/10/1990, Cossey v UK, No. 10843/84, § 36; ECtHR, 30/7/1998 (GC), Sheffield a. Horsham v UK, No. 22985/ 93 a. o., § 51; ECtHR, 11/7/2002 (GC), Christine Goodwin v UK, No. 28957/95, § 71 et seq. 29 See in this context the ECtHR’s judgment in a case where a Polish woman faced the danger of losing her sight due to the fact that Polish doctors refused to give her the possibility of an abortion, ECtHR, 20/3/2007, Tysia˛c v POL, No. 5410/03, §§ 103 et seq.; remarks Larralde, RTDH 2007, 855. 30 ECtHR, 10/4/2007 (GC), Evans v UK, No. 6339/05, § 71; ECtHR, 3/11/2011 (GC), S.H. a. o. v AUT, No. 57813/00, § 82; ECtHR, 2/10/2012, Knecht v ROM, No. 10048/10, § 54; see also ECtHR, 4/12/2007 (GC), Dickson v UK, No. 44362/04, § 66; see Gallus, La procre´ation me´dicalement assiste´e et les droits de l’homme, RTDH 2008, 879 (887 et seq.). 31 ECtHR, 3/11/2011 (GC), S.H. a. o. v AUT, No. 57813/00, §§ 106, 113, 115, 116. 32 ECtHR, 14/12/2010, Ternovszky v HUN, No. 67545/09, § 22. 33 Explicitly leaving the question unaswered ECtHR, 8/7/2004 (GC), Vo v FRA, No. 53924/00, § 79 et seq.; see above Article 2 m.n. 3. 34 ECtHR, 16/12/2010 (GC), A., B. a. C. v IRL, No. 25579/05, §§ 213 et seq. 35 EComHR, Rep. 12/7/1977, Bru ¨ ggemann a. Scheuten, DR 10, 100 (116). 36 ECtHR, 11/2/2013, Costa a. Pavan v ITA, No. 54270/10, §§ 66 et seq.

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b) Protection of privacy The respect for privacy is another sphere protected within private life under 9 Article 8. The fundamental right includes a negative obligation regarding a State’s investigation into one’s privacy. In this respect the respect for private life coexists alongside the protection of a person’s home which is expressly contained in Article 8 (see below m.n. 25). Also actions of an individual in a public place outside of his privacy may give rise to an interference with private life protected under Article 8. To move in public without being monitored or recorded by a state authority falls within the scope of protection of Article 8.37 Although the level of protection may be lowered where a person leaves the sphere of privacy and consciously acts publicly.38 On this point, the Court examines whether in the public space the person concerned had had a ‘reasonable expectation of privacy’.39 Due to the possibilities of modern computer-based collection and analysis of 10 data, the protection of personal information became an important part of the guarantees under Article 8. Data protection is seen as a particular part of the right to respect for private life.40 An issue under Article 8 is raised where data of a subject to the fundamental right is collected, recorded or analysed and his private life is thereby affected.41 If a State has access to information relating to a person’s private life, it is in general not allowed to make use of it or store the information.42 Moreover, public information can fall within the scope of private life where it is systematically collected and stored in files held by the authorities.43 Therefore, the data protected may not only include information about one’s private life, but also about business matters and the public life of a person – such as information about political activities and the publishing and distribution of leaflets.44 Also an individual communication with others – be it private or in public – is covered by the notion of ‘private life’. Thus telephone conversations, be they private or business conversations, are not just protected under Article 8 (1) under the notion of ‘correspondence’ but also under ‘private life’.45 A person’s right to protection of his or her reputation is encompassed by 11 Article 8 as being part of the right to respect for private life.46 However, Article 8 cannot be relied on in order to complain of damage to an individual’s reputation 37

ECtHR, 28/1/2003, Peck v UK, No. 44647/98, § 59 et seq. See Reid, m.n. IIB-583. 39 ECtHR, 26/7/2007, Peev v BUL, No. 64209/01, § 37 et seq. with further references. 40 See Grabenwarter/Pabel, § 22 m.n. 10. 41 ECtHR, 17/2/2011, Wasmuth v GER, No. 12884/03, § 74. 42 ECtHR, 26/3/1987, Leander v SWE, No. 9248/81, § 48; ECtHR, 16/2/2000 (GC), Amann v SUI, No. 27798/95, § 69, 80; ECtHR, 4/5/2000 (GC), Rotaru v ROM, No. 28341/95, § 46. 43 ECtHR, 4/5/2000 (GC), Rotaru v ROM, No. 28341/95, § 43. 44 ECtHR, 25/3/1998, Kopp v SUI, No. 23224/94, § 53; ECtHR, 4/5/2000 (GC), Rotaru v ROM, No. 28341/95, § 43 et seq.; ECtHR, 18/11/2008, Cemalettin v TUR, No. 22427/04, § 33. 45 ECtHR, 6/9/1978, Klass a. o. v GER, No. 5029/71, § 41; ECtHR, 2/8/1984, Malone v UK, No. 8691/79, § 64; ECtHR, 25/6/1997, Halford v UK, No. 20605/92, § 44. 46 ECtHR, 15/11/2007, Pfeifer v AUT, No. 12556/03, § 35; ECtHR, 14/10/2008, Petrina v ROM, No. 78060/01, §§ 28 et seq; ECtHR, 18/11/2008, Cemalettin v TUR, No. 22427/04, § 36; ECtHR, ¨ zpinar v TUR, No. 20999/04, 28/4/2009, Karako´ v HUN, No. 39311/05, § 23; ECtHR, 19/10/2010, O § 47; ECtHR, 21/10/2010, Polanco Torres et Movilla Polanco v ESP, No. 34147/06, § 40; see Hochmann, La protection de la re´putation, RTDH 2008, 1171 (1172 et seq.). 38

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which is the foreseeable consequence of one’s own actions such as, for example, the commission of a criminal offence.47 In addition, Article 8 guarantees a right to present oneself, which relates to the right to personal autonomy over one’s body and the protection of privacy. The individual has the right to choose in what manner he wants to be presented in public. The scope of Article 8 therefore includes rights in terms of protection of one’s image.48 Furthermore, as a means of personal identification and of linking to a family, a person’s name concerns his or her private or family life.49 12 A State’s acknowledgment of the real marital status of a person, be it, inter alia, married, single, divorced, widow or widower, forms part of his or her personal and social identity, and indeed psychological integrity protected by Article 8. The Court therefore considers that registration of a marriage, being a recognition of an individual’s legal civil status, which undoubtedly concerns both private and family life, comes within the scope of Article 8 (1).50

c) Personal autonomy Article 8 (1) further protects the right to freely choose the way to live according to own ideas and without state influence. The right to respect for private life secures a sphere within which one can freely pursue the development and fulfillment of one’s personality. In principle, whenever the State enacts rules for the behavior of the individual within this sphere, it interferes with the respect for private life.51 The guarantee is thereby only directed towards the core possibilities of expressing personality as parts of the freedom to choose the way to live,52 such as the right to freely choose clothing and hairstyle53 and to freely choose one’s doctor.54 14 In the Pretty judgment, the Court established that the notion of personal autonomy is an important principle underlying the guarantees of Article 8 of the Convention. Without in any way negating the principle of sanctity of life protected under the Convention, the Court considered that, in an era of growing medical sophistication combined with longer life expectancies, many people were concerned that they should not be forced to linger on in old age or in states of advanced physical or mental decrepitude which conflicted with strongly held ideas 13

47 ECtHR, 16/10/2008, Taliadouou a. Stylianou v CYP, No. 39627/05 a. 39631/05, § 56; ECtHR, 16/10/2008, Kyriakides v CYP, No. 39058/05, § 52; ECtHR, 3/4/2012 (GC), Gillberg v SWE, No. 41723/06, § 67. 48 ECtHR, 28/1/2003, Peck v UK, No. 44647/98, § 60 et seq.; ECtHR, 24/6/2004, v. Hannover v GER, No. 59320/00, § 52 et seq.; from the perspective of freedom of the press as guaranteed by Article 10 see ECtHR, 13/5/2003, Bou Gibert a. El Hogar Y la Moda S. A. v ESP, No. 14929/02; ¨ sterreichischer ECtHR, 1/7/2003, Socie´te´ Prisma Presse v FRA, No. 71612/01; ECtHR, 25/5/2004, O Rundfunk v AUT, No. 57597/00. As to the comission’s decision see Reid, m.n. IIB-581. 49 ECtHR, 22/2/1994, Burghartz v SUI, No. 16213/90, § 24; ECtHR, 25/11/1994, Stjerna v FIN, No. 18131/91, § 37; ECtHR, 24/10/1996, Guillot v FRA, No. 22500/93, § 27. 50 ECtHR, 20/7/2010, Dadouch v MLT, No. 38816/07, § 48. 51 EComHR, 11.7.1980, Deklerck, DR 21, 116. 52 See Grabenwarter/Pabel, § 22 m.n. 12. 53 EComHR, 15/5/1980, McFeeley, DR 20, 44; EComHR, 6/3/1982, X., No. 8231/78 (wearing uniforms in prisions; different EComHR, 3/3/1986, Stevens, DR 46, 245 (school uniforms); EComHR, 1/3/1978, Sutter, DR 16, 166 (hairstyle). 54 See ECtHR, 15/6/1992, Lu ¨ di v SUI, No. 12433/86, § 40.

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of self and personal identity. By way of conclusion, the Court was ‘not prepared to exclude’ that preventing the applicant by law from exercising her choice to avoid what she considered would be an undignified and distressing end to her life constituted an interference with her right to respect for private life as guaranteed under Article 8 (1).55 Hence, an individual’s right to decide by what means and at what point his or her life will end, provided he or she is capable of freely reaching a decision on this question and acting in consequence, is one of the aspects of the right to respect for private life within the meaning of Article 8.56 Within the right to freely choose the way to live the protection of a minority’s 15 lifestyle is guaranteed under Article 8.57 Apart from other fundamental rights, in particular the freedom of religion but also the freedom of expression, a minority group may as well rely on the right to respect for private life in order to be respected in the Member States.58 However, a hunting community may not claim to be an ethnic or national minority in the commonly understood sense of the term. Mere participation in a common social activity does not create membership of a national or ethnic minority. Moreover, the Court does not consider that hunting amounts to a particular lifestyle essential for the identity of a person.59 Beyond the self-contained right to respect for family life, expressly mentioned in 16 Article 8 (1), the fundamental right protects in general the respect for relations with other persons. According to the Court’s case law the respect for private life comprises to a certain degree the right to establish and develop relationships with other human beings. The Court does not limit the notion of private life to an ‘inner circle’ in which the individual may live his own personal life as he chooses and excludes therefrom entirely the outside world not encompassed within that circle.60 Therefore, Article 8 to a certain degree protects the establishment but also the dismissal of relationships between individuals which is an essential part of the development of one’s personality und with that of private life.61 Since this embraces aspects of an individual’s social identity, it is accepted that the totality of social ties between settled migrants and the community in which they are living constitute part of the concept of ‘private life’. Thus, the Court considers that the expulsion of a settled migrant constitutes interference with his or her right to respect for private life.62 In certain circumstances, the protection under Article 8 might remain even when the person to whom the relationship existed, deceased.63 55 ECtHR, 29/4/2002, Pretty v UK, No. 2346/02, §§ 61 et seq; ECtHR, 19/07/2012, Koch v GER, No. 497/09, § 51. 56 ECtHR, 20/1/2011, Haas v SUI, No. 31322/07, § 51. 57 For example indirect recognition of a right to speak a minority language: ECtHR, 23/7/1968, Case ‘relating to certain aspects of the laws on the use of languages in education in Belgium’, No. 1474/62 a. o. protection of moving in caravans (so-called ‘Gypsy-Cases’): e.g. ECtHR, 18/1/2001 (GC), Chapman v UK, No. 27238/95, § 73; internancy with reindeers as a particular way of life of the Sami: EComHR, 3/10/1983, G. a. E., No. 9278/81. 58 See Grabenwarter/Pabel, § 22 m.n. 12. 59 ECtHR, 24/11/2009, Friend a. Countryside Alliance a. o. v UK, No. 16072/06 a. 27809/08, § 44. 60 ECtHR, 16/12/1992, Niemietz v GER, No. 13710/88, § 29; ECtHR, 16/2/2000 (GC), Amann v SUI, No. 27798/95, § 65; EComHR, 15/5/1980, McFeeley. 61 For examples see Reid, m.n. IIB-581. 62 ECtHR, 18/10/2006 (GC), U ¨ ner v NED, No. 46410/99, § 59; remarks Raux, RTDH 2007, 837. 63 ECtHR, 2/6/2005, Znamenskaya v RUS, No. 77785/01, § 23 et seq. (proceedings concerning the parternity and the name of a stillborn child); ECtHR, 17/1/2006, Elli Polukas Do¨dsbo v SWE,

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Professional or business relations fall within the scope of the protection of private life. As was rightly pointed out by the Court, there is no reason to exclude such relations, after all, in the course of their working lives the majority of people have a significant opportunity of developing relationships with the outside world. It is not always possible to distinguish clearly which of an individual’s activities form part of his professional or business life and which do not.64 Accordingly, aspects that may fall under the freedom to choose an occupation and the right to engage in work under domestic law and EU law, are protected under Article 8 of the Convention. Since the possibility to engage in professional activities affects the ability to develop relationships with the outside world to a very significant degree and has obvious repercussions in terms of earning a living which is linked to the enjoyment of private life, the Court considers the engagement in work65 as well as to pursuit a profession (in cases of employment)66 as part of private life guaranteed under Article 8. However, Article 8 does not protect illegal professional activities. Hence, the Court found the dismissal of a professor who refused to break his promise of secrecy to the participants in his study and as a consequence was convicted for misuse of office to be a foreseeable consequence of the commission of a criminal offence by the applicant in respect of which Article 8 cannot be relied on.67 18 Situations that concern questions of environmental protection may as well be included in the scope of Article 8 (1).68 The pollution of the environment can considerably undermine one’s private life and the relationships to others or even make them practically impossible.69 In cases concerning environmental pollution, the pollution must attain a certain minimum level.70 Where heavy pollution or noise generated by aircrafts has a negative impact on health and the quality of an individual’s private life, Article 8 is concerned.71 A mere annoyance does not result in a violation of Article 8.72 However, neither Article 8 nor any other 17

No. 61564/00, § 24 (repatriation of a husband’s urn to the family grave); ECtHR, 14/2/2008, HadriVionnet v SUI, No. 55525/00, § 51 et seq. (stillborn child being buried in a mass grave). 64 ECtHR, 16/12/1992, Niemietz v GER, No. 13710/88, § 29; ECtHR, 16/2/2000 (GC), Amann v SUI, No. 27798/95, § 65. 65 ECtHR, 27/7/2004, Sidabras a. Dz ˇiautas v LTU, No. 55480/00, § 47 et seq.; ECtHR, 28/5/2009, Bigaeva v GRE, No. 26713/05, §§ 22 et seq; ECtHR, 24/7/2012, D.M.T. a. D.K.I. v BUL, No. 29476/06, § 102. 66 ECtHR, 7/4/2005, Rainys a. Gasparavic ˇius v LTU, No. 70665/01 a. o., § 34; ECtHR, 16/10/2008, Taliadouou a. Stylianou v CYP, No. 39627/05 a. 39631/05, § 54; ECtHR, 16/10/2008, Kyriakides v ¨ zpinar v TUR, No. 20999/04, § 43 et seq; ECtHR, CYP, No. 39058/05, § 50; ECtHR, 19/10/2010, O 9/1/2013, Oleksandr Volkov v RUS, No. 21722/11, §§ 165 et seq. 67 ECtHR, 3/4/2012 (GC), Gillberg v SWE, No. 41723/06, §§ 71 et seq. 68 See Desgagne ´, Integrating Environmental Values into the European Convention on Human Rights, AJIL 89 (1995), 263 (271 et seq.); Cook, Environmental Rights as Human Rights, EHRLR 2002, 196 (198 et seq.). San Jose´, Environmental protection and the European Convention on Human Rights, 2005, 16 et seq. As to the case law of the EComHR see Sˇva´by, La Jurisprudence de la Commission en Matie`re d’Environnement, in: de Salvia/Villiger, p. 221 et seq. 69 See Grabenwarter/Pabel, § 22 m.n. 15. 70 ECtHR; 14/2/2012, Hardy & Maile vs UK, No. 7094/06, § 188. 71 ECtHR, 21/2/1990, Powell a. Rayner v UK, No. 9310/81, § 40; ECtHR, 9/12/1994, Lo ´ pez Ostra v ESP, No. 16798/90, § 51; ECtHR, 8/7/2003 (GC), Hatton a. o. v UK, No. 36022/97, § 96 et seq.; ECtHR, 9.6.2005, Fadeyeva v RUS, No. 55723/00, § 79 et seq. 72 ECtHR, 29/6/1999, Bernard a. o. v LUX, No. 29197/95, § 1; ECtHR, 29/9/2009, Galev v BUL, No. 18324/04.

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provision of the Convention guarantees the right to preservation of the natural environment as such.73

2. Family life The guarantee of the right to respect for family life, is based on the existence of a 19 “family”. It does not provide for a right to found a family.74 First of all, ‘family’ within the meaning of Article 8 covers a marriage-based relationship with or without minor children (so-called ‘family unit’). It includes the relationship that arises from a lawful and genuine marriage, even if certain elements of a typical family life are not (yet) established, such as a joint home.75 However, the notion of ‘family’ is not confined solely to marriage-based relationships and may encompass other de facto ‘family’ ties where the persons concerned are living outside of marriage. The Convention does not impose the obligation on Member States to ensure full equality of married and unmarried couples,76 even so, the relationships of unmarried couples fall within the meaning of ‘family’ under the Convention.77 The Court makes no distinction between a marriage based family and a ‘natural family’ (where the parents are/were not married, so-called ‘famille naturelle’), but it presupposes the existence of family ties between the partners.78 Against this background, when assessing whether a relationship can be said to amount to ‘family life’, a number of factors may be relevant, including whether the couple lives together, the length of their relationship and whether they have demonstrated their commitment to each other by having children together79 or by other means. The difficulties in defining family life become obvious in the case of X., Y. and Z. The applicant X., born with a female body, is a transsexual who has undergone gender reassignment surgery in 1976. He has lived with Y., to all appearances as her male partner, since 1979. Under British law X. was still regarded as a female. Z., was born in 1992 to Y. as a result of artificial insemination by donor. X. was involved throughout that process and has acted as Z.’s ‘father’ in every respect since the birth. In these circumstances, 73

ECtHR, 22/5/2003, Kyrtatos v GRE, No. 41666/98, § 52; ECtHR, 2/12/2010, Ivan Atanasov v BUL, No. 12853/03, § 66; ECtHR, 10/2/2011, Dubetska a. o. v UKR, No. 30499/03, § 105. 74 ECtHR, 13/6/1979, Marckx v BEL, No. 6833/74, § 31; ECtHR, 28/5/1985, Abdulaziz a. o. v UK, No. 9214/80, § 62; ECtHR, 26/2/2002, Frette´ v FRA, No. 36515/97, § 32; ECtHR, 22/1/2008 (GC), E. B. v FRA, No. 43546/02, § 41; founding a familiy by adoption see m.n. 63. 75 ECtHR, 28/5/1985, Abdulaziz a. o. v UK, No. 9214/80, § 62. 76 ECtHR, 2/11/2010 (GC), Serife Yig ˘it v TUR, No. 3976/05, § 102. A right to recognition of a religious marriage does not exist where a family life is possible without such recognition; ECtHR, 03/04/2012 (GC), van der Heijden v NED, No. 42857/05, §§ 69 et seq. States are entitled to set boundaries to the scope of testimonial privilege and to draw the line at marriage or registered partnerships. 77 As to the term ‘family life’ under the ECHR see Coussirat-Couste `re, Studies in memory of Rolv Ryssdal, pp. 281 et seq. 78 ECtHR, 13/6/1979, Marckx v BEL, No. 6833/74, § 31; ECtHR, 18/12/1986, Johnston a. o. v IRL, No. 9697/82, § 55; ECtHR, 26/5/1994, Keegan v IRL, No. 16969/90, § 44; ECtHR, 13/7/2000, Elsholz v GER, No. 25735/94, § 43; ECtHR, 12/7/2001 (GC), K. a. T. v FIN, No. 25702/94, § 150. See Villiger, Expulsion and the right to respect for private and family life (Article 8 of the Convention) – an introduction to the Commission’s case-law, Studies in honour of Ge´rard J.Wiarda, p. 658. 79 In the case ECtHR, 27/10/1994, Kroon a. o. v NED, No. 18535/91, § 30, the Court considered the fact that the applicants had four children together as sufficient even though they did not life together.

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the Court considered that de facto family ties link the three applicants.80 No such personal ties could have developed in the case of a child that was stillborn and its biological father had been imprisoned before its birth and died shortly thereafter.81 According to established case-law of the Court, the relationship of a same-sex couple did not fall within the scope of the respect for ‘family life’, but within ‘private life’ under Article 8.82 Due to a rapid evolution of social attitudes towards same-sex couples that has taken place in many Member States, the Court considered it artificial to maintain the view that, in contrast to a different-sex couple, a same-sex couple cannot enjoy ‘family life’ for the purposes of Article 8. Consequently, according to the Court, the relationship of a cohabiting same-sex couple living in a stable de facto partnership, falls within the notion of ‘family life’, just as the relationship of a heterosexual couple in the same situation would.83 20 The relationship between partners or parents must be distinguished from the relationship with their children. First of all, it follows from the concept of family life on which Article 8 is based that a child born of a family union is ipso jure part of that relationship; hence, from the moment of the child’s birth and by the very fact of it, there exists a bond between him and his parents amounting to ‘family life’, even if the parents are not then living together or are separated.84 Although the family life of married couples ends with divorce, the family life of their children continues. Cohabitation is therefore not a necessary requirement for the applicability of Article 8 under the head of “family life” and the existence of a family tie between the parents or between the parents and their child. The natural family relationship is not terminated by reason of the fact that the child is taken into public care,85 as such decisions are typically of temporary nature. In parallel to the Court’s case law on unmarried couples, when determining whether family ties between the child and the parents exist, the Court holds that the actual circumstances of the case are decisive. In the addition to the criteria mentioned above, the factual contact between the parents and the child86 or the recognition of paternity87 may 80 ECtHR, 22/4/1997 (GC), X., Y. a. o v UK, No. 21830/93, § 36; Vgl. Coussirat-Couste `re, Studies in memory of Ralv Ryssdal, p. 288 et seq. 81 ECtHR, 2/6/2005, Znamenskaya v RUS, No. 77785/01, § 26 et seq. With a view to the close relationship between a mother and her unborn child the request for determination of paternity affected the mother’s private life. 82 Verschraegen, The Right to Private Life and Family Life, the Right to Marry and to Found a Family and the Prohibition of Discrimination, in: Boele-Woelki/Fuchs (eds.), Legal Recognition of Same-Sex Couples in Europe, 2003, p. 194 (201); Grigolo, Sexualities and the ECHR: Introducing the Universal Sexual Legal Subject, EJIL 2003, 1023 (1037 et seq., 1042). Negating for a lesbian couple ECtHR, 10/5/2001, Mata Estevez v ESP, No. 56501/00; ECtHR, 24/6/2010, Schalk a. Kopf v AUT, No. 30141/04, 445, §§ 94, 95. 83 ECtHR, 24/6/2010, Schalk a. Kopf v AUT, No. 30141/04, § 94, 95; ECtHR, 22.7.2010, P. B. a. J. S. v AUT, No. 18984/02 § 30. 84 ECtHR, 21/6/1988, Berrehab v NED, No. 10730/84, § 21; ECtHR, 26/5/1994, Keegan v IRL, No. 16969/90, § 44; ECtHR, 13/7/2000, Elsholz v GER, No. 25735/94, § 43. 85 ECtHR, 8/7/1987, W. v UK, No. 9749/82, § 59; ECtHR, 24/3/1988, Olsson (No. 1) v SWE, No. 10465/83, § 59; ECtHR, 22/6/1989, Eriksson v SWE, No. 11373/85, § 58; ECtHR, 13/7/2000 (GC), Scozzari a. Giunta v ITA, No. 39221/98 a. o., § 169. 86 ECtHR, 21/6/1988, Berrehab v NED, No. 10730/84, § 21; ECtHR, 19/2/1996, Gu ¨ l v SUI, No. 23218/94, § 32. 87 This is also true where the recognition of paternity takes place 10 month after the birth of the child see ECtHR, 24/4/1996, Boughanemi v FRA, No. 22070/93, § 35. See further ECtHR, 26/5/1994, Keegan v IRL, No. 16969/, §§ 45, 51.

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be taken into consideration. Therefore, the family ties between a child and his not biological parent88 or foster mother can also come with the scope of family life protected under Article 8. Where the circumstances warrant it, family life must extend to the potential relationship which may develop between a child born out of wedlock and the biological father. Relevant factors which may determine the real existence in practice of close personal ties in these cases include the nature of the relationship between the natural parents and a demonstrable interest in and commitment by the father to the child both before and after the birth.89 Furthermore the term ‘family’ covers in principle also the relationship between close relatives, for example the relationship between grown-ups and their parents or between siblings,90 between grandparents and their grandchildren91 or between uncles/aunts and their nephews/nieces.92 In this case it may be necessary to assess whether the existing family ties are sufficiently strong as to fall within the meaning of Article 8.93 In that regard the Court requires particular elements of dependency that go beyond the usual emotional attachment.94 Some aspects of family life can involve a protection under Article 8 even if one of the persons concerned has died. Parents have the right to bury their daughter’s body within a reasonable period of time after the she died in a hospital.95 Article 8 also protects the right of a detainee to attend his parents’ funeral.96 A tie may be broken by subsequent events only in exceptional circumstances.97 21 When a child is adopted this leads to the end of family ties between the child and the natural parents.98 Of course this does not apply to the family ties to the natural parent when the child is adopted by the parents’ spouse or partner.99 A family life with the foster parents is established with the adoption the latest,100 whether a family life exists without adoption depends on the circumstances of the concrete case. A relationship, arising from a lawful and genuine adoption is sufficient to establish family life under Article 8, even in case the parents have not lived with their respective adopted children or not yet had sufficiently close de facto ties with them.101 The respect for family life within the meaning of Article 8 requires that a family 22 can live a common life corresponding to the bonds between them.102 According to the established case-law of the Court, the mutual enjoyment by parent and child of 88 See ECtHR, 22/4/1997, X., Y. a.o v UK, No. 21830/93, § 37; ECtHR, 28/10/1998, So ¨ derba¨ck v SWE, No. 24484/94, § 33. 89 ECtHR, 22/3/2012, Kautzor v GER, No. 23338/09, § 61; ECtHR; 22/3/2012, Ahrens v GER, No. 45071/09, § 58; see however ECtHR, 15/9/2011, Schneider v GER, No. 17080/07, § 82 where the ECtHR did not differentiate between family life and private life. 90 ECtHR, 24/4/1996, Boughanemi v FRA, No. 22070/93, § 35. 91 ECtHR, 13/6/1979, Marckx v BEL, No. 6833/74, § 45. 92 EComHR, Report from 27/6/1995, X., Y. a. §, No. 21830/93, § 52. 93 EComHR, Report from 27/6/1995, X., Y. a. §, No. 21830/93, § 52. 94 See e.g. ECtHR, 13/2/2001, Ezzouhdi v FRA, No. 47160/99, § 34. 95 ECtHR, 30/10/2001, Pannullo a. Forte v FRA, No. 37794/97, § 35, 37. 96 ECtHR, 12/11/2002, Ploski v POL, No. 26761/95, § 36 et seq. 97 ECtHR, 19/2/1996, Gu ¨ l v SUI, No. 23218/94, § 32; ECtHR, 24/4/1996, Boughanemi v FRA, No. 22070/93, § 35; ECtHR, 28/11/1996, Ahmut v NED, No. 21702/93, § 60. See also Forder, Article 8 ECHR: The Utter Limits of “Family Life” and the Law of Parenthood, MJ 1997, 125 (131). 98 EComHR, 11/7/1977, X., No. 7626/76; see further ECtHR, 28/10/1998, So ¨ derba¨ck v SWE, No. 24484/94, § 31; ECtHR, 7/8/1996, Johansen v NOR, No. 17383/90, § 78. 99 ECtHR, 13/12/2007, Emonet a. o. v SUI, No. 39051/03, § 84. 100 ECtHR, 28/10/1998, So ¨ derba¨ck v SWE, No. 24484/94, § 33. 101 ECtHR, 22/6/2004, Pini a. o. v ROM, No. 78028/01 a. o., § 143 et seq. 102 See Grabenwarter/Pabel, § 22 m.n. 19.

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each other’s company constitutes a fundamental element of family life and is one of the objectives of this guarantee. This still applies where the family ties between the parents are broken.103 Article 8 thus guarantees the non-custodial parent a right to visit and contact one’s child.104 It follows from Article 8 that if a child is taken into public care, the placement and its concrete circumstances have to fulfill certain requirements.105 In particular, Article 8 grants parents the right that sufficient and appropriate measures are taken to make a family reunification possible. This right includes visiting regulations or to enable parents to have contact by mail or telephone, in a manner that ensures a positive development of the relationship between parent and child.106 23 Foreigners may as well rely on the right to respect for family life under Article 8 (1). It follows from the guarantee for a family to be together that the legislator is limited when introducing provisions concerning residency.107 24 Article 8 does not provide for a right to certain financial benefits for families.108 However, the Court did state– without affirming the applicability of Article 8 – that by granting child benefits, States are able to demonstrate their respect for family life within the meaning of Article 8 of the Convention; these benefits therefore come within the scope of that provision.109 The claim for compensation of pension rights as a direct consequence of a divorce of a couple is a consequence of a marital life and aims at strengthening the position of the ‘weaker’ partner, although it is of a purely pecuniary nature, it is an expression of the respect for family life and falls within the scope of Article 8.110

3. Home 25

Article 8 provides for the right to respect for one’s home. Houses, flats and apartments are protected regardless of the legal nature or their use. Other buildings and parts of buildings (e.g. garages, cellars, terraces, attics) and certain outdoor areas (e.g. courtyards and gardens) may fall within the scope of protection.111 In these cases the protection depends on the purpose or the actual use of the premises concerned. Therefore, land over which the owner permits or causes a sport to be conducted is not protected.112 In particular, the scope of protection of Article 8 includes caravans, in so far as they are an integral part of the ethnic identity of gypsies, reflecting the long tradition

103 ECtHR, 7/8/1996, Johansen v NOR, No. 17383/90, § 52; ECtHR, 9/6/1998, Bronda v ITA, No. 22430/93, § 51; ECtHR, 13/7/2000, Elsholz v GER, No. 25735/94, § 43. 104 ECtHR, 11/10/2001, Hoffmann v GER, No. 34045/96, § 35. 105 ECtHR, 13/7/2000 (GC), Scozzari a. Giunta v ITA, No. 39221/98 a. o., § 201 et seq.; see further ECtHR, 24/3/1988, Olsson (No. 1) v SWE, No. 10465/83, § 80. 106 ECtHR, 12/7/2001, K. and T. v. Finland, No. 25702/94, §§ 177 et seq. 107 See for further detail m.n. 92 et seq. 108 See Grabenwarter/Pabel, § 22 m.n. 21. 109 ECtHR, 25/10/2005, Okpisz v GER, No. 59140/00, § 32; ECtHR, 25/10/2005, Niedzwiecki v GER, No. 58453/00, § 31. 110 ECtHR, 9/3/2010, Farzaneh Bigwand Ammdjadi v GER, No. 51625/08. 111 See Grabenwarter/Pabel, § 22 m.n. 22. 112 ECtHR, 24/11/2009, Friend a. Countryside Alliance a. o. v UK, No. 16072/06 a. 27809/08, § 45.

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of that minority of following a travelling lifestyle.113 Houseboats are also protected under the notion of respect for one’s home.114 However, vehicles parked on a public parking space are not included in the scope of protection.115 Further excluded are premises of a special (public) use such as prison cells116 and military barracks.117 In these cases the right to respect for private life may apply to persons living or working there. The meaning of the notion ‘home’ in Article 8 does not comprise an area of a State where one has grown up and where the family has its roots.118 The word ‘home’ under the Convention also includes business premises. Such an interpretation is fully consonant with the French text, since the word ‘domicile’ has a broader connotation than the word ‘home’ and may extend, for example, to a professional person’s office. In this context also, it may not always be possible to draw precise distinctions, since activities which are related to a profession or business may well be conducted from a person’s private residence and activities which are not related may well be carried on in an office or commercial premises.119 The right to respect for one’s home entitles everyone to a private space free of 26 interferences by the State. Thereby it establishes an area of retreat, in which the individual can live according to his or her own ideas and without influence of external demands and rules. Hence, the guarantee provides for the place-related aspects of privacy. The choice of one’s place of residence is an essentially private matter and the free exercise of that choice forms an integral part of the sphere of personal autonomy protected by Article 8.120 The fundamental right to respect for one’s home is a right primarly directed against interferences with the protected living area by the State. The right to respect for one’s home may also extend to the protection of certain lifestyles of minorities. The traditional lifestyle of living in mobile homes which allow travelling may be part of a nomadic existence and falls within the scope of Article 8.121 In this respect the guarantee – as well as the right to respect for private life – forms part of the protection of minorities under the Convention. The notion of the respect for one’s home under Article 8 may relate to property rights. In these cases the scope may overlap with Article 1 to Protocol No. 1. Therefore, the owner of a house that is rented out or vacant may as well rely on Article 8 if he wants to move back in.122 113 ECtHR, 18/1/2001, Beard v UK, No. 24882/94, § 84 (see also the judgements from the same day Chapman v UK [No. 27238/95], § 73; Coster v UK [No. 24876/94], § 87; Lee v UK [No. 25289/94]; § 75; Jane Smith v UK [No. 25154/94], § 80); ECtHR, 25/9/1996, Buckley v UK, No. 20348/92, § 54 et seq. 114 EComHR, 2/9/1992, Andresz, No. 19212/91, § 2. 115 EComHR, 30/5/1974, X., No. 5488/72, Yb 17, 222 (223). 116 EComHR, 17/5/1969, Wemhoff, CD 30, 56 (68 a. 69). 117 See Grabenwarter/Pabel, § 22 m.n. 22. 118 ECtHR, 18/12/1996 (GC), Loizidou v TUR, No. 15318/89, § 66. 119 ECtHR, 16/12/1992, Niemietz v GER, No. 13710/88, § 30 et seq; ECtHR, 16/4/2002, Ste ´s Colas Est a. o. v FRA, No. 37971/97, § 41. See however ECtHR, 25/2/1993, Miailhe v FRA, No. 12661/87, § 28 (left unanswered). See Heringa/Zwaak, in: van Dijk/van Hoof/van Rijn/Zwaak, p. 723. The Court examines a search of a workplace on the premisis of the authority only with a view to protection of private life, ECtHR, 26/7/2007, Peev v BUL, No. 64209/01, § 37; see also ECtHR, 3/6/2008, Steeg a. Wenger v GER, No. 9676/05 a. o. (office of a university professor). 120 ECtHR, 9/10/2012, Alkaya v TUR, No. 42811/06, § 30. 121 ECtHR, 18/1/2001 (GC), Chapman v UK, No. 27238/95, § 73; Coster v UK, No. 24876/94, § 87; Beard v UK, No. 24882/94, § 84; Lee v UK, No. 25289/94, § 75; Jane Smith v UK, No. 25154/94, § 80. 122 ECtHR, 24/11/1986, Gillow v UK, No. 9063/80, § 47.

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4. Correspondence The right to respect for correspondence is based on a broad interpretation of the term ‘correspondence’.123 Every written communication, be it private or business124, sealed or not, is protected. The right covers the channel of communication and the communication process from sending until receiving of a message. This applies whether or not the transport or communications system is operated by the State or by a private company.125 Furthermore, all messages that the recipient has already received and that are stored by him also fall within the scope of protection.126 28 Telephone conversations are also included in the notion of correspondence.127 Every way of communicating – also unwritten – may be qualified as ‘correspondence’ within the meaning of Article 8 if under domestic law it is regulated and protected comparably with actual written correspondences.128 The aim of the respect for one’s correspondence is decisive: to protect undisclosed messages from one person to another from interferences by the State. This means that Article 8 protects the confidentiality of all the exchanges in which individuals may engage for the purposes of communication.129 In particular confidential written electronic communication in all forms is protected (text messages, e-mail, etc.).130 Webpages and newsgroups open to the public are not protected under the respect for correspondence, as they are not confidential.131 The protection of one’s correspondence is of particular importance in cases where an individual is living in conditions especially exposed to the State.132 The most important example is prisoners’ mail.133 27

IV. Interferences 1. Private life 29

Where the State administers a medical examination or treatment against the will of the person, the treatment constitutes an interference with the right to 123

Velu/Ergec, § 680; ECtHR, 8/7/1987, W. v UK, No. 9749/82, § 64. ECtHR, 16/12/1992, Niemietz v GER, No. 13710/88, § 32. 125 Velu/Ergec, § 680. 126 Vgl. ECtHR, 16/12/1992, Niemietz v GER, No. 13710/88, § 32; ECtHR, 25/2/1993, Miailhe v FRA, No. 12661/87, § 28; ECtHR, 25/2/1993, Funke v FRA, No. 10828/84, § 48. 127 ECtHR, 6/9/1978, Klass a. o. v GER, No. 5029/71, § 41; ECtHR, 25.3.1998, Kopp v SUI, No. 23224/94, § 53; ECtHR, 25/9/2001, P. G. a. J. H. v UK, No. 44787/98, § 42. 128 See Grabenwarter/Pabel, § 22 m.n. 25. 129 ECtHR, 6/12/2012, Michaud v FRA, No. 12323/11, § 90. 130 ECtHR, 22/10/2002, Taylor-Sabori v UK, No. 47114/99, § 18; ECtHR, 3/4/2007, Copland v UK, No. 62617/00, § 41. 131 See Grabenwarter/Pabel, § 22 m.n. 25. 132 ECtHR, 25/3/1983, Silver v UK, No. 5947/72, § 84; ECtHR, 25/2/1992, Boyle a. Rice v UK, No. 9659/82 a. o., § 43; ECtHR, 25/3/1992, Campbell v UK, No. 13590/88, § 33; ECtHR, 24/9/1992, Herczegfalvy v AUT, No. 10533/83, § 91 (psyciatric clinic); ECtHR, 15/11/1996, Calogero Diana v ITA, No. 15211/89, § 28; ECtHR, 15/11/1996, Domenichini v ITA, No. 15943/90, § 32; ECtHR, 19/4/2001, Peers v GRE, No. 28524/95, § 81; ECtHR, 26/7/2001, di Giovine v ITA, No. 39920/98, § 24. 133 See m.n. 69 et seq. 124

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autonomous control over one’s body, even if in the individual case the physical strain is low.134 In light of the Court’s settled case-law, any medical intervention against the subject’s will, or without the free, informed and express consent of the subject, constitutes an interference with his or her private life.135 Examples are: a compulsory test of tuberculosis for children,136 taking blood samples137 or the examination of a person’s mental soundness.138 In cases of sterilisation safeguards giving special consideration to the reproductive health of the woman concerned may have to be provided.139 Also the administration of force-feeding or diamorphine to a seriously ill and handicapped child although the mother expressed her firm opposition to this form of treatment constitutes an interference with the physical integrity of the child.140 It lies upon the State to prove ‘beyond reasonable doubt’ that the applicant gave his consent. However, the Court notes that handcuffing a prisoner does not, in general, affect a person physically or mentally, therefore, there is no interference with the prisoner’s right to respect for private life.141 State measures in order to protect people’s health from particular threats, such as the obligation to wear a safety belt while driving a car,142 are generally not to be viewed as interferences with the physical integrity. However, it is an interference with the right to personal autonomy with regard to one’s sexual life if the State prohibits homosexual acts.143 Interferences with the right to data protection may occur by acquiring or 30 storing information, as well as in the case of saving or using data. It constitutes a restriction of the fundamental right when certain tools are used for the acquisition of information; in particular instruments used in the course of police investigations. In particular secret surveillance measures, interception of communications and wiretapping interfere with the rights under Article 8.144 In these cases, the 134 EComHR, 13/12/1979, X., No. 8278/78; EComHR, 16/10/1996, Cieslar, No. 29034/95, § 1; Reid, m.n. IIB-597. Hence, the Courts judgement in the case of Costello-Roberts, in which it did not consider physical punishment in schools to interfer with Article 8, is not convincing ECtHR, 25/3/ 1995, Costello-Roberts v UK, No. 13134/87, § 36. 135 Assumption of a situation of coercing due to the particularly vulnerable psychological state of a female prisoner, ECtHR, 13/5/2008, Juhnke v TUR, No. 52515/99, § 76 et seq.; ECtHR, 7/10/2008, Bogumil v POR, No. 35228/03, § 73. 136 EComHR, 10/12/1984, Acmanne, DR 40, 251. 137 EComHR, 13/12/1978, X., No. 8239/78; EComHR, 13/12/1979, X., No. 8278/78. 138 EComHR, 7/5/1981, X., No. 8334/78. 139 ECtHR, 8/11/2011, V.C. v SVK, No. 18968/07, §§ 143 et seq; ECtHR, 12/09/2012, N.B. v SVK, No. 29518/10, § 97; ECtHR, 13/12/2012, I.G. a. o. v SVK, No. 15966/04, §§ 140 et seq. 140 ECtHR, 9/3/2004, Glass v UK, No. 61827/00, § 70 et seq. 141 ECtHR, 16/12/1997, Raninen v FIN, No. 20972/92, § 64. 142 EComHR, 13/12/1979, X., No. 8707/79. 143 ECtHR, 22/10/1981, Dudgeon v UK, No. 7525/76, § 41; ECtHR, 26/10/1988, Norris v IRL, No. 10581/83, § 38; ECtHR, 22/4/1993, Modinos v CYP, No. 15070/89, § 23. The State may, however, be obligated to protect minors or persons lacking the capacity to give consent against any kind of sexual activities by heterosexual or by homosexual persons, see ibid; see also ECtHR, 26/10/1988, Norris v IRL, No. 10581/83, § 38. Further m.n. 73. 144 ECtHR, 6/9/1978, Klass a. o. v GER, No. 5029/71, § 41; ECtHR, 2/8/1984, Malone v UK, No. 8691/79, § 64; ECtHR, 24/4/1990, Kruslin v FRA, No. 11801/85, § 26; ECtHR, 25/3/1998, Kopp v SUI, No. 23224/94, § 53; ECtHR, 16/2/2000 (GC), Amann v SUI, No. 27798/95, § 44 et seq.; see however ECtHR, 1/7/2008, Calmanovici v ROM, No. 42250/02, § 132 (a mere shadowing of someone in public placed without data being systematically collected and stored does not constitute an interference).

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Court accepts that an individual may, under certain conditions, claim to be the victim of a violation caused by the mere existence of secret measures or of legislation permitting secret measures under Article 34 of the Convention, without having to allege that such measures were in fact applied to him.145 The confiscation of private documents amounts to an interference with one’s privacy.146 The mere storing of personal information as such and the release of the information constitute an interference with the right to respect for private life.147 A population census prescribed by law is also an interference with Article 8.148 Measures in the course of police investigation and police identification procedures amount to an interference with Article 8 if they disturb the private sphere of the person concerned. Seizures of persons and objects,149 the recording of images150 or sounds, the deprivation of a passport,151 taking of fingerprints or blood samples152 are typical interferences with Article 8 and require justification.153 31 Restrictions on professional activities may also interfere with the right to respect for private life. The Court considers a far-reaching ban on taking up private sector employment to affect ‘private life’ and to amount to an interference with Article 8.154 The obligation to report suspicions amounts to a ‘continuing interference’ with a lawyer’s enjoyment of the rights guaranteed by Article 8, even if it is not the most intimate sphere of his private life that is affected but his right to respect for his professional exchanges with his clients.155 32 A criminal conviction may entail personal, social, psychological and economic suffering for the convicted person. In the Court’s view, though, such repercussions may be foreseeable consequences of the commission of a criminal offence and can therefore not be relied on in order to complain that a criminal conviction in itself amounts to an interference with the right to respect for private life within the meaning of Article 8. Hence, a criminal conviction in itself does not constitute an interference with the convicted person’s right to respect for private life as long as it is not the result of an unforeseeable application of a provision of the criminal law.156

2. Family life 33

Measures that hinder the mutual enjoyment by parent and child of each other’s company as a fundamental element of family life, amount to an interference with 145 ECtHR, 6/9/1978, Klass a. o. v GER, No. 5029/71, § 34 et seq.; ECtHR, 10/2/2009, Iordachi a. o. v MDA, No. 25198/02, § 30 et seq.; ECtHR, 18.5.2010, Kennedy v UK, No. 26839/05, § 119. 146 EComHR, 10/12/1975, X., No. 6794/74. 147 ECtHR, 26/3/1987, Leander v SWE, No. 9248/81, § 48; ECtHR, 4.5.2000 (GC), Rotaru v ROM, No. 28341/95, § 46; ECtHR, 4/12/2008 (GC), Marper v UK, No. 30562/04 a. o., § 67 (storage of fingerprints, DNA-profiles and cellular samples). 148 EComHR, 6/10/1982, Census Regulations 1980, X., No. 9702/82, § 1. 149 EComHR, 30/5/1974, X., Yb 17, 222 (226); EComHR, 15/5/1980, McFeeley a. o., DR 20, 44. 150 EComHR, 4/12/1962, X., No. 1307/61, CD 9, 53. 151 ECtHR, 24/7/2003, Smirnova v RUS, No. 46133/99 a. o., § 97; see also ECtHR, 26/4/2011, M. v SUI, No. 41199/06, §§ 36 et seq (Refusal to renew expatriate’s passport for over six years with a view to forcing his return home to stand trial). 152 EComHR, 4/12/1978, X., No. 8239/78. 153 Heringa/Zwaak, in: van Dijk/van Hoof/van Rijn/Zwaak, p. 675. 154 ECtHR, 27/7/2004, Sidabras a. Dz ˇiautas v LTU, No. 55480/00, § 47 et seq. 155 ECtHR, 6/12/2012, Michaud v FRA, No. 12323/11, § 92. 156 ECtHR, 3/4/2012 (GC), Gillberg v SWE, No. 41723/06, §§ 68 et seq.

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the right protected by Article 8.157 Such measures may relate to decisions concerning custody or visiting rights and child care. Decisions concerning the custody of a child, as for example in the case of temporarily or permanently placing a child with a foster family or children’s home or decisions on adoption, are serious interferences with the parents’ or child’s right to respect for family life. On the other hand, the decision to grant the custody of a foster child, who the foster mother had educated for several years and developed a strong relationship with, to the biological parents, interferes with the foster mother’s right to respect for family life.158 Measures in the sphere of child custody and guardianship following a divorce or other separation of parents for the benefit of one parent always interfere with the family life of the other parent.159 An excessive delay in the restitution of the body after an autopsy or of bodily 34 samples on completion of the relevant criminal proceedings may constitute an interference with both the private life and the family life of the surviving family members.160 A prison regime which involves restrictions on the number of family visits and 35 imposes measures for the supervision of such visits is a restriction of the prisoner’s family life.161 However, while the Court has expressed its approval for the evolution in several European countries towards conjugal visits, it has not yet interpreted the Convention as requiring Contracting States to make provision for such visits.162 Article 8 of the Convention does not guarantee a detained person an unconditional right to leave to visit a sick relative or attend a relative’s funeral. Such measures may be justified especially if the prisoner is provided with an alternative opportunity to bid farewell to his dying relative.163 Cases concerning family life in the context of immigration and asylum are very 36 numerous in the practice of the ECtHR. The expulsion of a family member makes it impossible to continue a family life in the expelling State; the refusal of entry to the State hinders the (re-) establishment of a family unit.164 According to the case-law of the Court, in both situations there is an interference with the right to respect for family life protected under Article 8 (1).165

157 ECtHR, 7/8/1996, Johansen v NOR, No. 17383/90, § 52; ECtHR, 9/6/1998, Bronda v ITA, No. 22430/93, § 51; ECtHR, 13/7/2000, Elsholz v GER, No. 25735/94, § 43. 158 EComHR, 10/7/1978, X., No. 8257/78. 159 Concerning the obligations for procedure see below m.n. 59 et seq. 160 ECtHR, 6/6/2013, Sabanchiyeva a. o. v RUS, No. 38450/05, § 117; ECtHR, 6/6/2013, Maskhadova a. o. v RUS, No. 18071/05, § 208. 161 ECtHR, 28/9/2000, Messina (No. 2) v ITA, No. 25498/94, § 62. In this case the Court considered the interference to be justified as it aimed at preventing possible relationships which had to be seen in the context of organised crime, ECtHR, 9/10/2008, Moiseyev v RUS, No. 62936/00, § 248 et seq; ECtHR, 23/2/2012, Trosin v UKR, No. 39758/05, § 39. 162 ECtHR, 4/12/2007 (GC), Dickson v UK, No. 44362/04, § 81 et seq. 163 A phone call which is interrupted after only one minute and has to take place in a foreign language is no sufficient alternative ECtHR, 6/12/2007, Lind v RUS, No. 25664/05, §§ 92 et seq with further references; see also ECHR, 29/11/2011, Giszczak v POL, No. 40195/08, § 36. 164 See e.g. Villiger, Studies in honour of Ge ´rald J. Wiarda, p. 659 et seq. 165 The Court avoids a clear differentiation and examines the case with a view to negative and positive obligations see ECtHR, 21/12/2001, Sen v NED, No. 31465/96, § 29 et seq.; ECtHR, 1/12/ 2005, Tuquabo-Tekle a. o. v NED, No. 60665/00, § 41 et seq.

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Art. 8

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Article 8 – Right to family life

The Court found an interference that may be justified where the family members remaining in the expelling State are nationals or hold residence permits.166 However, if all members of a family are expelled from their present State of residence, no interference with family life was concluded.167

3. Home The fundamental right to respect for one’s home protects the individual from the State and its organs entering, restricting or even destroying his home.168 The loss of one’s home is a most extreme form of interference with the right to respect for the home.169 Once an eviction order has been issued it amounts to an interference with one’s right to respect for home, irrespective of whether it has yet been carried out.170 Typical interferences with the right to respect for one’s home are searches.171 The violation of the privacy of one’s home may as well be an interference. The police just entering a house without the consent of the resident already constitutes an interference.172 Whether the tracing of phone calls interferes with the right to respect for one’s home has not been answered by the Court.173 An interference seems plausible in the cases of surveillance measures intercepting conversations in one’s home, irrespective of whether mobile phones or a landline is used for communicating.174 38 Where an individual’s house is directly and seriously affected by noise or other pollution, an issue may arise under Article 8 (1).175 Finally, housing law under which certain individuals were obliged to obtain a licence to live in their own house interferes with the right to respect for one’s home.176 37

166 ECtHR, 28/5/1985, Abdulaziz a. o. v UK, No. 9214/80, § 68; ECtHR, 2/8/2001, Boultif v SUI, No. 54273/00, § 40; ECtHR, 17.4.2003, Yilmaz v GER, No. 52853/99, § 36. 167 ECtHR, 9/10/2003 (GC), Slivenko v LAT, No. 48321/99, § 97 (expulsion of a Russian soldier from Latvia). 168 Cf. examples which can be found in the case law where entire villages in the south-east of Turkey were destroyed by members of the security force, ECtHR, 16/9/1996, Akdivar a. o. v TUR, No. 21893/93, § 88; ECtHR, 28/11/1997, Mentes a. o. v TUR, No. 23186/94, § 73; ECtHR, 16/11/ 2000, Bilgin v TUR, No. 23819/94, § 108. 169 ECtHR, 13/5/2008, McCann v UK, No. 19009/04, § 50; ECtHR, 16/7/2009, Zehentner v AUT, No. 20082/02, § 59; concerning the public housing in the UK see ECtHR, 27/5/2004, Connors v UK, No. 66746/01, § 81 et seq. 170 ECtHR, 6/12/2011, Gladysheva v RUS, No. 7097/10, § 91. 171 ECtHR, 16/12/1992, Niemietz v GER, No. 13710/88, §§ 30 et seq; ECtHR, 25/2/1993, Cre´mieux v FRA, No. 11471/85, § 31. 172 ECtHR, 23/9/1998, McLeod v UK, No. 24755/94, § 36; ECtHR, 28/7/2009, Rachwalski a. Ferenc v POL, No. 47709/99, § 72. 173 ECtHR, 6/9/1978, Klass a. o. v GER, No. 5029/71, § 41. 174 See Grabenwarter/Pabel, § 22 m.n. 30; See however ECtHR, 25/9/2001, P. G. a. J. H. v UK, No. 44787/98, § 37, where the Court considered installing listening devices in the applicant’s home to interfer only with the right to respect for private life. 175 ECtHR, 8/7/2003 (GC), Hatton a. o. v UK, No. 36022/97, § 96; ECtHR, 16/11/2004, Moreno Go´mez v ESP, No. 4143/02, § 53; ECtHR, 17/1/2006, Luginbu¨hl v SUI, No. 42756/02; ECtHR, 20/8/2010, Oluic´ v CRO, No. 61260/08, § 48 et seq; ECtHR; 14/2/2012, Hardy & Maile vs UK, No. 7094/06, § 187. 176 ECtHR, 24/11/1986, Gillow v UK, No. 9063/80, § 55 et seq. The Court emphasised that the applicant’s home was vacant at the relevant time. Article 1 of Protocol No. 1 was not applicable as

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IV. Interferences

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Art. 8

4. Correspondence Any kind of monitoring, censorship, stopping or delaying the delivery of a 39 letter by a state authority constitutes an interference with the right to respect for one’s correspondence.177 This includes opening,178 reading179 and copying180 of letters or deleting passages181 in a letter, as well as requiring authorisation and restrictions on the number or length of letters or delaying their transmission.182 Furthermore, searches and seizures made on premises where documents considered as correspondence are being seized, may constitute an interference with the right to respect for one’s correspondence.183 The taping of telephone conversations falls within the scope of Article 8. 40 Recordings taken for the purpose of using the content of the conversation or for the use as voice samples, both are regarded as interferences with the right to respect for one’s correspondence.184 In this connection, it is of little importance whether the telephone tapping in question was carried out on the line of a third party.185 The process known as ‘metering’ involves the use of a device (a meter check printer) which registers the numbers dialed on a particular telephone and the time and duration of each call. Such measure amounts to an interference with the right to respect for correspondence of the person called and the person calling.186 Furthermore, surveillance measures by the State which cover communication 41 over the internet, such as emails, constitute an interference with Article 8. In these cases, the mere existence of legislation which allows a system for the secret monitoring of communications entails a threat of surveillance for all those to whom the legislation may be applied. This threat necessarily strikes at freedom of communication between users of the telecommunication services and thereby amounts in itself to an interference with the exercise of the rights under Article 8, irrespective of any measures actually taken.187

the UK had not given the necessary declaration of applicability pursuant to Article 4 of Protocol No. 1 for the island Guernsey where the facts of the case took place. 177 ECtHR, 25/3/1983, Silver v UK, No. 5947/72, § 83 et seq.; ECtHR, 20/6/1988, Scho ¨ nenberger a. Durmaz v SUI, No. 11368/85, § 23 et seq; ECtHR, 4/6/2002, Faulkner v UK, No. 37471/97, § 11. 178 ECtHR, 19/4/2001, Peers v GRE, No. 28524/95, § 81. 179 ECtHR, 25/3/1992, Campbell v UK, No. 13590/88, § 33. 180 ECtHR, 20/6/2000, Foxley v UK, No. 33274/96, § 30. 181 ECtHR, 25/2/1992, Pfeifer a. Plankl v AUT, No. 10802/84, § 43. 182 See Grabenwarter/Pabel, § 22 m.n. 31. 183 ECtHR, 25/2/1993, Miailhe v FRA, No. 12661/87, § 28; ECtHR, 16/12/1992, Niemietz v GER, No. 13710/88, § 32; ECtHR, 16/10/2007, Wieser a. Bicos Beteiligungen GmbH v AUT, No. 74336/01, § 45 (affirmed for electronical data without reasoning). 184 ECtHR, 25/9/2001, P. G. a. J. H. v UK, No. 44787/98, § 59. 185 ECtHR, 24/8/1998, Lambert v FRA, No. 23618/94, § 21. 186 ECtHR, 2/8/1984, Malone v UK, No. 8691/79, § 83 et seq; ECtHR, 25/9/2001, P. G. a. J. H. v UK, No. 44787/98, § 42. 187 ECtHR, 1/7/2008, Liberty a. o. v UK, No. 58243/00, § 52; ECtHR, 18/5/2010, Kennedy v UK, No. 26839/05, § 118; see also Uerpann-Wittzack, Principles of International Internet Law, Germal Law Journal 2010, 1252.

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Article 8 – Right to family life

V. Justification 42

An interference with the rights under Article 8 (1) is justified according to Article 8 (2) if it is in accordance with the law and is necessary in a democratic society in the interests mentioned in its paragraph 2. The exeptions listed in Article 8 (2) largely correspond the exceptions under Articles 9 to 11.

1. Prescribed by law An interference must be be prescribed by law. The legal basis is not a requirement particular to Article 8. Articles 9 (2), 10 (2) and 11 (2) also provide for this requirement. 44 For an interference with the right to respect for one’s correspondence particular requirements as to the degree and content of the legal basis must be met. Accordingly, the national conditions and procedures governing interferences with correspondence do not necessarily have to be contained in the substantive law itself.188 With a view to the requirement of foreseeability, the provisions that specify the scope or conditions of the authorities’ discretionary power when it comes to monitoring one’s correspondence must provide for detail as to the kind of restrictions permitted or their purpose, duration and extent or the arrangements for their review, and must offer a degree of protection against arbitrariness.189 In this connection the relevant provisions should draw distinction between the different categories of persons with whom the monitored individual could correspond.190 However, the requirements of the Convention with regard to foreseeability are not the same in the special context of interception of communications for the purpose of police investigations. In particular, the requirement of foreseeability cannot mean that an individual should be enabled to foresee when the authorities are likely to intercept his communications so that he can adapt his conduct accordingly. Nevertheless, the law must be sufficiently clear in its terms to give citizens an adequate indication as to the circumstances in which and the conditions on which public authorities are empowered to resort to this secret interference with the respect for correspondence.191 45 Where a power of the executive is exercised in secret the requirements as to the quality of the law (e.g. sufficient precision) are particularly high.192 Powers of secret surveillance of citizens, characterising as they do the police state, are tolerable under the Convention only in so far as strictly necessary for safeguarding the democratic institutions.193 Especially in the case of secret surveillance or interception of telephone 43

188

ECtHR, 25/3/1983, Silver v UK, No. 5947/72, § 89. ECtHR, 24/9/1992, Herczegfalvy v AUT, No. 10533/83, § 91; ECtHR, 15/11/1996, Calogero Diana v ITA, No. 15211/89, § 32; ECtHR, 23/9/1998, Petra v ROM, No. 27273/95, § 37; ECtHR, 4/7/2000, Niedbala v POL, No. 27915/95, § 81; ECtHR, 28/9/2000, Messina (No. 2) v ITA, No. 25498/94, § 82 et seq.; ECtHR, 26/7/2001, di Giovine v ITA, No. 39920/98, § 26. 190 ECtHR, 4/7/2000, Niedbala v POL, No. 27915/95, § 81. 191 ECtHR, 2/8/1984, Malone v UK, No. 8691/79, § 67. 192 ECtHR, 2/8/1984, Malone v UK, No. 8691/79, § 67; ECtHR, 24/4/1990, Kruslin v FRA, No. 11801/85, § 30; ECtHR, 25/6/1997, Halford v UK, No. 20605/92, § 49; ECtHR, 25/3/998, Kopp v SUI, No. 23224/94, § 64; ECtHR, 30/7/1998, Valenzuela Contreras v ESP, No. 27671/95, § 46. p. also ECtHR, 12.5.2000, Khan v UK, No. 35394/97, § 26. 193 ECtHR, 6/9/1978, Klass a. o. v GER, No. 5029/71, § 42. 189

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V. Justification

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Art. 8

communications by public authorities, due to its severe interference with one’s private life and correspondence, the domestic law must be sufficiently clear in its terms to give citizens an adequate indication as to the circumstances in and conditions on which public authorities are empowered to resort to any such secret measures.194 The Court set out precise minimum requirements for wire tapping. For example, the categories of people whose telephones may be tapped by judicial order and the nature of the offences which may give rise to such an order must be defined by national law. It further requires the judge to set a limit on the duration of the telephone tapping. The procedure for drawing up summary reports containing intercepted conversations; the precautions to be taken in order to communicate the recordings intact and in their entirety for possible inspection by the judge and by the defence must be specified; and the circumstances in which recordings may or must be erased or the tapes be destroyed, in particular where an accused has been discharged by an investigating judge or acquitted by a court.195 The Court also takes into account whether before the judicial order for the telephone tapping or after it was executed the measure can be reviewed by an independent authority.196 According to the case-law, these rather strict standards, set up and applied in 46 the specific context of surveillance of telecommunications, are not applicable as such to cases concerning surveillance of movements in public places and thus a measure which must be considered to interfere less with the private life of the person concerned than the interception of his or her telephone conversations. The Court will therefore apply the more general principles on the preciseness of the legal basis of an interference.197 The Court for the first time examined the surveillance via GPS in the Uzun Case. In the Court’s view, GPS surveillance is by its very nature to be distinguished from other methods of visual or acoustical surveillance which are, as a rule, more susceptible of interfering with a person’s right to respect for private life, because they disclose more information on a person’s conduct, opinions or feelings.198 In the concrete case, it found no violation of Article 8. In the Gillian and Quinton Case, the Court concluded that the British anti-terrorism act according to which police officers were entitled to stop and search pedestrians without having to have grounds for suspicion, did not meet the requirements imposed on a legal basis under Article 8 (2).199 The collection, storage and transfer of data are also often exercised secretly, 47 without the knowledge of the person concerned. Therefore, in these cases the legal basis has to meet the specific requirements as to how precise a regulation has to be and safeguards from arbitrary use by an authority. In the Rotaru Case the Court found a breach of Article 8. Information had been systematically collected and 194

ECtHR, 9.6.2009, Kvasnica v SVK, No. 72094/01, § 79. ECtHR, 30/7/1998, Valenzuela Contreras v ESP, No. 27671/95, § 46; ECtHR, 18/2/2003, Prado Bugallo v ESP, No. 58496/00, § 30 et seq.; ECtHR, 1/7/2008, Calmanovici v ROM, No. 42250/02, § 121 et seq. 196 ECtHR, 1/7/2008, Calmanovici v ROM, No. 42250/02, § 121. 197 ECtHR, 2/9/2010, Uzun v GER, No. 35623/05, § 66. 198 ECtHR, 2/9/2010, Uzun v GER, No. 35623/05, § 52. 199 ECtHR, 12/1/2010, Gillian a. Quinton v UK, No. 4158/05, § 80 et seq; see however ECtHR, 15/5/2012, Colon vs NED, No. 49458/06. 195

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used by the Romanian authorities.200 The Court considered the legal basis to be insufficient because the domestic law did not indicate with reasonable clarity the scope and manner of exercise of the relevant discretion conferred on the public authorities. The Romanian system for gathering and archiving information contained no explicit, detailed provision concerning the persons authorised to consult the files, the nature of the files, the procedure to be followed or the use that may be made of the information thus obtained. In the Liberty Case the Court found that the British Interception of Communications Act 1985 failed to comply with Article 8 as it authorised the State to systematically intercept and examine almost the entire telephone, facsimile and e-mail communications between England and Ireland in the 1990 s which was not covered by law.201 48 In cases concerning the expulsion of foreigners, the Court considers that in the particular context of measures concerning national security, the requirement of foreseeability is not the same as in other fields; it does not go so far as to compel States to enact legal provisions listing in detail all conduct that may prompt a decision to expel an individual on national security grounds as threats to national security may vary in character and may be unanticipated or difficult to define in advance. In exchange, the Court requires some form of adversarial proceedings before an independent authority or a court competent to effectively scrutinise the reasons for them and review the relevant evidence in order to prevent arbitrary measures.202 49 The Court considers that the forced administration of medication represents a serious interference with a person’s physical integrity. Hence, in this field, the domestic law must provide some protection for the individual against arbitrary interference with his or her rights under Article 8. The Court thus examines the quality of the legal rules. The decision to confine a person for involuntary treatment must not be solely in the hands of the doctors treating the patient. There must be some kind of immediate judicial scrutiny. Otherwise, even if there could be said to be a general legal basis for the measures, the absence of sufficient safeguards against forced medication by doctors deprived the person concerned of the minimum degree of protection to which he is entitled under the rule of law in a democratic society. Therefore, in such cases interferences cannot be said to be ‘in accordance with the law’.203

2. Legitimate aim 50

Article 8 (2) lists the legitimate aims for the justification of an interference with Article 8 (1). The list covers a wide range of possible legitimate aims for an interference: national security, public safety or the economic well being of the country, the prevention of disorder or crime, the protection of health or morals and the protection of the rights and freedoms of others. However, this does not mean that the rights guaranteed under Article 8 (1) are subjected to a broad reservation. In the 200

ECtHR, 4/5/2000 (GC), Rotaru v ROM, No. 28341/95, § 57 et seq. ECtHR, 1/7/2008, Liberty a. o. v UK, No. 58243/00, § 68 et seq. 202 ECtHR, 24/4/2008, C. G. a. o. v BUL, No. 1365/07, § 40 et seq.; ECtHR, 11/2/2010, Raza v BUL, No. 31465/08, § 51; ECtHR, 2/9/2010, Kaushal a. o. v BUL, No. 1537/08, § 29; corresponding ECtHR, 6/12/2007, Liu a. Liu v RUS, No. 42086/05, § 56 et seq. 203 ECtHR, 3/7/2012, X. v FIN, No. 34806/04, §§ 220 et seq. 201

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V. Justification

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individual case, the Court examines whether one or more aims listed in Article 8 (2) have been pursued. From time to time it rejects the respondent’s submission that one legitimate aim was pursued, even though that aim may have been relevant. Legislation granting powers to collect and release personal information without the individual being able to foresee the measure or having access to the data, under exceptional conditions, may be necessary in a democratic society in the interests of national security and/or for the prevention of disorder or crime.204 Where the Court had to examine whether legislation having the general effect of criminalising homosexual acts was justified, the Court distinguished between the different legitimate aims. The protection of existing moral standards is not a legitimate aim for the justification of prohibiting private homosexual relations between adults capable of valid consent.205 However, the Court has already acknowledged the necessity in a democratic society for some degree of control over homosexual conduct notably in order to provide safeguards against the exploitation and corruption of those who are especially vulnerable by reason, for example, of their youth or of individuals who have not consented.206

3. Necessary in a democratic society When the Court examines the proportionality of an interference – which 51 essentially means that a fair balance has to be stuck between the interests of the individual and the community as a whole – it is obvious that the case-law established groups of cases within the wide scope of Article 8. No general statement can be made on the weighing of interests and degree of scrutiny. It must rather be further differentiated between the spheres of Article 8.

a) Private life When assessing the proportionality of an interference with one of the various 52 spheres of private life protected under Article 8, the Court leaves a margin of appreciation to the State concerned. The Court emphasises that it is not its role to substitute itself for the competent state authorities, but rather to review under the Convention the decisions that those authorities have made in the exercise of their power of appreciation.207 Where there is little common ground between the domestic systems of the 53 Member States – for example as to the condition on which a change of name may be legally effected – the Court concludes that the Contracting States enjoy such wide margin of appreciation.208 Hence, the Court did not find a violation in the 204

ECtHR, 6/9/1978, Klass a. o. v GER, No. 5029/71, § 48. ECtHR, 22/10/1981, Dudgeon v UK, No. 7525/76, § 61; ECtHR, 26/10/1988, Norris v IRL, No. 10581/83, § 44 et seq. 206 ECtHR, 22/10/1981, Dudgeon v UK, No. 7525/76, § 49, 62; cf. ECtHR, 9/1/2003, S. L. v AUT, No. 45330/99, § 39 et seq., and ECtHR, 9/1/2003, L. a. V. v AUT, No. 39392/98 et al, § 47 et seq. 207 Cf. eg. ECtHR, 23/9/1994, Hokkanen v FIN, No. 19823/92, § 55 concerning the regulation of questions of custody law; ECtHR, 25/11/1994, Stjerna v FIN, No. 18131/91, § 39 concerning the regulation of questions of name changes. 208 Cf. eg. ECtHR, 25/11/1994, Stjerna v FIN, No. 18131/91, § 39; ECtHR, 11/9/2007, Bulgakov v UKR, No. 59894/00, § 43 et seq. (translation of Russian names into Ukrainian); ECtHR, 2/2/2010, Kemal Tas˛kin a. o. v TUR, No. 30206/04 et al, § 49 (change from Turkish to Kurdish names). 205

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State authorities’ refusal of permission to change one’s name as a violation of Article 8. In the case at hand it did not find that, in relation to the legitimate public interest to keep the name, the sources of inconvenience the applicant complained of were sufficient to raise an issue of failure to respect private life.209 Furthermore, the Court found that the refusal by the German authorities to register compound surnames for children did not constitute a lack of respect for the applicants’ private and family life under Article 8. It argued that the general possibility to obtain compound names would lead to growing “chains of surnames” which would not only be impracticable, but also to the detriment of future generations whose surnames would be at risk of losing their function as a means of identification.210 Likewise, in the Guillot Case the ECtHR did not find a violation. In this case, instead of registering the name ‘Fleur de Marie’ chosen by the parents, French authorities had registered the name ‘Fleur-Marie’. It held that the inconvenience complaint of by the applicants was not sufficient to raise an issue of failure to respect private life.211 However, the Court reached the opposite conclusion in the case on the refusal by Finnish authorities to register an unusual name (‘Axl’) as a forename. The choice of name neither harmed the interests of the child nor the accurate population registration, the means of personal identification or the preservation of the cultural and linguistic identity of Finland.212 The Turkish authorities’ refusal to adapt the spelling of a forename for it to comply with the Kurdish origin of the name violates Article 8.213 Cases on the registration or a possibility to change one’s name have to be seperated from cases where a person is prohibited from continuing to carry a name as names are central elements of self-identification and self-definition.214 54 In cases concerning the private life of military staff, the Court accepts that the margin of appreciation available to the Member States in assessing the pressing social need and in choosing the means for achieving the legitimate aim of protecting national security, is a wide one.215 The Court held that when the core of the national security aim pursued is the operational effectiveness of the armed forces, it is accepted that each State is competent to organise its own system of military discipline and enjoys a certain margin of appreciation in this respect. Nevertheless, it considered the discharge of homosexuals in the UK from the Royal Air Force not to be proportional. It emphasised that when the relevant restrictions concern a most intimate part of an individual’s private life, there must exist particularly serious reasons before such interferences can satisfy the requirements of Article 8 (2). Hence, if the sole reason for the investigations conducted and for the soldiers’ discharge is their sexual orientation the measure violates Art 8.216 209

ECtHR, 25/11/1994, Stjerna v FIN, No. 18131/91, §§ 39 et seq. ECtHR, 6/5/2008, v. Rehlingen o.o. v GER, No. 33572/02; ECtHR, 6/5/2008, HeideckerTiemann v GER, No. 31745/02. 211 ECtHR, 24/10/1996, Guillot v FRA, No. 22500/93, § 27. 212 ECtHR, 6/9/2007, Johansson v FIN, No. 10163/02, §§ 31 et seq. 213 ECtHR, 21/10/2008, Erdago ¨ z v TUR, No. 37483/02, §§ 55 et seq. 214 ECtHR, 1/7/2008, Daro ´ czy v HUN, No. 44378/05, § 32. 215 ECtHR, 26/3/1987, Leander v SWE, No. 9248/81, § 59. 216 ECtHR, 27/9/1999, Smith o. Grady v UK, No. 33985/96 a. o., §§ 89 et seq; ECtHR, 27/9/1999, Lustig-Prean o. Beckett v UK, No. 31417/96 a. o., §§ 80; see further ECtHR, 8/1/2009, Schlumpf v SUI, No. 29002/06, § 115 concerning the decision regarding the necessity of a gender reassignment; 210

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V. Justification

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According to the ECtHR, a stricter scrutiny is called for in respect of very serious limitations in the sphere of private life such as a full incapacitation.217 Furthermore, a common European standard, which may find expression in the recommendations of the Council of Europe, narrows the margin of appreciation of Member States. Accordingly, the Court – referring to the “Principles concerning the legal protection of incapable adults” laid down in Recommendation No. R (99) 4 by the Committee of Ministers of the Council of Europe – considered a Russian provision to be disproportional which distinguished between full capacity and full incapacity, but did not provide for any “borderline” situation. In this context, the Court held that the existence of a mental disorder, even a serious one, cannot be the sole reason to justify full incapacitation.218 In cases concerning the access to a specifc medical treatment a number of factors must be taken into account. Where a particularly important facet of an individual’s existence or identity is at stake, the margin of appreciation will normally be restricted. Where, however, there is no consensus within the Contracting States, either as to the relative importance of the interest at stake or as to the best means of protecting it, particularly where the case raises sensitive moral or ethical issues, the margin will be wider. There will usually be a wide margin if the State is required to strike a balance between competing private and public interests or Convention rights.219 However, in the A., B. and C. Case the Court did not consider that the consensus towards allowing abortion narrows the broad margin of appreciation of Member States. Rather, it emphasised the variety of rules on the protection of unborn life and hence found that the margin of appreciation accorded to a State’s protection of the unborn to be decisive.220 Article 8 further protects the right to determine the disclosure and use of one’s own personal data (‘informational self-determination’).221 A compulsory public census, including questions relating to the sex, marital status, place of birth and other personal details of the inhabitants of a particular household may be admissible provided that the information gathered by the census is treated with care and confidentiality. In this context it has to be considered that for a long time the practice of carrying out a population census was common in the Member States of the Council of Europe and the object of such a census is usually to establish accurate statistical information about the population, and the conditions of its housing, which are in any event in the interest of the economic well-being of the country.222 In evaluating whether or not an interference with the right to protection of personal data is necessary in a democratic society the public interest in collecting certain data for the organisation of societal processes has to be balanced against the ECtHR, 12/4/2012, Stu¨bing v GER, No. 43547/08 §§ 59 et seq concerning the prohibition of sexual relationships between siblings. 217 ECtHR, 27/3/2008, Shtukaturov v RUS, No. 44009/05, § 88. 218 ECtHR, 27/3/2008, Shtukaturov v RUS, No. 44009/05, §§ 94 et seq. 219 ECtHR, 3/11/2011 (GC), S.H. a. o. v AUT, No. 57813/00, § 94; ECtHR, 47039/11, Hristozov v BUL, No. 47039/11, § 118. 220 ECtHR, 16/12/2010 (GC), A., B. a. C v IRL, No. 25579/05, §§ 234 et seq; see also Article 2 m.n. 3. 221 The German FCC developed the concept of ‘Informationelle Selbstbestimmung’ in a series of decisions on Article 2 (1) Basic Law. See BVerfGE, 65, 1 – census of population. 222 EComHR, 6/10/1982, Census Regulations 1980, X., No. 9702/82, § 1.

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applicant’s interests in protecting the confidentiality of the information in question. Hence, the character of the data and its importance to a person’s enjoyment of his or her right to respect for private and family life as guaranteed by Article 8 are to be considered.223 Subjecting lawyers to an obligation to report suspicions does not constitute an excessive interference in view of the public interest attached to the fight against money laundering and the guarantee represented by the exclusion from its scope of information received or obtained by lawyers when acting for clients in court proceedings, and information received or obtained in the context of providing legal advice (except where the legal adviser played, through his or her acts, an active role in the money laundering).224 59 In cases on the protection of medical data the Court consideres the interests of an individual to outweigh the public interest in investigating crime. In a case against Finland, it held that it was crucial not only to respect the sense of privacy of a patient but also to preserve his or her confidence in the medical profession and in the health services in general. Without such protection, those in need of medical assistance could be deterred from revealing such information of a personal and intimate nature as may be necessary in order to receive appropriate treatment and, even, from seeking such assistance, thereby endangering their own health and, in the case of transmissible diseases, that of the community.225 Furthermore, the domestic law must afford appropriate safeguards to prevent any such communication or disclosure of personal health data as may be inconsistent with the guarantees in Article 8.226 60 The public interests in the collection and use of the data also have to be weighed against the interests of the persons concerned. Thus, even though investigating and punishing crime may in principle be a legitimate aim the margin of appreciation left to the Member States will depend on such factors as the nature and seriousness of the interests at stake and the gravity of the interference.227 In this context, the Court acknowledges the need for modern scientific methods of investigating and identifying persons in the fight against crime. Nevertheless, it found that the blanket and indiscriminate nature of the power of permanent and indiscriminate retention of the fingerprints and DNA records of persons who had not been convicted of any offence in England did not strike a fair balance of interests.228 The Court emphasised the relevance of cellular material and DNA records for conceivable use in the future. It held that these contained much sensitive information about an individual, including information about his or her health and that samples contained a unique genetic code of great relevance to both the individual and his relatives.229 Even though there may be a need for a comprehensive record of all cautions, conviction, warnings, reprimands, acquittals and even other information of the 223

ECtHR, 25/2/1997, Z. v FIN, No. 22009/93, §§ 95 et seq. ECtHR, 6/12/2012, Michaud v FRA, No. 12323/11, §§ 117 et seq. 225 ECtHR, 25/2/1997, Z. v FIN, No. 22009/93, §§ 95 et seq (information about an HIV-infection). 226 ECtHR, 17/7/2008, I. v FIN, No 20511/03, §§ 38 et seq; see also m.n. 78. 227 ECtHR, 25/2/1997, Z. v FIN, No. 22009/93, § 99. 228 ECtHR, 4/12/2008 (GC), S. a. Marper v UK, No. 30562/04 a. o., §§ 112, 119; The material was retained irrespective of the nature or gravity of the offence with which the individual was originally suspected or of the age of the suspected offender; thereto de Beer a. o., Nouveaux e´clairages de la notion de “donne´ personnelle” et application audacieuse du crite`re de proportionalite´, RDTH 2010, 141 et seq. 229 ECtHR, 4/12/2008 (GC), S. a. Marper v UK, No. 30562/04 a. o., §§ 72 et seq. 224

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nature, an indiscriminate and open-ended collection of criminal record data is unlikely to comply with the requirements of Article 8 in the absence of clear and detailed statutory regulations clarifying the safeguards applicable and setting out the rules governing, inter alia, the circumstances in which data can be collected, the duration of their storage, the use to which they can be put and the circumstances in which they may be destroyed.230 Recording personal data on a sex offenders register as a result of a conviction, however, does not violate Article 8. This is true even if the data is kept for 30 years.231 Nevertheless, in a case where bankrupts were automatically added to a register where their data was kept for five years the Court did find a violation of Article 8 as there had been no judicial review.232 In a case on the admissibility of wire tapping the Court found that with a view to 61 technical progress made in the means of espionage and, correspondingly, of surveillance and the development of terrorism in Europe in recent years democratic societies nowadays find themselves threatened by highly sophisticated forms of espionage and by terrorism, with the result that the State must be able, in order to counter effectively such threats, to undertake the secret surveillance of subversive elements operating within its jurisdiction. Therefore the Court saw himself forced to accept that the existence of some legislation granting powers of secret surveillance over the mail, post and telecommunications is, under exceptional conditions, necessary in a democratic society in the interests of national security and/or for the prevention of disorder or crime. After an extensive analysis of the control mechanism provided for by the law in question it held that having regard to the nature of the supervisory and other safeguards the exclusion of judicial control does not exceed the limits of what may be deemed necessary in a democratic society. This was due to the fact that the control had been carried out by a parliamentary board and a commission which independent of the authorities carrying out the surveillance and were vested with sufficient powers and competence to exercise an effective and continuous control.233 Once information has been acquired the authorities are responsible for keeping it confidential. The disclosure of a recorded telephone conversations during proceedings may, however, be legitimate. With a view to the right to receive information of the public, this is particularly true where the persons concerned inevitably and knowingly lay themselves open to close scrutiny by both journalists and the public at large.234

b) Family life State measures which separate parents from their children have to be supported by 62 strong reasons and consistent with the ultimate aim of reuniting the family, in order to be justified under Article 8 (2).235 This is also true when siblings are separated.236 230

ECtHR, 13/11/2012, M.M. v UK, No. 24029/07, § 199. ECtHR, 17/12/2009, Gardel v FRA, No. 16428/05, § 71; ECtHR, 17/12/2009, M.B. v FRA, No. 22115/06, § 62; ECtHR, 17/12/2009, Bouchacourt v FRA, No. 5335/06, § 70. 232 ECtHR, 6/7/2006, Campello v ITA, No. 21757/02, § 30; ECtHR, 6/7/2006, Ciaramella v ITA, No. 6597/03, § 36 and ECtHR, 20/7/2006, Taiani v ITA, No. 3641/02, § 31. 233 ECtHR, 6/9/1978, Klass a. o. v GER, No. 5029/71, §§ 48 et seq; see further ECtHR, 24/4/1990, Kruslin v FRA, No. 11801/85, §§ 24 et seq. 234 ECtHR, 31/07/2012, Draks ˇas v LTU, No. 36662/04, §§ 60 et seq. 235 See ECtHR, 25/2/1992, Margareta a. Roger Andersson v SWE, No. 12963/87, § 95; ECtHR, 7/8/1996, Johansen v NOR, No. 17383/90, § 78. 236 ECtHR, 6/4/2010, Mustafa a. Armag ˘an Akin v TUR, No. 4694/03, § 21. 231

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The Court generally recognises that the authorities enjoy a wide margin of appreciation for decisions on rights of custody and rights of access. This is due to the fact that the national authorities have the benefit of direct contact with all the persons concerned.237 The ECtHR deduces from these considerations that its task is not to substitute itself for the domestic authorities in the exercise of their responsibilities regarding custody and access issues, but rather to review, in the light of the Convention, the decisions taken by those authorities in the exercise of their power of appreciation.238 Such a narrow margin of appreciation applies in particular when assessing the necessity of taking a child into care.239 A stricter scrutiny is called for as regards any limitations which entail the danger that the family relations between a young child and one or both parents would be effectively curtailed.240 Article 8 requires that the domestic authorities should strike a fair balance between the interests of the child and those of the parents241 and that, in the balancing process, particular importance should be attached to the best interests of the child242 which, depending on their nature and seriousness, may override those of the parents. In particular, a parent cannot be entitled under Article 8 to have such measures taken as would harm the child’s health and development.243 In cases of a forced return of a child with whom a parent illegally moved to another country the Court takes the view that guidance on this point may be found, mutatis mutandis, in its case-law on the expulsion of aliens,244 according to which, in order to assess the proportionality of an expulsion measure concerning a child who has settled in the host country, it is necessary to take into account the child’s best interests and well-being, and in particular the seriousness of the difficulties which he or she is likely to encounter in the country of destination and the solidity of social, cultural and family ties both with the host country and with the country of destination. The seriousness of any difficulties which may be encountered in the destination country by the family members who would be accompanying the child must also be taken into account.245 In the field of international child abduction, the obligations placed on the States by Article 8 have to be interpreted in the light of the requirements imposed, in particular, by the Hague Convention on the Civil Aspects 237 ECtHR, 13/7/2000, Elsholz v GER, No. 25735/94, § 49; ECtHR, 8/7/2003 (GC), Sommerfeld v GER, No. 31871/96, § 62. 238 ECtHR, 7/8/1996, Johansen v NOR, No. 17383/90, § 64; ECtHR, 13/7/2000, Elsholz v GER, No. 25735/94, § 48; ECtHR, 8/7/2003 (GC), Sommerfeld v GER, No. 31871/96, § 62. 239 ECtHR, 13/7/2000, Elsholz v GER, No. 25735/94, § 49; ECtHR, 14/1/2003, K. A. v FIN, No. 27751/95, § 93 et seq; ECtHR, 16/12/2008, Kaleta v POL. No. 11375/02, § 58. 240 ECtHR, 7/8/1996, Johansen v NOR, No. 17383/90, § 64; ECtHR, 13/7/2000, Elsholz v GER, No. 25735/94, § 49; ECtHR, 12/7/2001 (GC), K. a. T. v FIN, No. 25702/94, § 155; ECtHR, 8/7/2003 (GC), Sommerfeld v GER, No. 31871/96, § 63; ECtHR, M.D. a. o. v MLT, No. 64791/10, § 71. 241 ECtHR, 27/11/1992, Olsson (No. 2) v SWE, No. 13441/87, § 90; ECtHR, 7/8/1996, Johansen v NOR, No. 17383/90, § 78; ECtHR, 13/7/2000, Elsholz v GER, No. 25735/94, § 50; ECtHR, 12/4/2011, Gluhakovic v CRO, No. 21188/09, §§ 56 et seq. 242 ECtHR, 25/2/1992, Margareta a. Roger Andersson v SWE, No. 12963/87, § 95; ECtHR, 7/8/1996, Johansen v NOR, No. 17383/90, § 78; ECtHR, 13/7/2000, Elsholz v GER, No. 25735/94, § 48; ECtHR, 8/7/2003 (GC), Sommerfeld v GER, No. 31871/96, § 64. 243 ECtHR, 7/8/1996, Johansen v NOR, No. 17383/90, § 78; ECtHR, 13/7/2000, Elsholz v GER, No. 25735/94, § 49; ECtHR, 13/7/2000 (GC), Scozzari a.Giunta v ITA, No. 39221/98 et al, § 169; ECtHR, 8/7/2003 (GC), Sommerfeld v GER, No. 31871/96, § 64. 244 See m.n. 95. 245 ECtHR, 6/10/2010 (GC), Neulinger a. Shuruk v SUI, No. 41615/07, § 146.

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of International Child Abduction. In this context, the “time” factor is itself a crucial element, which ought to be taken into account in evaluating exhaustively the tangible implications of a return.246 The opinions of children on the subject of their adoption should be taken into 63 account once they have attained the necessary maturity to express them.247 Hence, the Court found an interference with Article 8 to be justified in a case where the Romanian authorities had refused to hand over two children aged almost 10 to their adoptive parents, whom they did not know, against their will after they had been legally adopted. This was mainly due to the fact that the children’s’ conscious opposition to adoption would make their harmonious integration into their new adoptive family unlikely.248 The ECtHR applies a lower degree of scrutiny in cases where an adoption is merely to be seen as a formalisation or consolidation of de facto family ties, even if one parent does not approve of the adoption, as long as this parent was given the right to be heard.249 The absence of a common European standard can lead to a wider margin of appreciation being left to the States. For example, this is relevant for the time-limit for withdrawing consent to an adoption as there is considerable diversity in the legislation of the Member States.250 Moreover, States enjoy a wide margin of appreciation with regard to the possibility of homosexual couples to adopt a child as here the Court did not find a common European standard either.251 Nevertheless, in some cases the ECtHR requires States to diverge from a common European standard. Even though the joint adoption system is the solution a large majority of Council of Europe Member States have adopted in respect of this type of adoption it may be unsuitable in individual cases. In particular the Court does not share the view that the institution of marriage guaranteed the adopted person greater stability than adoption by an unmarried couple who lived together.252 Decisions on parental care such as the temporary or permanent placement of 64 children in either a foster family or a children’s home are interferences of a very serious nature.253 The Court considers that in exercising its supervisory jurisdiction, it cannot confine itself to considering the impugned decisions in isolation, but must look at them in the light of the case as a whole; it must determine whether the 246 ECtHR, 6/10/2010 (GC), Neulinger a. Shuruk v SUI, No. 41615/07, § 132; ECtHR, 12/07/2011, Sˇneersone and Kampanella v ITA, No. 14737/09, §§ 85 et seq; ECtHR, 10/7/2012, B. v BEL, No. 4320/11, § 56, 65; cf. ECtHR, 13/12/2011, X v LAT, No. 27853/09, §§ 65 et seq (not final, pending before the GC). 247 ECtHR, 22/6/2004, Pini a. o. v ROM, No. 78028/01 et al, §§ 164 et seq; ECtHR, 25/11/2008, Jucius a. Juciuciene˙ v LTU, No. 14414/03, § 31. See also Berro-Lefe`vre, in: Studies in honour of JeanPaul Costa, 2011, pp. 25 et seq. 248 ECtHR, 22/6/2004, Pini a. o. v ROM, No. 78028/01 et al, §§ 164 et seq. 249 ECtR, 25/1/2007, Eski v AUT, No. 21949/03, §§ 39 et seq. ECtHR, 26/7/2007, Chepelev v RUS, No. 58077/00, §§ 29 et seq (Adoption of a child by the mother’s new partner without the father’s content). 250 ECtHR, 10/1/2008, Kearns v FRA, No. 35991/04, §§ 76 et seq (two months being sufficient). 251 ECtHR, 26/2/2002, Frette ´ v FRA, No. 36515/97, § 41; ECtHR, 22/1/2008 (GC), E.B. v FRA, No. 43546/02, § 70; ECtHR, 19/2/2013 (GC), X a. o. v AUT, No. 19010/07, § 102. See also below Artcile 12 m.n. 2. 252 ECtHR, 13/12/2007, Emonet a. o. v SUI, No. 39051/03, §§ 79 et seq. As in this particular case a disabled adult was adopted by her mother‘s partner a family tie existed to both parents. 253 ECtHR, 23/9/1994, Hokkanen v FIN, No. 19823/92, § 55; ECtHR, 13/7/2000 (GC), Scozzari a. Giunta v ITA, No. 39221/98 a. o., § 148.

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reasons adduced to justify the interferences at issue are ‘relevant and sufficient’.254 Hence, the Court repeatedly held that as it is an interference of a very serious order to split up a family such a step must be supported by sufficiently sound and weighty considerations in the interests of the child.255 The taking of a new-born baby into public care at the moment of its birth is an extremely harsh measure. There must be extraordinarily compelling reasons before a baby can be physically removed from its mother, against her will, immediately after birth as a consequence of a procedure in which neither she nor her partner has been involved.256 Perceptions as to the appropriateness of intervention by public authorities in the care of children vary from one Contracting State to another, depending on such factors as traditions relating to the role of the family and to State intervention in family affairs and the availability of resources for public measures in this particular area. However, consideration of what is in the best interests of the child is in every case of crucial importance.257 Thus, even a decision on parental control which is based on a wrong medical diagnosis in itself is not incompatible with Article 8 as long as at the time being a reasonable suspicion that the interests of the child were endangered existed.258 However, the Court held that a regulation according to which joint custody against the will of the mother of a child born out of wedlock is prima facie considered as not being in the child’s interest constitutes a violation of Art 14 taken together with Art 8.259 The law must allow for a judicial review of whether joint custody would be in the interests of the child and for an examination, in the event that joint custody was against the child’s interests, of whether the child’s interests were better served by awarding sole custody to the mother or to the father.260 A decision of custody in favour of one parent based mainly on the religious beliefs of the other parent also violates Art 8.261 Moreover, Article 8 is violated where a conviction is followed by a loss of parental rights for the time period during which the sentence is served irrespective of whether or not the crime had any connection with exercising parental rights.262 254 ECtHR, 23/9/1994, Hokkanen v FIN, No. 19823/92, § 55; ECtHR, 13/7/2000 (GC), Scozzari a. Giunta v ITA, No. 39221/98 a. o., § 148. 255 ECtHR, 24/3/1988, Olsson (No. 1) v SWE, No. 10465/83, § 72; ECtHR, 13/7/2000 (GC), Scozzari a. Giunta v ITA, No. 39221/98 a. o., § 148; ECtHR, 12/7/2001 (GC), K. a. T. v FIN, No. 25702/94, § 168 (separation of a newly born and his mother); see ECtHR, 13/03/2012, Y.C. v UK, No. 4547/10, §§ 147 et seq. 256 ECtHR, 16/7/2002, P., C. a. S. v UK, No. 56547/00, § 116; ECtHR, 8/4/2004, Haase v GER, No. 11057/02, § 102. 257 ECtHR, 12/7/2001 (GC), K. a. T. v FIN, No. 25702/94, § 154; ECtHR, 26/2/2002, Kutzner v GER, No. 46544/99, § 66. 258 ECtHR, 30/9/2008, R.K. a. A.K. v UK, No. 38000/05, § 36; ECtHR, 16/3/2010, A.D. a. O.D. v UK, No. 28680/06, § 84 (suspicion of physical abuse based on numerous broken bones of a baby caused by the brittle bone disease which is rare and difficult to diagnose); ECtHR, 23/3/2010, M.A.K. a. R.K. v UK, No. 45901/05 a. 40146/06, § 69 (suspicion of sexual abuse by the father). 259 ECtHR, 3/12/2009, Zaunegger v GER, No. 22028/04, §§ 46 and 64. 260 ECtHR, 3/2/2011, Sporer v AUT, No. 35637/03, § 88. 261 ECtHR, 23/6/1993, Hoffmann v AUT, No. 12875/87, § 36. In this case the ex-husband of a Jehova’s Witness was given custody of their children. See, however, diverging opinions which point out that the consequences for the children following from certain religious beliefs of the parent were decisive rather than the religion itself. See explicitly ECtHR, 29/11/2007, Ismailova v RUS, No. 37614/02, § 62. 262 ECtHR, 1/7/2008, Calmanovici v ROM, No. 42250/02, § 144 (conviction because of economic offences).

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Cases where the reason for the transfer of custody does not lie in an incapacity to care for a child on account of any physical or mental illness or on account of any violent or abusive conduct but is based solely on a lack of appropriate accommodation and financial means and an unclear residence status, i. e. a precarious situation which makes it difficult to care for a very young child call for a particularly careful examination of possible alternatives to taking a child into public care.263 The fact that a child could be placed in a more beneficial environment for his or her upbringing will not on its own justify a compulsory measure of removal from the care of the biological parents.264 Even where a family is not able to assume their childrearing responsibilities the State is not entitled to defy the parents’ opinions and to deal with the children at its own discretion.265 A care order should in principle be regarded as a temporary measure, to be 65 discontinued as soon as circumstances permit, and any measures implementing temporary care should be consistent with the ultimate aim of reuniting the natural parents and the child. It follows from this principle that whenever a care order has been issued sufficient steps for the reunification of the family have to be taken.266 Even after a separation of the family the parents have to be given the opportunity of contacts with their children. The ties between members of a family and the prospects of their successful reunification will perforce be weakened if impediments are placed in the way of their having easy and regular access to each other.267 Hence, Article 8 is violated if children are placed so far apart from their parents and siblings that the possibility of contacts between them was adversely affected.268 Measures resulting in cutting all ties between parents and a child may only be justified in exceptional circumstances and if it is in the interest of the child.269

c) Home Article 8 (2) applies when homes are searched. Searches do not necessarily have 66 to be authorised by a judge. Nevertheless, the relevant legislation and practice must afford individuals adequate and effective safeguards against abuse.270 Judicial review 263

ECtHR, 21/9/2006, Moser v AUT, No. 12643/02, §§ 68 et seq. ECtHR, 26/2/2002, Kutzner v GER, No. 46544/99, § 69; ECtHR, 26/5/2009, Amanalachioai v ROM, No. 4023/04, § 86. 265 ECtHR, 8/7/1987, B. v UK, No. 9840/82, § 77; ECtHR, 13/7/2000 (GC), Scozzari a. Giunta v ITA, No. 39221/98 et al, § 170. 266 ECtHR, 24/3/1988, Olsson (No. 1) v SWE, No. 10465/83, § 81; ECtHR, 13/7/2000 (GC), Scozzari a. Giunta v ITA, No. 39221/98 a. o., § 169; ECtHR, 12/7/2001 (GC), K. a. T. v FIN, No. 25702/94, § 178; ECtHR, 26/2/2002, Kutzner v GER, No. 46544/99, § 76; ECtHR, 9/5/2003, Covezzi a. Morselli v ITA, No. 52763/99, § 118. 267 ECtHR, 24/3/1988, Olsson (No. 1) v SWE, No. 10465/83, § 81; ECtHR, 13/7/2000 (GC), Scozzari a. Giunta v ITA, No. 39221/98 a. o., § 174. 268 ECtHR, 24/3/1988, Olsson (No. 1) v SWE, No. 10465/83, § 81. 269 See ECtHR, 24/3/1988, Olsson (No. 1) v SWE, No. 10465/83, § 81; ECtHR, 13/7/2000 (GC), Scozzari a. Giunta v ITA, No. 39221/98 a. o., § 169; ECtHR, 12/7/2001 (GC), K. a. T. v FIN, No. 25702/94, § 178; ECtHR, 26/2/2002, Kutzner v GER, No. 46544/99, § 76; ECtHR, 9/5/2003, Covezzi a. Morselli v ITA, No. 52763/99, § 118. 270 ECtHR, 6/9/1978, Klass a. o. v GER, No. 5029/71, §§ 39 et seq; ECtHR, 25/2/1993, Cre ´mieux v FRA, No. 11471/85, § 39; ECtHR, 25/2/1993, Funke v FRA, No. 10828/84, § 56; ECtHR, 16/12/1997, Camenzind v SUI, No. 21353/93, § 45. 264

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is a key element in doing so.271 The Court applies a closer scrutiny where no judicial supervision is provided for by law.272 In assessing whether or not a measure was ‘necessary in a democratic society’ the Court takes into consideration the grant and terms of the order, as such as well as the execution of the order.273 The evidence on which the decision to authorise the search was based274 and the scope of the order, in particular regarding its purpose, the number and time period of the searches and the materials to be seized, are of importance just like any other measures taken in order to limit the interference to a reasonable extend.275 Moreover, what is being searched is also of relevance. For example, stricter requirements may be applied where a lawyer’s office is being searched. The Court emphasises that, where a lawyer is involved, an encroachment on professional secrecy may have repercussions on the proper administration of justice and hence on the rights guaranteed by Article 6. Hence it held that a search of a lawyer’s office which had not being adequately limited in a legal situation where no special safeguards regarding the search of lawyer’s offices existed violated Article 8.276 67 The margin of appreciation in housing matters is narrower when it comes to the rights guaranteed by Article 8 compared to those in Article 1 of Protocol No. 1, regard had to the central importance of Article 8 to the individual’s identity, selfdetermination, physical and moral integrity, maintenance of relationships with others and a settled and secure place in the community.277 Still, it is legitimate for authorities to seek to regain possession of land from persons who did not have a right to occupy it. However, the principle of proportionality requires that situations, where a whole community and a long period are concerned, be treated as being entirely different from routine cases of removal of an individual from unlawfully occupied property.278 Nevertheless, in cases in connection with the division of Cyprus the Court found a continuing violation of Article 8 in the fact that Turkish authorities had refused to grant the Greek applicants access to their homes and land in the northern part of the country thereby entirely depriving them of their right to home.279

d) Correspondence 68

The question of whether or not national law provides adequate and effective guarantees against abuse is of great importance for determining whether or not 271 ECtHR, 25/2/1993, Funke v FRA, No. 10828/84, § 57; ECtHR, 25/2/1993, Cre ´mieux v FRA, No. 11471/85, § 40. 272 ECtHR, 16/12/1997, Camenzind v SUI, No. 21353/93, § 45; ECtHR, 8/8/2006, H. M. v TUR, No. 34494/97, § 25. 273 ECtHR, 30/3/1989, Chappell v UK, No. 10461/83, §§ 58 et seq. 274 ECtHR, 30/3/1989, Chappell v UK, No. 10461/83, § 59; further ECtHR, 18/7/2006, Keegan v UK, No. 28867/03, § 33. 275 ECtHR, 30/3/1989, Chappell v UK, No. 10461/83, § 60; ECtHR, 16/12/1992, Niemietz v GER, No. 13710/88, § 37; ECtHR, 25/2/1993, Funke v FRA, No. 10828/84, § 57; ECtHR, 25/2/1993, Cre´mieux v FRA, No. 11471/85, § 40; ECtHR, 16/12/1997, Camenzind v SUI, No. 21353/93, § 46. 276 ECtHR, 16/12/1992, Niemietz v GER, No. 13710/88, § 37; ECtHR, 22/5/2008, Iliya Stefanov v BUL, No. 65755/01, §§ 34 et seq.; ECtHR, 21/10/2010, Xavier da Silveira v FRA, No. 43757/05, §§ 36 et seq. Regarding the search of a journalist’s home with a view to information security see ECtHR, 25/2/2003, Roemen a. Schmit v LUX, No. 51772/99, §§ 52 et seq. 277 ECtHR, 6/12/2011, Gladysheva v RUS, No. 7097/10, § 93. 278 ECtHR, 24/4/2012, Yordanova a. o. v BUL, No. 25446/06, §§ 111, 121. 279 ECtHR, 10/5/2001 (GC), CYP v TUR, No. 25781/94, §§ 171 et seq; ECtHR, 22/12/2005, Xenides-Arestis v TUR, No. 46347/99, §§ 19 et seq.

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interferences with the right to correspondence are necessary in a democratic society. In this context it is decisive whether a system of review has been established.280 A warrant ordering the search and seizure of documents must be drawn as limited as possible, for example by giving the name of the author or addressee of the letter. This is particularly true where the premises of certain groups such as lawyers are concerned and professional secrecy is thereby encroached.281 The same procedural guarantees apply to the search and seizure of electronic data.282 Extensive case law exists as to when limitations on the correspondence of prison- 69 ers can be considered to be necessary in a democratic society.283 The Court recognises that some measure of control over prisoners’ correspondence is called for and is not in itself incompatible with the Convention.284 However, in each individual case reasons which justify the control of correspondence have to be submitted.285 Interferences are generally justified where a letter contains threats of or incitements to violence or other criminal actions286 or where functional formal regulations for the control of correspondence in prisons are not obeyed.287 Stopping letters can, however, not be justified by the fact that they contain information about treatment in prison and have not been shown to the prison authorities.288 In assessing the permissible extent of such control in general, the fact that the opportunity to write and to receive letters is sometimes the prisoner’s only link with the outside world has to be taken into consideration.289 Accordingly the Court attributes particular importance to the opportunity for prisoners to maintain contact with their families and friends outside prison. A blanket ban of correspondence is not even justified where the correspondence takes place between former fellow inmates. According to the Court it is sufficient that detainees are entitled to receive letters at all times and to send two or three letters per week when costs of writing materials and postage were borne by the prison authorities.290 In respect of telephone facilities, the Court considers that Article 8 of the 70 Convention cannot be interpreted as guaranteeing prisoners the right to make telephone calls, in particular where the facilities for contact by way of correspon280 ECtHR, 6/9/1978, Klass a. o. v GER, No. 5029/71, §§ 50, 54, 55; ECtHR, 25/2/1993, Miailhe v FRA, No. 12661/87, § 37; ECtHR, 24/8/1998, Lambert v FRA, No. 23618/94, § 31. 281 ECtHR, 16/12/1992, Niemietz v GER, No. 13710/88, § 37. 282 ECtHR, 16/10/2007, Wieser a. Bicos Beteiligungen GmbH v AUT, No. 74336/01, §§ 63 et seq; ECtHR, 3/7/2012, Robathin v AUT, No. 30457/06, § 41. 283 ECtHR, 25/3/1983, Silver v UK, No. 5947/72, §§ 83 et seq; ECtHR, 25/3/1992, Campbell v UK, No. 13590/88, §§ 42 et seq; Espacially in the Silver Case the Court comments on a number of specific regulations (see there §§ 96 et seq). 284 ECtHR, 25/3/1983, Silver v UK, No. 5947/72, § 98; ECtHR, 25/2/1992, Pfeifer a. Plankl v AUT, No. 10802/84, § 46; ECtHR, 25/3/1992, Campbell v UK, No. 13590/88, § 45. 285 ECtHR, 14/3/2002, Puzinas v LTU, No. 44800/98, § 21; ECtHR, 1/10/2009, Tsonyo Tsonev v BUL, No. 33726/03, § 39. 286 ECtHR, 25/3/1983, Silver v UK, No. 5947/72, § 103. 287 EComHR, 18.10.1985, Farrant, No. 7291/75, § 48; EComHR, 17/5/1990, Chester, No. 12395/86, ¨ zen a. o. v TUR, No. 15672/08 et al, §§ 50 et seq §§ 52 et seq; ECtHR, 11/1/2011, Mehmet Nuri O (absence of any legal framework clarifying the procedure for handling correspondence written in a foreign language resulting in refusal to send such letters). 288 So called ‘prior-ventilation rule’, see ECtHR, 25/3/1983, Silver v UK, No. 5947/72, § 99; ECtHR, 28/6/1984, Campbell a. Fell v UK, No. 7819/77 a. o., § 110. 289 ECtHR, 25/3/1992, Campbell v UK, No. 13590/88, § 45. 290 ECtHR, 29/1/2002, A. B. v NED, No. 37328/97, §§ 87, 91; ECtHR, 24/2/2009, Gagiu v ROM, No. 63258/00, §§ 88 et seq.

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dence are available and adequate.291 Given the possibility of abuse a general prohibition of cell phones is in line with Article 8. The correspondence between a prisoner and his counsel292 or the convention bodies293 is of a private and confidential nature and hence enjoys privileged protection. The confidentiality of this relationship, which is also protected by the professional secrecy of lawyers, has to be preserved.294 Prison authorities may open a letter from a lawyer to a prisoner when they have reasonable cause to believe that it contains an illicit enclosure which the normal means of detection have failed to disclose. The letter should, however, only be opened and should not be read.295 Suitable guarantees preventing the reading of the letter should be provided, e.g. opening the letter in the presence of the prisoner. The reading of a prisoner’s mail to and from a lawyer, on the other hand, should only be permitted in exceptional circumstances when the authorities have reasonable cause to believe that the privilege is being abused in that the contents of the letter endanger prison security or the safety of others or are otherwise of a criminal nature. What may be regarded as “reasonable cause” will depend on all the circumstances but it presupposes the existence of facts or information which would satisfy an objective observer that the privileged channel of communication was being abused.296 In the Court’s view, uninhibited correspondence between a prisoner suffering from a life-threatening condition and his doctor should be given no less protection than the correspondence between a prisoner and his lawyer as long as the State fails to provide sufficient reasons to explain why the risk of abuse involved in correspondence with named doctors whose exact address, qualifications and bona fides were not in question should be perceived as greater than the risk involved in correspondence with lawyers.297 71 In the field of concealment of a bankrupt’s assets to the detriment of his creditors the authorities may consider it necessary to have recourse to the interception of a bankrupt’s correspondence in order to identify and trace the sources of his income. Nevertheless, the implementation of the measures must be accompanied by adequate and effective safeguards which ensure minimum impairment of the right to respect for his correspondence.298 291

ECtHR, 29/1/2002, A. B. v NED, No. 37328/97, §§ 92 et seq. ECtHR, 6/9/1978, Klass a. o. v GER, No. 5029/71, § 41; ECtHR, 20/6/2000, Foxley v UK, No. 33274/96, § 43; regarding Article 6 see ECtHR, 28/11/1991, S. v SUI, No. 12629/87, § 48. It is not necessary for the counsel to be registered as a lawyer in a Member State, ECtHR, 29/1/2002, A. B. v NED, No. 37328/97, § 86. 293 ECtHR, 25/3/1992, Campbell v UK, No. 13590/88, § 62; ECtHR, 28/11/2000, Rehbock v SLO, No. 29462/95, § 99; ECtHR, 19/4/2001, Peers v GRE, No. 28524/95, § 84; ECtHR, 24/7/2001, Valasinas v LTU, No. 44558/98, § 129; ECtHR, 29/1/2002, A. B. v NED, No. 37328/97, § 83. 294 ECtHR, 25/3/1992, Campbell v UK, No. 13590/88, § 62; ECtHR, 24/7/2001, Valasinas v LTU, No. 44558/98, § 129; ECtHR, 29/1/2002, A. B. v NED, No. 37328/97, § 83; ECtHR, 22/5/2008, Petrov v BUL, No. 15197/02, § 43. The general possibility of envelopes being forged in order to smuggle prohibited material into the prison, is a risk so negligible that it must be discounted, ECtHR, 19/4/2001, Peers v GRE, No. 28524/95, § 84; ECtHR, 1/10/2009, Tsonyo Tsonev v BUL, No. 33726/03, § 40. 295 ECtHR, 25/3/1992, Campbell v UK, No. 13590/88, § 48. 296 ECtHR, 25/3/1992, Campbell v UK, No. 13590/88, § 48; ECtHR, 20/6/2000, Foxley v UK, No. 33274/96, § 44. 297 ECtHR, 2/6/2009, Szuluk v No. 36936/05, § 53. 298 ECtHR, 20/6/2000, Foxley v UK, No. 33274/96, § 43. 292

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VI. Positive obligations A number of positive obligations for the State have been derived from Article 8 by 72 the Court. It held on a number of occasions that, although the essential object of Article 8 is to protect the individual against arbitrary interference by the public authorities, there may in addition be positive obligations inherent in an effective respect for private life.299 In determining whether or not a positive obligation exists, a fair balance has to be struck between the general interest of the community and the interests of the individual. Having regard to the diversity of practices followed and the situations obtaining in the Contracting States, the notion’s requirements will vary considerably from case to case and Member States enjoy a margin of appreciation.300 There are three kinds of positive obligations: those aiming at protecting the individual from interferences by others, positive obligations with regard to organisation and procedure and obligations to inform.

1. Positive obligation to protect against interferences by third parties Regarding the right to respect for one’s private life the Court held that positive 73 obligations are inherent to the right to sexual self-determination. With a view to the importance of the object of protection and the severity of a potential interference the Court holds that States are obligated to establish and apply effectively a criminal-law system punishing all forms of rape and sexual abuse.301 It attaches great importance to the protection of minors and vulnerable individuals.302 Thus, in order to protect the core of private life of children and vulnerable individuals from dangers arising in the internet it may be necessary to order the operator of the server to provide information identifying the offender.303 In a case concerning the lack of a clear statutory provisions criminalising the act of covertly filming a naked child the Court held that due to the technical developments in the sphere of filming and photography increased vigilance in protecting private life is necessary to contend with new communication technologies which make it possible to store and reproduce personal data. Hence, the State has to take active steps and criminalise certain acts of filming in situations where the act violates the personal integrity of the filmed person.304 In cases of domestic violence which lead to an interference with the right to 74 physical and psychological integrity of the person concerned the Court will analyse the circumstances of the case from the standpoint of Article 8 in order to 299 ECtHR, 17/10/1986, Rees v UK, No. 9532/81, § 37; ECtHR, 21/2/1990, Powell a. Rayner v UK, No. 9310/81, § 41; ECtHR, 19/2/1998, Guerra v ITA, No. 14967/89, § 58; ECtHR, 8/7/2003 (GC), Hatton a. o. v UK, No. 36022/97, § 95. 300 ECtHR, 11/7/2002 (GC), I. v UK, No. 25680/94, § 52; ECtHR, 17/10/1986, Rees v UK, No. 9532/81, § 37. 301 ECtHR, 4/12/2003, M. C. v BUL, No. 39272/98, § 185. 302 ECtHR, 22/10/1981, Dudgeon v UK, No. 7525/76, § 49; ECtHR, 26/3/1985, X. a. Y. v NED, No. 8978/80, §§ 27 et seq; ECtHR 2/12/2008, K.U. v FIN, No. 2872/02, §§ 45 et seq; ECtHR, 20/03/2012, C.A.S.and C.S. v ROM, No. 26692/05, § 83, ECtHR, 27/9/2011, M. a. C. v ROM, No. 29032/04, § 111. 303 ECtHR, 2/12/2008, K.U. v FIN, No. 2872/02, § 45. 304 ECtHR, 21/6/2012, Sodermann v SWE, No. 5786/08, § 71 (not final, pending before the GC).

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avoid further analysis as to whether the incidents engage the State’s positive obligation under Article 2, as well as issues pertinent to the threshold for the purposes of Article 3. The State is obligated to protect the person concerned against interferences by third parties.305 Repeated threats can interfere with the physical integrity of a person even if they do not actually materialise into concrete acts of physical violence. A well-founded fear that they might be carried out is enough to affect the psychological integrity and well-being so as to give rise to an assessment as to compliance by the State with its positive obligations under Article 8.306 75 Under Article 8, States have in some circumstances a duty to protect the moral integrity of an individual from acts of other persons. The Court has held that a positive obligation rests upon States to ensure respect for human dignity and the quality of life in certain respects. Hence, State authorities have to put in place adequate and relevant measures to prevent acts of ongoing harassment.307 However, in a case concerning violence among pupils it considered that for the State’s positive obligations under Article 8 to be triggered and for the relevant authorities to be required to take concrete steps, allegations of violence must be specific and detailed as to the place, time and nature of the acts complained of, notwithstanding the fact that the pupil –being a minor – fell within the group of ‘vulnerable individuals’.308 76 States are further obligated to pass regulations ensuring that hospitals have to take appropriate measures for the protection of their patients’ physical integrity. These regulations have to be binding for private hospitals as well as public hospitals.309 77 Furthermore, Article 8 obligates States to protect a person’s reputation310 and the right to one’s own picture311 against publications by the press or other media. The right to the protection of one’s image presupposes the right to control the use of that image. Whilst in most cases the right to control such use involves the possibility for an individual to refuse publication of his or her image, it also covers the individual’s right to object to the recording, conservation and reproduction of the image by another person.312 In each individual case, the scope of the obligation to protect a person’s right to their own image has to be determined by striking a fair balance between this right and the interest to publish the picture and legitimate informational interests as guaranteed by Article 10. Where the person concerned is a public figure the informational interests have to be given greater consideration.313 Moreover, the manner in which the person is portrayed also has to be taken into account. As no common European Standard in the protection of the right to one’s 305

ECtHR, 14/10/2010, A. v CRO, No. 55164/08, §§ 57 et seq. ECtHR, 30/11/2010, Hajduova´ v SLO, No. 2660/03, § 49. 307 ECtHR, 24/7/2012, Ðord-evic ´ v CRO, No. 41526/10, §§ 151 et seq. 308 ECtHR, 19/7/2011, Durdevic ´ v CRO, No 52442/09, §§ 109, 118. 309 ECtHR, 2/6/2009, Codarcea v ROM, No. 31675/04, § 102. 310 ECtHR, 15/11/2007, Pfeifer v AUT, No. 12556/03, § 44; ECtHR, 21/10/2010, Polanco Torres a. Movilla Polanco v ESP, No. 34147/06, § 41. 311 ECtHR, 24/6/2004, v. Hannover v GER, No. 59320/00, § 69; see futher ECtHR, 21/2/2002, Schu¨ssel v AUT, No. 42409/98. 312 ECtHR, 7/2/2012, von Hannover (No. 2) v GER, No. 40660/08 a. 60641/08, § 96; ECtHR, 15/1/2010, Reklos a. Davourlis v GRE, No. 1234/05, § 40. 313 For the case law regarding ‘public figures’ see Article 10 m.n. 48 et seq. 306

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own picture can be found, Member States enjoy a wide margin of appreciation. Nevertheless, in the von Hannover Case the ECtHR closely revised the balancing of the interests involved and – without conclusive argumentation – came to the conclusion that the differentiated case law regarding the protection of privacy of celebrities against publications in magazines which included pictures established by the German Federal Constitutional Court constituted a violation of Article 8.314 In subsequent cases the Court held that its task is not to take the place of the national courts, but rather to review, in the light of the case as a whole, whether the decisions they have taken pursuant to their power of appreciation are compatible with the provisions of the Convention relied on. In cases which require the right to respect for private life to be balanced against the right to freedom of expression the Court considers that the outcome of the application should not, in theory, vary according to whether it has been lodged with the Court under Article 8 of the Convention, by the person who was the subject of the article, or under Article 10 by the publisher. Indeed, as a matter of principle these rights deserve equal respect. Accordingly, the margin of appreciation should in theory be the same in both cases. Where the balancing exercise has been undertaken by the national authorities in conformity with the criteria laid down in the Court’s case-law, the Court would require strong reasons to substitute its view for that of the domestic courts.315 Thereby the following criteria are relevant: – Contribution to a debate of general interest – How well known is the person concerned and what is the subject of the report? – Prior conduct of the person concerned – Content, form and consequences of the publication – Circumstances in which the photos were taken – Method of obtaining the information and its veracity – Severity of the sanction imposed316 Further, a balance between different interests has to been struck in the protection of a person’s reputation. Decisive factors in doing so are whether the publication deals with a matter of public interest and whether the journalist acted in good faith, believing that a statement of fact is true and having taken adequate measures to check its accuracy.317 In the fiel of the protection of personal data from publications by the media the 78 State enjoys a margin of appreciation in deciding what ‘respect’ for private life requires in each individual case. Certain financial standards based on the economic situation of the State are to be taken into account when determining the measures required for the better implementation of damages and compensation for immaterial damage. The Court likewise takes note of the fact that the Member States of the Council of Europe may regulate questions of compensation for non-pecuniary damage differently, as well as the fact that the imposition of financial limits is not 314

ECtHR, 24/6/2004, v. Hannover v GER, No. 59320/00, §§ 76 et seq. ECtHR, 7/2/2012 (GC), von Hannover v GER (No. 2), No. 40660/08 a. 60641/08, §§ 105 et seq; ECtHR, 7/2/2012, Axel Springer AG v GER, No. 39954/08, § 86 et seq; see also ECtHR, 15/3/2012, Aksu v TUR, No. 4149/04 a. 41029/04, §§ 63 et seq. 316 ECtHR, 7/2/2012 (GC), von Hannover v GER (No. 2), No. 40660/08 a. 60641/08, §§ 108 et seq; ECtHR, 7/2/2012, Axel Springer AG v GER, No. 39954/08, § 89 et seq. 317 ECtHR, 21/10/2010, Polanco Torres a. Movilla Polanco v ESP, No. 34147/06, §§ 40 et seq, 52; ECtHR, 3/5/2011, Sipos˛ v ROM, No. 26125/04, §§ 30 et seq. 315

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in itself incompatible with a State’s positive obligation under Article 8. However, such limits must not be such as to deprive the individual of his or her privacy and thereby empty the right of its effective content.318 79 The Court further held that positive obligations are inherent in the respect for private life in cases regarding an encroachment of private life by aircraft noise or pollution of the environment.319 They arise from the right to one’s home, which the State has to protect against interferences by others. Hence, the State has to afford for appropriate measures ensuring protection against noise and protection against pollution of the environment.320 The nuisance must reach a minimum level of severity for a positive obligation to exist.321 The interests of a country’s economic well-being may be considered in striking a fair balance.322 This means that the obligation to protect against noise is subject to restrictions.323 In order to determine whether or not the State could be held responsible under Article 8, the Court examines whether a situation was the result of a sudden and unexpected turn of events or, on the contrary, was long-standing and well known to the State authorities; whether the State was or should have been aware that the hazard or the nuisance was affecting someone’s private life and to what extent the person affected contributed to creating this situation for himself and was in a position to remedy it without a prohibitive outlay.324 Even in cases where a State has already violated a positive obligation resulting from Article 8 the choice of means to be taken in the particular situation remains in the States discretion.325 Nevertheless, where authorities tolerate, and thereby contribute to, the repeated flouting of rules an interference may still be at hand. Regulations to protect guaranteed rights serve little purpose if they are not duly enforced and the Court reiterates that the Convention is intended to protect effective rights, not illusory ones.326 Further, the Court found that positive obligations arise from Article 8 in a case concerning an interference with the right to one’s home by emissions from a 318 ECtHR, 25/11/2008, Biriuk v LTU, No. 23373/03, §§ 45 et seq and ECtHR, 25/11/2008, Armoniene´ v LTU, No. 36919/02, §§ 45et seq (publication of the applicant’s health data in a daily); see also ECtHR, 5/7/2011, Avram a. o. v MDA, No. 41588/05, §§ 40 et seq. 319 Besides measures of protection procedural guarantees may be called for ECtHR, 10/11/2004, Tas˛kin, a. o. v TUR, No. 46117/99, § 118et seq; ECtHR, 7/4/2009, Braˆndus˛e v ROM, No. 6586/03, §§ 68 et seq. 320 ECtHR, 21/2/1990, Powell a. Rayner v UK, No. 9310/81, §§ 41 a. 45; ECtHR, 9/12/1994, Lo´pez Ostra v ESP, No. 16798/90, § 51; ECtHR, 8/7/2003 (GC), Hatton a. o. v UK, No. 36022/97, § 98; ECtHR, 16/11/2004, Moreno Go´mez v ESP, No. 4143/02, §§ 58 et seq; ECtHR, 9/6/2005, Fadeyeva v RUS, No. 55723/00, §§ 89 et seq; ECtHR 20/5/2010, Oluic´ v CRO, No. 61260/08, § 45; ECtHR, 9/11/2010, Dee´s v HUN, No. 2345/06, § 21; see further Sˇva´by, in: de Salvia/Villiger, pp. 221 et seq. 321 ECtHR, 25/11/2010, Mileva a. o. v BUL, No. 43449/02 a. 21475/04, § 90; ECtHR; 14/2/2012, Hardy & Maile vs UK, No. 7094/06, § 188. 322 ECtHR, 21/2/1990, Powell a. Rayner v UK, No. 9310/81, §§ 41 et seq; ECtHR, 9/12/1994, Lo´pez Ostra v ESP, No. 16798/90, § 58; ECtHR, 8/7/2003 (GC), Hatton a. o. v UK, No. 36022/97, § 126. See Desgagne´, AJIL 89 (1995), 276. 323 See Grabenwarter/Pabel, § 22 m.n. 55. 324 ECtHR, 10/2/2011, Dubetska a. o. v UKR, No. 30499/03, § 108. 325 ECtHR, 9/12/1994, Lo ´ pez Ostra v ESP, No. 16798/90, § 51; ECtHR, 9/6/2005, Fadeyeva v RUS, No. 55723/00, § 105; ECtHR, 12/5/2009, Greenpeace e.v. a. o. v GER, No. 18215/06; cf. Heringa, Private Life and the Protection of the Environment, MJ 1995, 196 (203); Kiss, Studies in memory of Rolv Ryssdal, p 677 (679). 326 ECtHR, 16/11/2004, Moreno Go ´ mez v ESP, No. 4143/02, § 61.

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mobile station. However, referring to the fact that no scientific proof of health impairment by mobile stations existed the Court held, that Member States enjoy a wide margin of appreciation in taking safeguard measures.327 In a case where people belonging to a minority (Roma) had to live under unacceptable circumstances (i. e. stables and cellars) after their houses had – with involvement of State authorities – been systematically burned down and they had been banished and State authorities had failed to act the Court also found a violation of State obligations with a view to the right to respect for private and family life as well as the right to one’s home.328 ‘Respect’ for a family life implies positive obligations for the State. This is of 80 particular importance in cases regarding the non-discrimination of children born out of wedlock compared to those born in marriage as provided by Article 8 and Article 14. No disadvantage (e.g. with a view to inheritance rights) or discrimination may arise due to the fact that a child is born out of wedlock329 or adopted.330 Even though the ECHR does not guarantee a right to adoption, under certain circumstances Member States are under an obligation to take positive measures to permit the formation and development of legal family ties.331 Moreover, if a State grants a right to adoption – thereby going beyond the obligations imposed by the ECHR – the application of this right must not be discriminatory.332 Hence, even though the Court explicitly held that it is legitimate for a State to restrict second-parent adoption to married couples – thereby excluding same-sex couples –333, where second-parent adoption is possible for unmarried heterosexual couples the same must apply for unmarried homosexual couples.334 The Court has repeatedly held that Article 8 includes a right for parents to have measures taken with a view to their being reunited with their children, and an obligation on the national authorities to take these measures. This applies also to cases where contact and residence disputes concerning children arise between parents. A lack of cooperation between separated parents is not a circumstance which can by itself exempt the authorities from their positive obligations under Article 8. It rather imposes on the authorities an obligation to take measures to reconcile the conflicting interests of the parties, keeping in mind the paramount interests of the child depending on their nature and seriousness, may override those of the parent.335 In cases where the biological father and the legal father are not the same person Article 8 can be interpreted as imposing on the Member States an obligation to examine whether it is in the child’s best interests to allow the biological father to 327

ECtHR, 17/1/2006, Luginbu¨hl v SUI, No. 42756/02. ECtHR, 12/7/2005, Moldovan et al. (No. 2) v ROM, No. 41138/98 et al, §§ 102 et seq. 329 See ECtHR, 13/6/1979, Marckx v BEL, No. 6833/74, § 45; ECtHR, 18/12/1986, Johnston a. o. v IRL, No. 9697/82, § 74; ECtHR, 8/7/2003 (GC), Sommerfeld v GER, No. 31871/96, § 86; ECtHR, 7/4/2009, Turnali v TUR, No. 4914/03, § 46. 330 ECtHR, 3/5/2011, Ne ´gre´pontis-Giannisis v GRE, No. 56759/08, § 82. 331 ECtHR, 13/12/2007, Emonet et al v SUI, No. 39051/03, § 66 (adoption by the mother’s partner); ECtHR, 27/4/2010, Moretti a. Benedetti v ITA, No. 16318/07, §§ 47 et seq; ECtHR, 20/7/2010, Dadouch v MLT, No. 38816/07, § 48; cf. ECtHR, Harroudj v FRA, No. 43631/09, §§ 47 et seq. 332 ECtHR, 22/1/2008 (GC), E. B. v FRA, No. 43546/02, § 49 (adoption by a homosexual woman); cf. ECtHR, 26/2/2002, Frette´ v FRA, No. 36515/97, § 32. See further Grigolo, EJIL 2003, 1038. 333 ECtHR, 15/3/2012, Gas a. Dubois v FRA, No. 25951/07, § 68. 334 ECtHR, 19/2/2013 (GC), X a. o. v AUT, No. 19010/07, §§ 105 et seq. 335 ECtHR, 27/9/2011, Diamante a. Pelliccioni v SMR, No. 32250/08, §§ 173 et seq. 328

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establish a relationship with his child, for example by granting contact rights. Accordingly, the biological father must not be completely excluded from his child’s life unless there are relevant reasons relating to the child’s best interests to do so. However, this does not necessarily imply a duty under the Convention to allow the biological father to challenge the legal father’s status.336

2. Positive obligations with regard to organisation and procedure The right to private and family life imposes organisational and procedural obligations on Member States. Whilst Article 8 contains no explicit procedural requirements, the decision-making process leading to measures of interference must be fair and such as to afford due respect to the interests safeguarded by Article 8.337 These safeguards are of particular importance as proceedings in this area often result in decisions which may well prove to be irreversible.338 States have to comply with positive obligations to guarantee effective respect for private life by its legislative, executive and judicial authorities. These authorities then have ensure that appropriate protection is offered for example against violence by private individuals.339 82 Further, the obligation to protect the rights of individuals against interferences by their employer is inherent in the right to respect for private and family life as guaranteed by Article 8. This is particularly true where the latter has a dominant market position. Moreover, the State has to put in place a judicial system thereby enabling employees to have the legitimacy of measures and behaviour of their employers reviewed in official proceedings.340 In the cases Obst and Schu¨th the Court dealt with dismissals of church employees based on actions relating to their private life for the very first time. One applicant held the post of director for Europe of the public relations department of the Mormon Church the other held the position of organist and choir master at a Catholic parish church. Both had been dismissed due to the fact that both were in a extramarital relationship. The ECtHR held that in cases like this the Church’s rights under Article 9 and 11 have to be considered as well as the employee’s interests. Hence, according to the Court, a fair balance has to be struck between the fundamental rights positions involved. These are the Church’s right to autonomy on the one hand and the applicant’s right to respect for his private life on the other.341 83 The right to respect for family life further comprises a duty of the Member States to organise their services and train their agents in such a way that they can meet the requirements of the Convention. In an area as personal and delicate as the manage81

336 ECtHR, 22/3/2012, Kautzor v GER, No. 23338/09, §§ 76 et seq; ECtHR; 22/3/2012, Ahrens v GER, No. 45071/09, § 74. 337 ECtHR, 8/7/1987, W. v UK, No. 9749/82, § 62; ECtHR, 24/2/1995, McMichael v UK, No. 16424/90, § 87; ECtHR, 9/5/2003, Covezzi a. Morselli v ITA, No. 52763/99, § 133. 338 ECtHR, 8/7/1987, W. v UK, No. 9749/82, § 62; ECtHR, 8/7/1987, H v UK, No. 9580/81, § 89. 339 ECtHR, 16/10/2008, Taliadouou a. Stylianou v CYP, No. 39627/05 a. 39631/05, § 50; ECtHR, 5/3/2009, Jankovic´ v CRO, No. 38478/05, § 45. 340 ECtHR, 23/9/2010, Obst v GER, No. 425/03, §§ 39 et seq; ECtHR, 23/9/2010, Schu ¨ th v GER, No. 1620/03, §§ 53 et seq. 341 ECtHR, 23/9/2010, Obst v GER, No. 425/03, § 43; ECtHR, 23/9/2010, Schu ¨ th v GER, No. 1620/03, § 57; see however concerning a secularised priest ECtHR, 15/5/2012, Ferna´ndez Martı´nez v ESP, No. 56030/07, § 83 (not final, pending before the GC).

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ment of the death of a close relative a particularly high degree of diligence and prudence must be exercised.342 Nonetheless, Member States are not obligated to pass legal regulations regarding the unworthiness of heirs.343 Article 8 guarantees a right to access to a court in family law matters. This right may, however, be limited as long as the principle of proportionality is ensured. Hence, time-limits for bringing judicial claims contesting paternity could in principle comply with Article 8.344 Nevertheless, the application of a rigid time-limit for the exercise of paternity proceedings, regardless of the circumstances of an individual case and in particular, the obligation to take action within that time-limit, impairs the very essence of the right to respect for one’s private life under Article 8.345 The Court further found a violation of Article 8 in a case where a man was never afforded the possibility of bringing, with reasonable prospects of success, an action aimed at rebutting the legal presumption of paternity which thereby was allowed to prevail over biological reality.346 Moreover, Article 8 guarantees a special right to a reasonable length of proceedings in family matters.347 This is due to the fact that in cases of this kind there is always the danger that any procedural delay will result in the de facto determination of the issue.348 In so fundamental an area as respect for family life, considerations regarding administrative difficulties cannot be allowed to play more than a secondary role.349 The State is also also responsible for the necessary preparation of a reunion of 84 natural parents with children who have lived for some time in a foster family needs preparation. The nature and extent of such preparation may depend on the circumstances of each case, but it always requires the active and understanding cooperation of all concerned. Whilst national authorities must do their utmost to bring about such co-operation, their possibilities of applying coercion in this respect are limited since the interests as well as the rights and freedoms of all concerned must be taken into account, notably the children’s interests and their rights under Article 8.350 In cases regarding the abduction of a child by the parent who does not have custody national authorities have to take all the necessary steps to facilitate execution of the order to return the child to the parent who does have 342

ECtHR, 14/2/2008, Hadri-Vionnet v SUI, No. 55525/00, § 56. ECtHR, 1/12/2009, Velcea a. Maza˘re v ROM, No. 64301/01, § 129. 344 ECtHR, 24/11/2005, Shofman v RUS, No. 74826/01, § 39; ECtHR, 12/1/2006, Mizzi v MLT, No. 26111/02, § 83. 345 ECtHR, 20/12/2007, Phinikaridou v CYP, No. 23890/02, §§ 62 et seq; ECtHR, 6/7/2010, Backlund v FIN, No. 36498/05, § 56. 346 ECtHR, 24/11/2005, Shofman v RUS, No. 74826/01, §§ 36 et seq; ECtHR, 12/1/2006, Mizzi v MLT, No. 26111/02, §§ 108 et seq; ECtHR, 17/9/2009, Ancel v TUR, No. 28514/04, §§ 61 et seq; see Article 14 m.n. 23. 347 ECtHR, 8/7/1987, W. v UK, No. 9749/82, § 65; ECtHR, 8/7/1987, H. v UK, No. 9580/81, §§ 89 et seq; ECtHR, 9/5/2003, Covezzi a. Morselli v ITA, No. 52763/99, §§ 137 et seq; see further ECtHR, 29/6/2004, Volesky´ v CZE, No. 63627/00, §§ 117 et seq. 348 ECtHR, 18/1/2007, Kaplan v AUT, No. 45983/99, § 32 (a father moving his child to Turkey after a lack of action by Austrian authorities); ECtHR, 12/7/2007, Nanning v GER, No. 39741/02, §§ 44 et seq. (procedural aspects are dealt with under Article 6); ECtHR, 1/12/2009, Eberhard a. M. v SLO, No. 8673/05 a. 9733/05, §§ 128 et seq; ECtHR, 22/4/2010, Macready v CZE, No. 4824/06 a. 15512/08, § 65; ECtHR, 22/9/2010, Stochlak v POL, No. 38273/02, § 61. 349 ECtHR, 13/7/2000 (GC), Scozzari a. Giunta v ITA, No. 39221/98 a. o., § 173. 350 ECtHR, 27/11/1992, Olsson (No. 2) v SWE, No. 13441/87, § 90; ECtHR, 13/7/2000 (GC), Scozzari a. Giunta v ITA, No. 39221/98 a. o., § 175. 343

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custody.351 Under certain circumstances this may even justify taking coercive measures.352 Nevertheless, the State’s obligation to enforce custody decisions is not absolute; not every situation where the authorities’ efforts remain ineffective leads to a violation of Article 8. The Court examines whether the reasons purporting to justify any measures taken are relevant and sufficient and, regard being had to the State’s margin of appreciation, whether a fair balance was struck between the competing interests of the individuals involved (including the children) and the community, including other concerned third parties.353 85 Besides the requirement that decisions must be made as quick as possible in order to avoid alienation of the child in some situations interim measures have to be taken for the protection against a violent parent.354 The decision-making process must, in the Court’s view, be such as to secure that the natural parents’ views and interests are made known to and duly taken into account by the local authority.355 Hence, the ECtHR established a number of special procedural rights of parents in proceedings regarding custody or rights of contact and access. In some cases it may be necessary for the local courts to involve a psychological expert in order to assess the child’s position correctly.356 Correct and thorough information about the parent trying to have more contact with the child is of fundamental importance for assessing where the child’s interests lay and thereby for enabling striking a fair balance of all interests involved. In order to gain access to such information national courts may under certain circumstances, especially in cases where an expert opinion did not give full information, be obligated to enable children themselves to express their views. Due regard must be had to the age and maturity of the child concerned.357 86 The rights pursuant to Article 8 of mother and child are violated where the duration of proceedings to determine paternity is excessively long. The right of the putative father not to be forced to undergo DNA tests must give way to the right of 351 ECtHR, 24/4/2003, Sylvester v AUT, No. 36812/97 a. o., § 59; ECtHR, 5/4/2005, Monory v ROM, No. 71099/01, §§ 69 et seq; ECtHR, 13/9/2005, H. N. v POL, No. 77710/01, §§ 76 et seq; similar ECtHR, 13/7/2006, Lafargue v ROM, No. 37284/02, § 104 (failure of national authorities to take appropriate action to ensure that a father’s right to personal contact with his son can be enforced even if the mother risists it). The positive obligations that Article 8 of the Convention lays on the Contracting States in the matter of reuniting a parent with his or her children must be interpreted in the light of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abductio, ECtHR, 25/1/2000, Ignaccolo-Zenide v ROM, No. 31679/96, § 95; ECtHR, 24/4/2003, Sylvester v AUT, No. 36812/97, § 57; ECtHR, 6/11/2008, Carlson v SUI, No. 49492/06, §§ 74 et seq; ECtHR, 27/7/2006, Iosub Caras v ROM, No. 7198/04, §§ 33 et seq. 352 ECtHR, 6/12/2007, Maumousseau a. o. v FRA, No. 39388/05, § 85. 353 ECtHR, 12/1/2006, Mihailova v BUL, No. 35978/02, §§ 82 et seq; ECtHR, 13/10/2009, Costreie v ROM, No. 31703/05, §§ 69 et seq; ECtHR, 6/12/2011, Cengiz Kilic v TUR, No. 16192/06, §§ 122 et seq. 354 ECtHR, 12/6/2008, Bevacqua u. S. v BUL, No. 71127/01, §§ 66 et seq. 355 ECtHR, 8/7/1987, W. v UK, No. 9749/82, § 64; ECtHR, 13/7/2000, Elsholz v GER, No. 25735/94, § 52; ECtHR, 14/1/2003, K. A v FIN, No. 27751/95, §§ 104 et seq; ECtHR, 9/5/2003, Covezzi a. Morselli v ITA, No. 52763/99, §§ 137 et seq; ECtHR, 10/4/2012, K.A.B. v ESP, No. 59819/08, § 98. 356 ECtHR, 13/7/2000, Elsholz v GER, No. 25735/94, §§ 58 et seq; ECtHR, 8/7/2003 (GC), Sommerfeld v GER, No. 31871/96, § 71; see however ECtHR, 25/8/2009, Pokrzeptowicz (I) v GER, No. 11328/06; ECtHR, 2/3/2010, Orhan Sarican v GER, No. 14833/08 a. 15543/08. 357 ECtHR, 8/7/2003 (GC), Sahin v GER, No. 30943/96, § 73; ECtHR, 18/12/2008, Saviny v UKR, No. 39948/06, § 51; see further ECtHR, 13/10/2009, Achim Bayerl v GER, No. 37395/08.

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the mother and the child to be able to have certainty over the child’s identity; national authorities have to execute this.358 The Court further gives precedence to the importance of knowing one’s genetic heritage over the feelings of respect of relatives of a dead man in cases where post-mortem DNA tests are the only way for a child to know his identity.359 The rights of the deceased himself cannot be violated.360 Moreover, the right to private life and family life does not allow for prohibitive proceedings in cases of divorce. Under certain circumstances couples have to be relieved from an obligation to live together.361 However, so far the Court did not establish that Member States are obligated to allow for divorce and remarriage.362 In cases on transsexualism the Court has to decide whether or not States are 87 obligated to acknowledge the changes in their legal system. At first the Court held that the change had to be adopted by official documents used in daily life such as a driver’s license or a passport. By this the person concerned is enabled to live their everyday life with their changed appearance without interruption.363 It did not consider a right to full legal recognition to follow from Article 8.364 Expressly departing from this case law the Court decided in 2002 that transsexualism has to be legally recognised in all respects and that transsexuals have to be allowed to marry and that their pension has to be calculated with regard to their new gender. The court considered in detail the consequences of legal recognition for the people concerned as well as problems arising from it for national authorities. Further, developments in the European and international law on transexuality were taken account of in the decision.365 Hence, as Articles 8 and 12 do not impose an obligation on Contracting States to grant same-sex couples access to marriage it may be necessary for an already existing marriage to be turned into a civil partnership where the latter is a real option which provides legal protection for same-sex couples which is almost identical to that of marriage.366 Also, the Convetion does not guarantee a right to reimbursement of costs arising from a medical change of gender. Nevertheless the Court considered a fixed deadline of two years in which it had to be established that the person actually was transsexual for the costs to be reimbursed to violate Article 8.367 The right to one’s home imposes procedural obligations. As the loss of one’s 88 home constitutes a particular grave interference the person concerned is guaranteed 358 ECtHR, 30/5/2006, Ebru a.o. v TUR, No. 60176/00, §§ 93 et seq.; ECtHR, 7/5/2009, Kalacheva v RUS, No. 3451/05, §§ 32 et seq; see already bereits ECtHR, 15/5/2006, The estate of Kresten Filtenborg Mortensen v DEN, No. 1338/03; ECtHR, 14/2/2012, A.M.M. v ROM, No. 2151/10, § 64. 359 ECtHR, 13/7/2006, Ja ¨ ggi v SUI, No. 58757/00, §§ 40 et seq. 360 ECtHR, 13/7/2006, Ja ¨ ggi v SUI, No. 58757/00, § 42; see already ECtHR, 15/5/2006, The estate of Kresten Filtenborg Mortensen v DEN, No. 1338/03. 361 ECtHR, 9/10/1979, Airey v IRL, No. 6289/73, § 33; ECtHR, 18/12/1986, Johnston a. o. v IRL, No. 9697/82, § 57. 362 ECtHR, 18/12/1986, Johnston a. o. v IRL, No. 9697/82, § 57. 363 ECtHR, 25/3/1992, B. v FRA, No. 13343/87, §§ 49, 63. 364 ECtHR, 17/10/1986, Rees v UK, No. 9532/81, §§ 42 et seq; ECtHR, 27/9/1990, Cossey v UK, No. 10843/84, §§ 38 et seq; ECtHR, 30/7/1998 (GC), Sheffield a. Horsham v UK, No. 22985/93 a. o., §§ 51. 365 ECtHR, 11/7/2002 (GC), I. v UK, No. 25680/94, §§ 51 et seq; ECtHR, 11/7/2002 (GC), Christine Goodwin v UK, No. 28957/95, §§ 71 et seq; ECtHR, 11/9/2007, L. v LTU, No. 27527/03, §§ 57 et seq (requirement of legal regulation of conditions and proceesdings). 366 ECtHR, 13/11/2012, H. v FIN, No. 37359/09, § 50 (not final, currently pending before the GC). 367 ECtHR, 8/1/2009, Schlumpf v SUI, No. 29002/06, §§ 77, 112 et seq.

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the right to a tribunal assessing the proportionality of measures such as compulsory auctions.368 If the person whose home is sold by court order lacks legal capacity and therefore is particularly vulnerable the States has a positive obligation under Article 8 to provide them with specific protection by the law. Hence, particular procedural provisions have to be met.369

3. Obligations to inform Article 8 imposes obligations to inform. The Court does accept that the confidentiality of collected data may served a legitimate aim and contribute to the effectiveness of national proceedings as well as protect the interests of the persons concerned.370 Nevertheless, under certain circumstances Article 8 guarantees rights which may in some cases not be guaranteed by Article 10. Generally speaking, Article 10 protects the rights to receive information.371 In the case of an orphan, however, the Court deduced a right to see the personal information and reports about the orphan’s childhood which had been collected by national authorities from Article 8. It considered that having grown up in a number of foster families persons in the situation of the applicant have a vital interest, protected by the Convention, in receiving the information necessary to know and to understand their childhood and early development, which undoubtedly falls within the scope of private and family life.372 In the Odie`vre case the Grand Chamber did not find a violation in the refusal of State authorities to grant access to data identifying the biological parents of a person who at the time was already an adult. It held that the expression ‘everyone’ in Article 8 applies to both the child and the mother. On the one hand, people have a right to know their origins, that right being derived from a wide interpretation of the scope of the notion of private life. The child’s vital interest in its personal development is also widely recognised in the general scheme of the Convention. On the other hand, a woman’s interest in remaining anonymous in order to protect her health by giving birth in appropriate medical conditions cannot be denied.373 90 Further, in family law matters parents have the right to access to files374 and a right to be heard.375 They are also entitled to information about evidence376 and an opportunity to react thereto.377 The positive obligation on the State to protect the interests of the family requires that the material be made available to the 89

368

ECtHR, 16/7/2009, Zehentner v AUT, No. 20082/02, §§ 59 et seq. ECtHR, 16/7/2009, Zehentner v AUT, No. 20082/02, §§ 63 et seq. 370 ECtHR, 7/7/1989, Gaskin v UK, No. 10454/83, § 43. 371 Cf. Article 10 m.n. 9 et seq. 372 ECtHR, 7/7/1989, Gaskin v UK, No. 10454/83, § 49; see further ECtHR, 24/9/2002, M. G. v UK, No. 39393/98, §§ 28 et seq. 373 ECtHR, 13/2/2003 (GC), Odie `vre v FRA, No. 42326/98, §§ 44 et seq; Bonnet, L’accouchement sous X et la Cour europe´enne des droits de l’homme, RTDH 2004, 405 et seq. 374 ECtHR, 24/2/1995, McMichael v UK, No. 16424/90, § 92. 375 In detail see ECtHR, 8/7/1987, W. v UK, No. 9749/82, §§ 63 et seq. See further ECtHR, 26/5/1994, Keegan v IRL, No. 16969/90, § 55. 376 The State is obligated to treat the parents in a thoughtfull and fair manner and inform them adequately about measures which interfere with the sensitive area of familiy life. ECtHR, 13/7/2000 (GC), Scozzari a. Giunta v ITA, No. 39221/98 et al, § 208; see further ECtHR, 15/10/2009, Tsourlakis v GRE, No. 50796/07, §§ 41 et seq. 377 ECtHR, 20/12/2001, Buchberger v AUT, No. 32899/96, §§ 43 et seq. 369

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parent concerned, even in the absence of any request by the parent.378 Exceptions to this may be made if this poses a risk to the welfare of the child.379 The legal possibility of a mother to give up her child for adoption without informing the father or asking for his approval violates Article 8.380 In the Guerra case the Court held that even though Article 10 does not 91 guarantee a right to receive information about environmental risks an obligation to inform people about such risks is inherent in Article 8.381 Before bringing a new industrial plant into service residents neighbouring the plant have to be informed by a public debate on possible dangers stemming from it. After an accident sufficient information on consequences and precautionary measures which can be taken in case of another calamity has to be given.382 It can be accepted that it is for the file holder to determine the arrangements for copying personal data files and whether the cost thereof should be borne by the data subject. However, the Court does not consider that data subjects should be obliged to specifically justify a request to be provided with a copy of their personal data files. It is rather for the authorities to show that there are compelling reasons for refusing this facility.383

VII. Case law on specific cases One group of cases that needs to be looked at separately are those concerning 92 the respect for family life of foreigners living in the Member States. The Convention does not guarantee the right of an alien to enter or to reside in a particular country.384 The duty imposed by Article 8 cannot be considered as extending to a general obligation on the part of a Member State to respect the choice by married couples of the country of their matrimonial residence and to accept the non-national spouses for settlement in that country.385 The Court refers to the fact that as a matter of well-established international law and subject to its treaty obligations, a State has the right to control the entry of non-nationals into its territory.386 With a view to effective respect for family life Member States may be obligated to accept that their margin of appreciation for regulating immigration and residence may be limited and they may be obligated to allow for an

378 ECtHR, 10/5/2001, T. P. a. K. M. v UK, No. 28945/95, § 82 (video recording of the child’s questioning by a psychologist). 379 ECtHR, 10/5/2001, T. P. a. K. M. v UK, No. 28945/95, § 82. 380 ECtHR, 26/5/1994, Keegan v IRL, No. 16969/90, § 55. 381 ECtHR, 19/2/1998, Guerra v ITA, No. 14967/89, § 60; see also ECtHR; 14/2/2012, Hardy & Maile vs UK, No. 7094/06, §§ 245 et seq; ECtHR, 10/1/2012, Di Sarno a. o. v ITA, No. 30765/08, § 107; cf. De´jeant-Pons/Pallemaerts, Human Rights and the environment, 2002, 35 et seq; see also Article 10 m.n. 10. 382 ECtHR, 27/1/2009, Ta ˘ tar v ROM, No. 67021/01, §§ 112 et seq, 122. 383 ECtHR, 28/4/2009, K. H. a. o. v SVK, No. 32881/04, § 48. 384 ECtHR, 2/8/2001, Boultif v SUI, No. 54273/00, § 39. 385 ECtHR, 28/5/1985, Abdulaziz a. o. v UK, No. 9214/80, § 68; ECtHR, 19/2/1996, Gu ¨ l v SUI, No. 23218/94, § 38. 386 See for example ECtHR, 28/5/1985, Abdulaziz a. o. v UK, No. 9214/80, § 67; ECtHR, 18/2/1991, Moustaquim v BEL, No. 12313/86, § 43.

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immigration or residence.387 In order to establish the scope of the State’s obligations, the facts of the case must be considered.388 93 In assessing the interferences with Article 8 through administrative measures under foreign-resident law (such as an obligation to leave or a refusal of entry) the Court considers a number of aspects. One of these is the foreseeability of a measure at the time when family ties were established.389 The foreseeability is determined by the residence permit status of the evicted person.390 Another aspect which has to be considered in any case of expulsion is the physical condition of the person concerned.391 As Article 8 also protects the right to establish and develop relationships with other human beings and the outside world, it is accepted that the totality of social ties between settled migrants and the community in which they are living constitute part of the concept of private life within the meaning of Article 8. Regardless of the existence or otherwise of a family life, therefore, the Court considers that the expulsion of a settled migrant constitutes interference with his or her right to respect for private life. It will depend on the circumstances of the particular case whether it is appropriate for the Court to focus on the ‘family life’ rather than the private life aspect.392 94 Further, the moral conduct of the person concerned has to be taken into account.393 The Court acknowledges the Member States’ concern to maintain public order, in particular in exercising their right, as a matter of well-established international law and subject to their treaty obligations, to control the entry, residence and expulsion of aliens.394 In assessing whether interferences were ‘necessary in a democratic society’ the Court considers the interests of the general public in expelling a criminal foreigner as well as the right to family life of that person.395 Thereby it will consider the following criteria: – nature and seriousness of the offence committed by the applicant; – the duration of the applicant’s stay in the country from which he is going to be expelled;

387 ECtHR, 28/5/1985, Abdulaziz a. o. v UK, No. 9214/80, § 67; ECtHR, 18/2/1991, Moustaquim v BEL, No. 12313/86, § 43. 388 ECtHR, 19/2/1996, Gu ¨ l v SUI, No. 23218/94, § 38; ECtHR, 14/6/2011, Osman v DEN, No. 38058/09, §§ 54 et seq. 389 ECtHR, 28/5/1985, Abdulaziz a. o. v UK, No. 9214/80, § 68. In this case the Court held that it was not disproportional for the wives to follow their evicted husbands even though this was accompanied with harsh changes to their lives. It refered to the foreseeability of the maesures taken; ECtHR, 28/6/2011, Nunez v NOR, No. 55597/09, § 70. 390 ECtHR, 31/7/2008, Darren Omoregie a. o. v NOR, No. 265/07, § 59; see further ECtHR, 8/4/2008, Nnyanzi v UK, No. 21878/06, § 76 (die applicants residential status had never bin certain). 391 See in the context of private life: ECtHR, 6/2/2001, Bensaid v UK, No. 44599/98, § 47 (expulsion of a schizophrenic Algerian). 392 ECtHR, 18/10/2006 (GC), U ¨ ner v NED, No. 46410/99, § 59; ECtHR, 20/9/2011, A. A. v UK, No. 8000/08, § 49; remarks Raux, RTDH 2007, 837. 393 ECtHR, 21/6/1988, Berrehab v NED, No. 10730/84, § 29; ECtHR, 14/2/2012, Antwi a. o. v NOR, No. 26940/10, § 90. 394 ECtHR, 18/2/1991, Moustaquim v BEL, No. 12313/86, § 43; ECtHR, 26/3/1992, Beldjoudi v FRA, No. 12083/86, § 74; ECtHR, 30/11/1999, Baghli v FRA, No. 34374/97, § 40; ECtHR, 17/4/2003, Yilmaz v GER, No. 52853/99, § 41. 395 ECtHR, 17/4/2003, Yilmaz v GER, No. 52853/99, §§ 48 et seq.

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VII. Case law on specific cases

94, 95

Art. 8

– the time which has elapsed since the commission of the offence and the applicant’s conduct during that period; – the nationalities of the various persons concerned; – the applicant’s family situation, such as the length of the marriage and other factors revealing whether the couple lead a real and genuine family life; – whether the spouse knew about the offence at the time when he or she entered into a family relationship; – and whether there are children in the marriage and, if so, their age; – the seriousness of the difficulties which the spouse would be likely to encounter in the applicant’s country of origin.396 ¨ ner Case the Grand Chamber made explicit two criteria which may In the U already be implicit in those identified in Boultif: – the best interests and well-being of the children, in particular the seriousness of the difficulties which any children of the applicant are likely to encounter in the country to which the applicant is to be expelled; – and the solidity of social, cultural and family ties with the host country and with the country of destination.397 Cases of expulsions of second generation immigrants may be isolated in a 95 particular group.398 Second generation immigrants are persons who have close to no relationship to the State of their formal nationality as they were were born or have lived most of their life in the country from which they are going to be expelled.399 This leads to a higher level of protection under Article 8 which applies even where crimes were committed.400 In these cases – addition to the usual criteria for legitimate expulsions – the Court considers the special bonds that these persons build in a State in which they received their education, have most of their social contacts and in which they thus developed their identity.401 Hence, besides the ties and age of the person concerned the ECtHR also takes into account which language that person speaks and whether any social ties exist in the country of origin or the country of residence.402 This shows that the chances of integration in the country of residence as 396 ECtHR, 2/8/2001, Boultif v SUI, No. 54273/00, § 48; see also ECtHR, 6/2/2003, Jakupovic v AUT, No. 36757/97, §§ 26 et seq. 397 ECtHR, 18/10/2006 (GC), U ¨ ner v NED, No. 46410/99, §§ 58 et seq; remarks Raux, RTDH 2007, 837; see further ECtHR, 6/12/2007, Chair a. o. v GER, No. 69735/01, § 58. 398 ECtHR, 18/2/1991, Moustaquim v BEL, No. 12313/86, §§ 41 et seq; ECtHR, 24/4/1996, Boughanemi v FRA, No. 22070/93, §§ 42 et seq; ECtHR, 26/3/1992, Beldjoudi v FRA, No. 12083/86, § 75; ECtHR, 23/1/1991, Djeroud v FRA, No. 13446/87 (struck out). See further Rogers, Immigration and the European Convention on Human Rights: Are new principles emerging?, EHRLR 2003, 53 (55 et seq). 399 For a definition see ECtHR, 2/8/2001, Boultif v SUI, No. 54273/00, concurring opinion of Baka, Wildhaber and Lorenzen. 400 Dembour, E ´ trangers ou quasi-nationaux? Le choix des droits de l’homme, RTDH 2002, 963 (971 ff.). 401 ECtHR, 26/9/1997, Mehemi v FRA, No. 25017/94, § 36; ECtHR, 21/10/1997, Boujlifa v FRA, No. 25404/94, § 44. 402 Cf. in the early case law: ECtHR, 18/2/1991, Moustaquim v BEL, No. 12313/86, §§ 44 et seq; ECtHR, 26/3/1992, Beldjoudi v FRA, No. 12083/86, § 75. In the Beldjoudi Case the Court considered the fact that the applicant had the nationality of the resident State but was deemed to have lost it as his parents had not made a declaration of recognition (§ 77). Similarly in the Case Boujlifa v FRA it considered that the applicant did not show any desire to acquire the nationality of his residence State at the time when he was entitled to do so, ECtHR, 21/10/1997, No. 25404/94, § 44: ECtHR, 24/4/1996, Boughanemi v FRA, No. 22070/93, §§ 43 et seq; ECtHR, 19/2/1998, Dalia

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Art. 8

95–97

Article 8 – Right to family life

well of in the country of origin are taken into consideration and compared with one ¨ neranother.403 This is done using a combination of the Boultif-criteria and the U 404 criteria. 96 As Article 8 also protects the right to establish and develop relationships with other human beings and the outside world and can sometimes embrace aspects of an individual’s social identity, it must be accepted that the totality of social ties between settled migrants and the community in which they are living constitute part of the concept of private life within the meaning of Article 8. Regardless of the existence or otherwise of a family life, therefore, the Court considers that the expulsion of a settled migrant constitutes an interference with his or her right to respect for private life. It will depend on the circumstances of the particular case whether it is appropriate for the Court to focus on the family life rather than the private life aspect.405 97 Nevertheless, expulsions of second generation immigrants may under certain circumstances constitute proportional measures. This is particularly true in cases concerning serious crimes and especially drug-related crimes.406 Thus, the Court did regard the expulsion of a 35 year old Algerian who moved to France with his parents as a preschool child and was sentenced to over 6 years in a time period of 8 years to be proportional.407 The legitimacy of an expulsion may also result from the number of crimes committed over a longer period of time, even if the crimes were of a non-violent nature.408 Further, the fact that an exclusion order is limited can also contribute to its legitimacy.409 Following this approach the Court considered an unlimited exclusion order which had been imposed on a national v FRA, No. 26102/95, §§ 52 et seq. Likewise in more recent judgments: ECtHR, 31/10/2002, Yildiz v AUT, No. 37295/97, §§ 42 et seq; ECtHR, 22/4/2004, Radovanovic v AUT, No. 42703/98, §§ 34 et seq. See also Carlier, Vers l’interdiction d’expulsion des e´trangers inte´gre´s?, RTDH 1993, 449 (454 et seq). 403 ECtHR, 4/10/2001, Adam v GER, No. 43359/98, § 1 (inadmissible as the application was manifestly ill founded: Expulsion of a 25 year old due to continuing delinquency after being sentenced to a sum of 3 years and 6 month during 5 years). 404 ECtHR, 23/6/2008 (GC), Maslov v AUT, No. 1638/03, §§ 68 et seq. 405 ECtHR, 18/10/2006 (GC), U ¨ ner v NED, No. 46410/99, § 59; remarks Raux, RTDH 2007, 837; ECtHR, 23/6/2008 (GC), Maslov v AUT, No. 1638/03, § 63; ECtHR, 17/2/2009, Onur v UK, No. 27319/07, § 46. 406 ‘In view of the devastating effects of drugs on people’s lives, the Court understands why the authorities show great firmness with regard to those who actively contribute to the spread of this scourge.’ ECtHR, 19/2/1998, Dalia v FRA, No. 26102/95, § 54; ECtHR, 30/11/1999, Baghli v FRA, No. 34374/97, § 48, also ECtHR, 13/1/2000, Jankov v GER, No. 35112/97; in cases of crimes associated with obtaining drugs the ECtHR follows a less restrictive approach, ECtHR, 23/6/2008 (GC), Maslov v AUT, No. 1638/03, 779, § 80; see de Beco, L’expulsion des l’e´trangers mineurs de´linquants: une lueur de clarte´ dans la jurisprudence de la Cour europe´ene des Droits de l’Homme, RDTH 2009, 1091 et seq. 407 ECtHR, 10/7/2003, Benhebba v FRA, No. 53441/99, §§ 37 et seq; similar ECtHR, 17/1/2006, Aoulmi v FRA, No. 50278/99, §§ 85 et seq. (Expulsion of a 43 year old Algerian who came to France when he was 4 years old, was the father of a 4 year old child, suffered from chronic hepatitis after he had been sentenced to 10 years because of drug related crimes; further already ECtHR, 21/10/1997, Boujlifa v FRA, No. 25404/94, § 44 (Expulsion of a 28 year old Moroccan who came to France at the age of 4 and was sentenced to 7,5 years because of robberies). 408 ECtHR, 8/1/2009, Joseph Grant v UK, No. 10606/07, § 40. 409 ECtHR, 24/8/1999, Farah v SWE, No. 43218/98; ECtHR, 13/1/2000, Jankov v GER, No. ¨ ner v NED, No. 46410/99, § 65; remarks Raux, RTDH 35112/92; ECtHR, 18/10/2006 (GC), U 2007, 837; ECtHR, 25/3/2010, Mutlag v GER, No. 40601/05, § 62.

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Art. 8

of Serbia and Montenegro who had been living in Austria since he was 9 and which was based on a conviction of a youth offence to be a violation of Art 8.410 The entry into a Member State for nationals is regulated in Article 3 of Protocol 98 No. 4, which stipulates that no one shall be deprived of the right to enter the territory of the state of which he is a national.411 Relatives of settled immigrants may under certain circumstances be allowed to enter a State due to the right to respect for family life pursuant to Article 8. The extent of a State’s obligation to admit to its territory relatives of settled immigrants will vary according to the particular circumstances of the persons involved and the general interest.412 The Court takes into account whether the subsequent immigration of family members is the only possibility for family life. In this context it is relevant whether a common stay in the country of origin is possible413 and whether the person concerned voluntarily made the decision to live in another country and separated from his family.414 Article 8 does not guarantee a right to choose the most suitable place to develop family life.415 Further, States have a principally legitimate interest in basing their decisions on specific factors such as a permanent address or sufficient financial means.416 410 ECtHR, 22/4/2004, Radovanovic v AUT, No. 42703/98, § 37; see also ECtHR, 23/6/2008 (GC), Maslov v AUT, No. 1638/03, § 80, where the Court considered the young age of the applicant and the non-violent nature of the crimes to be decisive; see however with the opposite result ECtHR, 17/2/2009, Onur v UK, No. 27319/07, § 55 (the applicant had only committed a traffic offence). 411 Cf Article 3 (1) of Protocol No. 4 m.n. 2. 412 ECtHR, 19/2/1996, Gu ¨ l v SUI, No. 23218/94, § 38; ECtHR, 21/2/2001, Sen v NED, No. 31465/96, § 40. 413 ECtHR, 19/2/1996, Gu ¨ l v SUI, No. 23218/94, § 41; ECtHR, 28/11/1996, Ahmut v NED, No. 21702/93, §§ 69 et seq. 414 ECtHR, 19/2/1996, Gu ¨ l v SUI, No. 23218/94, § 41; ECtHR, 28/11/1996, Ahmut v NED, No. 21702/93, § 70. 415 ECtHR, 28/11/1996, Ahmut v NED, No. 21702/93, § 71. 416 See Grabenwarter/Pabel, § 22 m.n. 69 with further references.

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Art. 9

Article 9 – Freedom of thought, conscience and religion

Article 9 – Freedom of thought, conscience and religion 1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. 2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others. Article 9 – Liberte´ de pense´e, de conscience et de religion 1. Toute personne a droit a` la liberte´ de pense´e, de conscience et de religion; ce droit implique la liberte´ de changer de religion ou de conviction, ainsi que la liberte´ de manifester sa religion ou sa conviction individuellement ou collectivement, en public ou en prive´, par le culte, l’enseignement, les pratiques et l’accomplissement des rites. 2. La liberte´ de manifester sa religion ou ses convictions ne peut faire l’objet d’autres restrictions que celles qui, pre´vues par la loi, constituent des mesures ne´cessaires, dans une socie´te´ de´mocratique, a` la se´curite´ publique, a` la protection de l’ordre, de la sante´ ou de la morale publiques, ou a` la protection des droits et liberte´s d’autrui. Bibliography: Edge, The European Court of Human Rights and Religious Rights, ICLQ 47 (1998), 680; Evans, Freedom of Religion under the European Convention on Human Rights, 2001; Renucci, Article 9 of the European Convention on Human Rights, Human Rights Files No. 20, 2005; Russo, La liberte´ religieuse dans les travaux pre´paratoires de la Convention europe´enne, in: Mahoney/Matscher/ Petzold/Wildhaber (ed.), Protecting Human Rights: The European Perspective, Studies in memory of Rolv Ryssdal, 2000, p. 1247; Schouppe, La dimension collective et institutionelle de la liberte´ religieuse a` la lumie`re de quelques arreˆts re´cents de la cour europe´enne des droits de l’homme, RTDH 63/2005, 611; Shaw, Freedom of Thought, Conscience and Religion, in: Macdonald/Matscher/Petzold (ed.), The European System for the Protection of Human Rights, 1993, p. 445; Vermeulen, Freedom of Thought, Conscience and Religion (Article 9), in: van Dijk/van Hoof/van Rijn/Zwaak (ed.), Theory and Practice of the European Convention on Human Rights, 4th ed., 2006, p. 751. Leading Cases: ECtHR, 25/5/1993, Kokkinakis v GRE, No. 14307/88; ECtHR, 24/2/1998, Larissis v GRE, No. 23372/94 et al (prohibition of proselytism); ECtHR, 27/6/2000 (GC), Cha’are Shalom Ve Tsedek v FRA, No. 27417/95 (ritual slaughtering); ECtHR, 26/10/2000, Hasan a. Chaush v BUL, No. 30985/96 (internal affairs of a religious community); ECtHR, 13/12/2001, E´glise Me´tropolitaine de Bessarabie a.o. v MDA, No. 45701/99 (refusal of recognition of a religious community); ECtHR, 10/11/2005 (GC), Leyla Sahin v TUR, No. 44774/98 (prohibition on wearing religious head coverings in State schools); ECtHR, 18/3/2011 (GC), Lautsi v ITA, No. 30814/06 (crucifix fixed to the wall of classrooms). Outline I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Scope of protection. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Personal scope . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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I. Introduction

1, 2

2. Material scope. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a) Freedom of thought and conscience . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b) Freedom of religion and belief . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Interferences. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Justification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Prescribed by law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Legitimate aim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Necessary in a democratic society . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Positive obligations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Art. 9

4 5 7 17 24 26 27 31 40

I. Introduction The freedom of thought, conscience and religion guaranteed in Article 9 protects 1 an area of human beliefs which is of particular importance for the personal identity of an individual and which is closely related to human dignity. Accordingly, the Court refers to it as one of the foundations of a ‘democratic society’ within the meaning of the Convention. It detects a close relationship between this particular freedom and the pluralism indissociable from a democratic society, which has been dearly won over the centuries.1 Art 10 EU Charta has adopted this guarantee of the Convention. The freedom of thought, conscience and religion as enshrined in Article 9 is to 2 be seen as an independent international guarantee. Its interpretation is in no way bound by national ideas and values. It has to be distinguished from any form of religious freedom guaranteed by national constitutional orders. National constitutional orders regularly stipulate regulations with regard to the relationship between the state and the churches or between the state and religion in addition to a fundamental right of freedom of religion. Article 9 can have an effect on these institutional regulations of state church relations. Some of the guarantees shaping the law regulating the relationship between state and church – such as the right to self-determination of religious communities – correspond to parts of Article 9 (1).2 The Convention does not preclude the existence of a state church.3 However, even if a legal order provides for a state church the freedom to change one’s religion or faith and the rights of those of different faith have to be assured. Within the ECHR correlations with Article 14, which expressly prohibits discriminations on grounds of religion, and the right to education (Article 2 of Protocol No. 1) can be found. The Court reiterates that in the area of education and teaching Article 2 of Protocol No. 1 is in principle the lex specialis to Article 9 of the Convention. This is true at least where the dispute concerns the obligation imposed on Member States by the second sentence of Article 2 of Protocol No. 1 to respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions in the exercise of any functions which they assume in that area.4

1

ECtHR, 25/5/1993, Kokkinakis v GRE, No. 14307/88, § 31. See in detail m.n. 16. 3 Grabenwarter/Pabel, § 22 m.n. 96 with further references. 4 ECtHR, 29/6/2007 (GC), Folgerø et al v NOR, No. 15472/02, §§ 54, 84; ECtHR, 18/3/2011 (GC), Lautsi v ITA, No. 30814/06, § 59. 2

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Art. 9

3–5

Article 9 – Freedom of thought, conscience and religion

II. Scope of protection 1. Personal scope 3

Article 9 is an individual right. The institutional rights of religious communities and their organisation were not considered during the drafting of the Convention.5 The freedom of religion is typically practised in community with others. Therefore, Article 9 (1) expressly establishes a connection to other people by protecting the practice of one’s religion by oneself and in community with others. The fact that according to Article 34 organisations may also rely on the rights of the Convention is of particular relevance to the comprehensive guarantee of Article 9. Consequently, besides the individual believers or non-believers, the churches and religious communities themselves can be entitled to the right to freedom of religion. They themselves can assert rights following from Article 9. Thus they enjoy direct protection and do not need to rely on a merely indirect protection imparted by their members.6 Commercial companies, however, can neither enjoy nor rely on the rights referred to in Article 9 as long as their main focus lays on making a profit.7

2. Material scope 4

According to its wording the material scope of Article 9 includes the freedom of thought, conscience and religion. Furthermore the freedom of ideological conviction is protected, even though it is not explicitly mentioned in the first part of Article 9 (1), since in the second part and under paragraph 2 the freedom of ‘belief’ is listed together and on an equal footing with the freedom of religion. With a view to the French version (‘conviction’) ‘belief’ covers any ideological conviction.8 This is also shown by the history of the drafting of the Convention as the French version was alternated from ‘croyance’ to ‘conviction’ towards the end of the progress.9

a) Freedom of thought and conscience 5

Article 9 protects the freedom of thought and conscience. The wording “thought” supports the view that Article 9 prohibits indoctrination by the State, e.g. in the form of compulsory education.10 5 Concerning the history of the drafting of the ECHR see Russo, Studies in Memory of Rolv Ryssdal, pp. 1247 et seq. 6 ECtHR, 27/6/2000 (GC), Cha’are Shalom Ve Tsedek v FRA, No. 27417/95, § 72; ECtHR, 16/12/ 1997, E´glise Catholique de la Cane´e v GRE, No. 25528/94, § 31. See, however, the Commission’s past case law, according to which only the members themselves were entitled to file an application EComHR, 17/12/1968, Church of X., No. 3798/68, Yb 12, 306 (315 u. 319); EComHR, 5/5/1979, X. u. Church of Scientology, D&R 16, 68 (70). 7 EComHR, 27/2/1997, Company X v SUI, No. 7865/77; EComHR, 15/4/1996, Kustannus Oy Vapaa Ajattelija AB, Vapaa-Ajattelijain Liitto – Frita¨nkarnas Fo¨rbund r. y. u. Sundstro¨m, No. 0471/92. 8 EComHR, 12/10/1978, Arrowsmith, D&R 19 (1980), p. 5 m.n. 69. 9 Verdoodt, Naissance et Signification de la De ´claration Universelles des Droits de l’Homme, 1964. 10 Grabenwarter/Pabel, § 22 m.n. 99 with further references.

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II. Scope of protection

5–8

Art. 9

The freedom of conscience in the meaning of Article 9 comprises the right to development and exercise of the conscience. The guarantee aims at protecting the inner core of the human self-determination and thereby the respect of the individual personality.11 The freedom of conscience differs from the freedom of religion or beliefs in that it also protects decisions of the conscience which are neither motivated by a religion nor by any other ideological belief. It obliges the state to refrain from any coercion of conscience which is not admissible according to Article 9 (2).12 Article 9 does not guarantee the right to refuse to fulfil a general civic obligation 6 with no specific conscientious implications in itself, such as the obligation to pay taxes, since Article 9 does not confer the right to refuse to abide by legislation, which applies neutrally and generally in the public sphere on the basis one’s convictions.13 However, in its recent case law, the Court considers the punishment of opposition to military service for religious reasons14 or because of other convictions15 to be an interference with Article 9. Accordingly, Article 9 guarantees the right to conscientious objection in cases where the compulsory military service leads to a serious conflict of conscience which cannot be resolved.16 The EU Charta does not grant an independent right to conscientious objection. In Article 10 (2) EU Charta such a right is recognised in accordance with the national laws governing its exercise.

b) Freedom of religion and belief Article 9 protects the freedom of religion and belief.17 A generally accepted 7 definition of religion can be found neither in the national legal orders of the Member States nor in the ECHR itself.18 However, it is safe to assume that a religion includes a denomination, guidelines on how to live and a cult.19 Article 9 is not restricted to common religions. It protects all religions which are ‘identifiable’, not only ‘common’ or ‘traditional’ religions. However, an exact definition of religion in the meaning of Article 9 is not required, since beliefs are protected to the same extend. Irreligious and non-religious acts are also protected by Article 9, as long as they are an expression of a certain belief. In its constant case law the Court does not find itself responsible to decide in 8 abstracto whether or not a body of beliefs and related practices may be considered to be a ‘religion’ within the meaning of Article 9 of the Convention. In the absence of a European consensus on the religious nature of Scientology teachings, and being 11

Grabenwarter/Pabel, § 22 m.n. 99 with further references. Grabenwarter/Pabel, § 22 m.n. 99 with further references. 13 EComHR, 15/12/1983, C. v UK, No. 10358/83 confirmed by ECtHR, 10/11/2005 (GC), Leyla Sahin v TUR, No. 44774/98, § 105. 14 ECtHR, 7/7/2011 (GC), Bayatyan v ARM, No. 23459/03, § 205; ECtHR, 22/11/2011, Erçep v TUR, No. 45965/04, § 49. 15 ECtHR, 12/6/2012, Savda v. TUR, No. 42730/05, § 93 et seq. 16 For a violation of Article 9 in conjunction with Article 14 due to the legal consequences of a conviction for conscientious objection of the military service see ECtHR, 6/4/2000 (GC), Thlimmenos v GRE, No. 34369/97, § 47. 17 For the meaning of the term ‘belief’ see above m.n. 4 18 Evans, Freedom of Religion, p. 51 et seq. 19 Shaw, in: Macdonald/Matscher/Petzold, p. 448; the propaganda for islamic political organisations does not constitute an expression of a religious belief, ECtHR, 18/01/2001, Zaoui v SUI, No. 41615/98. 12

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Art. 9

8–10

Article 9 – Freedom of thought, conscience and religion

sensitive to the subsidiary nature of its role, the Court considered that it must rely on the position of the domestic authorities in the matter and determine the applicability of Article 9 of the Convention accordingly.20 On the other hand there is no doubt that religions that are not formally registered as such in all member states form a religion within the meaning of Article 9 such as the Baha´’ı´, the Baptists, the the Pentecostal Church, the Seventh Day Adventist Church, the Jehovah’s witnesses and the Mennonite church. 9 Article 9 does not only convey the freedom to have a religion or belief as a matter of individual conscience (forum internum),21 it also implies, inter alia, the freedom to ‘manifest [one’s] religion’. Bearing witness in words and deeds is bound up with the existence of religious convictions (forum externum).22 According to Article 9, freedom to manifest one’s religion is not only exercisable in community with others, ‘in public’ and within the circle of those whose faith one shares, but can also be asserted ‘alone’ and ‘in private’.23 Those who choose to exercise the freedom to manifest their religion cannot reasonably expect to be exempt from all criticism. However, the manner in which religious beliefs and doctrines are opposed or denied is a matter which may engage the responsibility of the State, notably its responsibility to ensure the peaceful enjoyment of the right guaranteed under Article 9 to the holders of those beliefs and doctrines.24 10 The right to manifest one’s religion or belief can be exercised in worship, teaching, practice and observance. This list is not exhaustive. It is left to the individual to decide the form in which his belief should be exercised. The two alternatives mentioned in Article 9 to manifest one’s religion, i. e. either alone or in community with others, can not be considered as being mutually exclusive, or as leaving a choice to the authorities, but only as recognising that religion may be practised in either form.25 In the context of Article 9 ‘teaching’ is not to be understood as academic education which is protected by Article 2 of Protocol No. 1.26 It is to be understood as the general communication of religious knowledge. Proselytising of adults as well as children is therefore also protected by Article 9. To manifest one’s religion or belief in ‘observance’ refers to ritual customs. Processions or pilgrimages are examples of this being traditional forms of manifesting one’s religion, just like the bell-ringing or the muezzin’s call. On the other hand certain acts of a daily routine, such as a particular dress code, a special way to wear one’s hair or beard27 or observing certain dietary rules, are protected.28 The Court also considers ritual slaughtering, during which 20

ECtHR, 1/10/2009, Kimlya v RUS, No. 76836/01, §§ 79 et seq. ECtHR, 25/5/1993, Kokkinakis v GRE, No. 14307/88, § 31; ECtHR, 1/7/1997, Kalaç v TUR, No. 20704/92, § 27. 22 ECtHR, 25/5/1993, Kokkinakis v GRE, No. 14307/88, § 31. 23 ECtHR, 25/5/1993, Kokkinakis v GRE, No. 14307/88, § 31; ECtHR, 1/7/1997, Kalaç v TUR, No. 20704/92, § 27. 24 ECtHR, 20/9/1994, Otto Preminger Institut v AUT, No. 13470/87, § 47. 25 Shaw, in: Macdonald/Matscher/Petzold, p. 450; EComHR, 12/3/1981, X. v UK, No. 8160/78. 26 See Article 2 of Protocol No. 1 m.n. 14 et seq. 27 ECtHR, 10/11/2005 (GC) Leyla Sahin v TUR, No. 44774/98, § 78; Burgorgue-Larsen/Dubout, Le port du voile a` l’universite´. Libres propos sur l’arreˆt de la grande chambre Leyla Sahin c. Turquie de 10 Novembre 2005, RTDH 66/2006, pp. 183 et seq.; see already ECtHR, 15/2/2001, Dahlab v SUI, No. 42393/98; ECtHR, 23/2/2010, Ahmet Arslan et al v TUR, No. 41135/98, § 35. 28 ECtHR, 7/12/2010, Jako ´ bsky v POL, No. 18429/06, § 45. 21

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II. Scope of protection

10–13

Art. 9

the animals are not stunned, to be a religious ritual that falls within the scope of Article 9.29 The term ‘practice’ as employed in Article 9 (1) does not cover each act which is 11 motivated or influenced by a religion or belief. In fact, the act is required to express the belief concerned.30 An act which is not customary in the religious community at question cannot be considered as a manifestation of one’s beliefs in observance or practice.31 A general right to refuse to comply with certain legal obligations relying on religious or ideological commandments cannot be derived from Article 9.32 Therefore, neither the non-compliance with working hours,33 nor the refusal to pay taxes, falls within the scope of Article 9. The Court also found that a doctor’s refusal to examine an apprentice because of 12 the possibility that he could be working with her in the future does not constitute an expression of a coherent view on a fundamental problem and that it therefore cannot be regarded as a ‘manifestation of personal beliefs’ in the sense protected by Article 9.34 The freedom to practise a religion entails the freedom not to practise a religion 13 (‘negative freedom’).35 The state must not enforce the practise of religious rituals or the integration in a religious community.36 The freedom not to hold religious beliefs and not to practise a religion includes the right not to be compelled to swear allegiance to a particular religion.37 Furthermore, there is no obligation to attend religious events and education. In consequence, an exemption from religious education in school must be possible.38 According to the Court’s case law the negative freedom of religion also includes the right not to be obliged to reveal one’s confession or conviction or to give information from which the confession or conviction can be deduced.39 The freedom of religion does not guarantee a right not to be confronted with religious symbols or contents. This is true even for state schools.40 29 ECtHR, 27/6/2000 (GC), Cha’are Shalom Ve Tsedek v FRA, No. 27417/95, §§ 77 et seq.; thereto Flauss, Observations, Abattage rituel et liberte´ de religion: le de´fini de la protection des minorite´s au sein des communaute´s religieuses, RTDH 2001, 195 et seq. 30 EComHR, 12/10/1978, Arrowsmith, D&R 19 (1980), p. 5; EComHR, 15/12/1983, C. v UK, No. 10358/83; EComHR, V. NED, No. 10678/83. 31 EComHR, 6/12/1983, D. v FRA, No. 10180/82: refusal of a jewish believer to hand a letter of repudiation to his ex-wife, which would enable her to remarry while making it impossible for him to remarry his divorced wife. 32 ECtHR, 2/10/2001, Pichon and Sajous v FRA, No. 49853/99: Pharmacist cannot rely on Article 9 to refuse to sell the birth control pill. 33 ECtHR, 13/4/2006, Kosteski v MKD, No. 55170/00, §§ 38 et seq; EComHR, 3/12/1996, Konttinen v FIN, No. 2494/9/94. 34 ECtHR, 18/3/2008, Blumberg v GER, No. 14618/03. 35 ECtHR, 18/2/1999, Buscarini v SMR, No. 24645/94, § 34. 36 The Court considered the liability to pay church taxes of a person who was not a member of the religious community to be a violation of Article 1 Protocol No 1 ECtHR, 3/10/1990, Darby v SWE, No. 11581/85, § 33. 37 ECtHR, 18/2/1999, Buscarini v SMR, No. 24645/94, § 34. 38 From the perspective of the parental rights see ECtHR, 9/10/2007, Zengin v TUR, No. 1448/04, § 76; see Article 2 of protocol no. 1 m.n. 13. 39 ECtHR, 21/2/2008, Alexandridis v GRE, No. 19516/06, § 38; ECtHR, 15/6/2010, Grzelak v POL, 7710/02, § 87; ECtHR, 3/6/2010, Dimitras v GR, No. 42837/06 et al, § 78; ECtHR, 3/11/2011, Dimitras (No. 2) v GRE, No. 34207/08 et al, § 28. 40 For the right to education see ECtHR, 18/3/2011 (GC), Lautsi v ITA, No. 30814/06, §§ 63 et seq.

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Art. 9

14–16

Article 9 – Freedom of thought, conscience and religion

The right to change one’s religion or belief is explicitly enshrined in Article 9 (1). It entails the right to leave a religious denomination41 without having to join another one.42 Where the religious community does not know a possibility to leave, the state is obliged to introduce sufficient safeguards to ensure the individuals freedom of religion.43 15 Even though, the freedom of ideological conviction is not mentioned in the first part of Article 9, it is still protected by this guarantee. In the second part of Article 9 (1), which specifies the right to freedom to practise one’s religion, the freedom of ‘belief’, which is to be understood as the freedom of any ideological conviction,44 is listed together and on an equal footing with the freedom of religion. Therefore, irreligious and non-religious acts are also protected by Article 9. Although Article 9 (1) does not distinguish between religion and ideological conviction with regard to the legal consequences and effects, the term ‘belief’ has to be defined, since not every personal conviction can fall within the scope of Article 9: A manifestation of belief requires some coherent view of fundamental problems, a view of the world as a whole.45 The views have to attain a certain level of cogency, seriousness, cohesion and importance.46 Pacifism is considered to be a ‘belief’.47 16 Article 9 protects the religious communities’ right to found themselves and the ability to establish a legal entity,48 as well as their right to an autonomous existence, which ensures that they can function free from arbitrary State intervention in their organisation (‘collective dimension’).49 In the case law this is referred to as the ‘autonomous existence of religious communities’, which is at the very heart of the protection afforded by Article 9.50 As a general rule, the Member States have to refrain from interfering with internal affairs of the churches and religious communities. The determination of the content of certain religious beliefs and the means used to practice those beliefs are examples of such internal affairs, just like the internal organisation of the community or the appointment of the religious leader.51 Furthermore, under certain circumstances specific requirements for ecclesiastic 14

41 EComHR, 4/12/1984, Gottesmann v SUI, No. 10616/83: a church tax does not violate Article 9 if a possibility to leave the church is given. Regarding the compatibility of the German system of church taxes with the convention in general see ECtHR, 17.2.2011, Wasmuth v GER, No. 12884/03, §§ 50 et seq. 42 Grabenwarter/Pabel, § 22 m.n. 105 with further references. 43 EComHR, E. and G.R. v AUT, No. 9781/82, 14; EComHR, 4/12/1984, Gottesmann v SUI, No. 10616/83. 44 See above m.n. 4. 45 EComHR, 10/3/1981, X. v GER, No. 8741/79; EComHR, 6/7/1987, La Cour Grandmaison, 11567/85 et al. 46 ECtHR, 25/2/1982, Campell and Cosans v UK, No. 7511/76 at al, § 36; Renucci, Article 9 of the ECHR, p.12. 47 EComHR, 12/10/1978, Arrowsmith, D&R 19 (1980), p. 49. 48 ECtHR, 13/12/2001, Metropolitan Church of Bessarabia v MDA, No. 45701/99, §§ 105 et seq; ECtHR, 5/10/2006, The Moscow Branch of the Salvation Army v RUS, No. 72881/01, § 71; Schouppe, RTDH 63/2005, pp. 626 et seq. 49 ECtHR, 26/10/2006, Hasan and Chaush v BUL, No. 30985/96, § 62; ECtHR, 13/12/2001, Metropolitn Church of Bessarabia v MOL, No. 45701, § 115; ECtHR, 22/1/2009, Holy Synod of the Bulgarian Orthodox Church et al v BUL, No. 412/03 et al, § 103; Schouppe, RTDH 63/2005, pp. 618 et seq. 50 For example ECtHR, 10/6/2010, Jehova’s Witnesses of Moscow v RUS, No. 302/02, § 99. 51 ECtHR, 26/10/2006, Hasan and Chaush v BUL, No. 30985/96, § 78; ECtHR, 18/10/2002, Agga v GRE, No. 50776/99 et al, §§ 56 et seq; ECtHR, 16/12/2004, Supreme Holy Council of the Muslim

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III. Interferences

16–19

Art. 9

employees can be part of this autonomy.52 Also, the exemption from certain provisions governing the employment of aliens granted to specific representatives of religious societies comes within the scope of Article 9 where such privileges are intended to ensure the proper functioning of religious groups.53

III. Interferences The state interferes with the freedom of religion and beliefs as guaranteed under 17 Article 9 by prohibiting activities in connection with the practice of religion or by imposing a penalty or other negative consequences on it. Therefore, the Greek prohibition of proselytism constituted an interference with the freedom of religion.54 The same applies to an imposition of a fine for praying on private premises55 or punishing a person for merely acting as the religious leader of a group that willingly followed him.56 Furthermore, regulations, which place restrictions of place and manner on the right to wear the Islamic headscarf or a turban in universities or schools, constitute an interference with the right to manifest one’s religion.57 Also, state warnings against religious communities interfere with the freedom of religion.58 However, the prohibition of ritual slaughtering does not interefere with the rights under Article 9, when the members of the religious community at question were able to provide themselves with meat which fulfils their requirements, without taking part in person in the performance of ritual slaughtering.59 The obligation to proof one’s faith in order to enjoy a special right bestowed by 18 law60 and the impediment of a subject of Article 9 to freely choose an occupation or to engage in work both represent an interference with the freedom of religion. In the Thlimmenos Case the Greek state refused to grant the applicant access to the occupation of his choice, since he had been convicted of an offence committed exclusively because of his religious beliefs.61 However, the compulsory retirement from a judge advocate’s post does not constitute an interference with Article 9 where it is a reaction to anti-secularist activities which are unlawful, but not to religious ideas of the person concerned.62 Persons with a close relationship to the State can be subject to certain obliga- 19 tions resulting from this relationship. These obligations may impose limitations of Community v BUL, No. 39023/97, §§ 81 et seq; ECtHR, 22/1/2009, Holy Synod of the Bulgarian Orthodox Church et al v BUL, No. 412/03 et al, § 103; ECtHR, 15/9/2009, Mirojubovs et al v LAT, No. 798/05, § 77. 52 ECtHR, 23/9/2010, Obst v GER, No. 425/03, § 49; ECtHR, 23/9/2010, Schu ¨ th v GER, No. 1620/03, § 69; ECtHR, 3/2/2001, Siebenhaar v GER, No. 18136/02, § 41. 53 ECtHR, 25/9/2012, Jehovas Zeugen in O ¨ sterreich v. AUT, No. 27540/05, § 31. 54 ECtHR, 25/5/1993, Kokkinakis v GRE, No.14307/88, § 36; ECtHR, 24/2/1998, Larissis v GRE, No. 23372/94 et al, § 38. 55 ECtHR, 12/5/2009, Masaev v MOL, No. 6303/05, § 25. 56 ECtHR, 14/12/1999, Serif v GRE, No. 38178/97, § 51. 57 ECtHR, 10/11/2005 (GC), Leyla Sahin v TUR, No. 44774/98, § 78; ECtHR, 30/6/2009, Sara Ghazal v FRA, No. 29134/06; ECtHR, 30/6/2009, Jasvir Singh v FRA, Nr. 25463/08. 58 ECtHR, 6/11/2008, Leela Fo ¨ rderkreis e. V. et al v GER, No. 58911/00, § 84. 59 ECtHR, 27/6/2000 (GC), Cha’are Shalom Ve Tsedek v FRA, No. 27417/95, §§ 77 et seq.; thereto Flauss, Observations, Abattage rituel et liberte´ de religion: le de´fini de la protection des minorite´s au sein des communaute´s religieuses, RTDH 2001, 195 et seq. 60 ECtHR, 13/4/2006, Kosteski v MKD, No. 55170/00, § 39. 61 ECtHR, 6/4/2000 (GC), Thlimmenos v GRE, No. 34369/97, § 42. 62 ECtHR, 1/7/1997, Kalaç v TUR, No. 20704/92, §§ 27 et seq.

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Art. 9

19–21

Article 9 – Freedom of thought, conscience and religion

the protection granted by Article 9.63 Therefore, in choosing to pursue a military career a system of military discipline that by its very nature implies the possibility of placing limitations on some of the rights and freedoms of members of the armed forces incapable of being imposed on civilians is accepted. According to the case law the sanctioning of conduct in breach with these regulations consequently does not interfere with the rights following from Article 9, even if the practice of religion is affected.64 Conversations about religious questions between a military superior and his subordinate can, however, constitute an interference with the latter’s freedom of religion due to the pressure exercised on him.65 Prohibitions to teach in elementary school wearing an Islamic headscarf or to wear such an Islamic headscarf as a student during physical education or generally on campus also constitute interferences with the freedom of religion.66 20 Interferences with the negative freedom of religion usually take the form of obligations concerning the freedom of religion, which the State imposes on the individual. Where, for example, parliamentarians are required to take an oath on the Gospels67 or such an oath is generally required in a criminal proceeding and nonChristians have to indicate the fact that they are not Christians in order to be able to take a non religious oath68 the negative freedom of religion is interfered with. 21 Following a rather broad approach, the Court supposes an interference with the negative freedom of religion whenever the state creates a situation where a person has to – either directly or indirectly – admit that he is not religious.69 The obligation to indicate the membership to a religious community which levies a church tax on one’s income tax card as stipulated by German law therefore constitutes an interference with the freedom of religion.70 The same applies to the indication of religious denomination on the identification card.71 However, the Court came to a different conclusion in a case in which Jehovah’s Witnesses in Greece claimed that the obligatory attendance at a school parade on a national holiday and the fact that disciplinary penalties were to be imposed should the pupil not attend amounted to an interference with Article 9. Here, there was no interference, since neither the purpose of the parade nor its arrangements showed a military character which could offend the applicants’ pacifist convictions.72 The obligation to attend an ethics class in some German schools does not constitute an interference with the freedom of religion, since the contents taught neither privileged one religion nor did it discriminate or fight against another.73 63

For further references see Grabenwarter/Pabel, § 22 m.n. 109. ECtHR, 1/7/1997, Kalaç v TUR, No. 20704/92, §§ 28, 31. 65 ECtHR, 1/7/1997, Kalaç v TUR, No. 20704/92, §§ 45 et seq. 66 ECtHR, 15/2/2001, Dahlab v SUI, No. 42393/98; ECtHR, 4/12/2008, Dogru v FRA, No. 27058/08, § 48; ECtHR, 4/12/2008, Kervanci v FRA, No. 31645/04, § 48; ECtHR, 10/11/2005 (GC), Leyla Sahin v TUR, No. 44774/98, § 78. 67 ECtHR, 18/2/1999, Buscarini v SMR, No. 24645/94, § 34. 68 ECtHR, 3/6/2010, Dimitras v GRE, No. 42837/06, §§ 79 et seq; see also ECtHR, 21/2/2008, Alexandridis v GRE, Nr. 19516/06, § 41 (oath for accreditation as lawyer). 69 ECtHR, 15/6/2010, Grzelak v POL, No. 7710/02, § 87. 70 ECtHR, 17/2/2011, Wasmuth v GER, No. 12884/03, § 51. 71 ECtHR, 2/2/2010, Sinan Is ˛ik v TUR, No. 21924/05, § 41. 72 ECtHR, 18/12/1996, Efstratiou v GRE, No. 24095/94, §§ 32, 38; ECtHR, 18/12/1996, Valsamis v GRE, 21787/93, § 37. 73 ECtHR, 6/10/2009, Appel-Irrgang v GER, No. 45216/07. 64

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IV. Justification

22–24

Art. 9

The limitation of rights of religious communities forms another group of 22 interferences with Article 9. A government’s refusal to recognise a Church constitutes an interference, if the religious community concerned cannot fully operate and is not entitled to judicial protection of its assets due to the fact that it lacks legal personality.74 The Court examines the refusal of recognition or registration of religious communities on the basis of the community’s rights under Article 11 of the Convention read in the light of Article 9.75 An intervention with the internal organisation of a religious community constrains the rights guaranteed by Article 9.76 The same applies to a levy of taxes which results in a threat to the existence of the community and an impediment to its functioning and which touches upon its internal organisation.77 State action by the Bulgarian government to ‘resolve’ a leadership dispute in a divided religious community by assisting one of the opposing groups to gain full control, to the exclusion of the rival group, thereby forcing the Bulgarian Orthodox Church under one of the two existing leaderships constituted an interference with Article 9.78 The refusal of work permits or resident permits for members of the Church of Scientology planning to attend a school belonging to Scientology in England resulted in interferences in the form of an indirect encroachment.79 In so far as a measure relating to the continuation of the someone’s residence in 23 a given State is imposed in connection with the exercise of the right to freedom of religion, such measure may disclose an interference with that right.80 The expulsion to a country, in which religious minorities are allegedly persecuted, however, does not constitute an interference with Article 9 unless the person concerned ran a real risk of flagrant violation of that Article. However, the Court holds that it would be difficult to visualise a case in which a sufficiently flagrant violation of Article 9 would not also involve treatment in violation of Article 3.81

IV. Justification The freedom of religion is not an absolute right. It can be subject to limitations in 24 accordance with Article 9 (2). By virtue of its wording, paragraph 2 only allows for limitations of the right to manifest one’s religion or belief, whereas the (internal) freedom of thought, conscience and religion seems to be guaranteed without limita74

ECtHR, 13/12/2001, Metropolitan Church of Bessarabia v MDA, No. 45701/99, § 105; ECtHR, 10/6/2010, Jehovah’s Witnesses of Moscow v RUS, No. 302/02, §§ 102 et seq.; ECtHR, 17/7/2012, Fusu Arcadie a. o. v. MDA, No. 22218/06, § 30; Schouppe, RTDH 63/2005, pp. 626 et seq. 75 ECtHR, 5/10/2006, The Moscow Branch of the Salvation Army v RUS, No. 72881/01, § 75; ECtHR, 31/7/2008, Religionsgemeinschaft der Zeugen Jehovah’s et al v AUT, No. 40825/98, § 60; ECtHR, 10/6/2010, Jehovah’s Witnesses of Moscow v RUS, No. 302/02, §§ 99, 101. 76 ECtHR, 26/9/1996, Manoussakis v GRE, No. 18748/91, § 47; ECtHR, 26/10/2006, Hasan and Chaush v BUL, No. 30985/96, § 78, 82. 77 ECtHR, 30/6/2011, Association les Temoins de Jehovah v FRA, No. 8916/05, § 53. 78 ECtHR, 22/1/2009, Holy Synod of the Bulgarian Orthodox Church et al v BUL, No. 412/03 et al, §§ 107 et seq; ECtHR, 26/10/2006, Hasan and Chaush v BUL, No. 30985/96, § 78. 79 EComHR, 17/12/1968, Church of X v UK, No. 3798/68, Yb 12, 306 (319); even though in the end an interference was negated. 80 ECtHR, 12/2/2009, Nolan and K. v RUS, No. 2512/04, §§ 61 et seq. 81 ECtHR, 28/2/2006, Z. and T. v UK, No. 27034/05.

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Art. 9

24–28

Article 9 – Freedom of thought, conscience and religion

tions. Systematic reasons, however, especially with a view to the second paragraphs of Articles 8, 10 and 11, and the history of the drafting of the convention suggest that the freedom of conscience is subject to limitations even though according to the wording it cannot be restricted.82 25 According to Article 9 (2) limitations of the freedom of religion are only admissible, if the interference is prescribed by law, serves one of the aims listed in Article 9 (2) and is necessary in a democratic society. These requirements for justification generally correspond to those enshrined in Article 8 (2), and Article 11 (2).83

1. Prescribed by law 26

Interferences with the freedom of religion and belief have to be prescribed by law. In this respect, no differences can be found to the requirements of Article 8 (2), Article 10 (2) and Article 11 (2). The Court has also established certain requirements concerning the accessibility and the predictability of the legal basis for cases concerning the freedom of religion.84 In the Kokkinakis Case it held that a body of settled national case law, which has been published and is accessible, can be considered to be a sufficient legal basis in areas where it is necessary to avoid excessive rigidity and to keep pace with changing circumstances.85 The requirements of accessibility and predictability are not met, if a law does not provide for any substantive criteria on the basis of which religious communications and changes of their leadership in a situation of internal divisions and conflicting claims for legitimacy are registered by a public institution.86

2. Legitimate aim An interference has to serve one of the aims exhaustively listed in Article 9 (2), namely the interest of public safety, the protection of public order, health or morals and the protection of the rights and freedoms of others. The phrasing of Article 9 therefore is narrower than the corresponding reservations of restrictions of paragraph 2 of Articles 8, 10 and 11 respectively.87 The Court is in favour of a restrictive definition.88 In substance, however, the differences are marginal. 28 The Court’s case law regarding Article 9 shows that the Member States do in fact rely on all of the aims mentioned in Article 9 (2) to justify measures limiting the freedom of religion. The protection of public order is the basis for measures aiming at the implementation and enforcement of the legal order. For reasons of public order, the state is entitled to examine religious communities with a view to 27

82

Grabenwarter/Pabel, § 22 m.n. 112; see also vgl. bereits EComHR, 1/10/1975, X., No. 6084/73. See in general Grabenwarter/Pabel, § 18 m.n. 7 et seq. 84 See for example ECtHR, 25/5/1993, Kokkinakis v GRE, No.14307/88, §§ 37 et seq; ECtHR, 21/1/2011, Boychev v BUL, No. 77185/01, §§ 50 et seq; ECtHR, 30/6/2011, Association les Temoins de Jehovah v FRA, No. 8916/05, §§ 66 et seq. 85 ECtHR, 25/5/1993, Kokkinakis v GRE, No.14307/88, § 40; see also ECtHR, 24/2/1998, Larissis v GRE, No. 23372/94 et al, §§ 40 et seq. 86 ECtHR, 26/10/2006, Hasan and Chaush v BUL, No. 30985/96, § 85; in addition, there were no procedural safeguards. 87 Vermeulen, in: van Dijk/van Hoof/van Rjin/Zwaak, p. 768. 88 ECtHR, 14/6/2007, Svyato-Mykhaylivska Parafiya v UKR, No. 77703/01, § 132; ECtHR, 12/2/2009, Nolan and K. v RUS, No. 2512/04, § 73. 83

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IV. Justification

28–31

Art. 9

their potential harmfulness to the general public.89 Unlike Article 10 (2), Article 9 (2) does not explicitly mention the interests of national security and territorial integrity to be legitimate aims. However, according to the Court in some cases state measures pursuing these interests can be subsumed under the aims of the protection of public order and security.90 The Court did consider punitive measures taken by Greece against members of 29 Jehovah’s Witnesses, who held services at an unauthorised place of worship, even though an authorisation was required by law, to be a legitimate aim, namely the protection of public order.91 Limitations of the freedom of religion of prisoners can be justified if they aim at sustaining the public order in prison.92 Interferences with the freedom of religion can also be justified by the aim to 30 protect the health of the people or even the subject of the fundamental right himself. The prohibition of ritual slaughter e.g. can serve the protection of public health.93 The compulsory wearing of crash helmets retaining a Sikh from wearing his turban aims at protecting his health.94 The protection of the rights and freedoms of others was accepted to be the legitimate aim pursued by a prohibition of proselytism in Greece. The Court rightly takes the position that the State is entitled to protect the freedom of its people in general, and particularly their freedom of religion, against the abuse of religious influence.95 The same aim is pursued by the requirement to proof one’s religious denomination in order to be entitled to certain advantages, such as religious holidays.96 The rights and freedom of others, in particular the right of the public to a functioning judicial administration and an adequate length of the proceedings may also justify a hearing date on a day, which is a religious holiday for one of the lawyers.97

3. Necessary in a democratic society An interference with the freedom of religion and belief can only be justified if it is 31 ‘necessary in a democratic society’. In essence this means that the measure taken has to be proportionate to the legitimate aim pursued.98 In examining whether restrictions to the rights and freedoms guaranteed by the Convention can be 89 ECtHR, 26/9/2006, Manoussakis v GRE, No. 18748/91, § 40; ECtHR, 10/6/2010, Jehova’s Witnesses of Moscow v RUS, No. 302/02, §§ 106 et seq. 90 ECtHR, 13/12/2001, Metropolitan Church of Bessarabia v MDA, No. 45701/99, §§ 111 et seq; different ECtHR, 12/2/2009, Nolan and K. v RUS, No. 2512/04, § 73. However, in this case, the government had not submitted a sufficient explanation for the assumption of a danger to national security. 91 ECtHR, 26/9/1996, Manoussakis v GRE, No. 18748/91, § 40. 92 EComHR, 15/2/1965, X., No. 1753/63, Yb 8, 174 (184); EComHR, 18/5/1976, X., No. 6886/75, EComHR, 6/3/1983, X., No. 8231/78. 93 ECtHR, 27/6/2000 (GC), Cha’are Shalom Ve Tsedek v FRA, No. 27417/95, §§ 77, 84. 94 EComHR, 12/7/1965, X., No. 7992/77, D§R 14, 234 (235); see also EComHR, 6/3/1982, X., D&R 28, 5 (38); Vermeulen, in: van Dijk/van Hoof/van Rijn/Zwaak, p. 770. 95 ECtHR, 25/5/1993, Kokkinakis v GRE, No.14307/88, § 44; ECtHR, 24/2/1998, Larissis v GRE, No. 23372/94 et al, §§ 43 et seq. 96 ECtHR, 13/4/2006, Kosteski v MKD, No.55170/00, § 39. 97 ECtHR, 3/4/2012, Francesco Sessa v. ITA, No. 28790/08, § 38. 98 ECtHR, 25/11/1996, Wingrove v. UK, No. 17419/90, § 53; ECtHR, 14/12/1999, Serif v GRE, No. 38178/97, § 49; ECtHR, 13/12/2001, Metropolitan Church of Bessarabia v MDA, No. 45701/99, § 106.

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Art. 9

31, 32

Article 9 – Freedom of thought, conscience and religion

considered ‘necessary in a democratic society’ the Court has, however, consistently held that the Member States enjoy a certain margin of appreciation. This margin of appreciation, however, is not unlimited. It is, in any event, for the Court to give a final ruling on the restriction’s compatibility with the Convention and it will do so by assessing in the circumstances of a particular case, inter alia, whether the interference corresponded to a ‘pressing social need’ and whether it was ‘proportionate to the legitimate aim pursued’.99 This is true even if the national decision was made by an independent court.100 Hereby the Court embraces both the legislation and the decisions applying it, but reassesses the plausibility of the decision.101 The margin of appreciation left to the Member State varies according to the degree to which national regulations differ from state to state.102 32 In the case of Metropolitan Church of Bessarabia the Court’s examination was rather thorough. The Republic of Moldova had refused the necessary recognition of a part of the Orthodox Church, which was suspected of engaging in political activities favourable to a reunification between Bessarabia and Romania, on grounds of protecting the security and territorial integrity of the newly found state. In great detail the Court revised the arguments of the Moldovan government and did not hesitate to revalue the circumstances thereby deviating from the evaluation of the respondent state, even though eminently political questions touching upon the sovereignty of the state were at hand. Due to the gravity of the interference – in the absence of recognition the applicant Church could neither organise itself nor operate – the Court found a violation of Article 9.103 In contrast, in a case concerning the obligation to return a church (St. Salvator Kirche in Munich, Bavaria) which was left to the Griechische Kirchengemeinde Mu¨nchen und Bayern e. V. the Court only ascertains the argumentation of the German Federal Constitutional Court’s decision step by step attesting it plausibility, instead of evaluating the proportionality of the interference itself.104 In view of the fact that almost all the Member States which ever had or still have compulsory military service have introduced alternatives to such service in order to reconcile the possible conflict between individual conscience and military obligations the Court held that a State which has not done so enjoys only a limited margin of appreciation and must advance convincing and compelling reasons to justify any interference. Where no alternative civilian service is available to people seeking to be exempted from military service not for reasons of personal benefit or convenience but on the ground of genuinely held convictions, a conviction of conscientious objectors constitutes a violation of Article 9.105

99 ECtHR, 26/9/1996, Manoussakis v GRE, No. 18748/91, § 44; ECtHR, 25/11/1996, Wingrove v UK, No. 17419/90, § 53. 100 ECtHR, 25/5/1993, Kokkinakis v GRE, No.14307/88, § 47. 101 For basic considerations with a view to Article 9 cf. ECtHR, 25/5/1993, Kokkinakis v GRE, No.14307/88, § 47. 102 Explicitly in ECtHR, 13/9/2005, I.A. v TUR, No. 42571/98, § 25. 103 ECtHR, 13/12/2001, Metropolitan Church of Bessarabia v MDA, No. 45701/99, § 106. 104 ECtHR, 18/9/2007, Griechische Kirchengemeinde Mu ¨ nchen und Bayern e. V. v GER, No. 52336/99. 105 ECtHR, 7/7/2011 (GC), Bayatyan v ARM, No. 23459/03, §§ 123 et seq; ECtHR, 22/11/2011, Erçep v TUR, No. 45965/04, §§ 59 et seq.; ECtHR, 12/6/2012, Savda v. TUR, No. 42730/05, § 93 et seq.

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IV. Justification

33–36

Art. 9

Conflicts concerning the practice of religion arise in particular in democratic societies, in which several religions coexist within one and the same population.106 The Court recalls that freedom of thought, conscience and religion was one of the foundations of a ‘democratic society’ within the meaning of the Convention. The pluralism inherent in a democratic society, which has been dearly won over the centuries, depended on it. Accordingly, the role of national authorities was not to remove the cause of tension by eliminating pluralism, but to ensure that the competing groups tolerate each other.107 Bans on wearing religious headpieces have regularly been accepted by the Court as being justified. The prohibition of wearing an Islamic headscarf at a university e.g. was considered to be proportional. In particular, the Court relies on the role of the principle of secularism in the democratic order of the Turkish State. However, it also refers to the interest of keeping the peace and order at the university. The prohibition was directed against the impact which wearing such a symbol, which is presented or perceived as a compulsory religious duty, may have on those who choose not to wear it.108 The Court also held that the penalty of expulsion does not appear disproportionate, and notes that the applicant was able to continue her schooling by correspondence classes.109 The request directed at a Muslim woman to remove her veil at the security check at the entrance of an embassy is considered to be a proportionate interference, even if no female security agent was present.110 Furthermore, the refusal to issue a driver’s license on the grounds that the applicant had only submitted pictures on which he was wearing a turban does not violate Article 9.111 The general punishment of citizens wearing religious clothing, however, constitutes a violation of Article 9 as long as public order is not disrupted and no pressure is exercised on others.112 In a case concerning restrictions to the effect that during the hours of night the ringing of the church bell should not exceed a defined volume in order to protect the night’s rest of neighbouring residents the Court found that in the determination of the restriction at issue a fair balance was struck between the competing interests involved and that therefore the restriction at issue can reasonably be regarded as justified under Article 9.113 The Court decides on the proportionality of interferences with the institutional freedom of religion against the background of the state’s obligation to remain neutral, which it derives from Article 9. Where the recognition as a religious 106

ECtHR, 25/5/1993, Kokkinakis v GRE, No.14307/88, § 33. ECtHR, 14/12/1999, Serif v GRE, No. 38178/97, §§ 52 et seq; ECtHR, 13/12/2001, Metropolitan Church of Bessarabia v MDA, No. 45701/99, § 115; ECtHR, 18/10/2002, Agga v GRE, No. 50776/99 et al, §§ 56 et seq; ECtHR, 10/11/2005 (GC), Leyla Sahin v TUR, No. 44774/98, § 106. 108 ECtHR, 10/11/2005 (GC), Leyla Sahin v TUR, No. 44774/98, § 115. Burgorgue-Larsen/Dubout, RTDH 66/2006, 183 et seq; Decaux, Chronique d’une jurisprudence annonce´e: laicite´ française et liberte´ re´ligieuse devant la Cour europe´ene des Droits de l’Homme, RDTH 2010, 251 et seq. 109 ECtHR, 4/12/2008, Dogru v FRA, No. 27058/08, § 76; ECtHR, 4/12/2008, Kervanci v FRA, No. 31645/04, § 76. Concerning the proportionality of a prohibition of religious signs and clothes in French schools see also ECtHR, 30/6/2009, Ghazal v FRA, No. 29134/08; ECtHR, 30/6/2009, Jasvir Singh v FRA, No. 25463/08. 110 ECtHR, 4/3/2008, El Morsi v FRA, No. 15585/06. 111 ECtHR, 13/11/2008, Mann Singh v FRA, No. 24479/07. 112 ECtHR, 23/2/2010, Ahmet Arslan a. o. v TUR, No. 41135/98, §§ 50 et seq. 113 ECtHR, 16/10/2012, Schilder v NED, No. 2158/12, § 23. 107

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Art. 9

36–39

Article 9 – Freedom of thought, conscience and religion

community by the state leads to a certain legal status the proceedings preceding the refusal have to fulfil a number of requirements set up by the case law of the Court. First of all, they have to be designed in a way ensuring that every group wishing to obtain this status has a fair chance to do so. Furthermore, the relevant criteria have to be applied without discrimination.114 The Court did e.g. see a violation in the duration of the proceedings concerning a request of the Jehovah’s Witnesses to be granted the status of a legal entity, which lasted over 20 years.115 37 The Court reiterates that the State’s duty of neutrality and impartiality prohibits it from assessing the legitimacy of religious beliefs or the ways in which those beliefs are expressed or manifested. Accordingly, the State has a narrow margin of appreciation and must advance serious and compelling reasons to justify the dissolution of a religious community.116 Relying on these principles, the Court found the dissolution of the religious community of Jehovah’s Witnesses of Moscow to be a violation of Article 9. The arguments adduced by the Russian government that the applicant community forced families to break up, that it infringed the rights and freedoms of its members or third parties, that it incited its followers to commit suicide or refuse medical care, that it impinged on the rights of non-Witness parents or their children, or that it encouraged members to refuse to fulfil any duties established by law were considered either not sufficiently relevant or not sufficiently proven.117 38 The duty of neutrality imposed on the state requires that where a settlement of conflicts within a religious community, e.g. a conflict regarding the leadership, is necessary the State is obligated to stay impartial. It has to take neutral measures ensuring legal certainty and foreseeable procedures for the settling of the disputes.118 39 State warnings against certain religious communities are on the one hand measured against the legal and social framework, and against the factual basis of the warnings on the other hand. The Court did not consider the denotation of a religious community as a sect by the German government to be a violation, since the German Federal Constitutional Court had carefully analysed the impugned statements and prohibited the use of the adjectives ‘destructive” and ‘pseudo-religious’ and the allegation that members of the movement were manipulated as infringing the principle of religious neutrality. The Court considered that the Government’s statements as delimited by the Federal Constitutional Court did – at least at the time when they were made – not entail overstepping the bounds of what a democratic State may regard as the public interest.119

114 ECtHR, 31/7/2008, Religionsgemeinschaft der Zeugen Jehovah’s et al v AUT, No. 40825/98, § 97; ECtHR, 26/2/2009, Verein der Freunde der Christengemeinschaft a. o. v AUT, No. 76581/01, § 45. 115 ECtHR, 31/7/2008, Religionsgemeinschaft der Zeugen Jehovas et al v AUT, No. 40825/98, §§ 97 et seq; ECtHR, 26/2/2009, Verein der Freunde der Christengemeinschaft a. o. v AUT, No. 76581/01, § 44;see also Article 14 m.n. 20. 116 ECtHR, 10/6/2010, Jehovah’s Witnesses of Moscow a. o. v RUS, No. 302/02, § 119. 117 ECtHR, 10/6/2010, Jehova’s Witnesses of Moscow v RUS, No. 302/02, §§ 108 et seq, 160. 118 ECtHR, 22/1/2009, Holy Synod of the Bulgarian Orthodox Church et al v BUL, No. 412/03 et al, §§ 139 et seq. 119 ECtHR, 6/11/2008, Leela Fo ¨ rderkreis e. V. et al v GER, No. 58911/00, § 100.

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V. Positive obligations

40, 41

Art. 9

V. Positive obligations In certain cases there may be positive obligations inherit in Article 9.120 The 40 State is obliged to provide sufficient safeguards to ensure the possibility to leave a church which is expressly guaranteed by Article 9.121 However, the State is not obliged to ensure that a church provides religious freedom to its members and servants.122 Therefore, a Danish priest could not rely on Article 9 to assert his views differing from the official doctrine against his church. He exercised his individual freedom of thought, conscience or religion at the moment he accepted employment as clergymen. The right to leave the church guarantees the freedom of religion in case one opposes its teachings.123 In view of the requirements of the education system the authorities do not disregard a teacher’s freedom of religion if they refuse him a rearrangement of the school time-table so that he may practice his religion, if he has previously accepted his employment without making any reservations in this respect.124 Moreover, given the pluralism of religion and belief guaranteed by the Conven- 41 tion the State has to provide for religious peace, thereby creating an atmosphere of social acceptance enabling the individual to exercise his freedom of religion in peace.125 Those who choose to exercise the freedom to manifest their religion cannot reasonably expect to be exempt from all criticism.126 However, the manner in which religious beliefs and doctrines are opposed or denied is a matter which may engage the responsibility of the State, notably its responsibility to ensure the peaceful enjoyment of the rights guaranteed under Article 9 to the holders of those beliefs and doctrines.127 According to the Court, the fact that there is no uniform European conception of the requirements of the protection of the rights of others in relation to attacks on their religious convictions means that the Member States have a wider margin of appreciation when regulating freedom of expression in connection with matters liable to offend intimate personal convictions within the sphere of morals or religion.128 In addition the State is obliged to protect against aggressive and improper proselytism.129 The Court has frequently emphasised the State’s role as the neutral 120 Grabenwarter/Pabel, § 22 m.n. 119 with further references; regarding Article 8 see ECtHR, 16/6/1979, Marckx v BEL, No. 6833/74, § 31. 121 EComHR, 8/3/1976, X. v DEN, No. 7374/76; EComHR, 14/5/1976, E. a. G.R. v AUT, No. 9781/82; EComHR, 4/12/1984, Gottesmann v SUI, No. 10616/83. 122 EComHR, 8/3/1976, X. v DEN, No. 7374/76. 123 EComHR, 8/3/1976, X. v DEN, No. 7374/76; EComHR, 8/3/1985, Knudsen, D&R 42, pp. 247 et seq. 124 EComHR, 12/3/1981, X. v UK, No. 8160/78. 125 ECtHR, 20/9/1994, Otto Preminger Institut v AUT, No. 13470/87, § 47; ECtHR, 18/3/2011 (GC), Lautsi v ITA, No. 30814/06, § 60. 126 ECtHR, 13/9/2005, I.A. v TUR, No. 42571/98, § 28; see already EComHR, 14/7/1980, Church of Scientology, D&R 21, p. 109 (114). 127 ECtHR, 20/9/1994, Otto Preminger Institut v AUT, No. 13470/87, § 47; ECtHR, 13/9/2005, I.A. v TUR, No. 42571/98, §§ 25 et seq; EComHR, 14/7/1980, Church of Scientology, D&R 21, p. 109 (114); EComHR, 18/4/1997, Dubowska a. Skup, D&R 89-A, p. 156 (161). 128 ECtHR, 13/9/2005, I.A. v TUR, No. 42571/98, § 25. 129 ECtHR, 25/5/1993, Kokkinakis v GRE, No.14307/88, § 48.

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Art. 9

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Article 9 – Freedom of thought, conscience and religion

and impartial organiser of the exercise of various religions, faiths and beliefs, and stated that this role is conducive to public order, religious harmony and tolerance in a democratic society.130 42 The individual’s need for protection is particularly high in hierarchical structures, e.g. in the military service. Here, it is particularly difficult for a subordinate to rebuff the approaches of an individual of superior rank or to withdraw from a conversation initiated by him.131 A proselytisation which in itself was admissible may be legitimately prohibited by the State in these situations in order to protect the freedom of the subordinate. 43 Where someone has a particularly close relationship to the State, Member States have to adhere to certain positive obligations to protect the freedom of religion. They have to ensure that the individual person is able to exercise his religion in this legal relationship with the State. Such an obligation exists in particular during the execution of prison sentences. The national authorities have to facilitate the prisoner with an opportunity to attend church services or to be visited by a priest.132 The prison authorities must respect and consider religious rites of the prisoners such as dietary regulations or religious clothing standards.133 However, the security and order inside the prison must not be put at risk – e.g. if the prisoner asks for a book on the martial arts and self-defence.134 Furthermore, the State has to respect the religious denominations of pupils and their parents e.g. by giving them the possibility of exemption from religious education in school.135 130

ECtHR, 13/2/2003 (GC), Refah Partisi a. o. v TUR, No. 41340/98, § 91. ECtHR, 24/2/1998, Larissis v GRE, No. 23372/94 et al, §§ 50 et seq. 132 ECtHR, 29/4/2003, Poltoratsky v UKR, No. 38812/97, §§ 166 et seq. 133 ECtHR, 7/12/2010, Jako ´ bsky v POL, No. 18429/06, §§ 52 et seq. 134 EComHR, 18/5/1976, X., No. 6886/75; EComHR, 15/2/1965, X., No. 1753/63, Yb 8, 174. 135 See Article 2 of protocol no. 1 m.n. 16. 131

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Bibliography and leading cases

Art. 10

Article 10 – Freedom of expression 1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary. Article 10 – Liberte´ d’expression 1. Toute personne a droit a` la liberte´ d’expression. Ce droit comprend la liberte´ d’opinion et la liberte´ de recevoir ou de communiquer des informations ou des ide´es sans qu’il puisse y avoir inge´rence d’autorite´s publiques et sans conside´ration de frontie`re. Le pre´sent article n’empeˆche pas les Etats de soumettre les entreprises de radiodiffusion, de cine´ma ou de te´le´vision a` un re´gime d’autorisations. 2. L’exercice de ces liberte´s comportant des devoirs et des responsabilite´s peut eˆtre soumis a` certaines formalite´s, conditions, restrictions ou sanctions pre´vues par la loi, qui constituent des mesures ne´cessaires, dans une socie´te´ de´mocratique, a` la se´curite´ nationale, a` l’inte´grite´ territoriale ou a` la suˆrete´ publique, a` la de´fense de l’ordre et a` la pre´vention du crime, a` la protection de la sante´ ou de la morale, a` la protection de la re´putation ou des droits d’autrui, pour empeˆcher la divulgation d’informations confidentielles ou pour garantir l’autorite´ et l’impartialite´ du pouvoir judiciaire. Bibliography: Berger, Publicite´ professionnelle et liberte´ d’expression, Studies in memory of Rolv Ryssdal, p. 103; Cohen-Jonathan, Transparence, de´mocratie et effectivite´ des droits fondamentaux dans la Convention europe´enne des droits de l’homme, Studies in memory of Rolv Ryssdal, p. 245; Lambert, Racisme et liberte´ d’expression dans la Convention europe´enne des droits de l’homme, Studies in memory of Rolv Ryssdal, p. 735; Lester, Freedom of Expression, in: Macdonald/Matscher/ Petzold, p. 465; Macdonald, Politicians and the press, Studies in honour of Ge´rard J. Wiarda, p. 361; Pekkanen, Criticism of the judiciary by the media, Studies in memory of Rolv Ryssdal, p. 1079; Ress, Media law in the context of the European Union and the European Convention on Human Rights, Studies in memory of Rolv Ryssdal, p. 1173; Wachsmann, Une certaine marge d’appre´ciation. Conside´rations sur les variations du controˆle europe´en en matie`re de liberte´ d’expression, Studies in honour of Pierre Lambert, p. 1017. Leading Cases: ECtHR, 26/4/1979, Sunday Times (No.1) v UK, No. 6538/74 (freedom of the press); ECtHR, 8/7/1986, Lingens v AUT, No. 9815/82 (freedom of the press); ECtHR, 20/11/1989, markt intern Verlag GmbH and Klaus Beermann v GER, No. 10572/83 (freedom of advertising); ECtHR, 24/ 11/1993, Informationsverein Lentia a. o. v AUT, No. 13914/88 et al (freedom of broadcasting); ECtHR, 23/9/1994 (GC), Jersild v DEN, No. 15890/89 (freedom of the media); ECtHR, 20/9/1994,

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Art. 10

1

Article 10 – Freedom of expression

Otto Preminger Institut v AUT, No. 13470/87 (freedom of artistic expression); ECtHR, 27/4/1995, Piermont v FRA, No. 15773/89 et al (a politician’s freedom of expression); ECtHR, 26/9/1995 (GC), ¨ zgu¨r Vogt v GER, No. 17851/91 (public servants’ freedom of expression); ECtHR, 16/3/2000, O Gu¨ndem v TUR, No. 23144/93 (freedom of the press); ECtHR, 27/2/2001, Jerusalem v AUT, No. 26958/95 (a politician’s freedom of expression); ECtHR, 28/6/2001, VGT Verein gegen Tierfabriken v SUI, No.24699/94 (freedom of political advertisement on TV); ECtHR, 30/3/2004, Radio France a. o. v FRA, No. 53984/00 (freedom of broadcasting); ECtHR, 24/6/2004, von Hannover (No. 1) v GER, No. 59320/00 (freedom of the press and protection of privacy); ECtHR, 17/12/2004 (GC), Cumpa˘na˘ and Maza˘re v ROM, No. 33348/96 (freedom of the press); ECtHR, 15/2/2005, Steel and Morris v UK, No. 68416/01 (procedural rights in proceedings due to defamation); ECtHR, 10/12/ 2007 (GC), Stoll v SUI, No. 69698/01 (protection of confidential documents); ECtHR, 26/2/2009, Kudeshkina v RUS, No. 29492/05 (freedom of expression of judges); ECtHR, 21/7/2011, Sigma Radio Television Ltd. v CYP, No. 32181/04 (freedom of broadcasting); ECtHR, 7/2/2012 (GC), von Hannover (No. 2) v GER, No. 40660/08 and ECtHR, 7/2/2012 (GC), Axel Springer AG v GER, No. 39954/08 (freedom of the press and protection of private life); ECtHR, 7/6/2012 (GC), Centro Europa 7 S.r.l. and Di Stefano v ITA, No. 38433/09 (pluralism in the audio-visual media). Outline I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Scope of protection. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Freedom of expression. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Freedom of information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Freedom of the press. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. Freedom of electronic media . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5. Freedom of artistic expression. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6. Academic freedom . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Interferences. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Justification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Prescribed by law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Legitimate aim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Necessary in a democratic society . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a) Interferences with the freedom of expression and information. . . b) Freedom of the press – special issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . c) Interferences with the freedom of broadcasting and other electronic media – special issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . d) Interferences with the freedom of artistic expression and academic freedom – special issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Positive obligations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. General. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Positive obligations with respect to organisation and proceedings . . 3. Positive obligation to inform . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 2 4 9 11 13 14 15 16 21 23 25 28 31 46 56 60 63 63 65 67

I. Introduction 1

Article 10 protects the freedom of communication. This notion comprises the actual freedom of expression, the freedom of information, the freedom of communication via mass media and specific parts of the freedom of artistic and academic expression. Article 10 (2) contains a general rule on its restrictions, which is modified only slightly for the freedom of broadcasting and the freedom of cinema. In contrast to many national guarantees to that effect, Article 10 does not refer to any particular modalities to express one’s opinion. The EU Charter provides for an identical guarantee in its Article 11.1 The ‘freedom of opinion, expression and 1

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information’ is further guaranteed by Article 19 of the ICCPR. In addition, the ICCPR includes a ‘prohibition of propaganda for war and advocacy of hatred’ in its Article 20.2

II. Scope of protection Article 10 protects many forms of communication. Its scope of protection can be 2 subdivided according to various criteria. The general freedom of expression can be seen as a starting point. It is defined by content. The freedom of the press is given distinction by the specific form of distribution typical to printed newspapers and magazines or electronic mass media. The freedom of information refers to the content of the information. Communication processes related to the freedom of academic and artistic expression are characterised by their content as well as the forms of distribution which are typically influenced by the artistic or scientific content. This structure is of importance for determining the scope of protection as well as for the types of interferences and their justification. The personal scope of protection of Article 10 comprises all persons who make 3 use of one of the forms of communication protected by paragraph 1. Article 10 protects not only the author or journalist, but also the publisher of a newspaper3 or a book.4 Furthermore, the relationship between a publisher or editor and the journalists he employs is determined by Article 10.5

1. Freedom of expression The starting point regarding the guarantee of Article 10 is the freedom of 4 expression. In its broader sense, it includes all forms of communication between people. In its narrower sense it protects primarily the expression of opinions. In the framework of the ECtHR the differentiation between opinion and fact, which in many legal orders is made on the level of the scope of protection, is made in the context of justifying an interference.6 The communication of information and ideas is explicitly protected. Being a prerequisite to communication the freedom to form and hold an opinion is also protected. This freedom first and foremost protects against indoctrination by the State.7 The communication of facts is protected without limitations, even if the facts are 5 incorrect. The notion of communication as known to the ECHR therefore is to be understood as an ‘open’ concept depending on neither the modalities nor the content of a statement.8 Political and commercial advertising falls within the scope of protection of Article 10.9 A statement may be made in word, in writing, through a picture or by 2

Nowak, CCPR Commentary, 2nd ed., 2005, Articles 19 and 20. ECtHR, 11/1/2000, NEWS Verlags GmbH & Co. KG v AUT, No. 31457/96, § 39. 4 ECtHR, 15/1/2009, Orban a. o. v FRA, No. 20985/05, § 47. 5 Regarding the ‘inner freedom of the press’ see Grabenwarter/Pabel § 23 m.n. 4, 7. 6 ECtHR, 25/3/1985, Barthold v GER, No. 8734/79, § 42. 7 Grabenwarter/Pabel § 23 m.n. 4 with further references. 8 See Grabenwarter/Pabel § 23 m.n. 5 with further references. 9 ECtHR, 20/11/1989, markt intern Verlag GmbH and Klaus Beerkann v GER, No. 10572/83, § 26. 3

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Art. 10

5–7

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other symbols.10 In particular, Article 10 protects statements communicated via banners or flyers.11 Publishing so-called ‘open letters’ is protected by the freedom of expression as well. Despite their wide circle of addressees, however, they do not fall under the freedom of the press.12 The content of a statement cannot be relevant in determining the scope of protection. 6 Every statement is an information or idea according to Article 10 (1), even if it is intentionally or unintentionally untrue. This also applies to statements that offend, shock or disturb.13 Even statements directed against the fundamental principles of a democratic state are protected by Article 10.14 The use of vulgar phrases in itself is not decisive in the assessment of an offensive expression as it may well serve merely stylistic purposes. For the Court, style constitutes part of communication as a form of expression and is as such protected together with the content of the expression.15 7 One might argue the prohibition of the abuse of rights laid down in Article 17 leads to a different conclusion. The EComHR’s case law and some of the ECtHR’s cases also suggest this.16 In subsequent decisions, however, the EComHR and the ECtHR allow the conclusion that statements which offend, shock or disturb as well as antidemocratic statements cannot be generally excluded from the scope of protection of Article 10. In situations where Article 17 is applicable, this fact has to be considered when deciding whether the interference was justified. In the Walendy Case for example the Commission rather briefly noted that according to the German appellate court the publication in question did deny historical facts about the mass murder committed by the totalitarian Nazi regime and therefore constituted an insult to Jewish people and at the same time a continuation of the former discrimination against Jewish people. Subsequently it held that the interference at issue could be considered as ‘necessary in a democratic society’ within the meaning of Article 10 (2) of the Convention.17 In the Gu¨ndu¨z Case the ECtHR holds that there is no doubt that, like any other remark directed against the Convention’s underlying values, expressions that seek to spread, incite or justify hatred based on intolerance, including religious intolerance, do not enjoy the protection afforded by Article 10 of the Convention. However, the Court considers that the mere fact of defending sharia, without calling for violence to establish it, cannot be regarded as ‘hate speech’. Consequently, Article 17 was not applicable in the first place.18 In the Fa´ber Case, ´ rpa´d-striped flag which could be regarded both concerning the display of a so-called A as a historical symbol and as a symbol reminiscent of a former regime at a demonstration, the Court did not exclude that the display of a contextually ambig10 ECtHR, 8/7/2008, Vajnai v HUN, No. 33629/06, § 47; and similar ECtHR, 3/11/2011, Fratanolo v HUN, No. 29459/10, §§ 25 et seq (wearing of a five-pointed star). 11 ECtHR, 25/8/1993, Chorherr v AUT, No. 13308/87, §§ 23 et seq. 12 See also ECtHR, 25/6/1992, Thorgeir Thorgeirson v ISL, No. 13778/88, §§ 56 et seq; ECtHR, 19/4/2001, Maroˆnek v SVK, No. 32686/96, § 47. 13 See ECtHR, 7/12/1976, Handyside v UK, No. 5493/72, § 49. 14 See implicitly ECtHR, 4/12/2003, Mu ¨ slu¨m Gu¨ndu¨z v TUR, No. 35071/97, § 51. 15 ECtHR, 21/2/2012, Tus ˛alp v TUR, No. 32131/08 and 41617/08, § 48. 16 EComHR, 11/10/1979, Glimmerveen a. Hagenbeek, DR 18, 187 (194); ECtHR, 23/9/1994 (GC), Jersild v DEN, No. 15890/89, § 35. For detailed references see Oetheimer, La Cour europe´enne des droits de l’homme face au discours de haine, RTDH 2007, p. 63 (66 et seq). 17 EComHR, 23/9/1992, Walendy v GER, No. 21128/92. 18 ECtHR, 4/12/2003, Gu ¨ ndu¨z v TUR, No. 35071/97, § 51.

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uous symbol at the specific site of mass murders may in certain circumstances express identification with the perpetrators of those crimes; it is for this reason that even otherwise protected expression is not equally permissible in all places and all times. In certain countries with a traumatic historical experience, a ban on demonstrations – to be held on a specific day of remembrance – which are offensive to the memory of the victims of totalitarianism who perished at a given site may be considered to represent a pressing social need. The need to protect the rights to honour of the murdered and the piety rights of their relatives may necessitate an interference with the right to freedom of expression, and it might be legitimate when the particular place and time of the otherwise protected expression unequivocally changes the meaning of the certain display. In the case at hand, however, given the passive conduct of the applicant at the demonstration and the absence of any demonstrated risk of insecurity or disturbance, the fine imposed was disproportionate.19 Taking account of the prohibition of abuse when determining the scope of protection bears the danger of preventing a protection differentiated by content. It may blur the boundaries between the scope of protection and the question of an interference on the one hand and the justification of an interference on the other hand. Furthermore, it would contravene the liberal principle of the Court’s jurisdiction, according to which information which offend, shock or disturb are also protected by Article 10.20 Hence, even though hate speeches and even a denial of the Holocaust may be within the scope of protection of Article 10, interferences can be justified without any elaborate effort to strike a fair balance.21 A person entitled by Article 10 may make use of any form or technology of 8 communication. Actions can also be considered to be a way of exercising one’s freedom of expression. For example, the physical interference with a goose hunt by walking slowly or occupying a motorway construction side constitutes the expression of an opinion.22 Even illegal actions, such as burning a flag or denigrating state or religious symbols, fall within the scope of Article 10. Blowing a hunting horn and engaging in hallooing with the intention of disrupting the activities of hunt was considered to be an expression of one’s opinion against fox hunting.23 The mere display of a symbol, like that of a flag, also falls within the ambit of expression protected by Article 10.24 The scope of protection ends where the communication is no longer the main focus, but simple social interaction.25 The symbolic meaning of the action is decisive for the distinction.

2. Freedom of information Article 10 guarantees the autonomous right to inform others (active freedom of 9 information). It includes the right to ‘impart information and ideas without interference by public authority and regardless of frontiers’. Whether the informa19

ECtHR, 24/7/2012, Fa´ber v HUN, No. 40721/08, § 58. See also Lester, Freedom of Expression, in: Macdonald/Matscher/Petzold, p. 465 (472 et seq). 21 See in general Wachsmann, Liberte ´ d’expression et ne´gationisme, RTDH 2001, pp. 585 et seq. 22 ECtHR, 23/9/1998, Steel a. o. v UK, No. 24838/94, § 92. 23 ECtHR, 25/11/1999, Hashman a. Harrup v UK, No. 25594/94, § 28. 24 ECtHR, 24/7/2012, Fa ´ ber v HUN, No. 40721/08, § 36. 25 Denying the scope of protection for sexual contacts: EComHR, 12/10/1978, X., No. 7215/75, DR 19, 66 (80). 20

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Art. 10

9, 10

Article 10 – Freedom of expression

tion was passed on orally, in written form, via print media or digitally is not relevant. In the system of the ECtHR, the active freedom of information is basically congruent with the freedom of expression. 10 The right to access and receive information is called the passive freedom of information.26 It protects not only passive behaviours, but also an effort to acquire information. Insofar Article 10 is a right primary directed against interferences by the State: Every person has the right to try seeking information without being negatively impacted by the State. The right to receive information is limited to publicly accessible information. The principle that the State has to organise its information system so as to enable everyone to inform himself about important questions can be deduced from Article 10. Consequently every person has a right to be informed which is only limited by the criterion of ‘public accessibility’. Therefore this right cannot be determined by the legislator, but only by objective criteria. However, Article 10 does not demand for the State to make confidential information available to the public.27 The ECtHR confirmed this view in an Italian case concerning environmental information about incidents in a chemical plant. At the same time, however, it acknowledged a right of the residents to be informed by the State in the form of a positive obligation under Article 8, as the severe environmental pollution affected individuals’ well-being and prevented them from enjoying their homes in such a way as to affect their private and family life adversely.28 Where a person is not prevented from receiving and imparting information or in any other way prevented from exercising his or her ‘positive’ right to freedom of expression, the question arises whether a person is entitled to a ‘negative’ right under Article 10 not to impart information. In the Gillberg Case, which concerned the conviction of a university professor for refusing to comply with a court order requiring him to grant third persons access to research materials containing privacy-sensitive data about children, the Court did not rule out that a negative right to freedom of expression is protected under Article 10. According to the Court, the crucial question was whether the applicant, as a public employee, had an independent negative right under Article 10 not to make the research material available, even though it belonged not to him but to the university. In the Court’s view, finding that the applicant had such an independent ‘negative’ right would run counter to the university’s property rights and also impinge on the two researchers’ rights to receive information (Article 10) and to have a final court judgment implemented (Article 6). The Court noted also that the applicant’s situation could not be compared to that of journalists protecting their sources as the information diffused by a journalist based on his source generally belonged to the journalist or the media, whereas in the applicant’s case the research material was owned by the university and was in the public domain. In sum, the Court concluded that the professor’s rights under Article 10 had not been affected and that provision was not applicable.29 The Court’s argument on property rights is 26 See Malinverni, Freedom of information in the European Convention on Human Rights and in the International Covenant on Civil and Political Rights, HRLJ 1983, p. 443 (447 et seq.). 27 Grabenwarter/Pabel, § 23 m.n. 7 with further references. 28 ECtHR, 19/2/1998 (GC), Guerra a. o. v ITA, No.14967/89, §§ 53, 60; in detail Article 8 m.n. 92. 29 ECtHR, 3/4/2012 (GC), Gillberg v SWE, No. 41723/06, §§ 84 et seq. A ‘negative right’ under Article 10 not to be compelled to express oneself was found by the Commission; EComHR, 13/10/1992, K. v AUT, No. 16002/90, § 45.

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II. Scope of protection

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Art. 10

not convincing. As the individual researcher has an autonomous sphere of freedom concerning his research also in relation to the university, the formal reference to the university’s property rights seems rather artificial.

3. Freedom of the press Even though the freedom of the press is not explicitly mentioned in Article 10, it 11 forms a particular, distinct part of its material scope of protection.30 As a consequence of the fact that the freedom of the press is not mentioned, justifications are the same as for the general freedom of expression. Although the justifications of interferences with Article 10 follow the same rules, the classification of a protected activity as falling under the freedom of the press still is of importance, since this classification often is decisive when a fair balance is struck. This is due to the fact that the special role of the press is to be taken account of in the justification of interferences. Furthermore the protection of democracy and specific positive obligations to protect have to be considered. In essence, only periodically published print media fall within the scope of protection. Publications, which were published only once fall within the scope of protection of the freedom of expression or the freedom of artistic expression, even if more than one edition was published. This is particularly true for flyers31, books32 or banners. Magazines addressed to a specific group of people are not considered to be protected by the freedom of the press, but by the general freedom of expression and the freedom of information.33 Where an advance copy of a book is published in a newspaper, however, it is protected by the freedom of the press.34 There are few consequences of this distinction: When it comes to justifying an interference, the ECtHR tends to treat cases regarding the freedom of expression similar or identical to comparable cases regarding the freedom of the press. Various activities in connection with spreading opinions via the press fall 12 within the scope of protection of the freedom of the press. The general conditions, such as the distribution of a newspaper, are protected as well as the journalists’ work itself.35 The protection of journalistic sources, the acquisition of information, research, writing and even auxiliary activities all enjoy the protection of the freedom of the press. Furthermore, the publication of information which had been attained illegally or in breach of a obligation to confidentiality and before being given to a journalist is protected by the freedom of the press. The right of the journalist to freely choose the form of his publication is also protected. This right encompasses everything from the publication of a criminal complaint to questions concerning the publication of photos in connection with an article.36 A journalist, as a private individual, treating a public servant to some choice expletives, 30

The press is explicitly mentioned only in Article 6 (1) in connection with the exclusion of the press and public from a trial. 31 ECtHR, 25/8/1993, Chorherr v AUT, No. 13308/87, § 24. 32 ECtHR, 13/7/1995, Tolstoy Miloslavsky v UK, No. 18139/91, § 35; ECtHR, 17/7/2001, Ekin v FRA, No. 39288/98, § 56. 33 ECtHR, 19/12/1994, Vereinigung demokratischer Soldaten O ¨ sterreichs a. Gubi v AUT, No. 15153/89, § 27. 34 ECtHR, 26/11/1991, Observer a. Guardian v UK, No. 13585/88, § 69. 35 ECtHR, 10/1/2006, Halis Dogan a. o. v TUR, No. 50693/99, § 24. 36 ECtHR, 11/1/2000, NEWS Verlags GmbH & Co. KG v AUT, No. 31457/96, § 40.

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Article 10 – Freedom of expression

however, cannot rely on the freedom of the press, but only on the general freedom of expression.37

4. Freedom of electronic media 13

The term ‘broadcasting’ in Article 10 (1) sentence 3 seems to be limited to radio which is shown by the fact that television and cinema enterprises are separately mentioned. Nevertheless, the freedom of broadcasting comprises television as well. Broadcasting in all forms of transmission possible at the time is protected. With a view to the distinction between television and radio and the fact that the World Wide Web cannot be classified as being part of either, it can be concluded that the latter is not protected by the freedom of broadcasting. Communication via this medium therefore falls within the scope of protection of the general freedom of expression. Consequently, the justification laid down in Article 10 (3) sentence 3 is not applicable. The freedom of broadcasting as guaranteed by the ECHR protects public/state38 and private39 broadcasting. The protection reaches from the organisation of the broadcasting station and the transmission of information out to the structure and content of the programme.40 Article 10 protects not only the substance of the ideas and information expressed but also the means by which they are conveyed. This was confirmed in a case of freedom of broadcasting in which the Swiss public radio and broadcasting company was prohibited to film an interview with an inmate inside of a prison. In the Court’s view, the fact that a telephone interview with the prisoner had been broadcast by the applicant company in a programme that was available on its web site was not relevant: different means and techniques had been used for the interview, it had not had such a direct impact on viewers.41 Journalistic activities in the context of broadcasting are frequently treated as being part of the freedom of the press. Therefore, the same principles regarding the justification of an interference apply.42 Regulations by the State including limitations on journalists working in public broadcasting may be consistent with Article 10 if they follow the goal of ensuring the independence and impartiality of this media.43

5. Freedom of artistic expression 14

The freedom of artistic expression is not explicitly mentioned in Article 10. Nevertheless some aspects of what national guarantees of freedom of artistic expression usually protect also enjoy protection under Article 10.44 In determining the scope of protection of Article 10 one has to take as a basis a broad concept of 37

ECtHR, 21/11/1999 (GC), Janowski v POL, No. 25716/94, § 32. ECtHR, 29/3/2011, RTBF v BEL, No. 50084/06, §§ 5, 94. 39 ECtHR, 21/7/2011, Sigma Radio Television Ltd v CYP, No. 32181/04 et al, §§ 7, 204. 40 See ECtHR, 17/9/2009, Manole a. o. v MDA, No. 13936/02, §§ 104 et seq. 41 ECtHR, 21/6/2012, Schweizerische Radio- und Fernsehgesellschaft SRG v SUI, No. 34124/06, §§ 56 et seq. 42 ECtHR, 23/9/1994 (GC), Jersild v DEN, No. 15890/89, § 31; ECtHR, 29/3/2001, Thoma v LUX, No. 38432/97, § 58. 43 Implied in ECtHR, 17/9/2009, Manole a. o. v MDA, No. 13936/02, §§ 101 et seq. 44 See e.g. Article 5 (3) of the German Grundgesetz; Article 17 a Austrian Staatsgrundgesetz. 38

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the notion of the term ‘art’, just like the notion of the term communication is an open concept. It is not restricted to any particular content or form. Not only is the process of communication between the artist and his recipient protected, but also the related artistic work.45 The exhibition or communication of the work of an artist is covered by the freedom of expression of Article 10 just like activities of an art gallery or of the operator of a cinema.46

6. Academic freedom Moreover, Article 10 protects the academic freedom that encompasses not only 15 scientific publications but also scientific teaching.47 The freedom to teach is not limited for the benefit of loyalty to a constitution. The general principles of justification apply. Just like the freedom of artistic expression, the academic freedom also protects activities aiming at achieving scientific results which lead to the actual publication. According to the academic freedom, an academic has the right to express his own opinion about the institution or system in which he works and to distribute knowledge and truth without restriction. This encompasses giving one’s opinion during scientific conferences.48 The right to lecture at an university is also protected under Article 10.49 The Court considers it to be unreasonable to restrict freedom of expression to ideas which are generally accepted in the academic world.50

III. Interferences At first sight, Article 10 does not seem to allow any interference: its paragraph 1 16 guarantees the ‘freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers’. Nevertheless, according to Article 10 (2) Member States are authorised to interfere. This can be seen by the fact that formalities, conditions, restrictions and penalties are listed as possible interferences. Article 10 (3) mentions one particular interference by allowing States to require the licensing of broadcasting, television or cinema enterprises. Article 6 (1) mentions a special interference regarding the freedom of the press and the freedom of information: the exclusion of the press and public from all or part of a trial.51 In general, interferences may be either prohibitions, which have a pre-emptive effect, or sanctions, which are imposed afterwards. Usually a low intensity of interferences suffices.52 Restrictions of the amount of money which unauthorised 45 Verdussen, Les droits de l’homme et la cre ´ation artistique, Studies in memory of Pierre Lambert, p. 1001 (1004 et seq.); ECtHR, 24/5/1988, Mu¨ller a. o. v SUI, No. 10737/84 § 27. 46 ECtHR, 24/5/1988, Mu ¨ ller a. o. v SUI, No.10737/84 § 33; ECtHR, 20/9/1994, Otto Preminger Institut v AUT, No. 13470/87, § 56. 47 ECtHR, 28/10/1999 (GC), Wille v LIE, No. 28396/95, §§ 8, 36 et seq. 48 ECtHR, 23/6/2009, Sorguç v TUR, No. 17089/03, §§ 31 et seq. 49 ECtHR, 20/10/2009, Lombardi Vallauri v ITA, No. 39128/05, § 30. 50 ECtHR, 25/8/1998, Hertel v SUI, No. 25181/94, § 50 (publication regarding the dangers of microwaves). 51 See above Article 8 m.n. 101 et seq. 52 ECtHR, 23/9/1994 (GC), Jersild v DEN, No. 15890/89, § 30 et seq.

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Article 10 – Freedom of expression

persons are permitted to spend on publications and other means of communication during an election period may constitute an interference if they amount to a restriction of the freedom of expression.53 The frustration of an expression of opinion by arrest is also an interference.54 Furthermore, entry bans and expulsions imposed because of expressions of opinion which were either made in the past or intended to be made in the future interfere with the freedom of expression. Examples are a foreign teacher who had critically commented the Kurdish issue in Turkey,55 or a foreign politician who entered or is planning to enter a State’s territory (or a particular part of its territory) with the intention of making speeches and campaign for election.56 The latter is true regardless of whether the politician’s function extends to the territory in question. Labour courts’ decisions finding that a dismissal by reason of an expression of opinion by the employee was an lawful interference with the employee’s right to freedom of expression, as guaranteed by Article 10 (1).57 Likewise, a dismissal of a public servant which is directly linked to opinions expressed constitutes an interference with Article 10.58 Where a university teacher’s contract is not renewed due to conflicts between his opinions and the catholic teachings Article 10 has also been interfered with.59 The case law according to which this does not apply to public servants is obsolete.60 The Court is to be criticised when it finds an interference in a case where a person was not re-appointed to a superior judicial office because of an opinion he expressed during a public lecture, if the appointing functionary had absolute discretion in this decision.61 17 Restrictions on distribution,62 censorship, an order to reveal one’s sources,63 house searches64 as well as interdictions regarding the structure of an article are particular interferences with the freedom of the press. In contrast to many national legal orders, the ECtHR does not consider censorship to be an interference, which is a priori prohibited. However, the ECtHR considered the refusal of a military administration to add a critical magazine for soldiers to the list of periodicals distributed by the army to be an interference with Article 10 without further reasoning.65 Even measures applicable to the general public as well as journalists such as limitations on movement may constitute an interference with the freedom of the press where they deter a journalist from doing his job.66

53

ECtHR, 19/2/1998, Bowman v UK, No. 24839/94, § 33. ECtHR, 25/8/1993, Chorherr v AUT, No. 13308/87, § 23. 55 ECtHR, 20/5/2010, Cox v TUR, No. 2933/03, § 29 et seq. 56 ECtHR, 27/4/1995, Piermont v FRA, No. 15773/89 et al, §§ 53, 81. 57 ECtHR, 21/7/2011, Heinisch v GER, No. 28274/08, § 45. 58 See ECtHR, 26/9/1995 (GC), Vogt v GER, No. 17851/91, § 44. 59 ECtHR, 20/10/2009, Lombardi Vallauri v ITA, No. 39128/05, § 38. 60 See ECtHR, 28/8/1986, Glasenapp v GER, No.9228/80 § 49; ECtHR, 28/8/1986, Kosiek v GER, No. 9704/82 § 35; see also Lester in Macdonald/Matscher/Petzold, p. 474. 61 ECtHR, 28/10/1999 (GC), Wille v LIE, No. 28396/95 §§ 49 et seq. 62 ECtHR, 10/1/2006, Halis Dogan a. o. v TUR, No. 50693/99, § 24. 63 ECtHR, 25/2/2003, Roemen a. Schmit v LUX, No. 51772/99, § 47. 64 ECtHR, 27/11/2007, Tillack v BEL, No. 20477/05, § 56. 65 ECtHR, 19/12/1994, Vereinigung demokratischer Soldaten O ¨ sterreichs a. Gubi v AUT, No. 15153/89, § 27. 66 ECtHR, 8/10/2009, Gsell v SUI, No. 12675/05, § 49 (access restrictions to Davos – World Economic Forum). 54

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III. Interferences

18–20

Art. 10

Interferences with the freedom of information are at hand where generally 18 accessible sources of information are limited. This includes the exclusion from public hearings as well as a refusal to hand out documents, which were already published, or a prohibition to inform pregnant women about abortion clinics abroad.67 The denial of the Hungarian Constitutional Court to grant a human rights organisation access to a complaint for abstract review with the Constitutional Court lodged by a member of parliament was even considered to be close to censorship by the Court.68 The confiscation of cassettes, paperbacks, a diary and a map during a border control constitute an interference with the freedom of information.69 So does the ban on a ship, on which events to inform about the prevention of sexually transmitted diseases, family planning and the decriminalisation of abortion were to take place, to enter Portuguese waters as it hindered the applicants to convey information in the form they considered to be most effective.70 A lack of information activities by national authorities, however, does not interfere with Article 10. This freedom cannot be construed as imposing on a State a positive obligation to collect and disseminate information of its own motion.71 Affixing of seals to a television set for cancellation of his subscription to the public television service constitutes a particular interference with the passive freedom of information.72 Restrictions of the freedom of expression in the area of advertising can regard the 19 content of a commercial as well as its modalities or the communication medium. Possible interferences are the prohibition of advertising certain products (i. e. a prohibition of advertising tobacco products), the prohibition of political73 or religious74 advertising, restrictions on advertising by liberal professions,75 prohibition of misleading advertising76 or regulations regarding advertising on TV. With a view to the freedom of artistic expression possible interferences lay in the 20 confiscation or seizure of a work of art.77 The refusal to grant a certificate for a film, seen in conjunction with a statutory provision making it a criminal offence to distribute a film without this certificate amounts to an interference by a public authority with the right to impart ideas.78

67

ECtHR, 29/10/1992, Open Door a. Dublin Well Woman v IRL, No. 14234/88 et al, § 55. ECtHR, 14/4/2009, Ta´rsasa´g a. Szabadsa´gjogoke´rt v HUN, No. 37374/05, § 28. 69 ECtHR, 24/6/2008, Foka v TUR, No. 28940/95, §§ 103, 107. 70 ECtHR, 3/2/2009, Women on Waves v POR, No. 31276/05, § 30. 71 ECtHR, 19/2/1998 (GC), Guerra a. o. v ITA, No. 14967/89, §§ 53 et seq. 72 ECtHR, 31/3/2009, Faccio v ITA, No. 33/04. 73 ECtHR, 28/6/2001, VgT Verein gegen Tierfabriken v SUI, No. 24699/94, § 48. 74 ECtHR, 10/7/2003, Murphy v IRL, No. 44179/98, § 61. 75 ECtHR, 24/2/1994, Casado Coca v ESP, No. 15450/89, § 36; ECtHR, 17/10/2002, Stambuk v GER, No. 37928/97, § 23. 76 ECtHR, 20/11/1989, markt intern Verlag GmbH a. Klaus Beermann v GER, No. 10572/83, § 26; ECtHR, 23/6/1994, Jacubowski v GER, No. 15088/89, § 25; ECtHR, 11/12/2003, Krone Verlag GmbH & Co KG (No.3) v AUT, No. 39069/97, §§ 33 et seq; ECtHR, 23/10/2007, Brzank v GER, No. 7969/04 (misleading advertising by a lawyer) and ECtHR, 23/10/2007, Heimann v GER, No. 2357/05. 77 ECtHR, 24/5/1988, Mu ¨ ller a. o. v SUI, No. 10737/84, § 27; ECtHR, 20/9/1994, Otto Preminger Institut v AUT, No. 13470/87, § 43. 78 ECtHR, 25/11/1996, Wingrove v UK, No. 17419/90, § 36. 68

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Art. 10

21–23

Article 10 – Freedom of expression

IV. Justification Interferences with Article 10 are permissible as long as they comply with the requirements set out in Article 10 (2). These requirements are congruent with those in Articles 8, 9 and 11. Hence, interferences with Article 10 have to be ‘necessary in a democratic society’. The usual three steps of the proportionality test apply: the interference has to be prescribed by law, follow a legitimate aim and be necessary in a democratic society, which implies the existence of a ‘pressing social need’. It is established case law that Member States enjoy, under Article 10, a certain margin of appreciation in assessing the need for and extent of an interference with freedom of expression protected by that Article. In the Court’s view it is not its task to take the place of the national courts, when exercising its supervisory function, but rather to review, in the light of the case as a whole, whether the decisions they have taken pursuant to their power of appreciation are compatible with the provisions of the Convention relied upon.79 22 According to the wording of Article 10 all interferences are subject to the same requirements for justification. Merely regarding interferences with the freedom of broadcasting a slight deviation can be found in Article 10 (1) sentence 3. Other than that the limiting provision of Article 10 follows the pattern of Articles 8, 9 and 11. Thus, any interference has to be prescribed by law, it must pursue a legitimate aim and be necessary in a democratic society. However, some differences stand out compared to the other limiting provisions. First of all, it starts by pointing out that the exercise of these freedoms ‘carries with it duties and responsibilities’. It does not follow from this that more intensive interferences are admissible. The phrase ‘regardless of frontiers’ in the first paragraph clearly indicates that no distinction can be drawn between the protected freedom of expression of nationals and that of foreigners.80 Moreover, the fact that the list of legitimate aims is longer than those of other rights of the ECHR does not mean that Member States are authorised to more extensive restrictions of this fundamental right. 21

1. Prescribed by law 23

First of all, an interference has to be prescribed by law. In this respect no particularities can be found with a view to Article 10. In fact, the case law concerning this requirement in general has been shaped by the case law relating to Article 10. Firstly, for an interference to be prescribed by law the law must be adequately accessible: the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case. Secondly, a norm cannot be regarded as a ‘law’ unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail.81 Particular skills of persons subject to a provision such as someone’s legal training and professional experience 79

Instead of many ECtHR, 7/2/2012 (GC), Axel Springer AG v GER, No. 39954/08, § 86. ECtHR, 20/5/2010, Cox v TUR, No. 2933/03, § 31. 81 ECtHR, 26/4/1979, Sunday Times (No.1) v UK, No. 6538/74, § 49. 80

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IV. Justification

23, 24

Art. 10

may be relevant in this context.82 Where an interference with one’s freedom of expression is based on a provision which is formulated too wide and vague and thus constitutes a continuing threat to the exercise of the freedom of expression, then the interference is not ‘prescribed by law’ and accordingly in violation of Article 10.83 The degree of determination depends on the specific freedom concerned as well as the system of legal sources in the legal order in question. International treaties84 or constitutional law may contribute to the legal basis required. With a view to the peculiarities of national law the term ‘law’ does not only refer to statutory law, but also to unwritten law. Hence, in a number of cases against the United Kingdom the ECtHR did not attach importance to the fact that some legal principles are derived from ‘common law’ and not from legislation. It stated that it would clearly be contrary to the intention of the drafters of the Convention to hold that a restriction imposed by virtue of the common law is not ‘prescribed by law’ on the sole ground that it is not enunciated in legislation: this would deprive a common law State which is party to the Convention of the protection of Article 10 (2) and strike at the very roots of that State’s legal system.85 In the context of rights recognised by common law, in a case against Ireland concerning information about abortion in the UK, the Court considered an interference as being prescribed by law. However, it referred to the term ‘law’ according to the Constitution, a positive obligation which was fulfilled by the interference and – in a questionable way – to the fact that national courts considered themselves to have the necessary power to protect fundamental rights. The Court took into consideration the high threshold of protection of unborn life, to whose advantage the interference had been made, provided under Irish law generally.86 An interference is not foreseeable even if the laws themselves are sufficiently 24 precise where contradictory national decisions regarding the same legal situation can be found.87 As regards licensing procedures in particular, the manner in which the licensing criteria are applied in the licensing process must provide sufficient guarantees against arbitrariness, including the proper reasoning by the licensing authority of its decisions denying a broadcasting licence.88 General police clauses in the constitution alone are normally not considered to be a sufficiently clear and foreseeable law.89 The same applies to law on the allocation of broadcasting frequencies. The failure to allocate frequencies to a holder of a broadcasting licence deprives the licence of all practical purpose since the activity it authorises is de facto impossible to carry out.90 82

See ECtHR, 20/4/2004, Amihalachioaie v MDA, No. 60115/00, § 33. ECtHR, 25/10/2011, Altug˘ Taner Akçam v TUR, No. 27520/07, § 93. 84 ECtHR, 28/3/1990, Groppera Radio AG a. o. v SUI, No.10890/84, § 68; ECtHR, 22/5/1990, Autronic AG v SUI, No. 12726/87, § 57. 85 ECtHR, 26/4/1979, Sunday Times (No.1) v UK, No. 6538/74, § 47. 86 ECtHR, 29/10/1992, Open Door a. Dublin Well Woman v IRL, No. 14234/88 et al, §§ 59 et seq. 87 ECtHR, 17/1/2006, Goussev a. Marenk v FIN, No. 35083/97, § 54 (unclear relationship between the Finnish Coercive Measures Act and the Freedom of the Press Act). 88 ECtHR, 11/10/2007, Glas Nadezhda EOOD a. Anataliy Elenkov v BUL, No. 14134/02, §§ 49 et seq (refusal to grant a licence to broadcast a Christian radio channel); ECtHR, 17/6/2008, Meltex Ltd a. Mesrop Movsesyan v ARM, No. 32283/04, §§ 81, 83 et seq. 89 ECtHR, 8/10/2009, Gsell v SUI, No. 12675/05, §§ 54 et seq. 90 ECtHR, 7/6/2012 (GC), Centro Europa 7 S.r.l. a. Di Stefano v ITA, No. 38433/09, § 137 (Italian authorities granted company a licence for nationwide terrestrial television broadcasting, its failure to allocate frequencies to the company made it impossible to carry out the licence for nearly ten years). 83

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Art. 10

24, 25

Article 10 – Freedom of expression

Nevertheless, the Court accepts that national laws concerning the calculation of damages for injury to reputation must make allowance for an open-ended variety of factual situations. A considerable degree of flexibility may be called for to enable juries to assess damages tailored to the facts of the particular case. Prerequisite for this discretion, however, are procedural guarantees such as further judicial scrutiny of decisions and criteria limiting a court’s discretion.91 Furthermore, in the area of freedom of artistic expression the need to avoid excessive rigidity and to keep pace with changing circumstances means that many laws are inevitably couched in terms which, to a greater or lesser extent, are vague.92

2. Legitimate aim 25

An interference must pursue a legitimate aim. In addition to the aim which can be found in other limiting provisions, namely national security, public safety, for the prevention of disorder or crime, for the protection of health or morals, Article 10 (2) also lists territorial integrity, the protection of the reputation or rights of others, preventing the disclosure of information received in confidence, and maintaining the authority and impartiality of the judiciary. In comparison to the other rights it becomes clear that the legitimate aims have been adapted to the content of the fundamental right. Interim injunctions to stop the publishing of a security service’s activities,93 a punishment for the transmission of information regarding a secret project relating to weapons of war94 and the confiscation and prohibition of distribution of a magazine in which a report of a security service was published pursue the aim of national security.95 The prevention of disorder encompasses the public order as well as the order of a specific sector of society or an institution such as the army96 or a prison.97 In this context it ought to be mentioned that the ECtHR considered coercive measures to make broadcasting equipment holders pay the license fee or to keep their TV licence for the public service programmes to be a legitimate aim in the context of freedom of broadcasting.98 Prohibitions of products that pose a risk to health such as alcohol or tobacco pursue the aim of the protection of health.99 In the context of protection of minors the protection of morals is a legitimate aim.100 The same is true for restricting measures against paintings showing sexual relations between humans and animals in the context of the freedom of artistic expression.101

91

ECtHR, 13/7/1995, Tolstoy Miloslavsky v UK, No. 18139/91, §§ 41 et seq. ECtHR, 24/5/1988, Mu¨ller a. o. v SUI, No. 10737/84, § 29. 93 ECtHR, 26/11/1991, Observer a. Guardian v UK, No. 13585/88, § 56. 94 ECtHR, 16/12/1992, Hadjianastassiou v GRE, No. 12945/87, § 43. 95 ECtHR, 9/2/1995, Vereniging Weekblad Bluf! v NED, No. 16616/90, § 36. 96 ECtHR, 8/6/1976, Engel a. o. v NED, No. 16616/90, § 98; ECtHR, 19/12/1994, Vereinigung ¨ sterreichs a. Gubi v AUT, No. 15153/89, § 32. demokratischer Soldaten O 97 ECtHR, 25/3/1983, Silver a. o. v UK, No. 5947/72 et al, § 96. 98 ECtHR, 31/3/2009, Faccio v ITA, No. 33/04. 99 ECtHR, 5/3/2009, Socie ´te´ de Conception de Presse et d’E´dition et Ponson v FRA, No. 26935/05, § 56 (prohibition of tobacco advertising). 100 ECtHR, 7/12/1976, Handyside v UK, No. 5493/72, § 46. 101 ECtHR, 24/5/1988, Mu ¨ ller a. o. v SUI, No. 10737/84, §§ 30, 35. 92

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IV. Justification

26, 27

Art. 10

The aim of protecting the reputation of others is of particular importance where 26 action is taken against comments of insulting character.102 The aim of protecting the rights of others is closely connected to this. Both aims are also extended to the protection against insults of authorities and public institutions in the Court’s case law.103 According to the Court, there is a difference between the commercial reputational interests of a company and the reputation of an individual concerning his or her social status. Whereas the latter might have repercussions on one’s dignity, interests of commercial reputation are devoid of that moral dimension.104 Furthermore, the right of believers of a church not to be hurt in their religious feelings by a public expression of opinion was considered to fall under ‘rights of others’.105 Where national secrets are concerned the aim of preventing the disclosure of 27 information received in confidence overlaps with the protection of national security. Where secrets between private individuals are concerned, however, it overlaps with the protection of the rights of others.106 Whereas the corresponding French wording of Article 10 (2) of the Convention refers to measures necessary ‘pour empeˆcher la divulgation d’informations confidentielles’, the English text reads as follows: ‘for preventing the disclosure of information received in confidence’. The latter wording might suggest that the provision relates only to the person who has dealings in confidence with the author of a secret document and that, accordingly, it does not encompass third parties, including persons working in the media. The Court accepts that clauses which allow interference with Convention rights must be interpreted restrictively. Nevertheless, in the light of paragraph 3 of Article 33 of the VCLT, and in the absence of any indication to the contrary in the drafting history of Article 10, the Court considers it appropriate to adopt an interpretation of the phrase ‘preventing the disclosure of information received in confidence’ which encompasses confidential information disclosed either by a person subject to a duty of confidence or by a third party and, in particular, as in the present case, by a journalist.107 Finally, the aim of maintaining the authority and impartiality of the judiciary is of particular importance for the freedom of the press. Its incorporation in the Convention goes back to the concept of Contempt of Court as known in common law systems. The rights so protected are the rights of individuals in their capacity as litigants, that is as persons involved in the machinery of justice, and the authority of that machinery will not be maintained unless protection is afforded to all those involved in or having recourse to it.108

102 ECtHR, 2/8/2000, Bergens Tidende a. o. v NOR, No. 26132/95, §§ 53 et seq; ECtHR, 14/10/2008, Petrina v ROM, No. 78060/01, §§ 31 et seq. 103 ECtHR, 8/10/2009, Romanenko a. o. v RUS, No. 11751/03, § 39; against this the joint concurring opinion of judges Spielman and Malinverni. 104 ECtHR, 19/7/2011, UJ v HUN, No. 23954/10, § 22. 105 ECtHR, 20/9/1994, Otto Preminger Institut v AUT, No. 13470/87, §§ 46–48. 106 ECtHR, 25/4/2006, Dammann v SUI, No. 77551/01, § 38. 107 ECtHR, 10/12/2007 (GC), Stoll v SUI, No. 69698/01, §§ 57 et seq. 108 See ECtHR, 26/4/1979, Sunday Times (No.1) v UK, No. 6538/74, § 56.

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Art. 10

28–30

Article 10 – Freedom of expression

3. Necessary in a democratic society For the justification of interferences the freedom of expression is closely related to the concept of a democratic society. According to the Court, freedom of expression constitutes one of the essential foundations of such a society, one of the basic conditions for its progress and for the development of every man. It is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population.109 The Court held that ill feelings or even outrage, in the absence of intimidation, cannot represent a pressing social need for the purposes of Article 10 (2).110 It is remarkable that at the very beginning of Article 10 (2) the duties and responsibilities it carries with it are mentioned. In the case law this has only become relevant in a limited number of groups of cases such as i. e. cases regarding journalistic diligence.111 29 In striking a fair balance the structure of the scope of protection as shown above is of great importance. Even though the ECtHR considers the limitations under para. 2 to be homogenous it varies the extent of control thereby applying different standards in the form of different requirements for the public authority of a Member State depending on which area of the fundamental right is concerned.112 When assessing whether an interference was proportional, particular weight has to be attached to the interest of a democratic society to preserve the freedom of the press.113 30 Whether or not the expression of opinion contributed to a ‘debate of public interest’ can be decisive for the result of the proportionality test.114 In this case the State’s margin of appreciation is narrower. The Court saw contributions to debates of particular public interest in matters of fighting racism and the denial of the Holocaust and discussions in this area regarding the attitude of a university administration towards respective statements of professors115 and in matters of reporting of the Islam following the attacks of 11 September 2001.116 However, the ECtHR considered the allegation that a doctor would have performed unlawful abortions made in front of his medical practice to be a contribution to a debate of public interest. Nevertheless it also held that the doctor had not participated in this debate which is why there had been no reason to focus criticism on him.117 28

109 ECtHR, 7/12/1976, Handyside v UK, No. 5493/72, § 49; ECtHR, 29/4/2008, Kutlular v TUR, No. 73715/01 (religious preacher), § 49; Oetheimer, RTDH 2007, pp. 63 et seq.; regarding the freedom of expression with a view to xenophobic or racist tendencies see the articles in: Lambert a. o. (ed.), Le droit face a` la monte´e du racisme et de la xe´nophobie, special issue RTDH 2002, pp. 265 et seq; further ECtHR, 22/4/2010, Haguenauer v FRA, No. 34050/05, §§ 42 et seq. 110 ECtHR, 24/7/2012, Fa ´ ber v HUN, No. 40721/08, § 56. 111 Grabenwarter/Pabel § 23 m.n. 26 with further references. 112 Cf. Wachsmann, Une certaine marge d’appre ´ciation. Conside´rations sur les variations du controˆle europe´en en matie`re de liberte´ d’expression, Studies in memory of Pierre Lambert, p. 1017 (1027); Bakircioglu, The Application of the Margin of Appreciation Doctrine in Freedom of Expression and Public Morality Cases, GLJ 2007 (7), p. 711 (719 et seq). 113 ECtHR, 26/4/1979, Sunday Times (No.1) v UK, No. 6538/74, § 65. 114 Instead of many ECtHR, 2/10/2008, Leroy v FRA, No. 36109/03, § 41. 115 ECtHR, 22/4/2010, Haguenauer v FRA, No. 34050/05, § 49. 116 ECtHR, 6/5/2010, Brunet Lecomte a. Lyon Mag v FRA, No. 17265/05, §§ 41, 48. 117 ECtHR, 30/3/2010, Annen (II) v GER, No. 2373/07 et al.

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IV. Justification

30, 31

Art. 10

Many questions first came up in cases concerning the freedom of the press. Hence, in a modified form the answers found there often can be found in cases regarding the other freedoms of Article 10. In recent case law statements of political or public interest have been made subject to the same requirements regarding proportionality of interferences as publications by the press. The Court considers, however, that in a democratic society even small and informal campaign groups must be able to carry on their activities effectively and that there exists a strong public interest in enabling such groups and individuals outside the mainstream to contribute to the public debate by disseminating information and ideas on matters of general public interest such as health and the environment.118 The ‘chilling effect’ that sanctions may have on the future exercise of the freedom of expression plays a decisive role since the very first judgements regarding Article 10.119 This effect, which works to the detriment of society as a whole, is likewise a factor which concerns the proportionality of, and thus the justification for, the sanctions imposed.120 This is particularly true in areas where the persons concerned are frequently not capable of defending their own rights and where others will be the first to become aware of unsatisfactory conditions and are thus best placed to act in the public interest by alerting the public.121

a) Interferences with the freedom of expression and information The point of departure for the limits of the freedom of expression in the 31 context of protection against defamation is the differentiation between statements of fact and value-judgements. The Court emphasised that the existence of facts can be demonstrated, whereas the truth of value judgments is not susceptible of proof.122 Hence, the decisive question for the scrutiny of respect for the fundamental right is the classification of a statement as being the one or the other. In doing so ECtHR regularly departs from classifications national courts have made123 and considers statements to be equal to value judgements that cannot without doubt be seen as such.124 Occasionally, the Court applies the criteria for value judgements by not negating the qualification as a statement of fact but calling it ‘value-laden’.125

118 ECtHR, 15/2/2005, Steel a. Morris v UK, No. 68416/01, § 89 (distribution of flyers criticising McDonalds by activists of Greenpeace London). 119 ECtHR, 27/3/1996, Goodwin v UK, No. 17488/90, § 39. 120 ECtHR, 26/2/2009, Kudeshkina v RUS, No. 29492/05, § 99; ECtHR, 3/4/2012, Kaperzyn ´ ski v POL, No. 43206/07, § 74. 121 ECtHR, 21/7/2011, Heinisch v GER, No. 28274/08, § 91 (nursing staff). 122 Settled case law starting with ECtHR, 8/7/1986, Lingens v AUT, No. 9815/82. 123 ECtHR, 21/3/2000, Wabl v AUT, No. 24773/94, § 36; ECtHR, 27/2/2001, Jerusalem v AUT, No. 26958/95, § 44; ECtHR, 26/2/2002, Unabha¨ngige Initiative Informationsvielfalt v AUT, No. 28525/95, § 46. 124 ECtHR, 25/11/1999 (GC), Nilsen a. Johnsen v NOR, No. 23118/93, § 50; ECtHR, 2/11/2006, Standard Verlagsgesellschaft m.b.H. v AUT, No. 13071/03; different ECtHR, 15/2/2005, Steel a. Morris v UK, No. 68416/01, § 90 (‘allegations were of a very serious nature and were presented as statements of fact rather than value judgments’). 125 ECtHR, 1/9/2009, Karsai v HUN, No. 5380/07, §§ 33 et seq. (allegation of usage of ‘overtly anti-Semitic arguments’ in connection with reporting about former Primi Minister Teleki in rightleaning media).

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Art. 10 32

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A sufficient factual basis is decisive for the proportionality of interferences regarding value judgements.126 The necessity of a link between a value judgment and its supporting facts may vary from case to case according to the specific circumstances. The requirement to describe facts is applied less strictly where the information is already known to the general public.127 Such a link was considered to be sufficient in a case where an Austrian politician in her function as member of the Municipal Council and in the course of a session of the Vienna Municipal Council called two associations in the area of drug abuse policy ‘psycho-sects’ with ‘totalitarian character’ and ‘fascist tendencies in their ideology’ based on a decision by a German court and seven articles from newspapers and periodicals.128 As well as in the Feldek Case129 regarding an allegation that a politician who used to be a member of a fascistic organisation had a ‘fascist past’. In the Albert-Engelmann-Gesellschaft m.b.H Case130 regarding a letter to the editor of a conservative catholic magazine in which a high ranking priest was called a ‘rebel’ and reproached to have publicly criticised and disparaged the Pope in an extremely offensive manner based on the fact that there existed a factual basis for these statements as it was proven that he had previously publicly uttered criticism against the Holy See. Furthermore, in a case of a candidate for parliamentary elections who accused the mayor of Paris of electoral fraud after ballots had disappeared.131 Finally, in the Kobenter Case,132 a critical commentary on a judge’s judgement accused the judge of not differing ‘more than somewhat from the traditions of medieval witch trials’. The judge himself was reproached for lending support ‘to a homophobe’s venomous hate campaign with outrageous examples from the animal kingdom’ as in giving the reasons for his judgement he had referred to same-sex practices among different animals. Value judgements may be excessive (with the consequence that state action against them can be proportional) where no factual basis is given at all.133 In this context the press is normally entitled, when contributing to public debate on matters of legitimate concern, to rely on the content of official reports without having to undertake independent research.134 In cases of defamation the ECtHR is confronted with a problem on a regular basis that rarely affects national courts: the problem of language. Often the decisive question to be considered by the ECtHR’s judges is the meaning of a particular swearword although it is not in their mother tongue or even not in any language they speak at all. More or less detailed descriptions in English or French which can be found in the legal reasoning show that in these cases the judicial value judgement 126 See however ECtHR, 22/2/2007, Nikowitz a. Verlagsgruppe News Gesellschaft m.b.H. v AUT, No. 5266/03, §§ 25 et seq. 127 ECtHR, 12/7/2001, Feldek v SVK, No. 29032/95, § 86. 128 ECtHR, 27/2/2001, Jerusalem v AUT, No. 26958/95, § 43. 129 ECtHR, 12/7/2001, Feldek v SVK, No. 29032/95, § 86. 130 ECtHR, 19/1/2006, Albert-Engelmann-Gesellschaft m.b.H. v AUT, No. 46389/99, § 32. 131 ECtHR, 11/4/2006, Brasilier v FRA, No. 71343/01, § 38. 132 ECtHR, 2/11/2006, Kobenter a. Standard Verlagsgesellschaft m.b.H. v AUT, No.60899/00, § 30. 133 Cf. ECtHR, 24/2/1997, DeHaes and Gijsels v BEL, No. 19983/92, § 47; ECtHR, 26/2/2002, Unabha¨ngige Initiative Informationsvielfalt v AUT, No. 28525/95, § 47; ECtHR, 8/7/2008, Backes v LUX, No. 24261/05, § 45. 134 ECtHR, 25/6/2002, Colombani a. o. v FRA, No. 51279/99, § 65; see also Wachsmann, Le de ´lit d’offense envers un chef d’Etat e´tranger a` l’e´preuve de la Convention europe´enne des droits de l’homme, RTDH 2003, p. 982 (991 et seq).

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reaches its limits. Some words and phrases just cannot be translated into English or French.135 Politicians’ statements of opinion stand out among the general freedom of 33 expression. In these cases the overall model of a democratic society is of particular importance. According to the Court there is little scope under Article 10 (2) of the Convention for restrictions on political speech or on debate of questions of public interest.136 Where the person entitled to the fundamental right is a politician, the proportionality of an interference quite regularly will be examined more precisely. A politician in this sense is not just an elected representative,137 but also stakeholders, such as for example union officials,138 but also officials of an association with political goals of general interest. Decisive is the contribution to the political discussion of controversial issues.139 Elected representatives (on every level, also the municipal level) are further privileged: on the one hand they are entitled to a wide sphere of freedom of expression together with their party during an election campaign, in order to be able to convince voters.140 On the other hand he represents his electorate, draws attention to their preoccupations and defends their interests. Accordingly, interferences with the freedom of expression of an opposition member of parliament, call for the closest scrutiny on the part of the Court.141 The expressions of opinion may also contain serious allegations, as long as they do not contain any offensive statements ad personam.142 In the case of a (former) politician disputing with the judiciary after proceedings against him, the margin of appreciation is particularly limited.143 Liberal professionals must accept criticism to a certain extent. In this context 34 the special nature of the profession must be considered. Medical practitioners enjoy a special relationship with patients based on trust, confidentiality and confidence that the former will use all available knowledge and means for ensuring the well-being of the latter. In the Court’s view that can imply a need to preserve solidarity among members of the profession. That may justify limitations of the freedom of expression by law which lays down rules of ethics applicable to the members of the profession.144 The disciplinary authority or court must examine whether the critical expression concerns issues of public interest. 135 Cf. ECtHR, 1/7/1997, Oberschlick (No.2) v AUT, No. 20834/92, §§ 32–34 (‘Trottel’); ECtHR, 6/2/2001, Tammer v EST, No. 41205/98, §§ 22, 67; ECtHR, 4/12/2003, Mu¨slu¨m Gu¨ndu¨z v TUR, No. 35071/97, § 49. 136 ECtHR, 25/11/1996, Wingrove v UK, No. 17419/90, § 58; ECtHR, 7/6/2007, Dupuis a. o. v FRA, No. 1914/02, § 40. 137 ECtHR, 27/4/1995, Piermont v FRA, No. 15773/89 et al, § 90; ECtHR, 10/10/2000, Ibrahim Aksoy v TUR, No. 28635/95 et al, § 52; ECtHR, 22/4/2010, Haguenauer v FRA, No. 34050/05, § 49. 138 ECtHR, 8/7/1999 (GC), Ceylan v TUR, No. 23556/94, §§ 8, 34; ECtHR, 25/11/1999 (GC), Nilsen a. Johnsen v NOR, No. 23118/93, § 40. 139 ECtHR, 19/2/1998, Bowman v UK, No. 24839/94, § 42; ECtHR, 26/2/2002, Unabha ¨ ngige Initiative Informationsvielfalt v AUT, No. 28525/95, § 41. 140 ECtHR, 16/7/2009, Fre ´ret v BEL, No. 15615/07, § 76. 141 ECtHR, 23/4/1992, Castells v ESP, No. 11798/85, § 42; ECtHR, 27/2/2001, Jerusalem v AUT, No. 26958/95, § 36. 142 ECtHR, 2/2/2010, Kubaszewski v POL, No. 571/04, §§ 44 et seq (accusation of a member of the Municipal Council that the municipal executive is engaged in money laundering). 143 ECtHR, 15/10/2010, Roland Dumas v FRA, No. 34875/07, § 43 (publication of a book of the former Minister for Foreign Affairs containing an account of a court case in which he was involved). 144 ECtHR, 16/12/2008, Frankowicz v POL, No. 53025/99, §§ 42 et seq.

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This may be the case where the expression is a critical assessment, from a medical point of view, of treatment received by a patient from another doctor.145 To jeopardise expressing any critical opinion of a colleague irrespective of its truthfulness would in any case be disproportionate.146 Due to the special nature of their profession, lawyers must accept far-reaching restrictions on their conduct and freedom of expression.147 The special status of lawyers gives them a central position in the administration of justice as intermediaries between the public and the courts.148 Moreover, the Court has held that the courts – as guarantors of justice, whose role is fundamental in a State based on the rule of law – must enjoy public confidence. Regard being had to the key role of lawyers in this field, it is legitimate to expect them to contribute to the proper administration of justice, and thus to maintain public confidence therein.149 According to the case law, when assessing whether a lawyer’s critical statement is justified, the right of the public to have access to information on judgments and court decisions, the proper administration of justice and the dignity of legal professions must be considered. On various occasions the Court found that the criminal conviction of a lawyer was not in breach of Article 10. In the case of a lawyer raising his complaints in public on the subject of criminal proceedings which were at the time pending before a court, the ECtHR found that due to the general nature, the seriousness and the tone of the assertions, the fining of the lawyer by a disciplinary authority was justified.150 However, a violation was found in the case of criminal sanctions against a lawyer who criticised a prosecutor, the criticism having been of a procedural character in a concrete case and not amounting to personal insult.151 35 In cases of the restriction of the freedom of expression of civil servants or lawyers, especially in the case of publicly disclosed internal information, the Court pays particular attention to the public interest involved in the disclosed information and the person’s duty of loyalty and confidentiality.152 Also in cases of correct information, public officials serving in the judiciary should show restraint in exercising their freedom of expression.153 Although, there are cases in which sanctions against comparatively harsh criticism based on facts, were not justified, because the statements were made in a general political context and the shortcomings in the way the sanctions were imposed. In the Kudeshkina Case the Court found a violation of Article 10 because a judge was dismissed from judiciary 145

ECtHR, 16/12/2008, Frankowicz v POL, No. 53025/99, § 51. ECtHR, 17/10/2002, Stambuk v GER, No. 37928/97, § 50; ECtHR, 16/12/2008, Frankowicz v POL, No. 53025/99, § 51. 147 Cf. ECtHR, 28/10/2003, Steur v NED, No. 39657/98, § 38. 148 ECtHR, 20/4/2004, Amihalachioaie v MDA, No. 60115/00, § 27. 149 Cf. ECtHR, 20/5/1998, Scho ¨ pfer v SUI, No. 25405/94, § 29. 150 ECtHR, 20/5/1998, Scho ¨ pfer v SUI, No. 25405/94, § 34; see also ECtHR, 17/7/2008, Schmidt v AUT, No. 513/05, § 43 (written reprimand for lawyer using the expression ‘attempt to play tricks on my client’). 151 ECtHR, 21/3/2002, Nikula v FIN, No. 31611/96, § 52; ECtHR, 20/4/2004, Amihalachioaie v MDA, No. 60115/00, §§ 35 et seq. 152 ECtHR, 12/2/2008 (GC), Guja v MDA, No. 14277/04, §§ 72 et seq; Junod, La liberte ´ d’expression du Whistleblower, RTDH 2009, pp. 227 et seq. 153 ECtHR, 28/10/1999 (GC), Wille v LIE, No. 28396/95, §§ 64, 67; ECtHR, 12/2/2008 (GC), Guja v MDA, No. 14277/04, §§ 72 et seq. 146

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for having publicly accused higher judicial officials of putting pressure on her in connection with a high-profile criminal case. She also suggested that this was not the only case where the Russian courts had been used as an instrument of commercial, political or personal manipulation. In its assessments the Court considered that the statements had to be regarded as a comment on a matter of great public importance, with a factual basis, they were made during her candidature in general elections for the State Duma of the Russian Federation and parts of the disciplinary proceedings had been conducted by the very court implicated in her statements.154 The exercise of the freedom of expression of judges, civil servants and soldiers may be further restricted within certain limits if necessary in a democratic society.155 The phrase ‘carries with it duties and responsibilities’ in paragraph 2 suggests that specific restrictions of these persons’ freedom may be justified due to the function of their profession.156 More specifically, there are two aims which justify limitations of political rights of civil servants and judges: the loyalty to the constitution and to ensure the impartiality of the administration and jurisdiction. It falls within a State’s margin of appreciation if the State imposes a duty of discretion on it’s civil servants, founded on the notion that the civil service is the guarantor of the Constitution and democracy. In this context the dismissal of a German secondary-school teacher (permanent civil servant) for the breach of her duty of political loyalty was not justified due to the absolute nature of the duty.157 Whereas the termination on a soldiers military service due to his membership and functions in a political party considered to be right-wing extremist and populist, was considered as justified.158 The Court found a violation of Article 10 in the case of a public prosecutor who was dismissed for sending two letters addressed to the prosecutor general’s office to newspapers, in order to stop the prosecution of four police officers. The ECtHR found that the matters of corruption were very important in a democratic society which the public has a legitimate interest in being informed about and which falls within the scope of political debate, it therefore weighed up the interests of the public, the freedom of expression of the applicant – in particular his right to impart information – and the duties and responsibilities of employees towards their employers.159 The individual historic and political context is relevant for the limits of political activity of civil servants and judges in order to maintain the impartiality of a State’s administration and judiciary. In this way the pursuit of activities of a political

154

ECtHR, 26/2/2009, Kudeshkina v RUS, No. 29492/05, §§ 94 et seq; Jean, La liberte´ des juges de critiquer publiquement le fonctionnement du syste`me judiciaire, RTDH 2010, pp. 179 et seq. 155 Article 11 (2) last sentence allows the restriction of the freedom of assembly and association beyond the limits of proportionality by members of armed forces, the police or the administration of the State; see further Article 11 m.n. 31. 156 Cf. Harris/O’Boyle/Warbrick, p. 493 et seq; Pekkanen, Crititcism of the judiciary by the media, Studies in memory of Rolv Ryssdal, p. 1079 (1081). 157 ECtHR, 26/9/1995 (GC), Vogt v GER, No. 17851/91, §§ 58 et seq. 158 ECtHR, 1/7/2008, Lahr v GER, No. 16912/05. 159 ECtHR, 12/2/2008 (GC), Guja v MDA, No. 14277/04, §§ 88, 97.

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nature may be justified in order to prevent the police or military160 to be associated with a political party which ruled for 40 years in a one party system.161 Mere irregularities – without the extreme of a dictatorship – may also be sufficient, as long as the legislator’s reaction was well prepared and is differentiated in detail. It is remarkable that the Court applies the concept of an effective political democracy on the local level by referring to the Preamble to the Council of Europe’s European Charter of Local Self-Government (European Treaty Series No. 122) which proclaims that ‘local authorities are one of the main foundations of any democratic regime’. It therefore requires that the extent of decision-making entrusted to local authorities and the proximity of the local electorate to the policies which their local politicians adopt must be taken into consideration.162 36 The object of a critical statement is decisive for the limits of permissible criticism. This is based on the idea that a free political debate is of fundamental importance for a democracy. The limits of permissible criticism are wider with regard to the government, members of royal families,163 other state authorities or politicians164 than in relation to a private citizen165 or the judiciary and its role in a State under the rule of law.166 Critical statements about government must be considered in the light of its dominant position. This fact makes it necessary to display restraint in resorting to criminal proceedings, particularly where other means are available for replying to the unjustified attacks and criticisms of its adversaries.167 Nevertheless it remains open to the competent state authorities to adopt, in their capacity as guarantors of public order, measures, even of a criminal-law nature, intended to react appropriately and without excess to such remarks.168 The limits of permissible criticism against administration, judiciary or military are wider if the statement was made within the framework established by law for making complaints and not published in the media.169 37 Special considerations apply to statements in employment relations. In general, the Court finds that employees owe to their employer a duty of loyalty, reserve and discretion.170 In the case of interferences with an employee’s freedom of expression following a critical statement against the company, the public interest in open debate about business practices must be balanced against the competing interest in protecting the commercial success and viability of companies, for the 160 For case law concerning soldiers’ freedom of expression see also ECtHR, 8/6/1976, Engel a. o. ¨ sterreichs a. Gubi v NED, No. 16616/90; ECtHR, 19/12/1994, Vereinigung demokratischer Soldaten O v AUT, No. 15153/89. 161 ECtHR, 20/5/1999, Rekve ´nyi v HUN, No. 25390/94, §§ 47 et seq. 162 ECtHR, 2/9/1998, Ahmed a. o. v UK, No. 22954/93, § 52. 163 ECtHR, 22/11/2011, Otegi Mondragon v ESP, No. 2034/07, § 56 (criminal conviction for insulting Spain’s King). 164 ECtHR, 11/4/2006, Brasilier v FRA, No. 71343/01, § 41; ECtHR, 21/2/2012, Tus ˛alp v TUR, No. 32131/08 and 41617/08, § 45 (newspaper articles critical of Turkish Prime Minister Erdog˘an). 165 Cf. ECtHR, 23/4/1992, Castells v ESP, No. 11798/85, § 46. 166 Cf. above m.n. 27, 40 and m.n. 47. 167 ECtHR, 8/7/1999 (GC), Ceylan v TUR, No. 23556/94, § 34. 168 ECtHR, 9/6/1998 (GC), Incal v TUR, No. 22678/93, § 54. 169 ECtHR, 5/10/2006, Zakharov v RUS, No. 14881/03, § 22; ECtHR, 18/12/2008, Kazakov v RUS, No. 1758/02, § 29 (critisism by a former soldier); ECtHR; 8/4/2010, Bezymyannyy v RUS, No. 10941/03, §§ 39 et seq. 170 Based on its findings in cases concerning civil servants; ECtHR, 26/2/2009, Kudeshkina v RUS, No. 29492/05, § 85.

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benefit of shareholders and employees, but also for the wider economic good.171 In cases where the employer is a state-owned company providing for example services in the sector of institutional care for the elderly, the Court accepts that these companies also have an interest in commercial viability, it nevertheless points out that the protection of public confidence in the quality of the provision of vital public service by state-owned or administered companies is decisive for the functioning and economic good of the entire sector.172 Another group of cases deals with private persons and private bodies as the 38 object of criticism. In general, they must accept more criticism if they engage in a public discussion outside of their private sphere. In these cases it is decisive whether the statement was made in the context of the public debate. However, the role of persons appointed by the government as experts to examine inner affairs of a sector of the public administration may not be compared to a politician who has to display a greater degree of tolerance. However, if they go beyond their function while participating in a public debate, these experts have to tolerate more criticism than ordinary private individuals.173 Vulnerable individuals are entitled to state protection from interferences with their freedom of expression: babies and young children are unable to tell, while older children are often too frightened, they are some way privileged under Article 10. It is only in exceptional cases that restrictions of the right to freedom of expression in the sphere of children’s allegation of abuse can be accepted as necessary in a democratic society. Sanctions for voicing a suspicion of child abuse, formed in good faith, in the context of an appropriate reporting procedure, constitute a breach of Article 10.174 According to the Court, also the preservation of the most intimate sphere of life of a juvenile – who in the particular case had become the victim of a custody dispute and had not himself stepped into the public sphere – deserves special protection on account of his vulnerable position.175 When assessing measures of a criminal-law nature in the context of a political 39 debate, the domestic political background of discussion is of particular importance. The restriction of racist or xenophobic statements is more likely to be permissible because of the possible reactions that may be caused by the propaganda for racist discrimination in the public. Such public reactions may not be consistent with a favourable social environment and may undermine the trust in democratic institutions.176 A situation of war or problems linked to terrorism may justify restrictions on the freedom of speech. However, this is not the case where the person concerned is acting as an active politician and he himself does not incite violence, armed rebellion or riot.177 171

ECtHR, 15/2/2005, Steel a. Morris v UK, No. 68416/01, § 94. ECtHR, 21/7/2011, Heinisch v GER, No. 28274/08, § 89. 173 ECtHR, 25/11/1999 (GC), Nilsen a. Johnsen v NOR, No. 23118/93, § 52; ECtHR, 25/1/2007, Arbeiter v AUT, No. 3138/04, § 25 (civil defamation on account of criticism against a governmentappointed expert who had made provocative statements himself). 174 ECtHR, 2/12/2008, Juppala v FIN, No. 18620/03, §§ 42 et seq. (conviction of criminal defamation for grandmother reporting suspected child abuse by father to a doctor). 175 ECtHR, 19/6/2012, Krone Verlag GmbH v AUT, No. 27306/07, § 57. 176 ECtHR, 16/7/2009, Fre ´ret v BEL, No. 15615/07, § 77. 177 ECtHR, 8/7/1999 (GC), Ceylan v TUR, No. 23556/94, §§ 34 et seq; see also ECtHR, 9/3/2004, Abullah Aydin v TUR, No. 42435/98, §§ 32 et seq; ECtHR, 2/10/2003, Kizilyaprak v TUR, No. 27528/95, §§ 39 et seq. 172

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In the case of a leader of an Islamic community who was punished for statements classified as ‘hate speech’ by the Turkish courts during a television programme the Court found a violation of Article 10. The national courts found that the man had described contemporary secular institutions as ‘impious’, had vehemently criticised concepts such as secularism and democracy and had openly campaigned for sharia. In the particular case the Court did not regard the statements as hate speech, it further considered the aim of the programme, that the extremist views were counterbalanced by the intervention of the other participants in the programme, and lastly, that they were expressed in the course of a pluralistic debate in which the applicant was actively taking part.178 The Court decided differently in the case of an author convicted for incitement to hatred against the Islamic community in his book: According to the author the Islam pursues the objective of the hostile take-over of France and Europe and is a threat to western civilisation.179 40 Critical reports on the judiciary may be legitimate as a matter of public interest.180 However, courts must be protected from destructive attacks that are unfounded, especially in view of the fact that judges are subject to a duty of discretion that precludes them from replying to criticism.181 Especially the protection of the presumption of innocence justifies limits to the right to freedom of expression, regardless of whether the statement was made by a politician or representative182 or by a journalist.183 According to the case law of the ECtHR, civil servants must enjoy public confidence in conditions free of undue perturbation if they are to be successful in performing their tasks. It may therefore prove necessary to protect them from offensive and abusive verbal attacks when on duty.184 In general, a democratic state and its civil servants must accept criticism, even if it is provocative.185 When assessing whether an interference with the freedom to receive and impart information is proportionate, it is decisive whether the nature of the prohibition to impart or receive information about a particular topic is absolute. In addition, it is decisive whether information can be legally obtained from other sources and certainly, the possible consequences of the prohibition for the persons interested in the information must be considered. The prohibition in Ireland to impart information concerning abortion facilities abroad was considered to be of an absolute nature and did not distinguish between the different motivations of women 178

ECtHR, 4/12/2003, Mu¨slu¨m Gu¨ndu¨z v TUR, No. 35071/97, §§ 43 et seq, § 51; ECtHR, 29/4/2008, Kutlular v TUR, No. 73715/01, § 49. 179 ECtHR, 10/7/2008, Soulas a. o. v FRA, No. 15948/03, § 43. 180 See below m.n. 47. 181 ECtHR, 24/2/1997, De Haes a. Gijsels v BEL, No. 19983/92, § 37; see also ECtHR, 20/7/2004, Hrico v SVK, No. 49418/99, § 46 (political activities by a judge). 182 ECtHR, 27/6/2000, Constantinescu v ROM, No. 28871/95, § 72. 183 ECtHR, 29/8/1997, Worm v AUT, No. 22714/93, §§ 49 et seq. 184 ECtHR, 21/3/2002, Nikula v FIN, No. 31611/96, § 48; ECtHR, 20/4/2004, Amihalachioaie v MDA, No. 60115/00, § 48. 185 ECtHR, 6/4/2004, Mehdi Zana (No. 2) v TUR, No. 26982/95, § 35; see also ECtHR, 31/3/ 2011, Siryk v UKR, No. 6428/07, § 42; ECtHR, 15/11/2012, Barga˜o et Domingos Correia v POR, No. 53579/09 and 53582/09, §§ 40 et seq (conviction for aggravated defamation in respect of an administrative assistant in a health centre, in a letter sent to the Ministry of Health, was in breach of Article 10).

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seeking for counselling on the termination of pregnancy. Furthermore the Court found that the injunction has created a risk to the health of those women who are now seeking abortions at a later stage in their pregnancy, due to lack of proper counselling. The Court thereby also considered the factual situation in Ireland and found a violation of the freedom of information.186 When assessing the proportionality of interferences with the freedom to receive 41 information the Court requires that care be taken to dissociate the personal views of a person from received information that others wish or may be willing to impart to him. If no indication can be found that the person is associated with the information received by him, then the grounds for criminal or disciplinary measures against the person are not sufficient.187 Member States enjoy a wider margin of appreciation in assessing the necessity 42 of an interference with the freedom of expression in the sphere of advertising due to the fact that it is a complex and fluctuating area.188 In this field the Court’s task is confined to ascertaining whether the measures taken at national level are justifiable in principle and proportionate.189 This requires striking a fair balance between the conflicting interests. The Court thereby assesses only whether the national courts balanced the interests without carrying out a proportionality test itself. Most of all, the facts and circumstances that the national instances took into account in the individual case are not considered by the Court. It therefore follows that advertising enjoys a lower degree of protection190 – despite of possible negative impacts on the financing of the media – compared to the other activities within the scope of Article 10.191 In cases of the prohibition of tobacco advertising a strong argument for the permissibility of such restrictions is its goal to combat the ‘social plague’ of smoking which is in line with the European consensus.192 For example, the Court considered the French ‘loi Evin’ which widely restricts advertisements for tobacco as permissible. When tobacco advertisements are shown in connection with a sports event, the Court considers in its proportionality test that the youth may also be part of the target group of a magazine reporting about the sports event. The Court notes that these readers may find athletic or financial success particularly attractive and are therefore especially open to logos.193 However, the State’s margin is limited if the advertisement is of political nature.194 In a case regarding the refusal to broadcast a commercial against meat production by an animal rights group, the Court refers to the Swiss authorities’ 186

ECtHR, 29/10/1992, Open Door a. Dublin Well Woman v IRL, No. 14234/88 et al, §§ 72 et seq. ECtHR, 11/1/2005, Halis v TUR, No. 30007/96, § 34; ECtHR, 31/1/2008, Albayrak v TUR, No. 38406/97, §§ 47 et seq. 188 Voorhoof, Restrictions on Television Advertising and Article 10 of the European Convention on Human Rights, IJA 1993, p. 189 (202 et seq). 189 ECtHR, 24/2/1994, Casado Coca v ESP, No. 15450/89, § 50; ECtHR, 11/12/2003, Krone Verlag GmbH & Co KG (No. 3) v AUT, No. 39069/97, § 30. 190 Grabenwarter/Pabel § 23 m.n. 38 with further references. 191 For television see Voorhoof, Restrictions on Television Advertising and Article 10 of the European Convention on Human Rights, IJA 1993, p. 204. 192 ECtHR, 5/3/2009, Socie ´te´ de Conception de Presse et d’E´dition et Ponson v FRA, No. 26935/05, § 56. 193 ECtHR, 5/3/2009, Hachette Filipacchi Presse Automobile a. Dupuy v FRA, No. 13353/05, § 50. 194 ECtHR, 5/3/2009, Hachette Filipacchi Presse Automobile a. Dupuy v FRA, No. 13353/05, § 63. 187

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margin of appreciation, but at the same time found that the association’s film fell outside the regular commercial context inciting the public to purchase a particular product. Rather, it reflected controversial opinions pertaining to modern society in general. As a result, in the present case the extent of the margin of appreciation was reduced, since what was at stake was not a given individual’s purely ‘commercial’ interests, but his participation in a debate affecting the general interest.195 However, in the case of a refusal of permission for a non-governmental organisation to place a television advertisement owing to the statutory prohibition of political advertising, the Court concluded that no violation of the organisation’s right to freedom of expression occurred. It had to balance the applicant NGO’s right to impart information and ideas of general interest which the public was entitled to receive against the authorities’ desire to protect the democratic debate and process from distortion by powerful financial groups with advantageous access to influential media (aim of the general ban). The assessment is based on three main considerations: the process by which the ban had been adopted and any review by the judicial authorities; the impact of the ban and any steps that might have been taken to moderate its effect, and, whether there was a European consensus on how to regulate paid political advertising broadcasting.196 In the PETA Case, concerning an injunction against an animal rights association’s poster campaign featuring photos of concentration camp inmates alongside pictures of animals kept in mass stock, the Court also found no violation of the association’s freedom of expression. Although the campaign was aimed at animal and environmental protection as matters of public interest, the Court held that the historical and social context of the case must be considered. The domestic courts had considered that the campaign had confronted the plaintiffs with their suffering and persecution in the interest of animal protection and that this ‘instrumentalisation’ of their suffering had violated their personality rights in their capacity as Jews living in Germany and as survivors of the Holocaust. That finding was not called into question by the fact that courts in other jurisdictions might address similar issues in a different way.197 If the object of the advertisement is primarily commercial, it follows that the standards of scrutiny of a national authority when it comes to the authorisation of a television program are less severe.198 The Court decided differently in a case concerning the ban on a poster campaign sought to draw the attention of the public to the ideas and activities of a group with a supposedly religious connotation that was conveying a message claimed to be transmitted by extraterrestrials. The Court took the view that the type of speech in question was not political as the main cause of the association was not to address matters of political debate, it was closer to 195 ECtHR, 28/6/2001, VgT Verein gegen Tierfabriken v SUI, No. 24699/94, §§ 69 et seq; cf. Docquir, Participation aux de´bats d’intereˆt ge´ne´ral: vers la reconnaissance d’un droit d’acce`s a` la tribune me´diatique?, RTDH 2002, p. 1045 (1050 et seq); similarly in a cases concerning the criminal conviction for a one-page advertisment in the daily newspaper ‘Le Monde’, in which the life of Mare´chal Pe´tain in world war II was presented in a positive way, ECtHR, 23/9/1998 (GC), Lehideux a. Isorni v FRA, No. 24662/94, §§ 44, 51 et seq (assessment by the EComHR); cf. ECtHR, 30/6/2009 (GC), Verein gegen Tierfabriken Schweiz (VgT) (No. 2) v SUI, No. 32772/02, § 92. 196 ECtHR, 22/4/2013 (GC), Animal Defenders International v UK, No. 48876/08, §§ 112 et seq. 197 ECtHR, 8/11/2012, PETA Deutschland v GER, No. 43481/09, §§ 47 et seq. 198 ECtHR, 5/11/2002, Demuth v SUI, No. 38743/97, §§ 41 et seq; Grabenwarter/Pabel § 23 m.n. 38 with further references.

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commercial speech than to political speech per se, as it has a certain proselytising function. The State’s margin of appreciation is therefore broader.199 The Court applies its views on the prohibition of advertisements of political nature in substance on the prohibition of party political advertisements on television in a problematic manner. Although the Court concluded that there is no European consensus on political advertising and that the rationale for a statutory prohibition of broadcasting of political advertising on television was that it contributed to limiting election campaign costs, to reducing participants’ donor dependence and ensuring a level playing field in elections, which are ‘relevant reasons’, it still concluded that it was not proportionate. It did so by referring to the applicant party’s relatively smaller financial strength, and the fact that in contrast to the major political parties, which were given a large amount of attention in edited television coverage, the smaller parties were hardly mentioned. Therefore, paid advertising on television would be a good way to compensate this disadvantage.200 Advertisement must be distinguished from expressions of opinion by scientists and members of liberal professions about their field of work. Such expressions may not be considered as advertisement even if the publication gives prominence to the person. These cases are subject to strict scrutiny by the Court.201 Article 10 does not prohibit restraints on publication as such. In fact, such 43 interferences must be consistent with the principle of proportionality, with particular regard to the dangers inherent in (especially prior) restraints. Accordingly it is not surprising that the limits of permissible interferences are narrow in these cases and measures in question are subject to the most careful scrutiny on the part of the Court.202 Prior restraints are only permissible if they do not mean an absolute ban on publication, if the information is of low relevance, if a speedy court procedure on the ban is available and the procedure involves the assessment of complex legal and factual questions. Where the same information was published in a different country but in the same language, the ban on publication would not be proportionate.203 These principles apply also to the freedom of expression in other publications (including up-to-date information) then the press,204 although initially they have been established for the freedom of the press. In this respect the Court may introduce a different rule for the press and electronic media by referring to Article 10 (1) third sentence.205 When assessing the severity of a subsequent interference it must be considered 44 that the expression of opinion had already been made and is therefore not effected, but, a sanction imposed afterwards may have a chilling effect on the future way of 199

ECtHR, 16354/06 (GC), Mouvement rae¨lien suisse v SUI, No. 16354/06, § 62. ECtHR, 11/12/2008, TV Vest As & Rogaland Pensjonistparti v NOR, No. 21132/05, §§ 70 et seq; cf. Vandeburie, L’e´galite´ des armes entre candidats aux e´lections, se´same d’un droit d’acce`s des (petits) partis politiques aux me´dias audiovisuels en pe´riode electoral, RTDH 2010, pp. 163 et seq. 201 ECtHR, 25/3/1985, Barthold v GER, No. 8734/79, §§ 55 et seq; ECtHR, 17/10/2002, Stambuk v GER, No. 37928/97, §§ 45 et seq; ECtHR, 23/10/2007, Brzank v GER, No. 7969/04 (decision on inadmissability, misleading advertisment) and ECtHR, 23/10/2007, Heimann v GER, No. 2357/05. 202 ECtHR, 17/7/2001, Ekin v FRA, No. 39288/98, § 58; ECtHR, 29/3/2011, RTBF v BEL, No. 50084/06, § 115. 203 ECtHR, 26/11/1991, Observer a. Guardian v UK, No. 13585/88, §§ 64 et seq. 204 ECtHR, 17/7/2001, Ekin v FRA, No. 39288/98, § 56. 205 ECtHR, 29/3/2011, RTBF v BEL, No. 50084/06, § 115. 200

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communicating which may amount to a restriction on the freedom of expression.206 Especially when scrutinizing sanctions imposed for defamatory offences, the Court considers whether the criticism could have been expressed without using insulting words.207 45 The importance of the severity of a penalty or compensation varies when assessing whether an interference was proportionate. In a number of judgments the Court emphasises that the level of the imposed penalty must be taken into account. However, when considering the case law in Strasbourg as a whole, it appears that the decision determining the existence of a violation is often found irrespective of the level of a punishment or amount of damages. The breach of fundamental rights lies within the sanction – and its chilling effect – itself.208 The level plays a decisive role in the case of severe punishment or substantial amounts of damages.209 In these cases the violation lies within the amount of money.210 For the proportionality test the fines and damages are taken together. The imposition of a prison sentence for a press offence is compatible with journalists’ freedom of expression as guaranteed by Article 10 of the Convention only in exceptional circumstances, as, for example, in the case of hate speech or incitement to violence.211 The fact that a person did not serve its prison sentence does not alter that conclusion.212 Whereas when the Court finds that no violation has taken place, it uses the remark that only a limited amount of fine was imposed on the applicant in order to reinforce its conclusion.213 In cases where the amount of the fine does not give rise to any issue under Article 10, however, there may be a violation due to the fact that the person at the same time was ordered to issue an apology.214 The dismissal of an employee on the ground that he disclosed deficiencies in the employer’s enterprises or institutions is considered to be an especially severe interference. Such sanction not only has negative repercussions on the individual’s career but it could also have a serious chilling effect on other employees of the 206 ECtHR 25/3/1985, Barthold v GER, No. 8734/79, § 58; for journalists see ECtHR, 23/9/1994 (GC), Jersild v DEN, No. 15890/89. 207 ECtHR, 27/6/2000, Constantinescu v ROM, No. 28871/95, § 74; ECtHR, 6/2/2001, Tammer v EST, No. 41205/98, § 67. 208 ECtHR, 20/4/2004, Amihalachioaie v MDA, No. 60115/00, § 38; an extreme example for the chilling effect of a conviction as the crucial factor in the case of a found violation for a damage fine in the amount of a ‘symbolic Franc’, ECtHR, 22/12/2005, Paturel v FRA, No. 54968/00, §§ 49 et seq; ECtHR, 11/4/2006, Brasilier v FRA, No. 71343/01, § 43. 209 ECtHR, 19/4/2001, Maro ˆ nek v SVK, No. 32686/96, § 58; ECtHR, 13/7/2004, Zarakolu a. o. v TUR, No. 26971/95, § 38; ECtHR, 17/12/2004 (GC), Cumpa˘na˘ a. Maza˘re v ROM, No. 33348/96, §§ 115 et seq (prison sentence, disqualification from exercising civil rights, prohibition on working as journalists); ECtHR, 15/2/2005, Steel a. Morris v UK, No. 68416/01, § 96 (high amount of damages in relation to very low income of the convicted person). 210 ECtHR, 13/7/1995, Tolstoy Miloslavsky v UK, No. 18139/91, §§ 49 et seq (conviction to pay damages in the amount of £ 1 500 000); ECtHR, 22/11/2011, Koprivica v MNE, No. 41158/09, §§ 73, 74 (ordering a magazine editor to pay damages 25 times bigger than his pension breached his human rights). 211 ECtHR, 17/12/2004 (GC), Cumpa ˘ na˘ a. Maza˘re v ROM, No. 33348/96, §§ 116 et seq; ECtHR, 6/4/2010, Flinkkila¨ v FIN, No. 25576/04, §§ 89 et seq. 212 ECtHR, 18/12/2008, Mahmudov a. Agazade v AZE, No. 35877/04, §§ 50 et seq. 213 Instead of many ECtHR, 6/2/2001, Tammer v EST, No. 41205/98, § 69; ECtHR, 14/2/2008, Rumyana Ivanova v BUL, No. 36207/03, §§ 69 et seq; ECtHR, 2/10/2008, Leroy v FRA, No. 36109/03, § 47. 214 ECtHR, 18/12/2008, Kazakov v RUS, No. 1758/02, § 30.

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company and discourage them from reporting any shortcomings.215 This is particularly true in the area where the persons affected are frequently not capable of defending their own rights. It also applies to the dismissal of a judge or civil servant for criticising the judiciary or administration.216

b) Freedom of the press – special issues The freedom of the press, in some aspects, is treated in a rather particular way 46 under Article 10. This becomes clear when taking a look at the provisions of para. 2. It is the duty of the press as ‘public watchdog’ to impart information and ideas, which the public is moreover entitled to receive.217 The press has a particular status owing to the fact that press freedom implies a corresponding right of the public to be informed. However, the exercise of the freedom of the press involves duties and responsibilities.218 These oblige not only the journalists but also the publisher.219 Initially, the Court formulated the particular importance of the media in cases concerning press, it then later applied these principles on audio-visual media.220 For the limits of press freedom it is further decisive who the victim of the (alleged) insult is and the conduct of the victim. At this point, the limits vary, depending on how closely related the person criticised is to the State or public.221 In general, the limits of acceptable criticism are wider for politicians, especially in cases where the politician himself did not choose the words used with due care. The Court considers the use of the term ‘closet Nazi’ (‘Kellernazi’) in connection with a politician to be permissible if the relevant article was written in a political context, namely criticising that members of a particular party failed to dissociate themselves from the extreme right and if the published does not include the allegation that the persons participate in activities in relation to National Socialism.222 The Court reached the same conclusion in the case of a political association which accused a political party of ‘racist agitation’. In the Court’s opinion, the applicant published what may be considered to have been fair comment on an opinion poll on the issue of immigration which had been initiated by that party several months before.223 The situation is similar in cases where the picture of a politician was published. In these cases it is of little relevance whether the person is actually known to the public. What counts is whether this person has entered the public arena.224 For 215

ECtHR, 21/7/2011, Heinisch v GER, No. 28274/08, § 91. ECtHR, 26/2/2009, Kudeshkina v RUS, No. 29492/05, § 98. 217 See in this context; ECtHR, 7/12/1976, Kjeldsen a. o. v DEN, No. 5095/7 et al, § 52; in general about press freedom Larralde, L’article 10 de la Convention europee´nne des droit de l’homme et la liberte´ de la presse, RTDH 2007, pp. 39 et seq. 218 Instead of many ECtHR, 1/7/1997, Oberschlick (No. 2) v AUT, No. 20834/92, § 29; ECtHR, 23/9/1994 (GC), Jersild v DEN, No. 15890/89, § 31. 219 ECtHR, 8/7/1999 (GC), Su ¨ rek v TUR, No. 26682/95, § 63; ECtHR, 15/1/2009, Orban a. o. v FRA, No. 20985/05, § 47. 220 ECtHR, 23/9/1994 (GC), Jersild v DEN, No. 15890/89, § 31; ECtHR, 30/3/2004, Radio France a. o. v FRA, No. 53984/00, § 33. 221 See Grabenwarter/Pabel § 23 m.n. 42 with further references. 222 ECtHR, 13/11/2003, Scharsach a. News Verlagsgesellschaft v AUT, No. 39394/98, §§ 38 et seq. 223 ECtHR, 26/2/2002, Unabha ¨ ngige Initiative Informationsvielfalt v AUT, No. 28525/95, § 46 et seq. 224 ECtHR, 26/2/2002, Krone Verlag GmbH & Co KG v AUT, No. 34315/96, § 37. For the protection against the publication of one’s pictures see also Article 8 m.n. 77. 216

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example, the publication of a politician’s picture was considered to be justified where the subject matter of the published articles concerned his financial situation and the accusation that not all of his income had been earned lawfully. As a matter of public concern, the personal interest of the politician to not be identified by the public weights less than the duty of the press to impart information and ideas on all matters of public interest.225 Eventually, the defacement of a politician’s picture by the counterparty does not go beyond the limits of what is acceptable in the context of political battle in general and against the background of an electoral campaign in particular.226 However, the Court found no violation of Article 10 in the case of a convicted author who in a newspaper article called a French right wing politician the ‘chief of a gang of killers’. The ECtHR came to his conclusion with a view to the nature of the remarks made, in particular the underlying intention to stigmatise the other side, and the fact that the content is such as to stir up violence and hatred going beyond what is tolerable in political debate.227 47 Cases of sanctioning criticism of the judiciary in the press are an important field of the case law regarding Article 10. In the Court’s view, the administration of justice serves the interests of the community at large and requires the co-operation of an enlightened public. There is general recognition of the fact that courts cannot operate in a vacuum. Whilst they are the forum for the settlement of disputes, it does not mean that there can be no prior discussion of disputes elsewhere, be it in specialised journals, in the general press or amongst the public at large. Therefore, whilst the mass media must not overstep the bounds imposed in the interests of the proper administration of justice, it is incumbent on them to impart information and ideas concerning matters that come before the courts just as in other areas of public interest.228 This right of the press to inform the public especially highlighted in the case of a medications scandal in which the families of numerous victims of the tragedy, who were unaware of the legal difficulties involved, had a vital interest in knowing all the underlying facts and the various possible solutions. According to the Court, they could be deprived of this information, which it found to be of crucially importance for them, only if it appeared absolutely certain that its diffusion would have presented a threat to the ‘authority of the judiciary’. In the present case, the Court did not find such a threat and concluded that there has been a violation of Article 10.229 A violation was also found in the case of a newspaper which got convicted for committing the criminal offence of public defamation against public officials. The newspaper published an article stating that the conduct of the judicial investigation in a case had been ‘farcical’ (‘rocambolesque’). The Court considered that the public have a legitimate interest in the provision and availability of information, including those concerning the functioning of the system of justice. The Court took the view that the article properly used the conditional tense, with inverted 225

ECtHR, 26/2/2002, Krone Verlag GmbH & Co KG v AUT, No. 34315/96, 466, §§ 36, 39. ECtHR, 21/2/2002, Schu¨ssel v AUT, No. 42409/98. 227 ECtHR, 22/10/2007 (GC), Lindon, Otchakovsky-Laurens a. July v FRA, No. 21279/02 et al, §§ 57, 66 et seq; cf. Wachsmann, Vers un affaiblissement de la protection de la liberte´ d’expression par la Cour Europe´enne des Droits de l’Homme, RTDH 2009, pp. 491 et seq; see also Nicaud, La Cour Europe´enne des Droits de l’Homme face a` la caricature de presse, RTDH 2009, pp. 1109 et seq. 228 ECtHR, 26/4/1979, Sunday Times (No. 1) v UK, No. 6538/74, § 65. 229 ECtHR, 26/4/1979, Sunday Times (No. 1) v UK, No. 6538/74, § 66. 226

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commas in various places in order to avoid any confusion in the reader’s mind between the source of the remarks and the newspaper’s analysis, citing each time the names of the persons speaking for the reader’s information, such that it cannot be maintained, that some passages were imputable to the journalist.230 A central issue in the case law of the Court are conflicts following from 48 expressions of opinion by journalists about politicians or other public figures.231 The limits of acceptable criticism are wider as regards public or political figures than as regards a private individual.232 Even in the case of a general manager of a public water supplier – a service of general interest and subsidised by the State – the Court found that although he was not well known to the public, he may still be treated as a public figure as regards the wider limits of permissible criticism.233 At an early stage of its case law on Article 10 the Court made clear that a careful distinction needs to be made between facts and value judgments. The existence of facts can be demonstrated, whereas the truth of value judgments is not susceptible of proof. Therefore, it is not permissible to require journalists to prove the truth of their statements in cases of value judgments.234 Furthermore, it is fully agreed that journalists may publish polemical statements. Article 10 protects also the use of exaggerated or even offensive language, especially in cases where journalists are reacting to what the politician or public figure said.235 In addition, journalistic freedom covers possible recourse to a degree of exaggeration, or even provocation.236 The Court points out in that connection that political invective often spills over into the personal sphere; such are ‘the hazards of politics and the free debate of ideas, which are the guarantees of a democratic society’.237 In a breach of confidence case against a UK newspaper after it disclosed details of a celebrity’s therapy for drug addiction, the Court found no violation of Article 10 for the damages imposed on the newspaper. The Court considered that the relevancy and sufficiency of the reasons given by the domestic courts were such that there was no reason, for it to substitute its own view for that of the final decision of the House of Lords.238 In the sphere of a politician’s personal life, the limits of the freedom of the press 49 are narrower. In this sphere, the context of the case and whether it is of public interest are important. However, it will be also considered (in favour of press freedom) whether the politician himself brought the issue to the public.239 In the 230

ECtHR, 14/2/2008, July a. Sarl Libe´ration v FRA, No. 20893/03, §§ 66, 71 et seq. For the limits of permissible critisism of public figures see also Article 8 m.n. 77. 232 ECtHR, 8/7/1986, Lingens v AUT, No. 9815/82, § 42; ECtHR, 23/5/1991, Oberschlick (No. 1) v AUT, No. 11662/85, § 59; to the implications of the Lingens Case in detail see Macdonald, Politicians and the Press, Studies in honour of Wiarda, p. 361 et seq. The general imposition of severe fines for defamatory statements made in the course of parliamentary debates is not compatible with the freedom of the press, ECtHR, 16/11/2004, Karhuvaara a. Iltalehti v FIN, No. 53678/00, §§ 48 et seq. 233 ECtHR, 19/6/2012, Ta ˘ na˘soaica v ROM, No. 3490/03, § 46. 234 ECtHR, 8/7/1986, Lingens v AUT, No. 9815/82, § 46; in more detail see above m.n. 31. 235 ECtHR, 1/7/1997, Oberschlick (No. 2) v AUT, No. 20834/92, §§ 32 et seq; ECtHR, 26/2/2002, Unabha¨ngige Initiative Informationsvielfalt v AUT, No. 28525/95, § 43; ECtHR, 23/6/2009, Bodrozˇic´ v SRB, No. 32550/05, § 56. 236 ECtHR, 26/4/1995, Prager a. Oberschlick v AUT, No. 15974/90, § 38. 237 ECtHR, 28/9/2000, Lopes Gomes da Silva v POR, No. 37698/97, § 34. 238 ECtHR, 18/1/2011, MGN Limited v UK, No. 39401/04, §§ 147 et seq. 239 Cf. ECtHR, 18/3/2008, Kulis v POL, No. 15601/02, § 48 (appeal on television for assistance in finding his daughter who allegedly had been kidnapped). 231

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Tammer Case the facts of the case were quite exceptional. The applicant, a journalist, conducted an interview with another journalist who helped the wife of a former Estonian prime minister to write her memoirs. The woman used to work for the politician and gave birth to a child by the minister, while he was still married to his first wife. The child was entrusted to her parents. Later on, the politician was forced to resign as minister following the discovery of secret tape recordings of his conversations with other Estonian politicians. The woman claimed to be fully responsible for the secret recordings and had to resign as well. In the published interview in question, the journalist called the woman a person breaking up another’s marriage, an unfit and careless mother deserting her child. Following that publication the Estonian court convicted the applicant of the offence of insulting the woman and fined him 220 kroons (the equivalent of ten times his daily income rate). The ECtHR found the woman to be public figure, but despite her continued involvement in the political party, it did not find it established that the use of the impugned terms in relation to woman’s private life were justified by considerations of public concern or that they bore on a matter of general importance. In addition, it noted the limited amount of the fine imposed on the applicant and found no violation of Article 10.240 In a different case, the Court considered the girlfriend of a married highly placed politician (‘senior public figure’) to be a private person, nonetheless, due to the fact that she entered the public domain (criminal charges were preferred against her for a public disturbances with the politician’s wife). In conclusion, the severe sanctions against the magazine for it’s rather reserved reporting where disproportionate.241 Also in the case of a communications officer, involved in a presidential election campaign, the Court found that the woman could not be considered as a civil servant or a politician in the traditional sense of the word, but she was not a completely private person either. The Court considered that, due to her function, the scope of her protected private life would become somewhat more limited.242 50 The context in which a statement was made is of considerable importance for the assessment of whether the sanctioning of a particular expression or presentation of facts is permissible.243 In addition, the proportionality test under Article 10 (2) is more likely to be in favour of the freedom of the press to impart information, if a particular reporting is objective, based on facts and regards the views of the counter-party.244 However, public figures enjoy the guarantees of a fair trial set out in Article 6 to the same extent as other persons. This must be borne in mind by journalists when commenting on pending criminal proceedings since the limits of permissible comment may not extend to statements which are likely to prejudice, whether intentionally or not, the chances of a person receiving a fair trial or to undermine the confidence of the public in the role of the courts in the administration of criminal justice.245 In particular, the press must not overstep the bounds set, 240 ECtHR, 6/2/2001, Tammer v EST, No. 41205/98, §§ 68 et seq; see also ECtHR, 16/11/2004, Karhuvaara a. Iltalehti v FIN, No. 53678/00, §§ 44 et seq. 241 ECtHR, 6/4/2010, Flinkkila ¨ a. o. v FIN, No. 25576/04, §§ 83, 91. 242 ECtHR, 12/10/2010, Saaristo a. o. v FIN, No. 184/06, §§ 66 et seq. 243 ECtHR, 26/2/2002, Unabha ¨ ngige Initiative Informationsvielfalt v AUT, No. 28525/95, §§ 41, 43. 244 ECtHR, 2/8/2000, Bergens Tidende a. o. v NOR, No. 26132/95, § 57; ECtHR, 28/9/2000, Lopes Gomes da Silva v POR, No. 37698/97, § 35; ECtHR, 22/2/2007, Falter Zeitschriften Gesellschaft m.b.H. v AUT, No. 26606/04, §§ 23 et seq. 245 ECtHR, 29/8/1997, Worm v AUT, No. 22714/93, § 50.

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inter alia, for the protection of the vital interests of the State, such as the protection of national security or territorial integrity against the threat of violence or the prevention of disorder or crime.246 Freedom of expression also extends to the publication of photographs. When the 51 press uses pictures for its reporting, it must take into account the rights protected under Article 8. The decisive factors in balancing the protection of private life against freedom of expression lie in the way of presentation and the person shown in the picture. Here again, the principle applies that the limits of an acceptable publication of an image are wider in the case of a public figure, because of the higher general interest.247 In cases, which require the right to respect for private life to be balanced against the right to freedom of expression, the Court considers that the outcome of the application should not, in theory, vary according to whether it has been lodged with the Court under Article 8 of the Convention, by the person who was the subject of the article, or under Article 10 by the publisher. Indeed, as a matter of principle these rights deserve equal respect. Accordingly, the margin of appreciation should in theory be the same in both cases. Where the balancing exercise has been undertaken by the national authorities in conformity with the criteria laid down in the Court’s case-law, the Court would require strong reasons to substitute its view for that of the domestic courts.248 The Court observes that the question whether or not a person, whose interests have been violated by reporting in the media, is a public figure is only one element among others to be taken into account. Another important factor which the Court has frequently stressed when it comes to weighing conflicting interests under Article 10 on the one hand and Article 8 on the other hand, is the contribution made by articles or photos in the press to a debate of general interest.249 It is established case law that the criteria for the balancing of interests in these cases are: the contribution of the photos to a debate of general interest, how well known the person concerned is, the subject of the report, the prior conduct of the person concerned, form and consequences of the publication and the circumstances in which the photos were taken.250 The publication of a picture of a convicted person, or reporting of criminal investigations and court proceedings, require taking into account a number of elements when weighing the individual’s interest not to have his physical appearance disclosed against the public’s interest in the publication of his picture. Elements that will be relevant are the degree of notoriety of the person concerned, his physical and mental condition, the lapse of time since the conviction and the release, the nature of the crime, the connection between the contents of the report and the picture shown, the completeness and correctness of the accompanying text and whether other media remains free to publish the picture.251 However, anyone, ¨ zgu¨r Gu¨ndem v TUR, No. 23144/93, § 58. ECtHR, 16/3/2000, O Instead of many ECtHR, 24/6/2004, von Hannover (No. 1) v GER, No. 59320/00, §§ 76 et seq; see also above Article 8 m.n. 77. 248 ECtHR, 7/2/2012 (GC), von Hannover (No. 2) v GER, No. 40660/08 a. 60641/08, §§ 106, 107. 249 ECtHR, 10/1/2012, Standard Verlags GmbH v AUT, No. 34702/07, §§ 38, 39. 250 ECtHR, 7/2/2012 (GC), von Hannover (No. 2) v GER, No. 40660/08 and 60641/08, §§ 104 et seq (no violation of Article 8 for publication of photos of Princess Caroline’s private life); ECtHR, 7/2/2012 (GC), Axel Springer AG v GER, No. 39954/08, §§ 89 et seq (violation of Article 10 for restrictions imposed on publication of articles). 251 ECtHR, 7/12/2006, O ¨ sterreichischer Rundfunk v AUT, No. 35841/02, §§ 68, 71 (neo-Nazi); similar ECtHR, 14/12/2006, Verlagsgruppe News GmbH (No. 2) v AUT, No. 10520/02, §§ 36 et seq (investiga246 247

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even if they are known to the general public, must be able to enjoy a ‘legitimate expectation’ of protection of and respect for their private life. Problems occur where the Court considers it to be decisive whether the photo contributes to a debate of general interest and considers the publication of photos not coming within the sphere of any political or public debate, relating exclusively to details of a person’s private life.252 In these cases, the decision which publication is of general interest is not made by the press itself, press freedom is thus restricted considerably. 52 The Court has developed and defined the ‘duties and responsibilities’ of a journalist. Journalists must take into account the impact of a disclosure of facts – in particular for the persons concerned – when publishing their articles. Also the form in which information are published must be considered. In general, the audio-visual media have a much more immediate and powerful effect than the press.253 The exercise of the right to freedom of expression by media professionals assume special significance in situations of conflict and tension. Particular caution is called for when consideration is being given to the publication of the views of representatives of organisations which resort to violence against the State. The media must not become a vehicle for the dissemination of hate speech and the promotion of violence.254 53 The duties and responsibilities of a journalist are slightly modified in cases of quotation of statements of others. Punishment of a journalist for the (accurate) dissemination of statements made by another person in an interview would in the Court’s view seriously hamper the contribution of the press to discussion of matters of public interest and should not be envisaged unless there are ‘particularly strong reasons for doing so’.255 However, depending on the circumstances of the individual case, journalists may be required to distance themselves from the content of a quotation, especially if otherwise the journalist gave the impression that the author had made the statements himself.256 If the courts failed to advance any justification for imposing a punishment on the journalist or media operator for reproducing statements made by others, this failure is incompatible with the Convention requirements under Article 10.257 The dissemination of allegations of serious nature without a basis of proof and presented as statements of fact rather than value statements, is a violation of the presumption of innocence and may justify even severe sanctions imposed on the journalists or publishing company.258 tions into suspected tax evasion of business magnate – public figure); see also ECtHR, 16/4/2009, Egeland a. Hanseid v NOR, No. 34438/04, 1487, §§ 57 et seq (publishing photographs of a person on the point of being arrested to serve a lengthy sentence she had just received for her triple murder was). 252 ECtHR, 24/6/2004, von Hannover (No. 1) v GER, No. 59320/00, §§ 63 et seq; more generous see ECtHR, 7/2/2012 (GC), von Hannover (No. 2) v GER, No. 40660/08 a. 60641/08, §§ 124 et seq; ECtHR, 13/12/2005, Wirtschafts-Trend Zeitschriften-Verlagsgesellschaft m.b.H. (No. 3) v AUT, No. 15653/02 et al, § 46 (picture of companion of a member of parliament who was suspected of having committed aggravated fraud and who had fled to Brazil). 253 ECtHR, 30/3/2004, Radio France a. o. v FRA, No. 53984/00, § 39. 254 Established case law by the Court see ECtHR, 8/7/1999 (GC), Erdogdu a. Ince v TUR, No. 25067/94 et al, § 54; Bismuth, Le de´veloppement de standards professionnels pour les journalistes dans la jurisprudence de la Cour europe´enne des droits de l’homme, RTDH 2010, pp. 39 et seq. 255 ECtHR, 17/12/2004, Pedersen a. Baadsgaard v DEN, No. 49017/99, § 77. 256 ECtHR, 4/5/2010, Effecten Spiegel AG v GER, No. 38059/07. 257 ECtHR, 8/10/2009, Romanenko v RUS, No. 11751/03, § 44. 258 ECtHR, 6/4/2010, Ruokanen a. o. v FIN, No. 45130/06, §§ 46 et seq.

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In general, the prohibition and sanctioning of the publication of untrue allegations or reports about details of someone’s privacy – in any case if they are not of public interest – are permissible under the Convention. Diligence in research and the way in which information is presented are crucial factors. When assessing the headline of an article, which is often shortened and has the purpose to attract the attention of the reader, the connection with the actual content of the article is being considered.259 In the individual case this approach of having regard to all the facts may also apply to a series of articles on one topic of the same medium.260 In a Norwegian case where a newspaper published a report about medical malpractice in a private clinic, it quoted two affected patients and two satisfied patients of the clinic concerned. In addition, the doctor was given the opportunity to comment the allegations. In the Court’s view the doctor was given the chance to defend himself and since he did not take any steps to establish whether the patients had any objections to his commenting on their specific complaints, the doctor could not rely on the argument that his chance to defend himself was limited by his professional secrecy. It did not find that the interest of the doctor in protecting his professional reputation was sufficient to outweigh the important public interest in the freedom of the press as a ‘public watchdog’ to impart information on matters of legitimate public concern.261 The Court also found a violation in the case of a sentenced victim of medical malpractice who criticised the responsible doctor in the press.262 The situation is similar in cases of statements made by persons interviewed during that conversation. In general, the press is not obligated to censor contents. However, if a magazine decides to provide a platform for the views of a person which incite violence, restrictions are permissible under Article 10.263 For example, in the Court’s view the statement of a sociologist during an interview that there is armed resistance in Kurdistan falls within the right of the public to be informed and thus the conviction and sentencing of such statement would be disproportionate.264 Interviews with representatives of illegal organisations are in general permissible, as long as the media does not become a vehicle for the dissemination of hate speech and the promotion of violence.265 According to the Court’s case law, also unlawful statements made by an interviewed person are protected under Article 10. There is no general duty for journalists to clearly dissociate themselves from the content of the interview or the quoted persons.266 Such requirement would not be reconcilable with the press’s role of providing information on current events, opinions and ideas.267 The conviction and sentence of a journalist who conducted an interview on television in which racist statements (‘A nigger is not a human being’) were made by a right wing extremist, is not justified.268 259

ECtHR, 1/6/2010, Gutie´rrez Sua´rez v ESP, No. 16023/07, § 36. ECtHR, 6/5/2010, Brunet Lecomte a. Lyon Mag v FRA, No. 17265/05, § 44. 261 ECtHR, 2/8/2000, Bergens Tidende a. o. v NOR, No. 26132/95, § 60; see also ECtHR, 16/11/2004, Selisto¨ v FIN, No. 56767/00, §§ 51 et seq. 262 ECtHR, 11/10/2007, Kanellopoulou v GRE, No. 28504/05, § 40. 263 Grabenwarter/Pabel § 23 m.n. 49 with further references. 264 ECtHR, 8/7/1999 (GC), Erdogdu a. Ince v TUR, No. 25067/94 et al, § 54. 265 ECtHR, 8/7/1999 (GC), Su ¨ zdemir v TUR, No. 23927/94, § 63. ¨ rek a. O 266 ECtHR, 23/9/1994 (GC), Jersild v DEN, No. 15890/89, §§ 34 et seq; see also ECtHR, 10/7/2012, Bjo¨rk Eidsdo´ttir v ICE, No. 46443/09, §§ 79, 80. 267 ECtHR, 29/3/2001, Thoma v LUX, No. 38432/97, § 64. 268 ECtHR, 23/9/1994 (GC), Jersild v DEN, No. 15890/89, § 37. 260

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The protection of journalistic sources is one of the basic conditions for press freedom. The Court emphasises the potential chilling effect of an interference with the protection of journalistic sources: the vital public-watchdog role of the press may be undermined and the ability of the press to provide accurate and reliable information may be adversely affected.269 In this context the Court constantly refers to international resolutions and the laws and rules governing professional practice in a number of Member States.270 In the Goodwin judgment the Court found a violation on account of an injunction and order to disclose journalistic sources: A journalist received the information that a particular company had severe financial problems. The information derived from a confidential corporate plan (there had been eight numbered copies of that plan at the relevant time). It was undisputed that the copies had been stolen. When the journalist wanted to confirm the information with the company, an interim injunction restraining the publishers from publishing any information derived from the corporate plan was issued. The company also informed all the other national newspapers and relevant journals of the court injunction. In sum, the restriction which the disclosure order entailed on the journalist’s exercise of his freedom of expression was not regarded as having been necessary in a democratic society, within the meaning of paragraph 2 of Article 10.271 Another – more severe – interference with the protection of journalistic sources took place in the Roemen and Schmit Case. In the particular case searches were carried out at the journalist’s home and workplace. The Court considers that a search conducted with a view to uncover a journalist’s source is a more drastic measure than an order to divulge the source’s identity. This is because investigators who raid a journalist’s workplace unannounced and armed with search warrants have very wide investigative powers, as, by definition, they have access to all the documentation held by the journalist. While the reasons relied on by the domestic authorities may be regarded as ‘relevant’ (prevention and punishment of offences), they were not ‘sufficient’ to justify the searches of the applicant’s home and workplace.272 In a similar case, the Court took the view that in a democratic State governed by the rule of law the use of improper methods by public authority is the kind of issue about which the public have the right to be informed and thus concluded that there has been a violation.273 The extraction of data from a journalist’s computer (on the basis of a search and seizure warrant) using a USB key, which allowed the authorities to gather information which was unrelated to the offence being prosecuted, was found to be a violation of Article 10.274

269 ECtHR, 27/3/1996 (GC), Goodwin v UK, No. 17488/90, § 39; ECtHR, 14/9/2010, Sanoma Uitgevers B.V. v NED, No. 38224/03, § 50. 270 Resolution on the Confidentiality of Journalists’ Sources by the European Parliament, 18 January 1994, Official Journal of the European Communities No. C 44/34. 271 ECtHR, 27/3/1996 (GC), Goodwin v UK, No. 17488/90, §§ 39, 46. See also the judgment in a similar case ECtHR, 15/12/2009, Financial Times Ltd a. o. v UK, No. 821/03, §§ 69 et seq (order requiring news media to disclose a leaked document concerning a possible takeover bid by a company). 272 ECtHR, 25/2/2003, Roemen a. Schmit v LUX, No. 51772/99, §§ 57 et seq; ECtHR, 27/11/2007, Tillack v BEL, No. 20477/05, §§ 61 et seq; ECtHR, 22/11/2012, Telegraaf Media Nederland and Landelijke Media B.v. a. o. v NED, No. 39315/06, §§ 84 et seq (surveillance of journalists and order for them to surrender documents capable of identifying their sources in breach of Article 10). 273 ECtHR, 22/11/2007, Voskuil v NED, No. 64752/01, §§ 70 et seq. 274 ECtHR, 18/4/2013, Saint-Paul Luxembourg S.A. v LUX, No. 26419/10, § 61.

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The protection of journalistic sources as a basis of the freedom of the press also 55 requires adequate procedural safeguards. Urgent orders or requests which interfere with the protection of journalistic sources either require detailed reasons or an independent judicial review before the handing over of material capable of revealing such sources; a mere subsequent review is not sufficient and would undermine the very essence of the right to confidentiality.275 Given the preventive nature of such review the judge or other independent and impartial body must thus be in a position to carry out this weighing of the potential risks and respective interests prior to any disclosure and with reference to the material that it is sought to have disclosed so that the arguments of the authorities seeking the disclosure can be properly assessed. The decision to be taken should be governed by clear criteria, including whether a less intrusive measure can suffice to serve the overriding public interests established. It should be open to the judge or other equivalent authority to refuse to make a disclosure order or to make a limited or qualified order so as to protect sources from being revealed.276 The requirement of editorial confidentiality under Article 10 is primarily aimed at protecting ‘journalistic sources’. Therefore, the compulsory handover of a journalist’s research material is not an interference with Article 10 if the persons who provided the information to the journalist were not aware of the fact that they were talking to a journalist; the level of protection of these persons must not be provided to the same degree as in the case of an informant.277 Apart from that, the protection of editorial confidentiality is not absolute.278 However, the duty to provide a sound factual basis for an allegation in no way entails an obligation to disclose the names of anyone who had supplied the information which was used in producing a report.279 The limits of protection are determined by striking a fair balance between the different interests. On the one hand there are interests to publish information, on the other hand there is the interest of information to be protected as confidential. Due to the importance of the protection of journalistic sources for the freedom of the press in a democratic society and the chilling effect a disclosure of sources may have on the exercise of journalistic freedom of expression, interferences by the State are only justified under Article 10 if they pursue an overriding public interest. The Court did not find such pressing social need in the Fressoz and Roire Case where journalists were convicted for unlawful removal and possession of copies of documents normally held by the tax authorities. The applicants published the annual income of the chairman and managing director of a large French automobile company. The Court held that the objective of protecting fiscal confidentiality is legitimate, however, it was not a sufficient justification for the interference, because taxpayers in France were able to consult a list of the people liable for tax in their municipality, with details of each taxpayer’s taxable income and tax liability and the remuneration of people who run major companies was regularly published in 275

ECtHR, 14/10/2010 (GC), Sanoma Uitgevers B.V. v NED, No. 38224/03, § 91. ECtHR, 14/10/2010 (GC), Sanoma Uitgevers B.V. v NED, No. 38224/03, §§ 92 et seq. 277 ECtHR, 8/12/2005, Nordisk Film & TV A/S v DEN, No. 40485/02 (television company ordered to hand over to the police unedited footage involving suspected paedophile). 278 See also van Rijn, in: van Dijk/van Hoof/van Rijn/Zwaak, p. 811. 279 ECtHR, 17/12/2004 (GC), Cumpa ˘ na˘ a. Maza˘re v ROM, No. 33348/96, § 106. 276

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financial reviews. Accordingly, there was no overriding requirement for the information to be protected as confidential.280 When the Court assesses whether a restriction of the freedom of the press to impart information was justified, it applies the general principles laid down in it’s case law on the freedom of the press. In order to establish whether the conviction of the press or journalists for the publication of confidential information was justified, the Court uses the criteria developed in its case law on the respect of the reputation of others (i. e. general political debate about the content or the relation of the persons concerned to politics or the public).281 Relevant factors for the assessment are: the nature of the interests in question, the public interest served by disclosure of the information, the interests protected by the state authorities, the review of the limiting measure by national courts in a fair trial, the applicant’s conduct (compliance with journalistic ethics, how the information was presented) and finally, the severity of the sanction.282 Even the conviction of a journalist for the incitement of an official to violate his professional confidentiality may constitute a breach of Article 10 if the interest of the public to be informed outweighed the interest in maintaining the confidentiality of the information.283 The Court found no violation of Article 10 in the case of a convicted journalist in Switzerland who published extracts of a secret report on negotiations between, among others, the World Jewish Congress and Swiss banks on the subject of compensation due to Holocaust victims for unclaimed assets deposited in Swiss bank accounts (although the extracts were published in a truncated form and failed to make the timing of the events sufficiently clear). The Court shared the opinion of the government that the applicant’s chief intention had not been to inform the public on a topic of general interest but to make the report the subject of ‘needless scandal’. The applicant had, in capricious fashion, started a rumour which had contributed to the ambassador’s resignation and which related directly to one of the very phenomena at the root of the issue of unclaimed assets, namely the atrocities committed against the Jewish community during the Second World War.284

c) Interferences with the freedom of broadcasting and other electronic media – special issues 56

The provision under Article 10 (1) third sentence according to which Member States shall not be prevented ‘from requiring the licensing of broadcasting, television or cinema enterprises’ was for a long time decisive for the justification of an in interference with the freedom of broadcasting. It followed from this provision and the existence of monopolies in a number of Member States at the time of the drafting of the Convention, that a monopoly broadcasting enterprise was in principle compatible with the ECHR.285 It is now generally accepted that an interference with the freedom of broadcasting (e.g. requirement for authorisation) must also be considered in view of its legitimate aim under the third sentence of 280

ECtHR, 21/1/1999 (GC), Fressoz a. Roire v FRA, No. 29183/95, §§ 53 et seq. ECtHR, 7/6/2007, Dupuis a. o. v FRA, No. 1914/02, §§ 33 et seq. 282 ECtHR, 10/12/2007 (GC), Stoll v SUI, No. 69698/01, §§ 101 et seq. 283 ECtHR, 25/4/2006, Dammann v SUI, No. 77551/01, §§ 50 et seq. 284 ECtHR, 10/12/2007 (GC), Stoll v SUI, No. 69698/01, §§ 125 et seq, in this context Hottelier, in RTDH 2008, pp. 801 et seq. 285 EComHR, 7/2/1968, X., No. 3071/67, Yb 11, 456 (462); EComHR, 20/3/1972, X., No. 4750/71, CD 40, 29 (30). 281

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Article 10 (1) but the scope of its application must be considered in the context of the Article as a whole and in particular in relation to the proportionality requirements of paragraph 2.286 This applies to technical aspects, but also to the grant or refusal of a licence which may depend on other considerations, including such matters as the nature and objectives of a proposed station, its potential audience at national, regional or local level, the rights and needs of a specific audience and the obligations deriving from international legal instruments.287 Thus interferences will be legitimate under the third sentence of paragraph 1, even though they do not pursue any of the aims set out in paragraph 2. The compatibility of such interferences with the Convention must nevertheless be assessed in the light of the other requirements of paragraph 2. A public broadcasting monopoly imposes the largest restrictions on the freedom of expression guaranteed under Article 10 (1). Today, as a result of the technical progress made over the last decades, justification for these restrictions can no longer today be found in considerations relating to the number of frequencies and channels available. Above all, it cannot be argued that there are no equivalent less restrictive solutions, it is sufficient by way of example to cite the practice of certain countries which either issue licences subject to specified conditions of variable content or make provision for forms of private participation in the activities of the national corporation. Finally, the argument that the market is too small to sustain a sufficient number of stations to avoid regroupings and the constitution of ‘private monopolies’ is not persuasive due to the fact that several European States have coexisting private and public stations.288 The refusal to grant it a broadcasting licence must be convincingly reasoned by the domestic authorities.289 Broadcasting must be open to private stations. Restrictions of content and 57 technical aspects of a broadcasting system must be compatible with Article 10 (2). As regards restrictions of content, the Court found that the imposition of fines on a TV company for broadcasting racist and discriminatory content was proportionate. Although the racist and discriminatory remarks had been made in the context of a fictional entertainment series, the state authority which based its decision on detailed analysis had not overstepped its margin of appreciation.290 A low number of frequencies and channels available for private broadcasters can violate Article 10.291 In contrast, when assessing whether an interference was proportionate, the Court takes into account all available means for the transmission and reception of broadcasting programmes. For example, in the case of a terrestrial television broadcasting monopoly, no breach of Article 10 was found in the case where other broadcasters had the possibility to access cable broadcasting and almost all households receiving television had the possibility to be connected to the cable net.292 Member States may as well adopt rules that aim at preventing a one-sided range of commercial television programmes and provide for quality and 286

ECtHR, 28/3/1990, Groppera Radio AG a. o. v SUI, No. 10890/84, § 61. ECtHR, 24/11/1993, Informationsverein Lentia a. o. v AUT, No. 13914/88 et al, § 32; Grabenwarter/Pabel, § 22 m.n. 52 with further references. 288 ECtHR, 24/11/1993, Informationsverein Lentia a. o. v AUT, No. 13914/88 et al, §§ 40 et seq. 289 ECtHR, 30/9/2010, 92.9 Hit FM Radio GmbH v AUT, No. 6754/05. 290 ECtHR, 21/7/2011, Sigma Radio Television Ltd v CYP, No. 32181/04 and 35122/05, §§ 199 et seq. 291 Cf. ECtHR, 20/10/1997, Radio ABC v AUT, No. 19736/92, § 33. 292 ECtHR, 21/9/2000, Tele 1 Privatfernsehgesellschaft MBH v AUT, No. 32240/96, §§ 38 et seq. 287

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balance of programmes.293 However, under the Convention the rejection by a State of a licence application must not be manifestly arbitrary or discriminatory and the necessity for any restriction must be convincingly established.294 58 Giving priority to public service broadcasting to a certain degree may be compatible with the Convention. A broadcasting system granting frequencies in favour of public broadcasters can be justified on the basis of the legitimate aim to guarantee pluralism, diversity and the non-commercialisation of the programmes received by the audience in the region. Restrictions on journalists working for public broadcasting stations in domestic law may also be compatible with Article 10 for the purpose of providing independence and impartiality.295 Also restricting the use of statements from a fictional entertainment series may be permissible,296 here again, a State may differentiate between public and private broadcasters, because the former is subject to different objectives and has a different legal status. This is why a State may provide for a different treatment when it comes to paying licence fees or the organisation of monitoring authorities.297 59 Special considerations apply to interferences in connection with publications on the World Wide Web. The specific possibilities and risks in the sphere of the internet must be taken into account when assessing conflicting interests, in particular the protection of one’s private life. The Court emphasised that the internet is an information and communication tool particularly distinct from the printed media, especially as regards the capacity to store and transmit information. The electronic network, serving billions of users worldwide will never be subject to the same regulations and control. The risk of harm posed by content and communications on the internet to the exercise and enjoyment of human rights and freedoms, particularly the right to respect for private life, is certainly higher than that posed by the press. Therefore, the Court finds that the policies governing reproduction of material from the printed media and the Internet may differ. Journalists must be able to use information obtained from the internet without fear of incurring sanctions.298

d) Interferences with the freedom of artistic expression and academic freedom – special issues 60

Member States enjoy a wide margin of appreciation when it comes to restricting the freedom of artistic expression compared to the other guarantees enshrined in Article 10. This is particularly true for cases where art comes into conflict with questions of moral and religion.299 According to the Court, a wider margin of appreciation is generally available to the Member States when regulating freedom of expression in relation to matters liable to offend intimate personal convictions within the sphere of morals or religion.300 In the Otto Preminger Institut Case, the 293

ECtHR, 5/11/2002, Demuth v SUI, No. 38743/97, § 43. ECtHR, 30/9/2010, 92.9 Hit FM Radio GmbH v AUT, No. 6754/05, § 188. 295 For the positive obligations following from Article 10 what regards freedom of broadcasting see below m.n. 63 a. 66. 296 ECtHR, 29/3/2011, RTBF v BEL, No. 50084/06, § 208. 297 ECtHR, 29/3/2011, RTBF v BEL, No. 50084/06, §§ 222 et seq. 298 ECtHR, 5/5/2011, Editorial Board of Pravoye Delo a. Shtekel v UKR, No. 33014/05, § 63. 299 Cf. Latil, La Cour europe ´enne de Droits de l’Homme renforce la cre´ation artistique face a` la protection de la morale, RTDH 2010, pp. 769 et seq. 300 ECtHR, 10/7/2003, Murphy v IRL, No. 44179/98, § 67. 294

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Court found that the conviction of an artist and three other persons for exhibiting obscene art work (the paintings in question depicted in a crude manner sexual relations, particularly between men and animals) to be proportionate under the Convention. Having regard to the margin of appreciation left to them under Article 10 (2), the Swiss courts were entitled to consider it ‘necessary’ for the protection of morals to impose a fine on the applicants for publishing obscene material.301 The seizure and forfeiture of a polemic film was necessary in order to ensure religious peace in a particular region and to prevent that some people should feel the object of attacks on their religious beliefs in an unwarranted and offensive manner.302 According to the Court, Member States enjoy a wide margin of appreciation when it comes to domestic blasphemy legislation aiming to protect ‘the rights of others’, and more specifically to provide protection against seriously offensive attacks on matters regarded as sacred by religious communities.303 The Court underlines the importance of academic freedom, which comprises the 61 academics’ freedom to express freely their opinion about the institution or system in which they work and freedom to distribute knowledge and truth without restriction. An academic’s criticism of the university system is an issue of public interest. The protection of personality rights of an unnamed individual mentioned in a public debate must not be put above the academic’s right to freedom of expression and the general interest in promoting this freedom.304 A violation was found in the case of a book author convicted for expressing criticism of a colleague. The Court held that the author of a scientific book must expect criticism after the publication of the book (the critical statements referred only to the quality of her analysis).305

4. Restrictions on political activity of aliens The freedoms guaranteed under Article 10 also apply to aliens. However, 62 according to Article 16 Member States may restrict those rights – and the freedom of assembly under Article 11 – in cases of ‘political activity of aliens’. However, rightly, this provision does not apply to persons in possession of the nationality of a member state of the European Union.306 In accordance with international law, states may restrict political fundamental rights for non-citizens.307 Article 16 is to be interpreted restrictively.308 The possibility given by Article 16 to limit to a large extent the political rights mentioned in Article 16 is not set aside by Article 18. Consequently, aliens may also invoke the assessment of whether state measures are proportionate.309

301

ECtHR, 24/5/1988, Mu¨ller a. o. v SUI, No. 10737/84, § 35. ECtHR, 20/9/1994, Otto Preminger Institut v AUT, No. 13470/87, §§ 55 et seq; critical Wachsmann, La religion contre la liberte´ d’expression: sur un arreˆt regrettable de la Cour europe´enne des droits de l’homme. L’arreˆt Otto-Preminger Institut du 20 septembre 1994, RUDH 1994, 441. 303 ECtHR, 25/11/1996, Wingrove v UK, No. 17419/90, §§ 57 et seq. 304 ECtHR, 23/6/2009, Sorguç v TUR, No. 17089/03, §§ 34 et seq. 305 ECtHR, 27/3/2008, Azevedo v POR, No. 20620/04, § 32. 306 ECtHR, 27/4/1995, Piermont v FRA, No. 15773/89 et al, § 64. Cf. Kokott/Rudolf, AJIL 90 (1996), p. 456 (458 et seq). 307 Grabenwarter/Pabel § 18 m.n. 26 with further references. 308 Grabenwarter/Pabel § 18 m.n. 27 with further references. 309 Grabenwarter/Pabel § 23 m.n. 58 with further references. 302

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V. Positive obligations 1. General 63

In addition to the primarily negative undertaking of a State to abstain from interference in Convention guarantees, States are under the obligation to take measures to protect these freedoms. Such positive obligations under Article 10 occur where private persons hinder the enjoyment of the rights protected. States are obliged to install an effective system to protect authors and journalists and to create an environment encouraging all persons concerned to participate in the public debate, without fearing sanctioning for expressing and holding opinions contrary to the state authorities’ views or contrary to the majority’s opinion.310 A State violates its obligations under Article 10 if it fails to take appropriate measures in cases of a real and immediate threat against someone’s freedom. The responsibility to conduct investigations into the circumstances of a case in order to identify ¨ zgu¨r Gu¨ndem Case the the offender may also follow from Article 10. In the O ¨ zgu¨r Gu¨ndem daily newsjournalists, distributors and other associated with the O paper were the subject of serious attacks and harassment which forced its eventual closure. Seven persons connected with the newspaper were killed. The applicants, and others acting on behalf of the newspaper and its employees, addressed numerous petitions to the authorities concerning the threats and attacks which they claimed had occurred. However, the vast majority of the petitions and requests for protection submitted by the newspaper or its staff remained unanswered. In its judgment the Court recalls the key importance of freedom of expression as one of the preconditions for a functioning democracy. Genuine, effective exercise of this freedom does not depend merely on the State’s duty not to interfere, but may require positive measures of protection, even in the sphere of relations between individuals. In determining whether or not a positive obligation exists, regard must be had to the fair balance that has to be struck between the general interest of the community and the interests of the individual. The scope of this obligation will vary, having regard to the diversity of situations obtaining in Member States, the difficulties involved in policing modern societies and the choices which must be made in terms of priorities and resources. Nor must such an obligation be interpreted in such a way as to impose an impossible or disproportionate burden on the authorities. In view of the seriousness of the attacks, the Court concluded that the government failed to comply with their positive obligation to protect the journalists and newspaper staff in the exercise of their freedom of expression.311 Article 10, notwithstanding the acknowledged importance of freedom of expression, does not bestow any freedom of forum for the exercise of that right. Therefore, there is no right of entry to private property, or even, necessarily, to all publicly owned property (government offices and ministries, for instance). Where, however, the bar on access to property has the effect of preventing any effective exercise of freedom of expression or it can be said that the essence of the right has been destroyed, the Court would not exclude that a positive obligation could arise for the 310 311

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State to protect the enjoyment of the Convention rights by regulating property rights. An example might be a corporate town where the entire municipality is controlled by a private body.312 In another case two journalists had been unable to secure the enforcement of a final court decision ordering the broadcasting company – with which the journalists had a partnership agreement – to grant them access to the radio editorial office where they worked. Accordingly, although the authorities did not bear any direct responsibility for the restriction on the applicants’ freedom of expression, it was still necessary to determine whether or not the authorities had complied with any positive obligation they might have had to protect freedom of expression from interference by others. By not taking effective measures the national authorities had deprived the provisions of Article 10 of all useful effect.313 The Court considered particular positive obligations deriving from the freedom of broadcasting protected under Article 10. It found that the State is obliged to take the necessary measures to allow a (political) television commercial314 to be broadcast.315 Article 10 applies also in cases governed by private law such as relations between 64 employer and employee where the State has a positive obligation to protect the right to freedom of expression in relations between individuals.316 Domestic courts which decide on actions against the employer interfere with the employee’s right to freedom of expression, as guaranteed by Article 10 (1) of the Convention. Such interference will constitute a breach of Article 10 unless it is ‘prescribed by law’, pursues a legitimate aim under its paragraph 2 and is ‘necessary in a democratic society’ for the achievement of such aim.317

2. Positive obligations with respect to organisation and proceedings The State’s positive obligations under Article 10 extend to questions of procedure 65 and of organisation of the media sector. As regards procedural guarantees, States are obliged to ensure the principle of equality of arms in libel and slander proceedings. With a view to the burden of proof, it is compatible with Article 10 to require the journalist to prove that the allegations made were substantially true.318 Only in exceptional circumstances a newspaper is exempted from the requirement to carry out its own research into the accuracy of the facts reported.319 The defendant in libel proceedings may bear the onus of proving to the civil standard (when balancing the probabilities) the truth of defamatory statements.320 As an exception, the lack of legal aid in a situation of economic imbalance between the parties may 312 ECtHR, 6/5/2003, Appleby a. o. v UK, No. 44306/98, § 47. Cf. in this context the judgment of the German Federal Constitutional Court about the freedom of assembly on the (private) area of the airport in Frankfurt, BVerfG, 22/2/2011, 1 BvR 699/06. 313 ECtHR, 10/5/2012, Fra ˘ sila˘ et Ciocıˆrlan v ROM, No. 25329/03, §§ 63 et seq. 314 See above m.n. 35. 315 ECtHR, 30/6/2009 (GC), Verein gegen Tierfabriken Schweiz (VgT) (No. 2) v SUI, No. 32772/02, §§ 78, 98. 316 ECtHR, 29/2/2000, Fuentes Bobo v ESP, No. 39293/98, § 38. 317 ECtHR, 21/7/2011, Heinisch v GER, No. 28274/08, §§ 45, 47 et seq; see however, ECtHR, 12/9/2011, (GC) Palomo Sa´nchez a. o. v ESP, No. 28955/06 et al; §§ 60 et seq. 318 ECtHR, 7/5/2002, McVicar v UK, No. 46311/99, § 87. 319 ECtHR, 20/5/1999 (GC), Bladet Tromsø a. Stensaas v NOR, No. 21980/93, § 70. 320 ECtHR, 15/2/2005, Steel a. Morris v UK, No. 68416/01, § 93.

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lead to an unfair and unequal proceeding in breach of Article 10 when placing the burden of proof on the defendant in a defamation procedure.321 From a procedural perspective, Article 10 generally protects individuals against arbitrary or random interferences without clear reasoning and without the possibility of judicial review.322 For example, the refusal of a teaching post in a denominational university with the broad reasoning of alleged heterodox views and without the option of effective judicial review impaired the very substance of the procedural guarantees afforded to the applicant by Article 10.323 In addition, Article 10 includes the guarantee of an independent and impartial court in cases of disciplinary proceedings against a judge or civil servant which resulted in the removal from office.324 66 Special positive obligations of organisational nature exist in the sphere of the freedom of broadcasting. Article 10 places a duty on the State to ensure, first, that the public has access through television and radio to impartial and accurate information and a range of opinion and comment, reflecting inter alia the diversity of political opinions within the country and, secondly, that journalists and other professionals working in the audio-visual media are not prevented from imparting this information and related comment. The choice of the means to achieve these aims varies according to local conditions and, therefore, falls within the margin of appreciation of the State. In order to comply with the obligations under Article 10, it is essential to put in place a legal framework which ensures independence of the broadcasting organisation. This includes the guarantee of political balance in the composition of senior management and supervisory body and protection against interference from the ruling political party in these bodies’ decision-making and functioning. A violation of Article 10 was concluded where the majority of members of the board of management or other organs were appointed by the ruling political party.325 Organisational obligations in the sphere of the press are based on the principle of media pluralism. The Court confirmed such an obligation for the freedom of broadcasting where it found that the State is the ‘ultimate guarantor’ for pluralism in relation to audio-visual media, whose programmes are often broadcast very widely.326 The Court held that in such a sensitive sector as the audio-visual media, the State has a positive obligation to put in place an appropriate legislative and administrative framework to guarantee effective pluralism. This is especially necessairy when the national audio-visual system is characterised by a monopoly or duopoly.327 A comparable obligation to guarantee pluralism may also be assumed for the rest of the media sector.328 This was indirectly confirmed by the Court when it recognised to protect the opinion of the public against the pressures of powerful financial groups and from undue commercial influence may constitute a legitimate aim; to provide for a certain equality of opportunity among the different forces of society; to ensure the independence of broadcasters in editorial matters from 321

ECtHR, 15/2/2005, Steel a. Morris v UK, No. 68416/01, § 95. ECtHR, 27/6/2006, Sayg{l{ a. Seyman v TUR, No. 51041/99, §§ 24 et seq. 323 ECtHR, 20/10/2009, Lombardi Vallauri v ITA, No. 39128/05, §§ 49 et seq. 324 ECtHR, 26/2/2009, Kudeshkina v RUS, No. 29492/05, § 96 et seq. 325 ECtHR, 17/9/2009, Manole a. o. v MDA, No. 13936/02, §§ 109, 110. 326 ECtHR, 24/11/1993, Informationsverein Lentia a. o. v AUT, No. 13914/88 et al, § 38. 327 ECtHR, 7/6/2012 (GC), Centro Europa 7 S.r.l. and Di Stefano v ITA, No. 38433/09, § 134. 328 Grabenwarter/Pabel, § 22 m.n. 60 with further references. 322

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powerful sponsors; and to support the press.329 The Court takes into account a number of declarations and resolutions from the Committee of Ministers and Parliamentary Assembly of the Council of Europe for the determination of the content and scope of positive obligations.330 In this connection, ensuring true pluralism in the audio-visual sector in a democratic society calls for effective access to the market so as to guarantee diversity of overall programme content, reflecting as far as possible the variety of opinions encountered in the society at which the programmes are aimed. It is not sufficient to provide for the existence of several channels or the theoretical possibility for potential operators to access the audiovisual market. It is necessary in addition to allow effectiv access to the market.331 To install a public service broadcasting system is one option to comply with it’s obligation. Where a State decides to create a public broadcasting system, it follows from the principles outlined above that domestic law and practice must guarantee that the system provides a pluralistic service. Particularly in cases where private stations are too weak to offer a genuine alternative and the public or state organisation is therefore the sole or the dominant broadcaster within a country or region, it is indispensable for the proper functioning of democracy that it transmits impartial, independent and balanced news, information and comment and in addition provides for a forum for public discussion in which as broad a spectrum as possible of views and opinions can be expressed.332 In the case law of the ECtHR indicators for the concrete content of an obligation are drawn from the various resolutions and recommendations by the Committee of Ministers of the Council of Europe.333

3. Positive obligation to inform Obligations for the State occur what regards the freedom to receive information 67 and the right to access information. It derives from Article 10 that States must set up their information system in a way that the public can effectively obtain all information on questions of general interest.334 The freedom of the public to receive information as a corollary of the specific function of journalists, which is to impart information and ideas on matters of public interest, cannot be construed as imposing on a State, positive obligations to collect and disseminate information of its own motion.335 According to the Court, the refusal by the Minister for Defence to include a certain military periodical among the magazines distributed by the 329

ECtHR, 28/6/2001, VgT Verein gegen Tierfabriken v SUI, No. 24699/94, § 75. Declaration on the Freedom of Expression and Information, Committee of Ministers 1982; Recommendation 747 (1975) on press concentration, Parliamentary Assembly; Recommendation 834 (1978) on threats to the freedom of the press and television, Parliamentary Assembly; Motion for a Resolution on the dangers caused by mediaconcentrations for the exercise of freedom of expression and information and for cultural diversity in Council of Europe member States, Parliamentary Assembly, 27.2.1989, Doc. 6021. 331 For a duopoly see ECtHR, 7/6/2012 (GC), Centro Europa 7 S.r.l. and Di Stefano v ITA, No. 38433/09, § 130. 332 ECtHR, 17/9/2009, Manole a. o.v MDA, No. 13936/02, §§ 100, 101. 333 Resolution No. 1 ‘The Future of Public Service Broadcasting’ (1994); Recommondation Rec(96) 10 ‘The Guarantee of the Independence of Public Service Broadcasting’ – Appendix; Recomondation Rec(2000) 23 ‘The Independence and Functions of Regulatory Authorities for the Broadcasting Sector’ – Appendix; for its use see ECtHR, 17/9/2009, Manole a. o. v MDA, No. 13936/02, § 102. 334 Grabenwarter/Pabel § 23 m.n. 63 with further references. 335 ECtHR, 19/2/1998 (GC), Guerra a. o. v ITA, No. 14967/89, § 53. 330

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army was a disproportionate interference with Article 10. This refusal is an interference with the exercise of the right to impart information and ideas and a corresponding obligation for the State in the particular situation of serviceman in the military.336 The Court thereby indirectly established that serviceman have a right that a magazine edited by a serviceman is distributed by the army. 336 ECtHR, 19/12/1994, Vereinigung demokratischer Soldaten O ¨ sterreichs a. Gubi v AUT, No. 15153/8, 314, §§ 27 et seq.

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Bibliography

Article 11 – Freedom of assembly and association 1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests. 2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, 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. this article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State. Article 11 – Liberte´ de re´union et d’association 1. Toute personne a droit a` la liberte´ de re´union pacifique et a` la liberte´ d’association, y compris le droit de fonder avec d’autres des syndicats et de s’affilier a` des syndicats pour la de´fense de ses inte´reˆts. 2. L’exercice de ces droits ne peut faire l’objet d’autres restrictions que celles qui, pre´vues par la loi, constituent des mesures ne´cessaires, dans une socie´te´ de´mocratique, a` la se´curite´ nationale, a` la suˆrete´ publique, a` la de´fense de l’ordre et a` la pre´vention du crime, a` la protection de la sante´ ou de la morale, ou a` la protection des droits et liberte´s d’autrui. Le pre´sent article n’interdit pas que des restrictions le´gitimes soient impose´es a` l’exercice de ces droits par les membres des forces arme´es, de la police ou de l’administration de l’Etat. Bibliography: Dorssemont, Le droit des syndicats d’expulser des membres en raison de leur convictions politiques, RTDH 2008, 549; Marauhn, § 4 Freedom of Expression, Freedom of Assembly and Association, in: Ehlers (Ed.), European Fundamental Rights and Freedoms, 2007, p. 97; Sottiaux/de Prins, La Cour europe´enne des droits de l’homme et les organisations antide´mocratiques, RTDH 2002, 1008; Tomuschat, Freedom of Association, in: Macdonald/Matscher/ Petzold (Ed.), The European System for the Protection of Human Rights, 1993, p. 493. ¨ rzte fu¨r das Leben“ v AUT, Leading Cases: Freedom of assembly: ECtHR, 21/6/1988, Plattform “A No. 10126/82 (positive obligations); ECtHR, 26/4/1991, Ezelin v FRA, No. 11800/85 (disciplinary measures against a lawyer who refused to distance himself from a demonstration against the judiciary system); ECtHR, 2/10/2001, Stankov a. o. v BUL, No. 29221/95 et al (ban on public assemblies); ECtHR, 9/4/2002, Cisse v FRA, No. 51346/99 (dissolution of an assembly); ECtHR, 17/7/2007, Bukta a. o. v HUN, No. 25691/04 (dissolution of a spontaneous assembly); ECtHR, 23/10/2008, Sergey Kuznetsov v RUS, No. 10877/04 (assembly averting the entrance to a court house). Freedom of association: ECtHR, 6/2/1976, Swedish Engine Drivers’ Union v SWE, No. 5614/72 (freedom of trade unions, no right to collective bargaining); ECtHR, 6/2/1976, Schmidt a. Dahlstro¨m v SWE, No. 5589/72 (right to strike); ECtHR, 20/4/1993, Sibson v UK, No. 14327/88 (forced membership to a trade union); ECtHR, 30/1/1998 (GC), United Communist Party of Turkey a. o. v TUR, No. 19392/92 (prohibition of a political party); ECtHR, 25/5/1998, Socialist Party a. o. v TUR, No. 21237/93 (prohibition of a political party); ECtHR, 29/4/1999, Chassagnou v FRA, No. 25088/94 (obligation to ¨ ZDEP) v make a land available for hunting); ECtHR, 8/12/1999, Freedom and Democracy Party (O TUR, No. 23885/94; ECtHR, 9/4/2002, Yazar a. o. v TUR, No. 22723/93 et al; ECtHR, 9/4/2003 (GC), Refah Partisi (the Welfare Party) a. o. v TUR, No. 41340/98 (prohibition of a political party); ECtHR, 11/1/2006, Sørensen and Rasmussen v DEN, No. 52562/99 (termination of employment as a sanction

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for not joining a trade union, ‘closed-shop’ agreements); ECtHR, 12/11/2008 (GC), Demir a. Baykara v TUR, No. 34503/97 (collective bargaining). Outline I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Scope of protection. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Freedom of assembly . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Freedom of association . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Interferences. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Freedom of assembly . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Freedom of association . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Justification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. General requirements for justification according to Article 11 (2) first sentence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a) Freedom of assembly . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b) Freedom of association. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Limitation clause for State employees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Restrictions on political activity of aliens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Positive obligations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Freedom of assembly . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Freedom of association . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 4 4 8 12 12 15 17 17 18 23 32 34 35 35 36

I. Introduction 1

Article 11 guarantees two rights: the right to freedom of peaceful assembly and the right to freedom of association. The freedom of assembly as guaranteed by Article 11 is closely connected to the freedoms enshrined Article 10. First of all, it is a political right as well. Furthermore, the freedom of assembly, too, intends to secure the process of communication. The protection of personal opinions, secured by Article 10, is one of the objectives of freedom of peaceful assembly as enshrined in Article 11.1 Its particular emphasis, however, lays on protecting the collective expression of an opinion, which is possibly more powerful, but also has a stronger impact on the interests of others.2 The collectivity of the expression of opinion is a decisive criterion to distinguish the freedom of assembly from other forms of expression. In cases in which applicants have complained that they had been prevented from participating in and expressing their views during assemblies, including demonstrations, or that they had been punished for such conduct, the Court takes several elements into account in determining the relationship between the right to freedom of expression and the right to freedom of assembly.3 In cases of expression in the framework of an assembly, Article 11 has often been regarded as the lex specialis, taking precedence over Article 10.4 In other cases, the Court, having regard to the specific circum1

ECtHR, 01/12/2011, Schwabe a. M.G. v GER, No. 8080/08 8577/08, § 98. See ECtHR, 26/4/1991, Ezelin v FRA, No. 11800/85, § 37; ECtHR, 26/9/1995, Vogt v GER, No. 17851/91, § 64; also already ECtHR, 13/8/1981, Young, James a. Webster v UK, No. 7601/76 et al, § 57. 3 ECtHR, 01/12/2011, Schwabe a. M.G. v GER, No. 8080/08 8577/08, § 99. 4 ECtHR, 26/4/1991, Ezelin v FRA, Nr. 11800/85, § 35; ECtHR, 01/12/2011, Schwabe a. M.G. v GER, No. 8080/08 8577/08, § 99; ECtHR, 25/12/2012, Trade Union of the Police in the Slovak Republic a. o. v SVK, No. 11828/08, § 52. 2

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stances of the case and the way in which the applicants formulated their complaints, considered that the main focus of the applicants’ complaints lay in the right to freedom of expression and thus examined the case under Article 10 alone.5 Occasionally, the ECtHR interprets Article 11 ‘in the light of Article 10’.6 Where the violation of the right to inform the public is the main focus of a application, however, the Court considers each article separately.7 Just like the freedom of assembly, the freedom of association is closely related to 2 the freedom of expression.8 For certain fields of political debate it protects the organisational conditions and framework for an effective participation. At the same time it affords protection against being forced to join any particular association. Thereby it guarantees a specific aspect of the freedom of the communication process.9 In three groups of cases the freedom of association is of particular relevance: compulsory membership as a problem of ‘negative’ fundamental freedom, prohibition of politically motivated associations, in particular political parties, and the protection of activities of trade unions. In the Charta of fundamental rights of the EU, Article 12 CFR guarantees the 3 freedom of assembly and association. Just like Article 11 it emphasises trade union rights. However, in contrast to Article 11, it also mentions the particular role of political parties for the realisation of a representative democracy. Even before the Charta became legally binding, the CJEU referred to Article 11 and the case law of the ECtHR and held that the freedom of assembly was also guaranteed by Community Law and limited a state’s obligation to ensure the free movement of goods.10 In the ICCPR similar guarantees can be found in Articles 21 and 22.

II. Scope of protection 1. Freedom of assembly Article 11 is a fundamental right in a democratic society and, like the right to 4 freedom of expression, one of the foundations of such a society.11 The right to freedom of peaceful assembly is secured to everyone who organises or participates in a peaceful demonstration.12 The term ‘assembly’ possesses – just like the term ‘association’ – an autonomous 5 meaning; the classification in national law has only relative value and constitutes no more than a starting-point.13 The ECHR does not give a definition for the term assembly. It is, however, to be interpreted widely. An assembly is every organised 5 ECtHR, 01/12/2011, Schwabe a. M.G. v GER, No. 8080/08 8577/08, § 100 with further case references. 6 ECtHR, 23/10/2008, Sergey Kuznetsov v RUS, No. 10877/04, § 23; ECtHR, 01/12/2011, Schwabe a. M.G. v GER, No. 8080/08 a. 8577/08, § 101; ECtHR, 25/12/2012, Trade Union of the Police in the Slovak Republic a. o. v SVK, No. 11828/08, § 52. 7 ECtHR, 3/2/2009, Women on Waves v POR, No. 31276/05, § 28. 8 Grabenwarter/Pabel, § 23 m.n. 82 with further references. 9 ECtHR, 13/8/1981, Young, James a. Webster v UK, No. 7601/76 et al, § 57. 10 Case C-112/00, Schmidberger (12/6/2003) [2003] ECR I-05659, § 71 et seq. 11 ECtHR, 23/10/2008, Sergey Kuznetsov v RUS, No. 10877/04, § 39. 12 EComHR, 16/7/1980, Christians against Racism and Fascism, DR 21, 138 (148); EComHR, 6/3/1989, G., No. 13079/87; EComHR, 6/4/1995, Negotiate Now, DR 81-A, 146 (152). 13 ECtHR, 12/6/2012, Tata ´ r and Fa´ber v HUN, No. 26005/08 a. 26160/08, § 38.

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meeting of people with the intention to collectively form or express an opinion. The right to freedom of assembly covers both private meetings and meetings on public thoroughfares, as well as static meetings and public processions such as demonstrations.14 The mere fact that an expression occurs in the public space does not necessarily turn such an event into an assembly.15 For an assembly to be at hand it is not necessary that a specific objective is intended to be followed by it; in particular no political aims have to be pursued. Social concerns can also come into consideration. Nevertheless, not every activity for which one meets can be considered to be an assembly. Meetings of hunting societies, for example, are not protected by the freedom of assembly.16 Furthermore, incidental gatherings are not included in the scope of protection of Article 11.17 6 Article 11 only protects peaceful assemblies. This notion does not cover a demonstration where the organisers and participants have violent intentions.18 The criterion of peacefulness must not be interpreted restrictively. Freedom of assembly as enshrined in Article 11 protects a demonstration that may annoy or give offence to persons opposed to the ideas or claims that it is seeking to promote.19 The mere possibility of violent counter-demonstrations or other events which are not peaceful cannot inhibit the exercise of the fundamental right of participants of a peaceful demonstration.20 The possibility of extremists with violent intentions who are not members of the organising group joining a demonstration cannot as such take away the right to freedom of peaceful assembly. Even in cases where there is a real risk of a public demonstration resulting in disorder as a result of developments outside the control of those organising it, a demonstration does not as such fall outside the scope of Article 11.21 The burden of proving violent intentions of the organisers of a demonstration lies with the authorities.22 Sit-ins in particular have to be regarded as a peaceful assembly as the participants remain passive without actively acting aggressive.23 A group of aliens without residence permits occupying a church in order to draw attention to the difficulties they are having obtaining a review of their immigration status constitutes a peaceful assembly as long as neither the priest nor the parish council show resistance to the occupation and church services and other ceremonies can be held as usual and without disturbances.24 Even though a demonstration must be peaceful, freedom of assembly as enshrined in Article 11 protects also demonstrations that may annoy or cause offence 14

ECtHR, 23/10/2008, Sergey Kuznetsov v RUS, No. 10877/04, § 35. ECtHR, 12/6/2012, Tata´r and Fa´ber v HUN, No. 26005/08 a. 26160/08, § 38. 16 ECtHR, 24/11/2008, Countryside Alliance a. o. v UK, No. 27809/08, § 50. 17 Grabenwarter/Pabel, § 23 m.n. 68 with further references. 18 See ECtHR, 2/10/2001, Stankov a. o. v BUL, No. 29221/95 a. o., § 77; ECtHR, 20/10/2005, United Macedonian Organisation Ilinden a. Ivanov v BUL, No. 44079/98, § 99; see regarding the peacefulness Harris/O’Boyle/Warbrick, p. 516 et seq. 19 ECtHR, 2/10/2001, Stankov a. o. v BUL, No. 29221/95 a. o., § 86; see also Article 10 m.n. 5 et seq. 20 ECtHR, 21/6/1988, Plattform ‘A ¨ rzte fu¨r das Leben’ v AUT, No. 10126/82, § 32; ECtHR, 24/4/1991, Ezelin v FRA, No. 11800/85, §§ 40 et seq; ECtHR, 2/2/2012, Christian Democratic People’s Party (No. 2) v MDA, No. 25196/04, § 23. 21 ECtHR, 01/12/2011, Schwabe a. M.G. v GER, No. 8080/08 8577/08, § 103. 22 ECtHR, 2/2/2012, Christian Democratic People’s Party (No. 2) v MDA, No. 25196/04, § 23; See also ECtHR, 8/6/2010, Gu¨l a. o. v TUR, No. 4870/02, §§ 41 et seq (regarding Article 10). 23 EComHR, 6/3/1989, G. v GER, No. 13079/87. 24 ECtHR, 9/4/2002, Cisse v FRA, No. 51346/99, § 39. 15

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Art. 11

to persons opposed to the ideas or claims that they seek to promote. The Court held that any measures interfering with freedom of assembly and expression other than in cases of incitement to violence or rejection of democratic principles – however shocking and unacceptable certain views or words used may appear to the authorities – do a disservice to democracy and often even endanger it. If every probability of tension and heated exchange between opposing groups during a demonstration were to warrant its prohibition, society would be faced with being deprived of the opportunity of hearing differing views on any question which offends the sensitivity of the majority. A demonstration may annoy or give offence to persons opposed to the ideas or claims that it is seeking to promote. The participants must, however, be able to hold the demonstration without having to fear that they will be subjected to physical violence by their opponents; such a fear would be liable to deter associations or other groups supporting common ideas or interests from openly expressing their opinions on highly controversial issues affecting the community. In a democracy the right to counter-demonstrate cannot extend to inhibiting the exercise of the right to demonstrate.25 Freedom of assembly is exercised both by individual participants and by those 7 organising the assembly.26 The organiser of a meeting can rely on freedom of assembly even if it is not a person but a legal entity or an association, a trade union, a political party or a church.27

2. Freedom of association The term association is to be interpreted autonomously for the purposes of 8 Article 11.28 Any group of people pursuing specific common objectives with a minimum level of organisation and stability is an association in the sense of Article 11, even if this association is not officially recognised or registered according to national law.29 Not only ‘political’ but also economic associations are protected by Article 11. Public-law association, however, do not fall within the scope of protection of freedom of association.30 Whether an association is a public law association or not does not depend on its classification according to national law. If Member States were able, at their discretion, by classifying an association as ‘public’ or ‘para-administrative’, to remove it from the scope of Article 11, that would give them such latitude that it might lead to results incompatible with the object and purpose of the Convention, which is to protect rights that are not theoretical or illusory but practical and effective.31 Chambers of liberal professions32 and chambers of trade,33 by virtue of their legal nature and their public functions, 25

ECtHR, 24/7/2012, Fa´ber v HUN, No. 40721/08, §§ 37 et seq. ECtHR, 23/10/2008, Sergey Kuznetsov v RUS, No. 10877/04, § 35. 27 EComHR, 16/7/1980, Christians against Racism and Fascism, DR 21, 138 (148); EComHR, 15/3/1984, Association A. u. H., No. 9905/82; EComHR, 6/4/1995, Negotiate Now, DR 81-A, 146 (147). 28 ECtHR, 29/4/1999, Chassagnou v FRA, No. 25088/94, § 100. 29 Tomuschat, Freedom of Association, in: Macdonald/Matscher/Petzold, p. 493. 30 ECtHR, 30/6/1993, Sigurjo ´ nsson v ISL, No. 16130/90, § 31; ECtHR, 29/4/1999, Chassagnou v FRA, No. 25088/94, §§ 101 et seq; See Tomuschat, Freedom of Association, p. 497. 31 ECtHR, 29/4/1999, Chassagnou v FRA, No. 25088/94, § 100. 32 ECtHR, 23/6/1981, Le Compte a. o. v BEL, No. 6878/75 a. o., § 64 – medical association. 33 EComHR, 10/7/1991, Weiss, DR 71, 158 (166). 26

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Art. 11

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Article 11 – Freedom of assembly and association

cannot be considered as associations within the meaning of Article 11. Hunting associations, however, according to the Court constitute associations despite their distinctive public-law elements.34 9 Furthermore, political parties enjoy protection under Article 11,35 even if on a national level they fall under a different legal framework.36 They cannot be excluded from the protection afforded by the Convention simply because their activities are regarded by the national authorities as undermining the constitutional structures of the State and calling for the imposition of restrictions.37 10 Article 11 presents trade union freedom for employees38 and for employers39 as one form or a special aspect of freedom of association. The right to form and join trade unions – irrespective of their legal form – protects, first and foremost, against State action. The State may not interfere with the forming and joining of trade unions except on the basis of the conditions set forth in Article 11 (2). Article 11 covers both individual and collective trade union freedom.40 A relationship based on an employment contract cannot be ‘clericalised’ to the point of being exempted from all rules of civil law. Hence, members of the clergy, and a fortiori lay employees of the Church, are not be excluded from the scope of Article 11.41 The right to form trade unions involves, for example, the right of trade unions to draw up their own rules and to administer their own affairs. Prima facie trade unions enjoy the freedom to set up their own rules concerning conditions of membership, including administrative formalities and payment of fees, as well as other more substantive criteria, such as the profession or trade exercised by the would-be member.42 Freedom of trade unions does not impose on an employer an obligation to recognise a trade union. The union and its members must however be free, in one way or another, to seek to persuade the employer to listen to what it has to say on behalf of its members.43 Furthermore, the members of a trade union have a right, in order to protect their interests, that the trade union should be heard by employers, government and administration.44 Article 11 safeguards freedom to protect the occupational interests of trade union members by trade union action, the conduct and development of which the Contracting States must both permit 34

ECtHR, 29/4/1999, Chassagnou v FRA, No. 25088/94, §§ 101 et seq. ECtHR, 30/1/1998 (GC), United Communist Party of Turkey a. o. v TUR, No. 19392/92, §§ 24 ¨ ZDEP) v TUR, No. 23885/94, § 27; et seq; ECtHR, 8/12/1999, Freedom and Democracy Party (O ECtHR, 9/4/2002, Yazar a. o. v TUR, No. 22723/93 et al, §§ 30 et seq. 36 See e.g. Article 21 of the German Basic Law. 37 ECtHR, 30/1/1998 (GC), United Communist Party of Turkey a. o. v TUR, No. 19392/92, § 27; ECtHR, 25/5/1998, Socialist Party a. o. v TUR, No. 21237/93, § 29. 38 ECtHR, 27/10/1975, National Union of Belgian Police v BEL, No. 4464/70, § 38; ECtHR, 6/2/ 1976, Schmidt a. Dahlstro¨m v SWE, No. 5589/72, § 34; ECtHR, 6/2/1976, Swedish Engine Drivers’ Union v SWE, No. 5614/72, § 39; ECtHR, 13/8/1981, Young, James a. Webster v UK, No. 7601/76 a. o., § 52. 39 ECtHR, 25/4/1996 (GC), Gustafsson v SWE, No. 15573/89, § 42. 40 Marauhn, in: Ehlers, § 4 m.n. 86. 41 ECtHR, 9/7/2013 (GC), Sindicatul ‘Pastor cel bun’ v ROM, No. 2330/09, §§ 140. 42 ECtHR, 27/2/2007, Associated Society of Locomotive Engineers & Firemen (ASLEF) v UK, No.11002/05, § 37et seq. (prohibition to exclude a member of a trade union due to his membership to a right-wing extremist party); comment hereto Dorssemont, Le droit des syndicats d’expulser des membres en raison de leur convictions politiques, RTDH 2008, 549. 43 ECtHR, 2/7/2002, Wilson, The N.U.J. a. o. v UK, No. 30668/96 et al, § 44. 44 ECtHR, 6/2/1976, Swedish Engine Drivers’ Union v SWE, No. 5614/72, § 40. 35

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III. Interferences

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Art. 11

and make possible.45 Article 11 certainly leaves each State a free choice of the means to be used towards this end.46 In the Demir and Baykara Case the Grand Chamber expressly departed from the previous case-law and held that the right to bargain collectively and to enter into collective agreements does constitute an inherent element of Article 11.47 According to the Court, the right to strike represents without any doubt one of the most important means of trade unions. Therefore this right is protected by the freedom of association.48 It is essential that the protection of interests by the trade union is secured irrespective of its specific form.49 The individual as well as the association fall within the personal scope of 11 Article 11. Furthermore, freedom of association encompasses the right not to join an association and the right to leave an association (‘negative freedom’)50.

III. Interferences 1. Freedom of assembly Interferences with the freedom of assembly can occur in many different forms. 12 General or specific prohibitions of assembly are one possibility. Therefore, where an administration prohibits one particular association to hold assemblies or limits its duration to a minimum the freedom of assembly is interfered with. Hence, the ECtHR found an interference in a case where an association whose pronounced goal it was to remind of certain events of historic meaning concerning the Macedonian minority in Bulgaria, since they had been prohibited to hold commemorations for years based on the argument that these would fall on the same date as other official holidays or events which gave reason to worries regarding a clash. Furthermore, restraints on how an assembly may be conducted can also interfere with the freedom of assembly. Consequently, in the above mentioned case not only the prohibition but even regulations prohibiting speeches to be made at the venue, in this particular case a grave, and banners to be brought and limiting the activities to laying wreaths and lighting candles also constituted an interference.51 Morever, a prohibition to hold an assembly at a specific place chosen by the organisers and a deviation to another venue may interfere with freedom of assembly if time and place were of particular importance to the 45

ECtHR, 27/10/1975, National Union of Belgian Police v BEL, No. 4464/70, § 39; ECtHR, 6/2/1976, Swedish Engine Drivers’ Union v SWE, No. 5614/72, § 40. 46 ECtHR, 27/10/1975, National Union of Belgian Police v BEL, No. 4464/70, § 39; ECtHR, 6/2/1976, Swedish Engine Drivers’ Union v SWE, No. 5614/72, § 40. 47 ECtHR, 12/11/2008 (GC), Demir a. Baykara v TUR, No. 34503/97, § 153; hereto: von Drooghenbroeck, Les frontie`res du droit et le temps juridique: la Cour europe´enne des Droits de l’Homme repousse les limites, RTDH 2009, 811et seq. See however previously ECtHR, 6/2/1976, Swedish Engine Drivers’ Union v SWE, No. 5614/72, § 39; ECtHR, 6/2/1976, Schmidt a. Dahlstro¨m v SWE, No. 5589/72, § 34; ECtHR, 2/7/2002, Wilson, The N. U. J. a. o. v UK, No. 30668/96 et al, § 44. 48 ECtHR, 6/2/1976, Schmidt a. Dahlstro ¨ m v SWE, No. 5589/72, § 36; ECtHR, 21/4/2009, Enerji Yapi-Yol Sen. v TUR, § 24. 49 Bro ¨ hmer, in: Grote/Marauhn, Chapter 19 m.n. 102. 50 ECtHR, 29/4/1999 (GC), Chassagnou v FRA, No. 25088/94, § 103. 51 ECtHR, 2/10/2001, Stankov a. o. v BUL, No. 29221/95 et al, § 79 et seq.

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Art. 11

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Article 11 – Freedom of assembly and association

assembly.52 Lastly, a State also interferes with the freedom of assembly where it breaks up assemblies. 13 So far the ECtHR has not explicitly held that an requirement of prior notification or authorisation of an assembly can be seen as an interference. However, it renders such an requirement compatible with Article 11 only under certain circumstances.53 From this it follows that such requirements constitute an interference with freedom of assembly. 14 Interferences are not limited to measures taken prior to or during an assembly. Even measures taken after an assembly may constitute an interference, especially where they are of an oppressive nature. ECtHR attached particular importance to the chilling effect of measures and particularly their ability to discourage people from taking part in similar meetings.54 Therefore, disciplinary measures taken against a participant of a peaceful assembly to which prior notice had been given and which had not been prohibited constitute an interference with freedom of assembly. This is also true for an initiation of proceedings against participants of an assembly irrespective of the final result or an obligation to pay damages for revenue lost during the participation in protest marches to one’s employer.55

2. Freedom of association 15

A State’s refusal to register an association thereby preventing it from acquiring legal capacity56 and a dissolution57 of an association constitute a particularly grave interference with the freedom of association.58 The possibility for the association to reapply for registration – while capable of being taken into account in assessing the proportionality of the interference – does not alter that conclusion.59 The failure of State authorities to reply, within the statutory time-limits, to requests for State registration of an association amounts to a de facto refusal to register the association.60 An association must not be forced to take a legal shape its founders and members did not seek, finding that such an approach, if adopted, would reduce the freedom of association of the founders and members so as to render it

52 ECtHR, 20/10/2005, United Macedonian Organisation Ilinden a. Ivanov v BUL, No. 44079/98, § 103; ECtHR, 15/2/2006, Christian Democratic People’s Party v MDA, No. 28793/02. § 47. 53 ECtHR, 14/9/2010, Hyde Park a. o. v MDA (Nos. 5, 6), No. 6991/08, §§ 45 et seq with references to earlier case law. 54 ECtHR, 29/11/2007, Balçik a. o. v TUR, No. 25/02, §§ 41 et seq; ECtHR, 28/10/2010, Trofimchuk v. UKR, No. 4241/03, § 35. 55 ECtHR, 17/7/2007, Dı¯lek a. o. v TUR, No. 74611/01 et al, § 57. 56 ECtHR, 17/2/2004 (GC), Gorzelik a. o. v POL, No. 44158/98, § 52; ECtHR, 6/10/2009, O ¨ zbek a. o. v. TUR, No. 35570/02, § 27. 57 ECtHR, 8/10/2009, Tebieti Mu ¨ hafize Cemiyyeti und Israfilov v ARM, No. 37083/03, § 54; ECtHR, 15/1/2009, Association of Citizens Radko & Paunkovski v MKD, No. 74651/01, § 53. 58 ECtHR, 8/12/1999, Freedom and Democracy Party (O ¨ ZDEP) v TUR, No. 23885/94, § 27; ECtHR, 5/10/2004, Presidential Party of Mordovia v RUS, No. 65659/01, § 29; ECtHR, 19/1/2006, United Macedonian Organisation Ilinden v. BUL, No. 59491/00, §§ 53 et seq; ECtHR, 12/4/2011, Republican Party of Russia v RUS, No. 12976/07, § 102. 59 ECtHR, 18/10/2011, United Macedonian Organisation Ilinden a. o. (No. 2) v BUL, No. 34960/04 et al, § 30. 60 ECtHR, 18/10/2007, Nasibova v AZE, No. 4307/04, § 28; ECtHR, 17/1/2008, Ismayilov v AZE, Nr. 4439/04, Z. 48.

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III. Interferences

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Art. 11

either non-existent or of no practical value.61 Furthermore, limitations by the state such as prohibitions of certain associations or activities or an prohibition addressed to one individual according to which he may not join one particular association interfere with the freedom of association.62 Even the imposition of a temporary ban on the activities of an association amounts to interference with its rights guaranteed by Article 11.63 A prohibition for a chairman of one association to hold a similar office in another one also interferes with these rights. So does a national law preventing a particular group of professions to be a member of the Freemasons thereby causing damage to the association in terms of loss of members and prestige.64 Likewise, adverse consequences linked to a membership to an association – for example a trade union – amount to an interference.65 The ECtHR considered, for example, sanctions imposed on members of an association due to the fact that they left the country without authorisation in order to attend a conference abroad as functionaries to be an interference with the freedom of association.66 An obligation to join an association may constitute an interference with the 16 ‘negative’ freedom of association.67 So called ‘closed-shop’ agreements, which require membership to a trade union in order to gain or keep employment, interfere with Article 11.68 Hence, the Court considered a law according to which membership to a trade union was a requirement for acquiring a license to operate a taxicab to be an interference.69 However, as long as a State ensures that there are several associations formed to protect the professional interests of the persons concerned, which they are completely free to join or not, an obligation of members of a certain profession to enlist with an organisation and subjecting themselves to its rules does not amount to an interference.70 Furthermore, the ECtHR held that an obligation imposed on landowners to join an inter-municipality hunters’ association and to transfer to it the hunting rights over their land even though he himself is opposed to hunting on ethical grounds to interfere with the ‘negative’ freedom of association.71 So does the obligation imposed on an employer to pay an Industry Charge to an association he was not a member of even if the funds were used for the promotion and development of the industry as a whole, thereby benefitting the applicant as well.72 61

ECtHR, 12/4/2011, Republican Party of Russia v RUS, No. 12976/07, § 105. See Marauhn, in: Ehlers, § 4 m.n. 77, 88. 63 ECtHR, 14/6/2006, Christian Democratic People’s Party v MOL, No. 28793/02, § 47. 64 ECtHR, 2/8/2001, Grande Oriente d’Italia di Palazzo Giustiniani (No. 1) v. ITA, No. 35972/97, §§ 15 et seq. 65 ECtHR, 25/4/1996, Gustafsson v SWE, No. 15573/89, § 45. 66 ECtHR, 2/3/2006, Izmir Savas ˛ Kars˛itlari Derneg˘i a. o. v TUR, No. 46257/99, §§ 35 et seq; regarding a journey inside the territory of the State in question, ECtHR, 12/7/2005, Gu¨neri a. o. v. TUR, No. 42853/98 et al, §§ 62 et seq. 67 Interference: ECtHR, 29/4/1999, Chassagnou v FRA, No. 25088/94, § 103; No interference: ECtHR, 20/4/1993, Sibson v UK, No. 14327/88, § 30. 68 ECtHR, 11/1/2006 (GC), Sørensen a. Rasmussen v DEN, No. 52562/99, § 56. 69 ECtHR, 30/6/1993, Sigurjo ´ nsson v ISL, No. 16130/90, § 36. 70 ECtHR, 23/6/1981, Le Compte a. o. v BEL, No. 6878/75 et al, § 64. 71 ECtHR, 29/4/1999, Chassagnou v FRA, No. 25088/94, § 103; ECtHR, 10/7/2007, Schneider v LUX, No. 2113/04, §§ 69 et seq; regarding the protection of property see ECtHR, 26/6/2012 (GC), Hermann v GER, No. 9300/07, §§ 40 et seq. 72 ECtHR, 27/4/2010, Vo ´ lafsson v ISL, No. 20161/06, §§ 47 et seq. ¨ rdur O 62

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Article 11 – Freedom of assembly and association

IV. Justification 1. General requirements for justification according to Article 11 (2) first sentence 17

Interferences with the freedom of assembly are justified as long as they fulfil the requirements set out in Article 11 (2). In some cases they may further have to comply with the reservation laid down in Article 16. The first sentence of Article 11 (2) is in essence equivalent to the requirements determined by Articles 8 to 10.73

a) Freedom of assembly First of all, an interference has to be prescribed by law. The concept of lawfulness in the Convention, apart from positing conformity with domestic law, also implies qualitative requirements in the domestic law such as foreseeability and, generally, an absence of arbitrariness.74 The requirements may stay behind those of national law.75 A law which confers a discretion to national authorities is not in itself inconsistent with the requirement of foreseeability inherent in this concept, provided that the scope of the discretion and the manner of its exercise are indicated with sufficient clarity to give the individual protection against arbitrary interference.76 The criterion of foreseeability is met if a law is accessible to the person concerned and formulated with sufficient precision to enable the individual to foresee its consequences for him.77 19 Furthermore, an interference with the freedom of assembly must pursue a legitimate aim. The number of exceptions to freedom of assembly, contained in Article 11, is exhaustive.78 In particular the interests of national security or public safety and the prevention of disorder or crime allow for justification of interferences by the State.79 The Member States are free to decide what is meant by national security or public order and when they are compromised. The Court accepts that a lack of registration of an association, which could not in itself, under the applicable law, serve as ground for a ban on a meeting, may be considered relevant in the assessment of the alleged danger to public order.80 20 Lastly, an interference has to be necessary in a democratic society. For Article 11, too, the expression ‘necessary in a democratic society” implies that the interference corresponds to a ‘pressing social need” and, in particular, that it is proportionate to the legitimate aim pursued.81 Member States enjoy a certain margin of appreciation. 18

73

ECtHR, 26/9/1995 (GC), Vogt v GER, No. 17851/91, § 66. ECtHR, 20/5/1999 (GC), Rekve´nyi v HUN, No. 25390/94, §§ 34, 59; regarding Article 10: ECtHR, 25/8/1993, Chorherr v AUT, No. 13308/87, § 26. 75 E.g. Article 8 (2) of the German Basic Law. 76 EComHR, 6/4/1995, Negotiate Now v UK, No. 25522/94. 77 ECtHR, 20/5/1999 (GC), Rekve ´nyi v HUN, No. 25390/94, §§ 34, 59; regarding Article 10: EComHR, 13/10/1993, Hauer u. Guggenheim, No. 18116/91, § 3, with reference to ECtHR, 25/8/1993, Chorherr v AUT, No. 13308/87, § 26; ECtHR, 11/4/2013, Vyerentsov v UKR, No. 20372/11, § 52. 78 ECtHR, 2/10/2001, Stankov a. o. v BUL, No. 29221/95 et al, § 84. 79 Grabenwarter/Pabel, § 23 m.n. 75. 80 ECtHR, 2/10/2001, Stankov a. o. v BUL, No. 29221/95 et al, §§ 81, 84. 81 ECtHR, 2/10/2001, Stankov a. o. v BUL, No. 29221/95 et al, § 87. 74

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IV. Justification

20

Art. 11

The proportionality principle demands that a balance be struck between the requirements of the purposes listed in Article 11 (2) and those of the free expression of opinions by word, gesture or even silence by persons assembled on the streets or in other public places.82 This balancing of interests is carried out in the framework of the proportionality test.83 The Court ascertains whether the respondent State exercised its discretion reasonably, carefully and in good faith.84 For example, it considered a disciplinary measure against an employee engaged in a protest action against her employer which caused her to be absent from work for two hours not to be disproportionate.85 Unconditional prohibitions or break-ups of assemblies are very far-reaching measures which therefore should be the last resort.86 A general and preventive prohibition to demonstrate is only justified where a real danger to public safety and public order exists which cannot be countered by less radical measures.87 The ECtHR assumes that any demonstration in a public place inevitably causes a certain level of disruption to ordinary life, including disruption of traffic, and that it is important for the public authorities to show a certain degree of tolerance towards peaceful gatherings if the freedom of assembly guaranteed by Article 11 of the Convention is not to be deprived of all substance. They act in a disproportional manner if minor disruptions give rise to far-reaching measures against demonstrators such as the use of force against participants or breaking up an assembly.88 Territorial and temporal limitations which had been determined from the outset comply with the principle of proportionality as long as they don’t limit the possibility of free expression.89 A rejection of an application to hold a protest demonstration planned for one month on the ground that one day of protest was sufficient is disproportional.90 A peaceful demonstration should not, in principle, be made subject to the threat of a penal sanction.91 Administrative prosecution as a punitive measure taken in reaction to an assembly which led to a blocking of a court entrance is disproportional if the hindrance was of an extremely short duration, there were no complaints by anyone and the participants agreed without further argument to clear the entrance.92 The evacuation of a church occupied by a group of aliens without residence permits is not disproportionate to the prevention of public order if after two months the

82

ECtHR, 26/4/1991, Ezelin v FRA, No. 11800/85, § 52. ¨ llinger v AUT, No. 76900/01, §§ 34 et seq. See ECtHR, 29/6/2006, O 84 ECtHR, 23/10/2008, Sergej Kuznetsov v RUS, No. 10877/04, § 40. 85 ECtHR, 28/10/2010, Trofimchuk v UKR, No. 4241/03, § 44 et seq. 86 See ECtHR, 29/6/2006, O ¨ llinger v AUT, No. 76900/01, § 44 et seq. 87 Jo ¨ rundsson, in: de Salvia/Villiger, pp. 102 et seq; see regarding the legal situation in Great Britain Fitzpatrick/Taylor, Tresspassers Might be Prosecuted: The European Convention and Restrictions on the Right to Assemble, EHRLR 1998, 292 (294, 297 et seq). 88 ECtHR, 18/12/2007, Nurettı¯n Aldemı¯r a. o. v TUR, No. 32124/02 et al, § 46; ECtHR, 7/10/2008, Saya a. o. v TUR, No. 4327/02, § 46; ECtHR, 23/10/2008, Sergej Kuznetsov v RUS, No. 10877/04, § 44; ECtHR, 5/3/2009, Barraco v FRA, No. 31684/05, § 43; ECtHR, 27/11/2012, Disk a. Kesk v TUR, No. 38676/08, § 36. 89 EComHR, 10/10/1979, Rassemblement jurassien et unite ´ jurassienne, DR 17, 93 (107): territorial restriction to the municipal area and temporal limitations. 90 ECtHR, 7/4/2009, Hyde Park a. o. v MDA (No. 4), No. 18491/07, § 53. 91 ECtHR, 20/3/2012, Pekaslan a. o. v TUR, No. 4572/06 et al, § 81. 92 ECtHR, 23/10/2008, Sergej Kuznetsov v RUS, No. 10877/04, § 44. 83

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continued occupation had developed into a situation in which the hunger-strikers’ health had deteriorated and sanitary conditions become wholly inadequate.93 A State may not rely on the in the interests of national security or public safety or the prevention of disorder or crime to justify a general prohibition of sit-ins. In cases where participants of a sit-in are convicted not because of the sit-in itself, but due to a disturbance of traffic beyond a normal extend caused by them, the conviction may be justified under Article 11 (2). Demonstrations with twenty participants, whose only action would have been to stand silently in line on the pavement allowing other pedestrians to walk by during the demonstration cannot be considered to affect public order to an unusual extend.94 21 Regulations requiring notification of a national authority prior to an assembly are not violating Article 11 as long as they do not represent a hidden obstacle to the freedom of peaceful assembly as protected by the Convention95 The subjection of public assemblies to an authorisation or notification procedure does not normally encroach upon the essence of the right as long as the purpose of the procedure is to allow the authorities to take reasonable and appropriate measures in order to guarantee the smooth conduct of any assembly, meeting or other gathering, be it political, cultural or of another nature.96 In certain circumstances it may be proportionate if the authorities require a change in venue.97 The ECtHR had to concern itself with the question of enforcement of authorisation or notification requirements in cases where national authorities tied disciplinary or criminal penalties to defiance of such requirements or where they broke up assemblies or arrested participants because of it. The Court considers that a merely formal breach of the notification time-limit is neither relevant nor a sufficient reason for imposing administrative liability as long as enough time was left for national authorities to take necessary measures.98 A violation of the freedom of assembly is also constituted when national authorities act immediately and breakup an assembly possibly even by using force although the participants presented no danger to public order.99 In special circumstances when an immediate response, in the form of a demonstration, to a political event might be justified (‘spontaneous assembly’), a decision to disband the ensuing, peaceful assembly solely because of the absence of the requisite prior notice, without any illegal conduct by the participants, amounts to a disproportionate restriction on freedom of peaceful assembly.100 However, the Court considers that the right to hold spontaneous demonstrations 93

ECtHR, 9/4/2002, Cisse v FRA, No. 51346/99, §§ 51 et seq. ECtHR, 7/10/2008, Patyi v HUN, No. 5529/05, § 41. 95 ECtHR, 13/10/2009, Unzunget a. o. v TUR, No. 21831/03, § 50; ECtHR, 10/7/2012, Berladir a. o. v RUS, No. 34202/06, § 54. 96 ECtHR, 23/10/2008, Sergej Kuznetsov v RUS, No. 10877/04, § 42. 97 ECtHR, 10/7/2012, Berladir a. o. v RUS, No. 34202/06, § 60. 98 ECtHR, 23/10/2008, Sergej Kuznetsov v RUS, No. 10877/04, § 43. 99 ECtHR, 5/12/2006, Oya Ataman v TUR, No. 74552/01, §§ 41et seq; ECtHR, 8/12/2009, Aytas a. o. v TUR, No. 6758/05, §§ 31 et seq; ECtHR, 29/11/2007, Balcik a. o. v TUR, No. 25/02, §§ 51et seq; ECtHR, 23/2/2010, Eksi a. Ocak v TUR, No. 44920/04, §§ 36 et seq; ECtHR, 13/10/2009, Serkan Yilmaz a. o. v TUR, No. 25499/04, § 34. 100 ECtHR, 17/7/2007, Bukta a. o. v HUN, No. 25691/04, § 36; no such exceptional situation in ECtHR, 7/10/2008, E´va Molna´r v HUN, No. 10346/05, §§ 38 et seq. (demonstration as a reaction to a result of an election which had been published two month before). 94

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may override the obligation to give prior notification to public assemblies only in special circumstances, namely if an immediate response to a current event is warranted in the form of a demonstration. In particular, such derogation from the general rule may be justified if a delay would have rendered that response obsolete.101 Nevertheless, a particularly harsh sanction imposed on a participant of a spontaneous demonstration may violate his right to freedom of assembly even if there are no special circumstances which would have justified an immediate response from the present applicants in the form of an unauthorised demonstration.102 Particular problems arise in situations where an association’s right to assembly is 22 limited or even revoked due to its anti-constitutional views. The Court considers that while the fact that an association had been refused registration because the courts found that it was anti-constitutional are undoubtedly relevant in the consideration of the dangers that its gatherings may pose, an automatic reliance on the very fact that an organisation has been considered anti-constitutional – and refused registration – cannot suffice to justify under Article 11 (2) a practice of systematic bans on the holding of peaceful assemblies.103 In some cases, however, a party being anti-constitutional may lead to the reasonable conclusion that one particular assembly of that party would pose a danger to public safety and order thereby justifying refusal of a necessary approval.104

b) Freedom of association Like interferences with the freedom of assembly interferences with the freedom of 23 association have to be prescribed by law, pursue a legitimate aim in the meaning of Article 11 (2) and be necessary in a democratic society.105 First of all, a justification of an interference with the freedom of association 24 requires that the interference be prescribed by law. The words ‘prescribed by law” not only require that the impugned measure should have some basis in domestic law, but also refer to the quality of the law in question, requiring that it should be accessible to the person concerned and foreseeable as to its effects.106 Where discretion is given to national authorities the law must indicate with sufficient clarity the scope of any such discretion and the manner of its exercise.107 Therefore, a law which imposes sanctions on a judge joining the Freemasons but uses a vague wording from which it is not clear which associations may not be joined is not sufficiently foreseeable as to its effects.108 The lack of precision in the wording results in the interference not being prescribed by law at all. ECtHR, 7/10/2008, E´va Molna´r v HUN, No. 10346/05, §§ 37 et seq. ECtHR, 14/10/2010, Hyde Park a. o. v MDA (No. 5, 6), No. 6991/08, § 47. 103 ECtHR, 2/10/2001, Stankov a. o. v BUL, No. 29221/95 a. o., § 92. Still different with little reasoning: EComHR, 21/5/1976, X., No. 6741/74. 104 See EComHR, 15/3/1984, Association A. a. H., No. 9905/82, 187 (192et seq). 105 ECtHR, 29/4/1999, Chassagnou v FRA, No. 25088/94, § 104; ECtHR, 2/8/2001, Grande Oriente d’Italia di Palazzo Giustiniani (No. 1) v ITA, No. 35972/97, § 17. 106 ECtHR, 2/8/2001, N. F. v ITA, No. 37119/97, § 26; ECtHR, 17/2/2004, Maestri v ITA, No. 39748/98, § 30. 107 ECtHR, 8/10/2009, Tebieti Mu ¨ hafize Cemiyyeti und Israfilov v AZE, No. 37083/03, § 57. 108 ECtHR, 2/8/2001, N. F. v ITA, No. 37119/97, §§ 31 et seq; ECtHR, 17/2/2004, Maestri v ITA, No. 39748/98, §§ 37 and 42. 101 102

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An interference with Article 11 must pursue a legitimate aim. Paragraph 2 lists the interests of national security or public safety, the prevention of disorder or crime, the protection of health or morals and the protection of the rights and freedoms of others as such legitimate aims. The preservation of territorial integrity and, therefore, ‘national security’ is considered to be a legitimate aim for a prohibition of a party.109 The organisation and regulation of a leisure activity might also be a matter for which the State bears responsibility, particularly as regards its duty to ensure, on behalf of the community, the safety of people and property. The Court accordingly considered an obligation to join a hunting association pursued a legitimate aim for the purposes of Article 11 (2).110 Furthermore the aim to protect the freedoms and rights of others is pursued by a ‘closed-shop’ agreement by a trade union which is meant to foster orderly collective bargaining, leading to greater stability in industrial relations.111 However, upholding a country’s cultural traditions and historical and cultural symbols is not a legitimate aim to be pursued in refusing the registration of an association.112 26 When the ECtHR decides whether an interference was necessary in a democratic society it is decisive what margin of appreciation it gives to Member States and with which intensity it re-examines national judgements. In this context one has to differentiate between the general freedom of association and the freedom of trade unions in particular. Political parties also have to be considered as a separate group of cases. 27 Regarding the freedom of association in general the ECtHR leaves a narrow margin of appreciation to the Member States. Exceptions to the rule of freedom of association are to be construed strictly and only convincing and compelling reasons can justify restrictions on that freedom. Any interference must correspond to a ‘pressing social need’. It is in the first place for the national authorities to assess whether there is a ‘pressing social need’ to impose a given restriction in the general interest. The Member States’ assessment is subject to supervision by the Court, going both to the law and to the decisions applying it, including decisions given by independent courts.113 However, the Court considers that it must be accepted that where an association, through its activities or the intentions it has expressly or implicitly declared in its programme, jeopardises the State’s institutions or the rights and freedoms of others, Article 11 does not deprive the State of the power to protect those institutions and persons.114 Nevertheless, the mere fact that an association is named after a person whose ideology is seen as a negation of the ethnicity of the State concerned does not 25

109

ECtHR, 30/1/1998 (GC), United Communist Party of Turkey a. o. v TUR, No. 19392/92, §§ 40 ¨ ZDEP) v TUR, No. 23885/94, §§ 32 et et seq; ECtHR, 8/12/1999, Freedom and Democracy Party (O seq; ECtHR, 9/4/2002, Yazar a. o. v TUR, No. 22723/93 et al, §§ 38 et seq; doubting ECtHR, 14/10/2010, HADEPa. Demir v TUR, No. 28003/03, § 44. 110 ECtHR, 29/4/1999, Chassagnou v FRA, No. 25088/94, § 108. 111 ECtHR, 13.8.1981, Young, James and Webster v UK, No. 7601/76 a. 7806/77, §§ 60 et seq. 112 ECtHR, 10/7/1998, Sidiropoulos a. o. v GRE, No. 26695/95, §§ 37 et seq; the ECtHR does, however, accept that the interference in issue was intended to protect national security and prevent disorder. 113 EGMR, 17/2/2004 (GC), Gorzelik a. o. v POL, No. 44158/98, § 95; ECtHR, Sidiropoulos a. o. v GRE, No. 57/1997/841/1047, § 95; ECtHR, 8/10/2009, Tebieti Mu¨hafize Cemiyyetia. Israfilov v AZE, No. 37083/03, § 67; ECtHR, 15/1/2009, Association of Citizens Radko & Paunkovski v MKD, No. 74651/01, § 66. 114 ECtHR, 17/2/2004, Gorzelik a. o. v POL, No. 44158/98, § 94; ECtHR, 15/1/2009, Association of Citizens Radko & Paunkovski v MKD, No. 74651/01, § 71.

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suffice. It has to be shown that the association or its members would use illegal or anti-democratic means to pursue their aims.115 The Court considered the Polish authorities’ refusal to register an association named ‘Union of People of Silesian Nationality’ to be an interference which is necessary in a democratic society even though the aim pursued – to forestall a likely attempt to use the registration of the association as a legal means for acquiring special status under electoral law – was legitimate.116 However, the fact that an association committed to raise awareness to the existence of ethnic minorities and to support their interests alone cannot be seen as a risk to the democratic order of a State. In this context the ECtHR held that the existence of minorities and of cultural diversity within a State is a historically given fact. States do not only have to tolerate this, they have to protect and encourage it according to the principles of international law.117 An obligation to join an association whose convictions run contrary to the beliefs of the person concerned and which forces him to yield property so that the association could realise its goals which have been condemned by the person concerned constitutes a disproportionate interference with the negative freedom of association.118 The States’ margin of appreciation may include a right to interfere – subject to the condition of proportionality – with freedom of association in the event of noncompliance by an association with reasonable legal formalities applying to its establishment, functioning or internal organisational structure. In this respect, the Court notes that, in so far as the domestic corporate law is concerned, private persons’ freedom of association does not preclude the States from laying down in their legislation rules and requirements on corporate governance and management and from satisfying themselves that these rules and requirements are observed by the incorporated entities.119 However, the ECtHR considers a forced dissolution as a sanction for a breach of a legal requirement to regularly convene a general assembly of members to be a disproportionate interference.120 In the area of trade union freedom, in view of the sensitive character of the social 28 and political issues involved in achieving a proper balance between the respective interests of labour and management, and given the wide degree of divergence between the domestic systems in this field, the Member States enjoy a wide margin of appreciation as to how the freedom of trade unions to protect the occupational 115 ECtHR, 15/1/2009, Association of Citizens Radko & Paunkovski v MKD, No. 74651/01, §§ 73 et seq. 116 ECtHR, 17/2/2004 (GC), Gorzelik a. o. v POL, No. 44158/98, §§ 103 et seq; Where associations’ aims are ‘political goals’ and they are able to influence public policies under certain circumstances a pressing social need to register such an association as a political party may exist, ECtHR, 21/6/2007, Zhechev v BUL, No. 57045/00, §§ 52et seq (no pressing social need where an association aims at reintroducing a monarchy – violation). 117 ECtHR, 11/10/2007, Bekir-Ousta a. o. v GRE, No. 35151/05, §§ 42et seq (refusal of registration and dissolution of associations by members of the Turkish minority in Greece); ECtHR, 27/3/2008, Tourkiki Enosi Xanthis a. o. v GRE, No. 26698/05, §§ 51 et seq; ECtHR, 27/3/2008, Emin a. o. v GRE, No. 34144/05, §§ 30 et seq. 118 ECtHR, 29/4/1999, Chassagnou v FRA, No. 25088/94, §§ 114 et seq. 119 ECtHR, 8/10/2009, Tebieti Mu ¨ hafize Cemiyyeti a. Israfilov v AZE, No. 37083/03, §§ 72 et seq; see also ECtHR, 9/11/2010, AGVPS – Bauca˘u v ROM, No. 19750/03, §§ 72 et seq. 120 ECtHR, 8/10/2009, Tebieti Mu ¨ hafize Cemiyyeti a. Israfilov v AZE, No. 37083/03, §§ 77; see ¨ zbek a. o. v TUR, No. 35570/02, §§ 38 et seq. also ECtHR, 6/10/2009, O

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interests of their members may be secured.121 However, where a principle defended by a trade union is not at variance with the fundamental principles of democracy and there are no signs of incitement to resort to violence or any other illegal means to achieve its aim, proceedings to have a trade union dissolved are not proportionate.122 Where interferences with the right to freedom of association are concerned, it follows from Article 9 that religious communities are entitled to their own opinion on any collective activities of their members that might undermine their autonomy and that this opinion must in principle be respected by the national authorities. However, a mere allegation by a religious community that there is an actual or potential threat to its autonomy is not sufficient to render any interference with its members’ trade-union rights compatible with the requirements of Article 11 of the Convention. It must also show, in the light of the circumstances of the individual case, that the risk alleged is real and substantial and that the impugned interference with freedom of association does not go beyond what is necessary to eliminate that risk and does not serve any other purpose unrelated to the exercise of the religious community’s autonomy. The national courts must ensure that these conditions are satisfied, by conducting an in-depth examination of the circumstances of the case and a thorough balancing exercise between the competing interests at stake.123 The forced membership to a trade union constitutes a disproportionate interference if the person concerned faces serious consequences such as a threat of dismissal.124 So-called closed-shop agreements according to which dismissal of employees who refuse to join a specific trade union is legitimate where pertinent agreements with trade unions have been made are not in accordance with Article 11. In this context, no distinction is made between pre-entry closed-shop agreements and post-entry closed-shop agreements.125 Interferences with the right to strike also can be justified according to Article 11 (2). It may be restricted for public servants, especially those who participate directly or indirectly in the exercise of powers conferred by public law. Nevertheless, a categorical exclusion of public servants from participation in a nationwide general strike lasting one day is disproportional.126 29 The ECtHR had to decide in a number of cases regarding the prohibition of political parties. In particular cases concerning the prohibition of political parties 121

ECtHR, 6/2/1976, Swedish Engine Drivers’ Union v SWE, No. 5614/72, § 39; ECtHR, 25/4/1996 (GC), Gustafsson v SWE, No. 15573/89, § 45; ECtHR, 2/7/2002, Wilson, The N. U. J. a. o. v UK, No. 30668/96 et al, § 44; ECtHR, 11/1/2006 (GC), Sørensen a. Rasmussen v DEN, No. 52562/99, § 58; ´ lafsson v ISL, No. 20161/06, § 75. ECtHR, 27/4/2010, Vo¨rdur O 122 See ECtHR, 25/9/2012, Eg ˘itim ve Bilim Emekçileri Sendikas{ v TUR, No. 20641/05, §§ 51 et seq. 123 ECtHR, 9/7/2013 (GC), Sindicatul ‘Pastor cel bun’ v ROM, No. 2330/09, §§ 159. 124 ECtHR, 13/8/1981, Young, James and Webster v UK, No. 7601/76 a. 7806/77, §§ 55, 57. Even regarding holiday relief employment ECtHR, 11/1/2006 (GC), Sørensen a. Rasmussen v DEN, No. 52562/99, § 61. 125 ECtHR, 13/8/1981, Young, James and Webster v UK, No. 7601/76 a. 7806/77, §§ 62 et seq regarding post-entry closed-shop agreements; ECtHR, 11/1/2006 (GC), Sørensen a. Rasmussen v DEN, No. 52562/99, § 56 regarding pre-entry closed-shop agreements. 126 ECtHR, Enerji Yapi-Yol Sen. v TUR, 21/4/2009, No. 68959/01, §§ 32 et seq; see already ECtHR, 6/2/1976, Schmidt a. Dahlstro¨m v SWE, No. 5589/72, § 33; ECtHR, 6/2/1976, Swedish Engine Drivers’ Union v SWE, No. 5614/72, § 37.

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in Turkey prompted these judgements.127 The Court emphasises the fact that political parties are a form of association essential to the proper functioning of democracy128 thereby distinguishing it from other associations within the scope of Article 11. Consequently, it holds that the exceptions set out in Article 11 are, where political parties are concerned, to be construed strictly; only convincing and compelling reasons can justify restrictions on such parties’ freedom of association. In determining whether a necessity within the meaning of Article 11 § 2 exists, the Member States have only a limited margin of appreciation.129 The Court interprets Article 11 in the light of Article 10 applying the considerations about the particular importance of this right to ensuring pluralism and the proper functioning of democracy to the cases of prohibitions of parties.130 Thus, the relation between democratic opinion-making by the parties and their importance to ensuring pluralism and the proper functioning of democracy is provided for. From this the ECtHR deduces that political parties may not be prohibited simply 30 because they take a position against existing laws or even constitutional law. However, this requires that the means used be democratic and legal. In particular, violence may not be used as a means. Furthermore, the aims pursued have to be compatible with the fundamental rules of democracy. However, the fact that a political programme is considered incompatible with the current principles and structures of a State does not make it incompatible with the rules of democracy.131 The ECtHR considers these aspects on the basis of the facts submitted by the applicant and the defendant State. In doing so, it occasionally reaches a different conclusion than the national authorities, such as a Constitutional Court.132 In the case United Communist Party of Turkey, for example, contrary to the Turkish Constitutional Court the ECtHR held that neither the choice of the name ‘communist’ nor the political position held by it can justify a measure as drastic as dissolution. The party’s political programme as well as its behaviour did not suggest that the party sought to promote separatism and the division of the Turkish nation and wanted special rights for the Kurdish minority.133 127 ECtHR, 30/1/1998 (GC), United Communist Party of Turkey a. o. v TUR, No. 19392/92; ECtHR, 25/5/1998, Socialist Party a. o. v TUR, No. 21237/93; ECtHR, 8/12/1999 (GC), Freedom and ¨ ZDEP) v TUR, No. 23885/94; ECtHR, 9/4/2002, Yazar a. o. v TUR, No. 22723/93 Democracy Party (O et al; ECtHR, 9/4/2003 (GC), Refah Partisi (the Welfare Party) a. o. v TUR, No. 41340/98; ECtHR, 12/11/2003, Socialist Party of Turkey (STP), No. 26482/95; ECtHR, 14/10/2010, HADEP a. Demir v TUR, No. 28003/03; see further ECtHR, 3/2/2005, Partidul Comunistilor (Nepeceristi) a. Ungureanu v ROM, No. 46626/99; ECtHR, 13/4/2006, Tsonev v BUL, No. 45963/99. 128 ECtHR, 30/1/1998 (GC), United Communist Party of Turkey a. o. v TUR, No. 19392/92, §§ 25 et seq. 129 ECtHR, 30/1/1998 (GC), United Communist Party of Turkey a. o. v TUR, No. 19392/92, § 46; ECtHR, 25/5/1998, Socialist Party a. o. v TUR, No. 21237/93, § 50. C.f. Tomuschat, Freedom of Association, p. 508 et seq. 130 ECtHR, 30/1/1998 (GC), United Communist Party of Turkey a. o. v TUR, No. 19392/92, §§ 42 et seq; ECtHR, 9/4/2002, Yazar a. o. v TUR, No. 22723/93 et al, § 46; ECtHR, 30/6/2009, Herri Batasuna and Batasuna v ESP, No. 25803/04 et al, § 74. 131 ECtHR, 25/5/1998, Socialist Party a. o. v TUR, No. 21237/93, § 47; ECtHR, 12/11/2003, Socialist Party of Turkey (STP), No. 26482/95, § 38; ECtHR, 14/10/2010, HADEP a. Demir v TUR, No. 28003/03, § 70. 132 ECtHR, 30/1/1998 (GC), United Communist Party of Turkey a. o. v TUR, No. 19392/92, §§ 51 et seq; ECtHR, 9/4/2002, Yazar a. o. v TUR, No. 22723/93 et al, §§ 52 et seq. Cf regarding the criteria set up by the ECtHR Sottiaux/de Prins, La Cour europe´enne des droits de l’homme et les organisations antide´mocratiques, RTDH 2002, 1008 (1019 et seq). 133 ECtHR, 30/1/1998 (GC), United Communist Party of Turkey a. o. v TUR, No. 19392/92, §§ 53 et seq.

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Furthermore, the Court did not see a violation of Article 11 in the prohibition of the ¨ ZDEP) even though in its prohibition of the Freedom and Democracy Party (O ¨ programme OZDEP also refers to the right to self-determination of the ‘national or religious minorities” as by this no democratic principles were violated.134 The ECtHR found the prohibition of a party which had shown under the pretence of finding a new definition of laicism the intention to set up a regime based on Sharia – if necessary by resorting to violence – to be proportionate to the aim of protecting the principle of secularism.135 The ECtHR considered the consequent plurality of legal systems whose application depends on religious denomination not to be in conformity with the ECHR.136 The prohibition of a party is in accordance with Article 11 if the party is not explicitly condemning terrorism and violence as a means of achieving a political aim.137 Member States enjoy a wider margin of appreciation where interferences are less intense than a prohibition, for example with a view to legal regulations of political party funding. Nevertheless, even though the ECtHR is not so easily persuaded that the prohibition on funding by foreign political parties is necessary for the preservation of national sovereignty, it considered the refusal to authorise a funding association by the French branch of the Basque Nationalist Party to be proportionate due to the fact that it was supposed to receive contributions mainly from the Spanish Basque Nationalist Party.138 However, the authorities should not intervene in the internal organisational functioning of associations to such a far-reaching extent as to ensure observance by an association of every single formality provided by its own charter.139

2. Limitation clause for State employees In addition to the justifications of the first sentence of Article 11 (2) its second sentence holds that this Article shall not prevent the imposition of lawful restrictions on the exercise of the freedom of assembly by members of the armed forces, of the police or of the administration of the State. Persons who are part of the State’s authority – especially of the executive State’s authority – have to accept more excessive interferences with their freedoms under Article 11 than others. Hence, in the case of a police officer the Court held that the importance of certain types of public servant for the proper functioning of a democratic society made it necessary to ensure their political neutrality through measures such as debarring them from joining political parties.140 32 However, not every State employee is affected by this special limitation clause. Whether a certain position is held by public servants or by normal employees differs considerably from State to State. A functional approach is to be chosen for 31

¨ ZDEP) v TUR, No. 23885/94, ECtHR, 8/12/1999 (GC), Freedom and Democracy Party (O §§ 40 et seq. 135 ECtHR, 9/4/2003 (GC), Refah Partisi (the Welfare Party) a. o. v TUR, No. 41340/98, §§ 120 et seq; see also Sottiaux/de Prins, RTDH 2002, 1010 et seq. 136 ECtHR, 9/4/2003 (GC), Refah Partisi (the Welfare Party) a. o. v TUR, No. 41340/98, § 132. 137 ECtHR, 30/6/2009, Herri Batasuna and Batasuna v ESP, No. 25803/04 et al, §§ 85 et seq. 138 ECtHR, 7/6/2007, Parti Nationaliste Basque – Organisation Re ´gionale d’Iparralde v FRA, No. 71251/01, §§ 47 et seq. 139 ECtHR, 12/4/2011, Republican Party of Russia v RUS, No. 12976/07, § 87. 140 ECtHR, 10/4/2012, Strzelecki v POL, No. 26648/03, § 53. 134

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IV. Justification

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Art. 11

the definition of who is considered to be a state employee.141 Therefore, only persons whose posts entail – in the light of the nature of the duties and responsibilities appertaining to them – direct or indirect participation in the exercise of powers conferred by public law and duties designed to safeguard the general interests of the State or of other public authorities are state employees in the meaning of Article 11 (2).142 From this it follows that someone working in the State’s administration only falls under the limitation clause for State employees if his scope of duties approximates to the duties of the other two groups.143 How far-reaching interferences restrictions on the exercise of the freedoms of Article 11 according to the second sentence of Article 11 (2) may be remains unclear. Even restrictions regarding the rights of the persons in questions must not be arbitrary, even though the States enjoy a wider margin of appreciation in particular when the restriction aims at protecting national security.144 There is a debate whether a complete abolishment of the rights under Article 11 for State employees may be possible even outside the scope of Article 15.145 This constitutes without any questions a severe limitation of the fundamental right, which can only be justified under particular circumstances. Whether a situation in a Member state demands a prohibition of the freedoms of Article 11 without any exceptions is questionable. In the Vogt Case the ECtHR considered the dismissal of a teacher from civil service due to the fact that she was a member of the German Communist Party to be a violation of Article 11. One of the reasons for this judgement was the fact that the party was not prohibited. The Court did, however, not consider it necessary to determine the issue whether a teacher – a permanent civil servant – was part of the administration of the State.146 The exclusion of members of the Masonic Lodges from public offices did not constitute a legitimate restriction of Article 11. The ECtHR did not consider offices listed in the relevant law to fall within the scope of ‘the administration of the State’ as they were not part of the organisational structure of the Region.147

3. Restrictions on political activity of aliens According to Article 11 (1) aliens may rely on the right to peaceful assembly and 33 the freedom of association. However, pursuant to Article 16 restrictions may be imposed on the freedom of assembly – just like the freedom of expression – with a view to ‘political activity of aliens’.148 141

See Tomuschat, Freedom of Association, in: Macdonald/Matscher/Petzold, p. 493 (511); Marauhn, in: Ehlers, § 4 m.n. 90. 142 See hereto also the Pellegrin-Case ECtHR, 8/12/1999, Pellegrin v FRA, No. 28541/95, § 66; cf. Article 6 m.n. 11. 143 Cf. EComHR, 20/1/1987, Council of Civil Service Unions, DR 50, 228 (254): affirmed regarding personnel safeguarding the security of military and other State communication; unsanswered regarding teacher by ECtHR, 26/9/1995, Vogt v GER, No. 17851/91, § 68. 144 EComHR, 20/1/1987, Council of Civil Service Unions, DR 50, 228 (256). 145 Cf. EComHR, 20/1/1987, Council of Civil Service Unions, DR 50, 228 (256); Marauhn, in: Ehlers, § 4 m.c. 91; State employees may not be completely excluded from the scope of Article 11: ECtHR, 12/11/2008 (GC), Demir u. Baykara v TUR, No. 34503/97 § 107. 146 ECtHR, 26/9/1995, Vogt v GER, No. 17851/91 §§ 60, 66 et seq. 147 See Tomuschat, Freedom of Association, in: Macdonald/Matscher/Petzold, p. 493 (511); Marauhn, in: Ehlers, § 4 m.n. 90. 148 See for further detail Article 10 m.n. 62.

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34, 35

Article 11 – Freedom of assembly and association

V. Positive obligations 1. Freedom of assembly 34

The right to freedom of assembly is to be seen primarily as a right directed against State interferences. It obliges the States to refrain from unjustified interferences. However, genuine, effective freedom of peaceful assembly cannot be reduced to a mere duty on the part of the State not to interfere: a purely negative conception would not be compatible with the object and purpose of Article 11.149 Positive obligations arise under Article 11.150 It sometimes requires positive measures to be taken, even in the sphere of relations between individuals, if need be.151 It is important for the effective enjoyment of freedom of assembly that the applicable laws provide for reasonable time-limits within which the State authorities, when giving relevant decisions, should act. This is meant to prevent the loss of relevance or importance in a current social or political debate of an assembly.152 In addition to ex post, repressive measures, it is the duty of Member States to allow national authorities to take reasonable and appropriate pre-emptive measures to enable lawful demonstrations to proceed peacefully.153 They must be able to protect peaceful assemblies operationally and organisationally.154 Participants of an assembly must be able to hold the demonstration without having to fear that they will be subjected to physical violence by their opponents.155 However, Member States enjoy a wide margin of appreciation in the choice of means.156 Particular means are required only in exceptional circumstances.

2. Freedom of association 35

National authorities may, in certain circumstances, be obliged to intervene in the relationships between private individuals by taking reasonable and appropriate measures to secure the effective enjoyment of the negative right to freedom of association.157 Hence, States have to provide for possibilities to freely form an association. They do not, however, have to guarantee any particular form of organisation or legal recognition.158 It is not required that a State take positive 149 ECtHR, 21/6/1988, Plattform ‘A ¨ rzte fu¨r das Leben’ v AUT, No. 10126/82, § 32; ECtHR, 7/10/2008, Saya a. o. v TUR, No. 4327/02, § 44. 150 ECtHR, 20/10/2005, United Macedonian Organisation Ilinden a. Ivanov v BUL, No. 44079/98, § 115; Harris/O’Boyle/Warbrick, p. 517 et seq; Jo¨rundsson, in: de Salvia/Villiger, p. 102. 151 ECtHR, 21/6/1988, Plattform ‘A ¨ rzte fu¨r das Leben’ v AUT, No. 10126/82, §§ 32 et seq. 152 ECtHR, 3/5/2007, Ba ˛ czkowski a. o. v POL, No. 1543/06, §§ 82 et seq.; see also Article 13 m.n. 22. 153 ECtHR, 21/6/1988, Plattform ‘A ¨ rzte fu¨r das Leben’ v AUT, No. 10126/82, § 32. 154 ECtHR, 2/2/2010, Christian Democratic People’s Party v MDA, No. 25196/04, §§ 25, 28. 155 ECtHR, 20/10/2005, United Macedonian Organisation Ilinden a. Ivanov v BUL, No. 44079/98, § 104; ECtHR, 26/7/2007, Barankevich v RUS, No. 10519/03, §§ 30et seq. (protection of assemblies by a religious minority); cf. Harris/O’Boyle/Warbrick, p. 517et seq. 156 Marauhn, in: Ehlers, § 4 m.n. 62. 157 ECtHR, 25/4/1996 (GC), Gustafsson v SWE, No. 15573/89, § 45; cf. Harris/O’Boyle/Warbrick, p. 536; Jo¨rundsson, in: de Salvia/Villiger, p. 107 et seq; Tomuschat, Freedom of Association, p. 506 et seq. 158 Cf. EComHR, 5/6/1991, Lavisse, DR 70, 218 (226); Marauhn, in: Ehlers, § 4 m.n.73; Tomuschat, Freedom of Association, p. 506.

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V. Positive obligations

35

Art. 11

action in order to provide private associations with special means enabling them to pursue their aims.159 In view of the sensitive character of the social and political issues involved in achieving a proper balance between the competing interests and the wide degree of divergence between the domestic systems, the Member States enjoy a wide margin of appreciation in their choice of the means to be employed.160 In any case, an association has to be protected when the headquarters are being attacked.161 Moreover, for the right to join a trade union to be effective the State must protect the individual against any abuse of a dominant position by trade unions.162 Hence, such abuse might occur, for example, where exclusion or expulsion was not in accordance with union rules or where the rules were wholly unreasonable or arbitrary or where the consequences of exclusion or expulsion resulted in exceptional hardship such as job loss because of a closed shop.163 Furthermore, the Court held that that Member States are obliged to secure the effective enjoyment of the freedom of trade unions, thereby guaranteeing through legal regulations that no negative consequences arise for an employee due to the fact that he is a member of a trade union.164 Article 11 is violated where national law makes it possible for an employer effectively to undermine or frustrate a trade union’s ability to strive for the protection of its members’ interests by offering an inducement to employees who relinquish the right to union representation.165 Further an obligation to recognise the legal entity of a union of State employees may follow from this guarantee.166 No violation of a positive obligation lays within a State’s failure to act where a trade union declares a boycott against an employer due to his refusal to accede to a collective agreement.167 In a case where the employers objection to join a trade union was of a political nature the Court held that compulsion which, does not significantly affect the enjoyment of trade union freedom, even if it causes economic damage, cannot give rise to any positive obligation under Article 11.168 The Court has further recognised that in certain circumstances an employer may lawfully place restrictions on the freedom of association of employees where it is deemed necessary in a democratic society, for example to protect the rights of others or to maintain the political neutrality of civil servants.169 Furthermore, the members of a trade union must be able to express to their employer their demands by which they seek to improve the situation of workers in their company. A trade union that does not have the possibility of expressing its ideas freely in this connection would indeed be deprived of an essential means of action. Consequently, for the purpose of guaranteeing the meaningful and effective nature of trade union rights, the national authorities must ensure that dispropor159

EComHR, 14/7/1981, X. Association, No. 9234/81. ECtHR, 25/4/1996 (GC), Gustafsson v SWE, No. 15573/89, § 45. 161 ECtHR, 20/10/2005, Ouranio Toxo a. o. v GRE, No. 74989/01, § 43. 162 ECtHR, 13/8/1981, Young, James u. Webster v UK, No. 7601/76 et al, § 63. 163 EComHR, 13/5/1985, Cheall, DR42, 178 (193). 164 ECtHR, 2/7/2002, Wilson, National Union of Journalists and Others v UK, No. 30668/96 et al, § 41. 165 ECtHR, 2/7/2002, Wilson, The N. U. J. a. o. v UK, No. 30668/96 et al, §§ 47 et seq. 166 ECtHR, 12/11/2008 (GC), Demir a. Baykara v TUR, No. 34503/97, § 110. 167 ECtHR, 25/4/1996 (GC), Gustafsson v SWE, No. 15573/89, § 52. 168 ECtHR, 25/4/1996 (GC), Gustafsson v SWE, No. 15573/89, § 52. 169 ECtHR, 6/11/2012, Redfearn v UK, No. 47335/06, § 44. 160

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Article 11 – Freedom of assembly and association

tionate penalties do not dissuade trade union representatives from seeking to express and defend their members’ interests.170 Where a legal situation allows an employer to dismiss employees for the sole reason of non-membership to a trade union Article 11 is also violated.171 Further, the Court considers that it was incumbent on the respondent State to take reasonable and appropriate measures to protect employees from dismissal on grounds of political opinion.172 170

ECtHR, 9/10/2012, Szima v HUN, No. 29723/11, § 28. ECtHR, 11/1/2006 (GC), Sørensen a. Rasmussen v DEN, No. 52562/99, § 75. 172 ECtHR, 6/11/2012, Redfearn v UK, No. 47335/06, § 57. 171

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I. Introduction

1

Art. 12

Article 12 – Right to marry Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right. Article 12 – Droit au mariage A partir de l’aˆge nubile, l’homme et la femme ont le droit de se marier et de fonder une famille selon les lois nationales re´gissant l’exercice de ce droit. Bibliography: Buquicchio-de Boer, Children and the European Convention on Human Rights, Studies in honour of Wiarda, p. 73; Verschraegen; The right to private life an family life, the right to marry and to found a family, and the prohibition of discrimination, in: Boelle-Woelki/Fuchs (ed.), Legal recognition of same-sex couples in Europe, 2003; Wachsmann/Marienburg-Wachsmann, La folie dans la loi. Conside´rations critique sur la nouvelle jurisprudence de la Cour europe´enne des droits de l’homme en matie`re de transsexualisme, RTDH 2003, p. 1157. Leading Cases: ECtHR, 17/10/1986, Rees v UK, No. 9532/81 (transsexuality); ECtHR, 18/12/1986, Johnston a. o. v IRL, No. 9697/82; ECtHR, 18/12/1987, F. v SUI, No. 11329/85 (temporary prohibition on remarriage following divorce); ECtHR, 27/9/1990, Cossey v UK, No. 10843/84 (transsexuality); ECtHR, 11/7/2002 (GC), Christine Goodwin v UK, No. 28957/95 (transsexuality); ECtHR, 13/12/2007, Emonet a. o. v SUI, No. 39051/03 (adoption by cohabiting partners); ECtHR, 24/6/2010, Schalk a. Kopf v AUT, No. 30141/04 (same-sex marriage). Outline I. II. III. IV.

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Scope of protection. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Interferences. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Justification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 2 6 8

I. Introduction Article 12 guarantees certain individual rights in the context of marriage. The 1 reference to the ‘right to found a family’ shows the traditional approach that stands behind the guarantee. Despite the fact that marriage and family are referred to in the same sentence, Article 12 covers also the right to found a family without prior marriage. While the ECtHR has developed positive obligations under the (wider) concept of ‘family life’ under Article 8, which is closely related to Article 12, it has not done so under the latter provision. Already in the UDHR the right to marry and to found a family was included. Its Article 16 goes more into detail than Article 12 ECHR, and it deviates from it in various respects. Instead of ‘marriageable’ age it refers to ‘full’ age, it contains a special prohibition of discrimination (‘without any limitation due to race, nationality or religion’), and it confirms that men and women enjoy equal rights during all phases of marriage (‘as to marriage, during marriage and at its dissolution’). Furthermore, paras. 2 and 3 of Article 16 contain additional guarantees. The requirement of ‘free and full consent of the intending spouses’ is established in para. 2. In para. 3 we find a

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Art. 12

1, 2

Article 12 – Right to marry

fundamental commitment to family: ‘The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.’ In the ICCPR Article 23 addresses the issue of marriage and family. It is the most prominent guarantee of the Covenant with an institutional guarantee, i. e. the protection of a status under (national) private law.1 Article 23 ICCPR corresponds to a large extent to Article 16 UDHR. Para. 1 is identical with Article 16 (3). Para. 2 guarantees the right to marry and to found a family although in a rather weak wording (‘shall be recognized’); in line with Article 12 ECHR and different to Art 16 UDHR it refers to the ‘marriageable age’ and not to ‘full’ age. Para. 3 corresponds to para. 2 UDHR although it is formulated negatively (‘No marriage … without’). As to the equality of spouses para. 4 takes up the second sentence of Article 16 (1) UDHR while emphasising the positive obligation of the State in its wording (‘States Parties … shall take appropriate steps’); it adds another positive obligation of the national legislature with a view to the children of a divorced couple. Compared to Article 12 ECHR both the declaration and the Covenant are stronger in the wording and the content in their reference to national private law institutions of marriage and family and are quite clear with regard to positive obligations. On the other hand the concepts of family and marriage are not limited to monogamous marriages and nuclear families prevalent in Europe but also to extended family concepts in other cultures often based on polygamous marriages.2 Article 9 EU Charter enshrines a corresponding right. This guarantee does not refer to ‘men and women’. According to the Explanatory notes, it may also apply to homosexual partnerships if national legislation does so provide.3 It states in particular that ‘it may be argued that there is no obstacle to recognise same-sex relationships in the context of marriage. There is however, no explicit requirement that domestic laws should facilitate such marriages.’

II. Scope of protection 2

The right to marry as guaranteed by Article 12 refers to the traditional marriage between persons of the opposite biological sex.4 This is reflected in the wording of the Article which makes it clear that its main concern is to protect marriage as the basis of the family (see in particular the French version: ‘l’homme et la femme’). Hence, the concept of marriage in Article 12 corresponds to the concepts in national law of nearly all Member States, where marriage is a permanent union of a man and a woman that is concluded under the specific conditions laid down in domestic law. Up to now, the Court expressly refused to include same-sex partnerships in the scope of protection. In the Schalk and Kopf judgment, however, the Court started to depart from this assumption. It referred to Article 9 EU Charter, which in the view of the Court has deliberately dropped the reference to men and women5 and therefore 1

Nowak, CCPR Commentary, 2nd ed., 2005, Article 23 m.n. 1. Cf. Nowak, CCPR Commentary, Article 23 m.n. 3. 3 Explanatory notes on Article 9 GRC, OJ EG 2000/C 364/01; as regards Article 9 GRC see also ECtHR, 24/6/2010, Schalk a. Kopf v AUT, No. 30141/04, § 61. 4 ECtHR, 17/10/1986, Rees v UK, No. 9532/81, § 49; ECtHR, 27/9/1990, Cossey v UK, No. 10843/84, § 43; ECtHR, 30/7/1998, Sheffield a. Horsham v UK, No. 22985/93 et al, § 66. 5 ECtHR, 11/7/2002 (GC), Christine Goodwin v UK, No. 28957/95 § 100. 2

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II. Scope of protection

2–5

Art. 12

broadened the scope as compared to corresponding articles in other human rights instruments. Using rather cautious wording, it accepted that Article 12 may in principle be applicable to same-sex couples: ‘[…] the Court would no longer consider that the right to marry enshrined in Article 12 must in all circumstances be limited to marriage between two persons of the opposite sex.’ At the same time it stated that, ‘as matters stand’, the question whether or not to allow same-sex marriage is left to regulation by the national law of the Member State. The consequence is unclear: Article 12 may be applicable to same-sex couples but the Member States are not obliged to accord them the right to ‘marry’. There is no right to divorce under Article 12 of the Convention.6 The ordinary 3 meaning of the words ‘right to marry’ covers the formation of marital relationships but not their dissolution.7 However, Article 5 of Protocol No. 7 proceeds from the possibility under national law to get divorced.8 Persons divorced under national law enjoy the right to remarry.9 The right to found a family is closely related to the right to marry. However, the 4 latter is not a precondition for the first; the right is granted regardless of the marital status of the parents. Likewise, the possibility to found a family is not a precondition for marriage: the inability of a couple to conceive or parent a child cannot be regarded as removing their right to marry.10 The scope of the right to found a family is to a large extent subject to national legislation. The requirement of ‘marriageable age’ applies to Article 12 as a whole and therefore also to its second limb. The right to found a family includes in particular the right to have children. It is 5 clear that having children, no matter whether they were born within or without wedlock, is covered by this guarantee. In view of the developments in many Member States, it must be assumed that in those States in which adoption is legally possible,11 a right to adoption may be derived from Article 12, too. Member States may in particular provide for additional conditions for adoption, such as a minimum age of the adopting parents (higher than the marriageable age) or a minimum difference in age between parents and child. In this context, the finding of the ECtHR in the Emonet Case may be misunderstood if one neglects some decisive words of the judgment. It denied to an unmarried couple the right to adoption ‘in a form for which there is no provision in law’.12 It is hard to see why the regulation of in-vitro fertilisation should not fall within the scope of Article 12. From a systematic perspective, artificial procreation in different-sex couples falls within the ambit of both Articles 8 and 12. Claims of homosexual (female) couples in this respect are primarily based on Article 8 for two reasons: first, there is no need to argue whether there is a basis in Article 12 against the background of the legislation in the State in question; secondly, the 6 ECtHR, 18/12/1986, Johnston a. o. v IRL, No. 9697/82, §§ 51–54; ECtHR, 18/12/1987, F. v SUI, No. 11329/85, §§ 33, 38. 7 ECtHR, 18/12/1986, Johnston a. o. v IRL, No. 9697/82, § 52. 8 See below Article 5 Protocol No. 7 m.n. 1. 9 ECtHR, 19/7/2007, Aresti Charalambous v CYP, No. 43151/04, § 56; ECtHR, 29/1/2008, Wildgruber a. o. v GER, No. 420402/05 et al. 10 ECtHR, 11/7/2002 (GC), Christine Goodwin v UK, No. 28957/95, § 98. 11 Which means in fact all Member States; see also Frowein/Peukert, Article 12 m.n. 7. 12 ECtHR, 13/12/2007, Emonet a. o. v SUI, No. 39051/03, § 92.

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Art. 12

5–8

Article 12 – Right to marry

margin of appreciation of the national legislator is more limited under Article 8. At any rate, a claim of a single woman for in-vitro fertilisation may only be based on Article 8. Surrogate motherhood raises a number of difficult questions under Article 8 with respect to parents and children; this is particularly so in cases where the surrogate mother is not a resident of the country of origin of the (future) parents, and even more so in cases where the (future) parents went abroad for legal reasons. A right under Article 12 does not exist in this respect.

III. Interference Formal and material requirements under national law, such as marriageable age, the requirement of a certificate of no impediment for foreigners, bars or impediments to marriage interfere with the right to marry. With regard to the right to remarry the excessive length of divorce proceedings may amount to an interference.13 7 Interferences with the right to found a family are rules on birth control, a restriction on the number of children allowed to a couple, or forced sterilisation. Due to the close affinity between the rights under Article 8 and Article 12 a sterilisation without the full and informed consent violates a woman’s right to respect for private and family life. In these cases the Court absolves from examining whether the facts also give rise to a breach of Article 12.14 Under certain circumstances, rules on the execution of prison sentences or the legislation on aliens may interfere with the rights under Article 12. Measures based on legislation in social law or tax law, as a rule, do not interfere with Article 12. 6

IV. Justification 8

The rights under Article 12 are subject to limitations by the legislature. According to the text of Article 12 the exercise of the right to marry shall ‘be subject to the national laws of the Contracting States’. However, unlike Articles 8 to 11, the text of Article 12 does not establish a list of legitimate aims or the requirement of ‘necessity’. In the beginning the ECtHR identified the limits to a bar of ‘very essence’: The limitations introduced by the legislator must not restrict or reduce the right in such a way or to such an extent that the very essence of the right is impaired.15 In the course of time the Court developed this bar to a more or less strict principle of proportionality – with some remarkable exceptions. In contrast to Article 8 with which the rights under Article 12 have a close affinity, the latter does not include a list of grounds that may justify an interference by the State. Accordingly, in examining a case under Article 12 the Court does not apply the tests of ‘necessity’ or ‘pressing social need’ but determines whether, regard being 13

ECtHR, 27/11/2012, V.K. v CRO, No. 38380/08, § 99. ECtHR, 8/2/2012, V.C. v SVK, No. 18968/07, §§ 156 et al; ECtHR, 12/7/12, N.B. v SVK, No. 29518/10, § 105. 15 ECtHR, 17/10/1986, Rees v UK, No. 9532/81, § 50; ECtHR, 18/12/1987, F. v SUI, No. 11329/85, § 32; ECtHR, 13/9/2005, B. a. L. v UK, No. 36536/02, § 34. 14

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IV. Justification

8–11

Art. 12

had to the State’s margin of appreciation, the impugned interference has been arbitrary or disproportionate.16 The Court finds that the limits under national law are disproportionate if the 9 interest in marrying or founding a family outweighs the public interest in the ban or limitation. This was the case in the former legal situation in Switzerland which provided for a temporary ban to re-marry (‘waiting period’). The Court recognised that the stability of marriage is a legitimate aim which is in the public interest. It did, however, not accept the argument that a temporary prohibition of remarriage is designed to preserve the rights of others, namely those of the future spouse of the divorced person. Moreover, a child born out of the relationship may be adversely affected by a prohibition to marry. It conclusion, the Court found that the particular means used were not appropriate for achieving the aims pursued.17 The ECtHR accepts limitations on the right to marry laid down in the national laws 10 which may comprise formal rules concerning such matters as publicity and the solemnisation of marriage. They may include substantive provisions based on generally recognised considerations of public interest, in particular concerning capacity, consent, or the prevention of bigamy.18 Therefore, the usual bars on marriage, such as blood relationship, lack of legal capacity, lack of consent or existence of another matrimony (aiming at preserving the principle of monogamy)19 are compatible with Article 12. Bars on the marriage between close relatives are justified in general given the sensitive moral choices concerned and the importance to be attached to the protection of children and the fostering of secure family environments. However, in special cases where an extra-marital relationship is not prohibited by incest or criminal law and where there is an inconsistent practice the ban is not justified. This was the case in the B. and L. judgment which concerned the bar on marriage between parents-in-law and children-in-law under UK law. While the Court found that the aims of the prohibition (protection of the integrity of the family in preventing sexual rivalry between parents and children, preventing to harm children who may be affected by the changing relationships of the adults around them) were legitimate, they could not justify the ban.20 Procedural deficiencies and the lack of a legal remedy in proceedings leading to a declaration of incapacity to marry may constitute a violation of Article 12. In the Lashin Case, the Court observed that the applicant’s inability to marry was one of many legal consequences of his incapacity status and found that the maintenance of that status was in the circumstances disproportionate and violated Article 8.21 Although the Court did not examine the complaint under Article 12 separately it must be assumed that there was also a violation in this respect as the applicant was unable to marry because of the deficiencies in the domestic decision-making process and the rigidity of the Russian law on incapacity. The length of divorce proceedings can amount to a violation not only of Article 6 11 but also of Article 12. A failure by the domestic authorities to conduct divorce 16 ECtHR, 5/1/2010, Frasik v PL, No. 22933/02, § 90; ECtHR, 14/12/2010, O’Donoghue a.o. v UK, No. 34848/07, § 84. 17 ECtHR, 18/12/1987, F. v SUI, No. 11329/85, § 36. 18 ECtHR, 14/12/2010, O’Donoghue a. o. v. UK, No. 34848/07, § 83. 19 ECtHR, 18/12/1986, Johnston a. o. v IRL, No. 9697/82, § 52. 20 ECtHR, 13/9/2005, B. a. L. v UK, No. 36536/02, §§ 37 et seq. 21 ECtHR, 22/1/2013, Lashin v RUS, No. 33117/02, §§ 76 et seq.

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Art. 12

11, 12

Article 12 – Right to marry

proceedings within a reasonable time may in certain circumstances, raise an issue under Article 12 of the Convention. A failure on the part of the domestic authorities to conduct divorce proceedings with the required degree of urgency might impair the right to marry of an individual who had sought to have his previous marriage dissolved in order to marry again, or who had acquired a serious and genuine opportunity to remarry after instituting divorce proceedings. In the V.K. Case the former spouses had agreed that their marriage should be dissolved and one of them had asked the domestic courts several times to pronounce the divorce in a partial judgment and to decide other issues relating to the proceedings separately, as the domestic system permitted. However, for more than five years the domestic courts had either ignored or dismissed his requests without giving any reasons. The Court attached importance to the failure of the domestic authorities to conduct the divorce proceedings efficiently and to take into account the specific circumstances of those proceedings (agreement, possibility of partial decision and urgent nature). It concluded that the applicant had been left in a state of prolonged uncertainty which had amounted to an unreasonable restriction on his right to marry.22 12 The inability of transsexuals to marry a person of the sex opposite to their reassigned gender constitutes a breach of Article 12.23 The opposite findings in the older case law were based on the wording of Article 12 and on the reasoning that the right to marry referred to traditional marriage between persons of opposite biological sex.24 The view that continued adoption of biological criteria in domestic law for determining a person’s sex for the purpose of marriage was encompassed within the power of Member States to regulate by national law the exercise of the right to marry and the conclusion that national laws in that respect could not be regarded as restricting or reducing the right of a transsexual to marry in such a way or to such an extent that the very essence of the right was impaired.25 In the Goodwin Case the Court refers to Article 9 EU Charter and argues that the terms ‘men and women’ do not refer to a determination of gender by purely biological criteria. There have been major social changes in the institution of marriage since the adoption of the Convention as well as fundamental changes brought about by developments in medicine and science in the field of transsexuality. Therefore a test of congruent biological factors can no longer be decisive in denying legal recognition to the change of gender of a post-operative transsexual. Other important factors are decisive today – the acceptance of the condition of gender identity disorder by the medical professions and health authorities within Member States, the provision of treatment including surgery to assimilate the individual as closely as possible to the gender in which they perceive that they properly belong and the assumption by the transsexual of the social role of the assigned gender.26 Nevertheless the Court makes a difference between Articles 8 and 12 especially where the conditions imposed by national laws are accorded a specific mention. The 22 ECtHR, 27/11/2012, V.K. v CRO, No. 38380/08, §§ 100 et seq; No violation of Article 12 but of Article 6 (1): ECtHR, 19/7/2007, Aresti Charalambous v CYP, No. 43151/04, §§ 42 et seq, § 56 (duration of proceedings over 5 years). 23 ECtHR, 22/1/2008, Goodwin v UK, No. 65723/0 §§ 98 et seq. 24 ECtHR, 17/10/1986, Rees v UK, No. 9532/81, § 49. 25 ECtHR, 27/9/1990, Cossey v UK, No. 10843/84, §§ 44–46; ECtHR, 30/7/1998, Sheffield a. Horsham v UK, No. 22985/93 et al, §§ 66–67. 26 ECtHR, 22/1/2008, Goodwin v UK, No. 65723/0, § 100.

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IV. Justification

12–15

Art. 12

Court has therefore considered whether the allocation of sex in national law to that registered at birth is a limitation impairing the very essence of the right to marry. In that regard, it found that it was artificial “to assert that post-operative transsexuals have not been deprived of the right to marry as, according to law, they remain able to marry a person of their former opposite sex.” The applicant in the Goodwin case had no possibility of doing so. Therefore the Court found that a transsexual who lives as a woman, is in a relationship with a man and wishes to marry a man, may claim that the very essence of her right to marry has been infringed.27 Measures against aliens such as expulsion, extradition, or ban on admission my 13 violate Article 12. The person concerned must bring sufficient evidence capable of showing that as a result of having to leave a member state his rights under Article 12 have been restricted.28 In particular there is no violation if there is no legal or factual obstacle preventing the spouses to live in the country where the alien lives or will live as a consequence of the measure concerned.29 In the context of immigration laws and for justified reasons, the States may be 14 entitled to prevent marriages of convenience, entered solely for the purpose of securing an immigration advantage. However, the relevant laws may not otherwise deprive a person or a category of persons of full legal capacity of the right to marry with the partners of their choice.30 A State may impose reasonable conditions on the right of a third-country national to marry in order to ascertain whether the proposed marriage is one of convenience and, if necessary, to prevent it; for this purpose the State may involve foreign nationals to scrutiny in order to establish whether or not there is a marriage of convenience.31 Such scrutiny may be also exercised by requiring foreign nationals to notify the authorities of an intended marriage and, if necessary, asking them to submit information relevant to their immigration status and to the genuineness of the marriage.32 Moreover, a requirement that a nonnational planning to marry in a Contracting State should first obtain a certificate of capacity will not necessarily violate Article 12 of the Convention.33 Consequently, the requirement in UK law that non-EEA nationals submit an application for a Certificate of Approval before being permitted to marry in the UK as such is not in conflict with Article 12.34 However, in the case of a permanent relationship a blanket prohibition in the law which leads to proceedings of more than two years impairs the very essence of the right.35 The same is true for the requirement of a fee of a considerable amount, even if it may be refunded.36 Limitations of the rights under Article 12 of prisoners, although permissible in 15 general, may amount to a violation. Imprisonment deprives a person of his liberty 27

ECtHR, 22/1/2008, Goodwin v UK, No. 65723/0, §§ 101 et seq. EComHR, 12/7/1976, X. v GER, No. 7175/75. 29 EComHR, 3/10/1972, X. v UK, No. 5301/71. 30 See EComHR, 13/10/1977, Hamer v UK, No. 7114/75; EComHR, 16/10/1996, Sanders v FRA, No. 31401/96. 31 EComHR, 3/12/1997, Klip a. Kru ¨ ger v NED, No. 33257/96; EComHR, 16/10/1996, Sanders v FRA, No. 3140196; ECtHR, 5/1/2010, Frasik v POL, No. 22933/02, § 89. 32 EComHR, 3/12/1997, Klip a. Kru ¨ ger v NED, No. 33257/96. 33 EComHR, 16/10/1996, Sanders v FRA, No. 3140196. 34 ECtHR, 14/12/2010, O’Donogue v UK, No. 34848/07, § 87. 35 ECtHR, 14/12/2010, O’Donogue v UK, No. 34848/07, § 89. 36 ECtHR, 14/12/2010, O’Donogue v UK, No. 34848/07, § 90 (fee in the amount of GBP 295,–). 28

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Art. 12

15

Article 12 – Right to marry

and also – unavoidably or by implication – of some civil rights and privileges.37 This does not, however, mean that persons in detention cannot exercise their right to marry – personal liberty is not a necessary precondition for the exercise of the right to marry.38 Any restrictions on the right to marry of a prisoner must be justified in each case. The ECtHR explicitly refers to Rule 3 of the European Prison Rules which stipulates that ‘[r]estrictions placed on persons deprived of their liberty shall be the minimum necessary and proportionate to the legitimate objective for which they are imposed’. While a justification for restriction may be found in the considerations of security, in particular the prevention of crime and disorder, which inevitably flow from the circumstances of imprisonment, detained persons do not forfeit their right guaranteed by Article 12 merely because of their status.39 According to the ECtHR the fact that the bond between a man and a woman developed when they both were prisoners does not render their relationship illegal, having no rehabilitative value or not deserving respect. Therefore, a negative decision based on the alleged illegality of a relationship together with the failure of striking a proper balance of proportionality constitutes a violation of Article 12.40 This balance must also be struck in the particular case where a detainee accused for rape, being held in pre-trial detention, wants to marry his victim and where the authorities refused the marriage in order to avoid that the victim exercises her right not to testify.41 The fact that a couple could marry after release from prison does not change the result.42 37

ECtHR, 5/1/2010, Frasik v POL, No. 22933/02, § 91. ECtHR, 5/1/2010, Jaremowicz v POL, No. 24023/03, § 51. 39 ECtHR, 5/1/2010, Frasik v POL, No. 22933/02, § 93; ECtHR, 5/1/2010, Jaremowicz v POL, No. 24023/03, § 53. 40 ECtHR, 5/1/2010, Jaremowicz v POL, No. 24023/03, §§ 61 seq. 41 ECtHR, 5/1/2010, Frasik v POL, No. 22933/02, § 100. 42 ECtHR, 5/1/2010, Jaremowicz v POL, No. 24023/03, § 61. 38

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Art. 13

Bibliography and leading cases

Article 13 – Right to an effective remedy Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity. Article 13 – Droit a` un recours effectif Toute personne dont les droits et liberte´s reconnus dans la pre´sente Convention ont e´te´ viole´s, a droit a` l’octroi d’un recours effectif devant une instance nationale, alors meˆme que la violation aurait e´te´ commise par des personnes agissant dans l’exercice de leurs fonctions officielles. Bibliograhpy: Arai, Right to an effective remedy before a national authority (Article 13), in: van Dijk/van Hoof/van Rijn/Zwaak (ed.), Theory and Practice of the European Convention on Human Rights, 4th ed., 2006, p. 997; Cromheecke/Staelens, Recht op daadwerkelijke rechtshulp, in: vande Lanotte/Haeck (ed.), Handboek EVRM, Deel 2, 2004, p. 75; Frowein, Art. 13 as a growing pillar of Convention law, in: Mahoney/Matscher/Petzold/Wildhaber (ed.), Protecting Human Rights: The European Perspective, Studies in memory of Rolv Ryssdal, 2007, p. 545; Grabenwarter, The Right to Effective Remedy against Excessive Duration of Proceedings, in: Bro¨hmer (ed.), The Protection of Human Rights at the Beginning of the 21st Century, Colloquium in honour of Georg Ress, 2012, p. 123. Leading cases: ECtHR, 6/9/1978, Klass a. o. v GER, No. 5029/71 (phone-tapping); ECtHR, 27/4/ ¨ rzte 1988, Boyle a. Rice v UK, No. 9659/82 et al (prisoners’ mail); ECtHR, 21/6/1988, Plattform “A fu¨r das Leben“ v AUT, No. 10126/82 (demonstration of anti-abortion activists; positive obligation of the State); ECtHR, 21/2/1990, Powell a. Rayner v UK, No. 9310/81 (lack of legal remedy against noise disturbance); ECtHR, 19/2/1998, Kaya v TUR, No. 22729/93 (obligations under Article 13 in cases of violation of the right to life); ECtHR, 26/10/2000 (GC), Kudła v POL, No. 30210/96 (requirement of an effective remedy against excessively lengthy proceedings); ECtHR, 29/3/2006 (GC), Scordino (No. 1) v ITA, No. 36813/97 (lack of an effective remedy against the prolongation of solitary confinement); ECtHR, 4/7/2006 (GC), Ramirez Sanchez v FRA, No. 59450/00 (lack of an effective remedy against excessively lengthy proceedings); ECtHR, 21/1/2011 (GC), M.S.S. v BEL a. GRE, No. 30696/09 (deficiencies in asylum procedure; risk of expulsion without serious examination of merits or access to effective remedy); ECtHR, 26/7/2011, M. a. o. v BUL, No. 41416/08 (pilot judgment procedure; requirements in cases of deportation on the grounds of national security); ECtHR, 10/1/2012, Ananyev v RUS, No. 42525/07 (conditions of detention; pilot judgment procedure); ECtHR, 12/6/2012, Poghosyan a. Baghdasaryan v ARM, No. 22999/06 (compensation in cases of a breach of Articles 2 and 3; non-pecuniary damage); ECtHR, 13/12/ 2012 (GC), De Souza Ribeiro v FRA, No. 22689/07 (enforcement of deportation order within excessively short time). Outline I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Scope of protection. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. The guarantee of Article 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Effective remedy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Rights and freedoms concerned . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. National authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 5 14 14 16 20 22

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Art. 13

1–4

Article 13 – Right to an effective remedy

I. Introduction According to Article 13, everyone whose rights and freedoms under the Convention are violated shall have an effective remedy before a national authority. Thus, Article 13, together with Article 5 (2) to (4) and Article 6, forms part of the procedural safeguards of the Convention. Unlike the other procedural guarantees which generally apply to judicial or quasi-judicial proceedings, Article 13 aims at ensuring effective protection of the Convention rights in the Member States.1 Article 2 (3) ICCPR lays down a comparable guarantee. However, rather than providing for a right of individuals, it contains obligations directed at the contracting states. Both Articles root in Article 8 UDHR. 2 The right to an effective remedy is an ancillary right. A breach may only be claimed in connection with the allegation of a violation of a substantive right of the Convention or the Protocols thereto. The guarantee aims at protecting the rights under the Convention in the Member States and shows the subsidiary character of the Convention machinery to the national systems of protection of fundamental rights. 3 The requirement of exhaustion of domestic remedies under Article 35 is the procedural counterpart to the substantive guarantee under Article 13. Article 13, too, requires that all domestic remedies be exhausted. Both provisions refer to the same concept of ‘remedy’. In order for domestic remedies to be exhausted for the purpose of Article 35, the applicant must make use of the remedies which are considered effective within the meaning of Article 13.2 Articles 13 and 35 are interdependent insofar as the right to an effective remedy may not be violated if domestic remedies have not been exhausted. If, however, no effective remedy is provided for, the admissibility criteria of exhaustion of domestic remedies is satisfied.3 In cases of expulsion, given the lack of automatic suspensive effect as required by Article 13, an individual cannot be faulted for not having properly exhausted the judicial review proceedings.4 4 The right to an effective remedy against violations of Convention rights before national authorities may make it necessary that the States introduce new procedures in order to comply with the guarantees under Article 13.5 Article 47 EU Charter provides for a guarantee comparable to that under Article 13. Its application is, however, not limited to the fundamental rights set forth in the EU Charter but extends to ‘all rights and freedoms guaranteed by the law of the Union’. 1

1

Grabenwarter/Pabel, § 24 m.n. 166 with further references. Grabenwarter/Pabel, § 24 m.n. 168 with further references. 3 To this interdependence see ECtHR, 28/4/2004 (GC), Azinas v CYP, No. 56679/00, § 38; ECtHR, 3/6/2010, Dimitras a. o. v GRE, No. 42837/06 et al, §§ 66 et seq. 4 ECtHR, 23/6/2011, Diallo v CZE, No. 20493/07, § 78 with reference to ECtHR, 21/1/2011 (GC), M.S.S. v BEL a. GRE, No. 30696/09, § 396. 5 As to the necessity of introducing remedies to ensure compliance with the reasonable time requirement see m.n. 19 below. 2

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II. Scope of protection

5–7

Art. 13

II. Scope of protection Article 13 grants the right to an effective remedy to ‘everyone whose rights and 5 freedoms as set forth in the Convention are violated’. The right to an effective remedy is thus linked to the violation of a substantive Convention right and therefore of an ancillary character. Article 13 generally applies together with alleged violations of all rights set forth in the Convention. Due to its ancillary character, the scope of the obligation under Article 13 varies depending on the substantive right, which the applicant claims has been violated. In cases of alleged ill-treatment of detainees, for instance, Article 13 in conjunction with Article 3 imposes on States an obligation to carry out thorough and effective investigations of incidents of torture, and grants to the complainant a right to effective access to the investigatory procedure as well as to payment of compensation where appropriate.6 According to the Court, in the event of a breach of Articles 2 and 3, which rank as the most fundamental provisions of the Convention, compensation for the non-pecuniary damage flowing from the breach should in principle be available as part of the range of possible remedies.7 The concept of an ‘effective remedy’ presupposes that the person concerned should be placed in a position to defend himself against any unlawful encroachment upon his guaranteed rights. However, in cases of secret surveillance, such as phonetapping, restrictions of the right under Article 13 may result from the nature of the measure.8 Even then must the remedies afforded be as effective as possible.9 Surveillance measures which are compatible with Article 8 cannot be considered to be contrary to Article 13. Once surveillance has ceased the individual concerned must generally be informed of the measure. The rights guaranteed under domestic law, whose violation may be claimed 6 before national courts, do not have to be identical to those under the Convention. Rather, it is required that the rights invoked must be substantially the same as those whose violation is alleged before the Court.10 Member States are neither obliged to incorporate the guarantees of the Convention into domestic law, nor to directly implement them.11 Thus, Member States are afforded some discretion as to the manner in which they provide the relief required by and conform to their obligation under Article 13 as long as the substance of the Convention rights and freedoms is secured under the domestic legal order. Article 5 (4) and (5) is a lex specialis in relation to Article 13. Thus, when read in 7 conjunction with Article 5, the Court does not examine separately the complaint under Article 13.12 Notwithstanding the finding of a violation of Article 6 (1), it 6 ECtHR, 18/12/1996, Aksoy v TUR, No. 21987/93, § 98; ECtHR, 20/7/2004, Mehmet Emin Yu¨ksel v TUR, No. 40154/98, §§ 36 et seq.; ECtHR, 29/7/2004, Sirin Yilmaz v TUR, No. 35875/97, §§ 91 et seq. 7 ECtHR, 3/4/2001, Keenan v UK, No. 27229/95, § 130; ECtHR, 31/5/2007, Kontrova ´ v SVK, No. 7510/04, § 64; ECtHR, 12/6/2012, Poghosyan a. Baghdasaryan v ARM, No. 22999/06, § 46. 8 Cf. ECtHR, 6/9/1978, Klass a. o. v GER, No. 5029/71, § 68; ECtHR, 31/7/2012, Draks ˇas v LTU, No. 36662/04, §§ 67, 69. 9 ECtHR, 27/11/2012, Savovi v BUL, No. 7222/05, § 63. 10 ECtHR, 6/9/1978, Klass a. o. v GER, No. 5029/71, § 66. 11 ECtHR, 8/7/1986, Lithgow a.o. v UK, No. 9006/80 et al, § 205. 12 ECtHR, 5/2/2009, Khadisov a. Tsechoyev v RUS, No. 21519/02, § 162.

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Art. 13

7, 8

Article 13 – Right to an effective remedy

may be necessary to additionally examine a complaint under Article 13 taken separately.13 Since Article 6 (1) guarantees the independence of tribunals, their decisions and the proceedings before them may only be reviewed by other tribunals.14 States are, however, not obliged to establish multi-stage proceedings15 if they have not ratified Protocol No. 7.16 8 Article 6 is a lex specialis of, and is absorbing the less stringent procedural requirements of Article 13.17 However, the Court finds nothing that suggests that there is no scope for the application of Article 13 in relation to any of the aspects of the ‘right to a court’ embodied in Article 6 (1).18 Article 13 rather guarantees an effective remedy before a national authority for an alleged breach of the reasonable time requirement laid down in Article 6 (1).19 Thus, notwithstanding the finding of a violation of Article 6 (1) for failure to try a person within a reasonable time, there is a need to examine the applicant’s complaint under Article 13 taken separately.20 Also in connection with the enforcement of a binding decision within a reasonable time, the Court examines separately whether there has been a violation of Article 13.21 Most complaints of alleged violations of Article 13 in conjunction with Article 6 (1) lodged with the Court concern the two aforementioned rights. The separate examination of Article 13 in this combination shows that the Court considers the primary responsibility for implementing and enforcing the rights and freedoms of the Convention as lying on the national authorities; this in keeping with the subsidiary character of the machinery of complaint to the Court.22 Occasionally, the Court found a violation of the right to an effective remedy for failure to comply with the reasonable time requirement under Article 6 (1) in proceedings before constitutional courts.23 This approach is problematic as constitutional courts are often competent under the constitution to ensure the guarantee of Article 13. Applied consistently, this approach would impose on Member States the obligation to provide for an endless chain of remedies. This purpose 13

Grabenwarter/Pabel, § 24 m.n. 172 with further references. Grabenwarter/Pabel, § 24 m.n. 172 with further references. 15 ECtHR, 17/1/1970, Delcourt v BEL, No. 2689/65, § 25. 16 As to the guarantees under Protocol No. 7 see Articles 1 to 5 of Protocol No. 7. 17 ECtHR, 26/10/2000 (GC), Kudła v POL, No. 30210/96, § 146; ECtHR, 11/12/2008, Efendiyeva v AZE, No. 31556/03, § 59; ECtHR, 20/9/2012, Titarenko v UKR, No. 31720/02, § 81. 18 ECtHR, 26/10/2000 (GC), Kudła v POL, No. 30210/96, § 151; ECtHR, 29/1/2004, Kormacheva v RUS, No. 53084/99, §§ 62 et seq. 19 ECtHR, 26/10/2000 (GC), Kudła v POL, No. 30210/96, §§ 146 et seq; as to that Flauss, Le droit à un recours effectif au secours de la règle du délai raisonnable: un revirement de jurisprudence historique, RTDH 2002, 179 et seq. 20 ECtHR, 26/10/2000 (GC), Kudła v POL, No. 30210/96, § 149; ECtHR, 26/7/2001, Horvat v CRO, No. 51585/99, § 63; ECtHR, 26/7/2007, Schutte v AUT, No. 18015/03, § 38; ECtHR, 26/7/2007, Vitzthum v AUT, No. 8140/04, § 31; ECtHR, 26/7/2007, Stempfer v AUT, No. 18284/03, § 48; Grabenwarter, The Right to Effective Remedy against Excessive Duration of Proceedings, in: Bröhmer (ed.), The Protection of Human Rights at the Beginning of the 21st Century, Colloquium in honour of Georg Ress, 2012, p. 123 (124 et seq). 21 ECtHR, 15/1/2009, Burdov (No. 2) v RUS, No. 33509/04, §§ 98 et seq; ECtHR, 15/10/2009, Yuriy Nikoloyevich Ivanov v UKR, No. 40450/04, §§ 65 et seq. 22 Cf. expressly in ECtHR, 22/1/2009, Kaemena a. Tho ¨ nebo¨hn v GER, No. 45749/06 et al, § 87. 23 ECtHR, 7/12/2006, Hauser-Sporn v AUT, No. 37301/03, § 40; ECtHR, 15/2/2007, Kirsten v GER, No. 19124/02, §§ 53 et seq; ECtHR, 26/7/2007, Stempfer v AUT, No. 18284/03, § 48. 14

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II. Scope of protection

8–11

Art. 13

cannot be derived from the Convention.24 Thus, it is to be expected that the Court will uphold this position only in respect of its own workload and therefore only in respect of complaints for unreasonably lengthy proceedings.25 Article 13 is of little importance in relation to the other procedural guarantees 9 under Article 6. The Court expressly found that a remedy for complaining about unreasonably lengthy proceedings does not as such involve an appeal against the ‘determination’ of any criminal charge or of civil rights and obligations.26 Granting remedies to enforce procedural guarantees would generally require introducing multi-stage proceedings. Apart from the requirements of Article 2 of Protocol No. 7, Member States are, however, under no obligation to do so. Article 13 applies to cases of alleged violations of Convention rights and free- 10 doms through acts attributable to a state, independent of whether they were committed by legislative, executive or judicial authorities. However, Article 13 does not go so far as to guarantee a remedy allowing domestic laws as such to be challenged before a national authority on the ground of being contrary to the Convention or to equivalent domestic legal norms.27 Such an obligation is rejected based on the argument that it would be too far-reaching and that it cannot be assumed to have been undertaken by the States under Article 13.28 If the laws in question might violate the rights laid down in the Convention, two arguments support that such an obligation exists under Article 13: First, nothing in the letter of Article 13 indicates that the right to an effective remedy is only applicable to acts of the executive and the judicial branch. Secondly, the systematic context of the Convention guarantees, in particular the restrictions under paragraph 2 of Articles 8 to 11, show that also the legislator is subject to certain obligations.29 Therefore, it appears consistent to grant the right to an effective remedy also for violations committed by the legislator. This approach seems to be reflected in the ECtHR’s case law. The Court expressly required that there must be a possibility of challenging the lawfulness of generally binding legal acts which do not have the force of laws.30 According to the Court’s established case law, it cannot be a prerequisite for the 11 application of Article 13 that the Convention is in fact violated. Article 13 must rather be interpreted as guaranteeing an ‘effective remedy before a national authority’ to everyone who claims that his rights and freedoms under the Convention have been violated.31 Article 13 aims at ensuring that national authorities decide on an individual’s claim to have been violated in his rights. Any other conclusion would disproportionately restrict the right under Article 13 since a 24 Cf. the exception in regard to proceedings ‘in the first instance by the highest tribunal’ under Article 2 (2) of Protocol No. 7. 25 Grabenwarter, Colloquium in honour of Georg Ress, pp. 127 et seq. 26 ECtHR, 26/10/2000 (GC), Kudła v POL, No. 30210/96, § 154. 27 ECtHR, 21/2/1986, James a. o. v UK, No. 8793/79, § 85; ECtHR, 8/7/1986, Lithgow a. o. v UK, No. 9006/80 et al, § 206; ECtHR, 26/11/1991, Observer a. Guardian v UK, No. 13585/88, § 76; ECtHR, 5.7.2007, Saccoccia v AUT, No. 69917/01; ECtHR, 13/11/2012, I.G. a. o. v SVK, No. 15966/04, § 156. 28 Grabenwarter/Pabel, § 24 m.n. 175 with further references. 29 Grabenwarter/Pabel, § 24 m.n. 175 with further references. 30 ECtHR, 25/3/1983, Silver a.o. v UK, No. 5947/72 et al, §§ 118 et seq; ECtHR, 28/6/1984, Campbell a. Fell v UK, No. 7819/77 et al, §§ 127 et seq. 31 ECtHR, 6/9/1978, Klass a. o. v GER, No. 5029/71, § 64.

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person can only establish a ‘violation’ if he is first able to lodge with such a national authority a complaint to that effect.32 Notwithstanding its findings that no substantive provision of the Convention has been violated, the Court examines the applicant’s claim under Article 13, provided that his grievances under the substantive provisions can be regarded as ‘arguable’ in terms of the Convention.33 On the other hand, the Court does not examine a complaint under Article 13 where complaints under this head reflect the same or similar elements as those issues already dealt with in the context of complaints under substantive guarantees.34 12 Not each individual claim of a violation of a fundamental right forms the basis of a complaint under Article 13. In order to enjoy the right under Article 13, an individual must have an arguable claim to be the victim of a violation of the rights set forth in the Convention.35 A non-arguable or abusive claim of violation thus does not give rise to an examination of the complaint. So far, the Court has not yet given an abstract definition of the notion of arguability.36 Rather, it must be determined, in the light of the particular facts and the nature of the legal issue or issues raised, whether each individual claim of a violation forming the basis of a complaint under Article 13 was arguable and, if so, whether the requirements of Article 13 were met in relation thereto. The rejection – i. e. the decision that an application is inadmissible because it is ‘manifestly ill-founded’ within the meaning of Article 35 (3) – of a complaint claiming that a substantive Article of the Convention has been violated is a useful pointer as to the arguability of a claim. However, even if a complaint is declared ‘manifestly ill-founded’ under the substantive Article, the Court is not precluded from taking cognisance of all questions of fact and law arising in the context of the complaints before it under Article 13, including the arguability or not of the claims of violation of the substantive provisions.37 13 The obligation of the States to safeguard the availability of an effective remedy depends on how the Court defines the requirements for a claim to be arguable and the degree to which it thereby extends the scope of application of Article 13.38 In recent cases, the Court seems to consider it sufficient that an individual’s right is interfered with.39 Article 13 thus applies on a large scale. It thereby progressively develops into a general right to legal protection, as implied in Article 8 UDHR and Article 47 EU Charter. 32

ECtHR, 6/9/1978, Klass a. o. v GER, No. 5029/71, § 64. ECtHR, 25/3/1993, Costello-Roberts v UK, No. 13134/87, § 39. 34 Cf. ECtHR, 16/9/1996 (GC), Akdivar a.o. v TUR, No. 21893/93, § 97; differently ECtHR, 18/12/1996, Aksoy v TUR, No. 21987/93, §§ 96 et seq; ECtHR, 26/10/2000 (GC), Kudła v POL, No. 30210/96, §§ 146 et seq; ECtHR, 28/2/2012, Kolyadenko a. o. v RUS, No. 17423/05, § 228. 35 ECtHR, 26/3/1987, Leander v SWE, No. 9248/81, § 77; ECtHR, 27/4/1988, Boyle a. Rice v UK, No. 9659/82 et al, § 52; ECtHR, 21/2/1990, Powell a. Rayner v UK, No. 9310/81, § 33. 36 ECtHR, 27/4/1988, Boyle a. Rice v UK, No. 9659/82 et al, § 55; ECtHR, 21/6/1988, Plattform ¨ rzte fu¨r das Leben” v AUT, No. 10126/82 § 27. “A 37 To the same effect already the ECtHR in ECtHR, 27/4/1988, Boyle a. Rice v UK, No. 9659/82 ¨ rzte fu¨r das Leben” v AUT, No. 10126/82, § 27. et al, § 54 and ECtHR, 21/6/1988, Plattform “A 38 Cf. ECtHR, 8/7/1986, Lithgow a. o. v UK, No. 9006/80 et al, § 205: the Court found that where an individual has an arguable claim to be the victim of a violation, he should have a remedy before a national authority in order both to have his claim decided and, if appropriate, to obtain redress’. 39 ECtHR, 16/12/1997, Camenzind v SUI, No. 21353/93, § 53; as to that cf. Frowein, Art. 13 as a growing pillar of Convention law, in: Mahoney/Matscher/Petzold/Wildhaber (ed.), Protecting Human Rights: The European Perspective, Studies in memory of Rolv Ryssdal, 2007, p. 545 (549 et seq). 33

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III. The guarantee of Article 13 1. Effective remedy Article 13 provides for the right to an efficient remedy. As other concepts under 14 the Convention, the notion ‘remedy’ is interpreted autonomously by the Court. Article 13 requires the availability at the national level of a remedy to enforce the substance of the Convention rights and freedoms and the granting of appropriate relief.40 Individuals must have a subjective right to a remedy before a national authority. However, the authority referred to in Article 13 must not necessarily in all instances be a judicial authority in the strict sense.41 The ‘national authority’ may be a court, in particular a constitutional court42 as well as an administrative authority, a governmental authority or a parliamentary body.43 Minimum requirements for a remedy before a non-judicial authority to be effective are its independence and impartiality.44 A remedy cannot be considered effective if the authority deciding on the claim of violation is the one who was allegedly involved in the alleged violation.45 It is left to the Member States’ discretion how to secure the substance of the 15 Convention rights and freedoms.46 What is required is that the remedy must be ‘effective’ in practice as well as in law47 in the sense either of preventing the alleged violation or its continuation, or of providing adequate redress for any violation that has already occurred48 and in particular in the sense that its exercise must not be unjustifiably hindered by the acts or omissions of the authorities of the respondent State.49 A remedy cannot be said to be sufficiently certain in practice if there are only isolated decisions complying with the Convention, especially if those have not yet been subject to review by higher courts.50 Whether a remedy is ‘effective’ within the meaning of Article 13 depends on the competences an authority possesses and the 40

ECtHR, 19/2/1998, Kaya v TUR, No. 22729/93, § 106. ECtHR, 6/9/1978, Klass a. o. v GER, No. 5029/71, § 67; ECtHR, 30/10/1991, Vilvarajah a. o. v UK, No. 13163/87, § 122; ECtHR, 13/12/2012 (GC), De Souza Ribeiro v FRA, No. 22689/07, § 78. 42 ECtHR, 21/2/1975, Golder v UK, No. 4451/70, § 33; ECtHR, 25/3/1983, Silver a. o. v UK, No. 5947/72 et al, § 113; An effective remedy before a judicial body is essential in case of an alleged violation of Article 3 for having been kept in solitary confinement: ECtHR, 4/7/2006 (GC), Ramirez Sanchez v FRA, No. 59450/00, § 165. 43 Grabenwarter/Pabel, § 24 m.n. 179 with further references. 44 ECtHR, 25/3/1983, Silver a. o. v UK, No. 5947/72 et al, §§ 113 et seq; ECtHR, 12/5/2000, Khan v UK, No. 35394/97, §§ 44 et seq. 45 ECtHR, 15/11/1996, Calogero Diana v ITA, No. 15211/89, § 41; ECtHR, 3/6/2004, Bati a. o. v TUR, No. 33097/96 et al, § 135. 46 ECtHR, 8/7/1986, Lithgow a. o. v UK, No. 9006/80 et al, § 205; ECtHR, 19/2/1998, Kaya v TUR, No. 22729/93, § 106. 47 ECtHR, 26/10/2000 (GC), Kudła v POL, No. 30210/96, § 157; ECtHR, 13/12/2012 (GC), De Souza Ribeiro v FRA, No. 22689/07, § 78. 48 ECtHR, 26/10/2000 (GC), Kudła v POL, No. 30210/96, § 158; ECtHR, 11/9/2009, Petkov a. o. v BUL, No. 77568/01 et al, § 74; ECtHR, 19/6/2012, Communist Party of Russia a. o. v RUS, No. 29400/05 et al, § 82. 49 ECtHR, 8/7/1999 (GC), Çak{c{ v TUR, No. 23657/94, § 112; ECtHR, 13/12/2012 (GC), De Souza Ribeiro v FRA, No. 22689/07. 50 ECtHR, 20/10/2011, Mandic ´ a. Jovic´ v SLO, No. 5774/10, § 116; ECtHR, 20/10/2011, Sˇtrucl a. o. v SLO No. 5903/10, § 129; ECtHR, 17/4/2012, Kalinkin a. o. v RUS, No. 16967/10 et al, § 33. 41

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procedural guarantees that apply to proceedings before it, though it must be assessed on a case-to-case basis;51 At any rate, the principle of fairness, including the equality of arms is a constituent element of an effective remedy.52 The effectiveness of a remedy does not depend on the certainty of a favourable outcome.53 Rather, effectiveness requires that a remedy must be adequate and accessible;54 in this context, particular attention should be paid to the speediness of the remedial action itself. If proceedings are excessively lengthy, the remedy is considered to be inadequate.55 This does not mean, however, that the speedy processing of claims should be given priority over the effectiveness of essential procedural guarantees aimed at protecting an individual against arbitrariness.56 An excessively short time between the application for a stay of execution of a removal order and its execution may, too, render the remedy ineffective in practice and therefore inaccessible.57 The notion of effectiveness might also require that a remedy has suspensive effect.58 Furthermore, the effectiveness of a remedy requires that the national authority must have the power to issue binding decisions and may not only make recommendations.59 Also, the national authorities must acknowledge, either expressly or in substance, and then afford redress, for the breach of the Convention.60 The favourable outcome of proceedings as such cannot be considered to constitute adequate redress.61 Where several remedies in domestic proceedings exist, it suffices that one of appellate bodies may examine whether the decision challenged violates the rights and freedoms enshrined in the Convention.62 Even if a single remedy does not by itself entirely satisfy the requirements of Article 13, the aggregate of remedies provided for under domestic law may do so.63 The Court requires that an authority must be competent to deal with the substance of an ‘arguable complaint’. The scope of review by the domestic authority must not be limited to certain concepts of national law, such as irrationality or unlawfulness of a measure,64 nor to compliance of a law with the constitution.65 51 ECtHR, 6/9/1978, Klass a. o. v GER, No. 5029/71, §§ 67 et seq; ECtHR, 26/3/1987, Leander v SWE, No. 9248/81, §§ 79 et seq; ECtHR, 30/10/1991, Vilvarajah a. o. v UK, No. 13163/87, § 38. 52 ECtHR, 7/6/2011, Csu ¨ llo¨g v HUN, No. 30042/08, § 46. 53 ECtHR, 25/3/1993, Costello-Roberts v UK, No. 13134/87, § 40; ECtHR, 31/7/2008, Religionsgemeinschaft der Zeugen Jehovas a. o. v AUT, No. 40825/98, § 123. 54 In more detail Cromheecke/Staelens, Recht op daadwerkelijke rechtshulp, in: vande Lanotte/ Haeck (ed.), Handboek EVRM, Deel 2, 2004, p. 75 (100 et seq). 55 ECtHR, 2/12/1999, Tome ´ Mota v POR, No. 32082/96; ECtHR, 27/3/2003, Paulino Toma´s v POR, No. 58698/00; ECtHR, 20/1/2011, Payet v FRA, No. 19606/08, § 133 (detention in a punishment cell); ECtHR, 13/12/2012 (GC), De Souza Ribeiro v FRA, No. 22689/07, § 81 (enforcement of deportation order within an excessively short time). 56 ECtHR, 2/2/2012, I.M. v FRA, No. 9152/09, § 147 (deportation case). 57 ECtHR, 13/12/2012 (GC), De Souza Ribeiro v FRA, No. 22689/07, § 95. 58 Instead of many: ECtHR, 20/1/2011, Payet v FRA, No. 19606/08, §§ 132–134; ECtHR, 13/12/2012 (GC), De Souza Ribeiro v FRA, No. 22689/07, §§ 82–83 (effectiveness of a remedy requires automatic suspensive effect in cases of a violation of Article 13 in conjunction with Article 2 and 3, not, however, when taken together with Article 8); see also m.n. 17 below. 59 Grabenwarter/Pabel, § 24 m.n. 180 with further references. 60 ECtHR, 25/6/1996, Amuur v FRA, No. 19776/92, § 36; ECtHR, 28/9/1999 (GC), Dalban v ROM, No. 28114/95, § 44; ECtHR, 2/9/2010, Kaushal a. o. v BUL, No. 1537/08, § 62. 61 ECtHR, 9/6/2005, Kuzin v RUS, No. 22118/02, § 45. 62 Grabenwarter/Pabel, § 24 m.n. 180 with further references. 63 ECtHR, 26/3/1987, Leander v SWE, No. 9248/8, § 77; ECtHR, 5/11/1996 (GC), Chahal v UK, No. 22414/93, § 145. 64 ECtHR, 8/7/2003 (GC), Hatton a. o. v UK, No. 36022/97, § 141. 65 ECtHR, 23/6/2011, Diallo v CZE, No. 20493/07, § 83.

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2. Rights and freedoms concerned In general, the scope of the obligation under Article 13 varies depending on the 16 substantive right in question. A prompt response by the authorities may generally be regarded as essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts.66 Furthermore, it must be ensured that authorities do not limit their investigation to taking statements from the persons concerned but they must gather and record evidence which helps to shed light on the facts of the incident.67 Article 13 also requires that there are mechanisms available to a victim for establishing any liability of state officials or bodies for a breach.68 Additionally, where appropriate, the individual must be able to obtain an enforceable award of compensation for pecuniary and non-pecuniary damages suffered.69 Individuals must even have available to them a means of claiming compensation for damages suffered as a result of a breach of the right to respect for family life.70 In this respect, there is a certain parallel to cases concerning the obligation of Member States under Article 2 to effectively investigate the death of persons in their custody.71 In its more recent case law, the Court repeatedly found both a violation of Articles 2 or 3 respectively and of Article 13.72 According to the Court, the requirements under Article 13 for domestic remedies to investigate the violation of Convention rights are broader than the obligation to investigate imposed by Article 2. Consequently, a violation of the obligation to investigate under Article 2 automatically entails a violation of Article 13.73

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ECtHR, 3/6/2004, Bati a. o. v TUR, No. 33097/96 et al, § 136. ECtHR, 1/6/2004, Altun v TUR, No. 24561/94, § 73; ECtHR, 27/7/2004, Slimani v FRA, No. 57671/00, § 32. 68 ECtHR, 19/2/1998, Kaya v TUR, No. 22729/93, § 107; ECtHR, 10/5/2001 (GC), T. P. a. K. M. v UK, No. 28945/95, § 107; ECtHR, 15/1/2004, Tekdag v TUR, No. 27699/95, § 96; ECtHR, 30/3/ 2004, Nuray Sen (No. 2) v TUR, No. 25354/94, § 191; ECtHR, 20/4/2004, Buldan v TUR, No. 28298/95, §§ 103 et seq; ECtHR, 1/7/2010, Davydov a. o. v UKR, No. 17674/02 et al, §§ 308 et seq (no remedy in respect of ill-treatments during detention). 69 ECtHR, 19/2/1998, Kaya v TUR, No. 22729/93, § 107; ECtHR, 10/5/2001 (GC), Z. a.o. v UK, No. 29392/95, § 109; ECtHR, 14/3/2002, Paul a. Audrey Edwards v UK, No. 46477/99, § 97; ECtHR, 9/5/2006, Pereira Henriques v LUX, No. 60255/00, §§ 86 et seq. 70 ECtHR, 10/5/2001 (GC), T. P. a. K. M. v UK, No. 28945/95, § 109. 71 As to that see Article 2, m.n. 22. 72 Cf. ECtHR, 10/5/2001 (GC), Z. a. o. v UK, No. 29392/95, §§ 108 et seq; ECtHR, 14/3/2002, Paul a. Audrey Edwards v UK, No. 46477/99, §§ 96 et seq; ECtHR, 9/5/2003, Tepe v TUR, No. 27244/95, §§ 195 et seq; ECtHR, 15/1/2004, Tekdag v TUR, No. 27699/95, §§ 95 et seq; as to the changing case law; Arai, Right to an effective remedy before a national authority (Article 13), in: van Dijk/van Hoof/van Rijn/Zwaak (ed.), Theory and Practice of the European Convention on Human Rights, 4th ed., 2006, p. 997(1014 et seq) with further references. 73 E.g. ECtHR, 8/7/1999 (GC), Tanr{kulu v TUR, No. 23763/94, § 119; ECtHR, 18/6/2002, Orhan v TUR, No. 25656/94, § 387; ECtHR, 15/1/2004, Tekdag v TUR, No. 27699/95, § 98; ECtHR, 29/5/2008, Gekhayeva u. a. v RUS, No. 1755/04, §§ 134 et seq; ECtHR, 13/7/2010, Carabulea v ROM, No. 45661/99, § 166; no separate examination of the complaint under Article 13, however, in ECtHR, 20/3/2008, Budayeva a. o. v RUS, No. 15339/02 et al, §§ 164 et seq, 195; ECtHR, 27/11/2007, Brecknell v UK, No. 32457/04, §§ 82, 84 (lack of independence of the prosecution). 67

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There may be an operational duty under Article 13 in conjunction with Article 2 that the States take reasonable steps to protect psychiatric patients from a real and immediate risk of suicide.74 17 In cases of expulsion and deportation, a violation of Article 13 may occur in conjunction with the right to life under Article 2, the prohibition of torture under Article 3 and with the right to respect for private and family life under Article 8. Article 13 sets the requirements for the remedies to be effective; this is particularly so with regard to asylum and expulsion cases. Given the irreversible nature of the harm that might occur if the alleged risk of torture or ill-treatment materialised, Article 13 requires a substantive, rigorous and independent scrutiny with reasonable promptness of the claim that there exist substantial grounds for believing that there was a real risk of such treatment contrary to Article 3.75 Whether the ill-treatment risked in the destination state would emanate from State or non-State sources is a relevant factor in this context; it cannot, however, be decisive.76 Where an individual claims to have been violated in his rights under Article 3, Article 13 requires that he be granted an effective remedy before a ‘judicial body’.77 Placing, without any explanation, the burden of proving negative facts, such as the lack of State guarantees in the receiving state, on the individual concerned may deprive him of a meaningful examination of his claim.78 The requirements of Article 13 taken together with Article 3 also apply to cases where an individual is expulsed on national security grounds.79 Due to the absolute character of Article 3, the scrutiny of the claim of a risk of ill-treatment must not have regard to what the person may have done to warrant expulsion or to any perceived threat to national security.80 The same principles apply when expulsion exposes an individual to a real risk of a violation of his right to life under Article 2.81 In cases involving Article 3, effectiveness also requires that the remedy must have automatic suspensive effect.82 On the contrary, where expulsions are challenged on the

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ECtHR, 13/3/2012, Reynolds v UK, No. 2694/08, § 61. ECtHR, 21/1/2011 (GC), M.S.S. v BEL a. GRE, No. 30696/09, § 293 with further references; ECtHR, 26/7/2011, M. a. o. v BUL, No. 41416/08, § 127; ECtHR, 20/12/2011, Yoh-Ekale Mwanje v BEL, No.10486/10, §§ 105, 107 (failure to carry out careful and rigorous examination of alien at an advanced stage of HIV infection when assessing risk of ill-treatment in country of origin); ECtHR; 2/10/2012, Singh a. o. v BEL, No. 33210/11, §§ 94, 103–105 (rejection of documentary evidence submitted by asylum seeker without any prior verification of its authenticity); ECtHR, 13/12/2012 (GC), De Souza Ribeiro v FRA, No. 22689/07, § 82. 76 ECtHR, 26/7/2005, N. v FIN, No. 38885/02, §§ 163–165; ECtHR, 11/1/2007, Salah Seekh v NED, No. 1948/04, §§ 137–149; ECtHR, 26/7/2011, M. a. o. v BUL, No. 41416/08, § 127. 77 ECtHR, 4/7/2006 (GC), Ramirez Sanchez v FRA, No. 59450/00, § 165. 78 ECtHR, 26/7/2011, M. a. o. v BUL, No. 41416/08, § 127. 79 ECtHR, 2/9/2010, Kaushal a. o. v BUL, No. 1537/08, § 36; ECtHR, 26/7/2011, M. a. o. v BUL, No. 41416/08, § 138. 80 ECtHR, 11/10/2011, Auad v BUL, No. 46390/10, § 120; ECtHR, 26/7/2011, M. a. o. v BUL, No. 41416/08, § 129. 81 ECtHR, 13/12/2012 (GC), De Souza Ribeiro v FRA, No. 22689/07, § 82. 82 ECtHR, 26/4/2007, Gebremedhin v FRA, No. 25389/05, § 66; ECtHR, 11/12/2008, Muminov v RUS, No. 42502/06, § 101; ECtHR, 18/2/2010, Baysakov a. o. v UKR, No. 54131/08, §§ 71 et seq; ECtHR, 21/1/2011 (GC), M.S.S. v BEL a. GRE, No. 30696/09, § 293; ECtHR, 26/7/2011, M. a. o. v BUL, No. 41416/08, §§ 129–130; ECtHR, 13/12/2012 (GC), De Souza Ribeiro v FRA, No. 22689/07, § 82. 75

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Art. 13

basis of alleged interference with Article 8, the remedy does not have to have automatic suspensive effect.83 However, Article 13 in conjunction with Article 8 requires a meaningful scrutiny of the allegation of serious risks of ill-treatment contrary to Article 3, too. Furthermore, domestic courts must assess whether the interference met a pressing need and is proportionate to any legitimate aim pursued.84 Remedies for conditions of detention (Article 5) may be of a preventive or 18 compensatory nature. Preventive remedies must enable detainees to obtain a prompt and diligent examination of their complaints by an independent authority or court empowered to order remedial action.85 Compensatory remedies should provide redress, such as a reduction of sentence or monetary compensation.86 Remedies for conditions of detention which are of a purely compensatory nature may be regarded as effective only in respect of individuals who have been either released or placed in conditions which meet Convention standards.87 As regards violations of the reasonable time requirement (Article 6), Article 13 19 requires that the remedies before a national authority ensure that the individual concerned can obtain relief – either by preventing the proceedings from becoming excessively lengthy or by affording adequate redress.88 A request to expedite the proceedings submitted to a supervisory authority cannot be considered a remedy within the meaning of Article 13 if the applicant has no right to obtain a decision from the authority to which he appealed.89 States may choose the type of remedy to comply with their duty under Article 13. The Court favours, in absolute terms, prevention.90 States are, however, not obliged to introduce preventive remedies.91 The States’ margin of appreciation has to be looked at from different perspectives: Preventive remedies are most effective where proceedings have not yet exceeded a reasonable time. However, once delays have occurred, the breach may only be repaired by providing a compensatory remedy.92 In criminal proceedings, the mitigation of a sentence on the grounds of excessive length of proceedings may afford redress for the failure to comply with the reasonable time requirement if the 83

ECtHR, 13/12/2012 (GC), De Souza Ribeiro v FRA, No. 22689/07, § 83. ECtHR, 24/4/2008, C.G. a. o. v BUL, No. 1365/07, §§ 59–64; ECtHR, 26/7/2011, M. a. o. v BUL, No. 41416/08, §§ 124–125; ECtHR, 13/12/2012 (GC), De Souza Ribeiro v FRA, No. 22689/07, §§ 83, 88, 91, 94. 85 ECtHR, 10/1/2012, Ananyev v RUS, No. 42525/07, §§ 214–220. 86 ECtHR, 10/1/2012, Ananyev v RUS, No. 42525/07, §§ 221–231. 87 ECtHR, 10/02/2011, Radkov (No. 2) v BUL, No. 18382/05, § 53 (with further references). 88 ECtHR, 26/10/2000 (GC), Kudła v POL, No. 30210/96, § 158; ECtHR, 29/3/2006 (GC), Scordino (No. 1) v ITA, No. 36813/97, §§ 186–187; ECtHR, 26/7/2007, Stempfer v AUT, No. 18284/03, § 48; Grabenwarter, Colloquium in honour of Georg Ress, pp. 124 et seq. 89 ECtHR, 26/7/2001, Horvat v CRO, No. 51585/99, §§ 47, 64; ECtHR, 22/2/2007, Donner v AUT, No. 32407/04, §§ 44 et seq. 90 3ECtHR, 30/1/2001, Holzinger (No. 1) v AUT, No. 23459/94; ECtHR, 29/3/2006 (GC), Scordino (No. 1) v ITA, No. 36813/97, § 18; for further examples of effective and ineffective remedies see ECtHR, 29/1/2009, Missenjov v EST, No. 43276/06, §§ 45 et seq; ECtHR, 31/7/2012, Manushaqe Puto a. o. v ALB, No. 604/07 et al, § 71 (timely enforcement of final decisions awarding compensation). 91 ECtHR, 11/9/2002 (GC), Mifsud v FRA, No. 57220/00, § 17 ECtHR, 29/3/2006 (GC), Scordino (No. 1) v ITA, No. 36813/97, § 186. 92 For a comparative overview of the legal situation in the Member States see a study of the Venice Commission of 2006: European Commission for Democracy through Law, Study on the Effectiveness of National Remedies in Respect of Excessive Length of Proceedings, Study 316/2004 of 22/12/2006, §§ 57 et seq. 84

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Art. 13

19–21

Article 13 – Right to an effective remedy

reduction of the sentence happens in an express and measurable manner.93 Disciplinary sanctions imposed on a judge responsible for a delay of proceedings constitute an effective remedy only in exceptional cases: The disciplinary proceedings must have a direct and immediate consequence for the delayed proceedings, the disciplinary authority must be obliged to institute disciplinary proceedings upon submission of a complaint and the applicant must be a party in these proceedings.94 A compensatory remedy designed to redress the consequences of excessively lengthy proceedings is only then considered effective by the Court if certain requirements are met: The application for compensation must be decided on within a reasonable time, the time needed to make payment should not generally exceed six months from the date on which the decision awarding compensation became enforceable, the proceedings on the application for compensation must conform to the principles of fairness guaranteed by Article 6 and they must not cause the applicant excessive legal costs.95 States enjoy a margin of appreciation in determining the amount of compensation. They may even award lower amounts of compensation than the amount awarded by the Court in similar cases, on condition that the relevant decision is consonant with the legal tradition and the standard of living in the country concerned, and that the amount awarded is not unreasonably lower than the amount fixed by the Court.96 The principles on the effectiveness of remedies as developed by the Court in the context of violations of the reasonable time requirement apply equally to breaches of Article 6 (1) for failure to enforce or delay in enforcing a judgment, in particular judgments delivered against the State in question.97

3. National authority Article 13 does not expressly set requirements for proceedings before authorities of appeal; in particular it does not require holding an oral hearing. At any rate, the proceedings must be formal and the person concerned must be heard.98 In general, laws providing for time limits and formal requirements do not raise an issue.99 However, problems may arise if the admissibility of a complaint depends on further requirements, such as an irreversible violation of a right.100 21 To this day, the meaning of the phrase in Article 13 that everyone shall have an effective remedy before a national authority ‘notwithstanding that the violation has 20

93

ECtHR, 26/6/2001, Beck v NOR, No. 26390/95, § 27; cf. also ECtHR, 22/1/2009, Kaemena a. Tho¨nebo¨hn v GER, No. 45749/06 et al, §§ 86 et seq. 94 ECtHR, 29/1/2004, Kormacheva v RUS, No. 53084/99, § 62; ECtHR, 13/1/2009, Abramiuc v ROM, No. 19348/04, § 123. 95 ECtHR, 29/3/2006 (GC), Scordino (No. 1) v ITA, No. 36813/97, §§ 195 et seq; see also ECtHR, 10/9/2010, McFarlane v IRL, No. 31333/06, §§ 115 et seq. 96 ECtHR, 29/3/2006 (GC), Scordino (No. 1) v ITA, No. 36813/97, §§ 189, 202 et seq, 213. 97 ECtHR, 15/1/2009, Burdov (No. 2) v RUS, No. 33509/04, §§ 98 et seq; ECtHR, 15/10/2009, Yuriy Nikoloyevich Ivanov v UKR, No. 40450/04, § 65. 98 Grabenwarter/Pabel, § 24 m.n. 185 with further references. 99 Cf. ECtHR, 25/3/1983, Silver a. o. v UK, No. 5947/72 et al, § 113 and ECtHR, 7/7/1989, Soering v UK, No. 14038/88, §§ 120 et seq, in which the Court points out that it is for the Member States to choose the manner in which they discharge their obligation under Article 13. 100 ECtHR, 16/12/1997, Camenzind v SUI, No. 21353/93, §§ 53 et seq; ECtHR, 26/7/2001, Horvat v CRO, No. 51585/99, §§ 61 et seq.

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III. The guarantee of Article 13

21–23

Art. 13

been committed by persons acting in an official capacity’ has remained unclear and without any significance. It is designed to address limitations of remedies for violations of fundamental rights by state organs (‘crown immunities’),101 and cannot be used as an argument in favour of a third party effect (‘Drittwirkung’).102

4. Cases Proceedings on claims of damages for the forcible entry and search of a home are 22 not effective if domestic courts have only limited powers to award compensation, such as where authorities are only liable for damages if malice can be proved.103 The requirements of effectiveness in Article 13 are not satisfied where applicants may complain about a violation of Article 8 for unlawful data processing, but where the body to which they submit the complaint has no competence to order the destruction of files or the erasure or rectification of information kept in the files but which may only order to stop processing the information. Shortcomings of that sort cannot be offset by any possibilities for the applicants to seek compensation.104 Special requirements exist in respect of the refusal of a permission to hold assemblies. Since the timing of public meetings may be crucial for their political and social weight, the applicable laws must provide for reasonable time limits, ending before the planned date of the demonstration, within which state authorities must give their final decisions.105 Where the substantive provisions of the Convention impose obligations on the 23 Member States, Article 13 grants the right to an effective remedy for violations of these duties.106 Each individual must have the opportunity to seek a remedy before a national authority on the question of whether a measure taken by the State was reasonable and appropriate.107 101

Grabenwarter/Pabel, § 24 m.n. 186 with further references. Grabenwarter/Pabel, § 24 m.n. 186 with further references; cf. Grabenwarter/Pabel, § 19, m.n. 8 et seq. 103 ECtHR, 18/7/2006, Keegan v UK, No. 28867/03, § 42; as to the effectiveness of remedies in cases where the person whose home was searched had not been directly involved in the relevant criminal proceedings, see ECtHR, 30/9/2010, Vladimir Polishchuk a. Svetlana Polishchuk v UKR, No. 12451/04, §§ 54–55 and ECtHR, 5/7/2012, Golovan v UKR, No. 41716/06, §§ 69–70. 104 ECtHR, 6/6/2006, Segerstedt-Wiberg v SWE, No. 62332/00, § 120. 105 ECtHR, 3/5/2007, Baczkowski a. o. v POL, No. 1543/06, §§ 82 et seq; see also Article 11, m.n. 34. 106 Grabenwarter/Pabel, § 24 m.n. 184 with further references. 107 Cf. ECtHR, 21/6/1988, Plattform “A ¨ rzte fu¨r das Leben” v AUT, No. 10126/82, §§ 25 et seq. 102

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Art. 14

Article 14 – Prohibition of discrimination

Article 14 – Prohibition of discrimination The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. Article 14 – Droit a` un recours effectif La jouissance des droits et liberte´s reconnus dans la pre´sente Convention doit eˆtre assure´e, sans distinction aucune, fonde´e notamment sur le sexe, la race, la couleur, la langue, la religion, les opinions politiques ou toutes autres opinions, l’origine nationale ou sociale, l’appartenance a` une minorite´ nationale, la fortune, la naissance ou toute autre situation. Bibliography: Busuttil,The Case-Law of the Commission as Regards Non-Discrimination (Article 14 of the Convention), in: de Salvia/Villiger (ed.), The Birth of European Human Rights Law, Liber Amicorum Carl Aage Nørgaard, 1998, p.31; Dubout, L’interdiction des discriminations indirectes par la cour europe´enne des droits de l’homme, RTDH 2008, p. 821; Goedertier, Verbod van discriminatie in: vande Lanotte/Haeck (ed.), Handboek EVRM Deel 2, 2004, p. 127; Heringa/ van Hoof, Prohibition of discrimination (Article 14), in: van Dijk/van Hoof/van Rijn/Zwaak (ed.), Theory and Practice of the European Convention on Human Rights, 4th ed., 2006, p. 1027; Margue´naud, L’affaire Burden ou l’humiliation de la fraterie, RTDH 2009, p. 513; Partsch, Discrimination, in: Macdonald/Matscher/Petzold (ed.), The European System for the Protection of Human Rights, 1993, p. 571; Potvin-Solis, La liason entre le principe de non-discrimination et les liberte´s et droits fundamentaux des personnes dans les jurisprudences europe´ennes, RDTH 2009, p. 967; Wintemute, “Within the Ambit”: How Big is the “Gap” in Article 14 European Convention on Human Rights?, EHRLR 2004, p. 366; Wintemute, Filling the “Gap”: Government Ratification and Judicial Control of Protocol No. 12 ECHR, EHRLR 2004, p. 484. Case law: ECtHR, 13/6/1979, Marckx v BEL, No. 6833/74 (discrimination of illegitimate children); ECtHR, 28/5/1985, Abdulaziz a. o. v UK, No. 9214/80 et al (entry and departure of nonnational husbands, discrimination on the grounds of sex); ECtHR, 22/2/1994, Burghartz v SUI, No. 16213/90 (right to choose names, discrimination on the grounds of sex); ECtHR, 18/7/1994, Karlheinz Schmidt v GER, No. 13580/88 (contribution to the fire brigade, discrimination on the grounds of sex); ECtHR, 8/7/2003 (GC), Sommerfeld v GER, No. 31871/96 (right to personal contact with the child, distinction between legitimate and illegitimate children); ECtHR, 24/7/ 2003, Karner v AUT, No. 40016/98 (discrimination on the grounds of sexual orientation); ECtHR, 12/4/2006 (GC), Stec a. o. v UK, No. 65731/01 (retirement age, discrimination on the grounds of sex); ECtHR, 22/1/2008 (GC), E.B. v FRA, No. 43546/02 (discrimination on the grounds of sexual orientation); ECtHR, 29/4/2008 (GC), Burden v UK, No. 13378/05 (distinction between siblings and married couples and civil partners respectively); ECtHR, 31/7/2008, Religionsgemeinschaft der Zeugen Jehovas a. o. v AUT, No. 40825/98 (discrimination on the grounds of religion, recognition of Jehova’s Witnesses as a religious community); ECtHR, 16/3/ 2010 (GC), Orsˇusˇ v CRO, No. 15766/03 (discrimination of Roma in the education system); ECtHR, 7/2/2013 (GC), Fabris v FRA, No. 16574/08 (refusal to grant inheritance rights to a child ‘born of adultery’); ECtHR, 15/3/2012, Gas a. Dubois v FRA, No. 25951/07 (simple adoption by homosexual partner of biological parent); ECtHR, 22/3/2012 (GC), Konstantin Markin v RUS, No. 30078/06 (parental leave for military servicemen); ECtHR, 26/6/2012 (GC), Kuric´ a. o. v SLO, No. 26828/06 (citizenship of former Yugoslav citizens); ECtHR, 19/2/2013 (GC), X a. o. v AUT, No. 19010/07 (second-parent adoption in same sex-couples).

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I. Introduction

1, 2

Art. 14

Outline I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Scope of protection. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Determination of a discrimination. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Unequal treatment of persons in analogous or relevantly similar situations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Grounds of discrimination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Justification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Legitimate aim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. The principle of proportionality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a) General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b) Grounds of sex . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . c) Grounds of race, colour, language or national origin . . . . . . . . . . . . . . d) Grounds of religion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . e) Grounds of political or other opinion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . f) Grounds of birth, social origin and other status . . . . . . . . . . . . . . . . . . . . g) Grounds of legal status. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . h) Other grounds of discrimination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Positive obligations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 4 8 8 9 11 13 15 15 16 18 20 21 22 24 27 32

I. Introduction In 1953, the Convention did not contain a general prohibition of discrimination as 1 provided for in national constitutions1 and in Article 2 (1) of the UDHR of 1948, but only the prohibition of discrimination under Article 14. The scope of Article 14 is limited to the rights and freedoms as set forth in the Convention: these must be secured without any discrimination. Article 14 contains a list of prohibited grounds of discrimination, i. e. a list of categories for which individuals must not be treated differently by means of state measures. On 1 April 2005, Protocol No. 12 to the Convention entered into force, introducing a general prohibition of discrimination with its Article 1. However, this Protocol has only been ratified by a minority of Member States.2 Article 20 EU Charter guarantees equality of everyone before the law. Article 21 prohibits any discrimination, and just like Article 14, contains an illustrative list of prohibited grounds of discrimination.3 In addition to the discriminatory grounds mentioned in Article 14, Article 21 EU Charter refers to disability, age and sexual orientation. In cases where there is an interference with other Convention guarantees, the 2 prohibition of discrimination is in any event applicable. As a general rule, the Court does not find it necessary to separately examine the allegation of discrimination if it has already established a violation of a substantive Convention right.4 This is when it considers that the relevant aspects have already been taken into consideration in the examination of the general complaint of a violation of a substantive right.5 In 1 Grabenwarter/Pabel, § 26 m.n. 1 with further references to the Austrian, German and Swiss constitution. 2 Protocol No. 12 to the Convention of 4/11/2000, ETS No. 177; for further details see Article 1 of Protocol No. 12 m.n. 1. 3 Grabenwarter/Pabel, § 26 m.n. 1 with further references. 4 Grabenwarter/Pabel, § 26 m.n. 21 with further references. 5 ECtHR, 18/12/1986, Johnston a. o. v IRL, No. 9697/82, § 79; also ECtHR, 16/4/2002, S. A. Dangeville v FRA, No. 36677/97, § 66.

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Art. 14

2, 3

Article 14 – Prohibition of discrimination

other cases, the Court first examines whether a violation of Article 14 has occurred, and then concludes that a separate ruling on the alleged violation of a substantive right is not necessary. In such cases, it considered that, having regard to the violation of Article 14, no separate issue arose under the respective substantive right.6 Thus, it depends on the circumstances of each individual case whether Article 14 and the substantive right to which it is accessory are being examined and in which order.7 However, where the complaint under Article 14 is not a mere restatement of the complaint under the substantive provision8 or in view of the importance of the discrimination issue,9 the Court, after finding a violation of a Convention guarantee, separately examines the alleged violation of the prohibition of discrimination. The Court had to decide, for instance, whether the treatment of members of the ethnical groups Sinti and Roma by the Bulgarian police, which led to death, complied with the Convention. After holding that a violation of Article 2 – the right to life – had occurred, it additionally examined, amongst other guarantees, whether Article 14 taken together with Article 2 had been violated for discrimination on the grounds of ethnic origin.10 Also in the Aziz Case, after concluding that there had been a violation of Article 3 of Protocol No. 1, the Court held that the prohibition of discrimination had been violated resulting from the fact that a Greek-Cypriot and a Turkish-Cypriot had been treated differently.11 Due to the specific nature of religiously motivated violent acts that are particularly destructive of fundamental rights, the Court, apart from a violation of Article 3, found a violation of Article 14 where State authorities had not sufficiently investigated violent incidents against members of the Hare Krishna community, which had most probably been motivated by religious hatred or prejudice, as such conduct may be an indicator of a discriminatory attitude of the authorities.12 3 Inhuman treatment within the meaning of Article 3 may involve discrimination, particularly if it is based on the grounds of race. Case law shows that discrimination on the grounds of race may also infringe Article 3. Article 3 is based on physical and psychological suffering;13 not every case of racially motivated discrimination constitutes a treatment which premeditatedly causes severe psychological or physical suffering and consequently an inhuman treatment 6 ECtHR, 23/6/1993, Hoffmann v AUT, No. 12875/87, § 37; ECtHR, 22/2/1994, Burghartz v SUI, No. 16213/90, § 30; ECtHR, 16/9/1996, Gaygusuz v AUT, No. 17371/90, § 57; ECtHR, 6/4/2000, Thlimmenos v GRE, No. 34369/97, § 53. 7 Cf. also Busuttil, The Case-Law of the Commission as Regards Non-Discrimination (Article 14 of the Convention), in: de Salvia/Villiger (ed.), The Birth of European Human Rights Law, Liber Amicorum Carl Aage Nørgaard, 1998, p.31 (32 et seq). 8 Expressly in ECtHR, 22/6/2004, Aziz v CYP, No. 69949/01, § 36 and ECtHR, 4/12/2007, Geen v UK, No. 63468/00, § 9. 9 ECtHR, 26/6/2012 (GC), Kuric ´ a. o. v SLO, No. 26828/06, § 383. 10 ECtHR, 18/5/2000, Velikova v BUL, No. 41488/98, §§ 91 et seq; ECtHR, 13/6/2002, Anguelova v BUL, No. 38361/97, §§ 163 et seq; similarly ECtHR, 12/7/2005, Moldovan (No. 2) v ROM, No. 41138/98, § 139 (the applicants’ Roma ethnicity appeared to have been decisive for the length and the result of the domestic proceedings); ECtHR, 26/7/2007, Angelova u. Iliev v BUL, No. 55523/00, §§ 91 et seq (delay of the proceedings); ECtHR, 10/6/2010, Vasil Sashev Petrov v BUL, No. 63106/00, § 69. 11 ECtHR, 22/6/2004, Aziz v CYP, No. 69949/01, §§ 36 et seq. 12 ECtHR, 14/12/2010, Milanovic ´ v SRB, No. 44614/07, §§ 96 et seq. 13 Cf. e.g. ECtHR, 28.7.1999, Selmouni v FRA, No. 25803/94, §§ 82 et seq; see as to that Article 3, m.n. 2.

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II. Scope of protection

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Art. 14

within the meaning of Article 3: Therefore, discrimination on the grounds of race and an infringement of human dignity does not automatically lead to the finding of a violation of both guarantees. In individual cases, however, aggravating factors can cause a discrimination based on race to amount of itself to degrading treatment within the meaning of Article 3.14 Where it is established beyond reasonable doubt that death or ill-treatment has been inflicted as a result of racial or politically motivated discrimination, the Court may find both a violation of the substantive guarantees taken alone and of Article 14 taken in conjunction with Article 2 or 3 in their substantive limbs.15

II. Scope of protection The prohibition of discrimination of Article 14 refers to the rights and free- 4 doms as set forth in the Convention. This includes not only Articles 2 to 13 of the Convention but also the substantive rights under Protocols No. 1, 4, 6, 7 as far as these Protocols have been ratified by the Member States in question. It adds the requirement of non-discrimination to the fundamental guarantees of the Convention.16 Moreover, the prohibition of discrimination under Article 14 forms an integral part of each of the substantive Articles of the Convention laying down rights and freedoms.17 There is no room for the application of Article 14 unless the facts of a case fall within the scope of the Convention. This means that Article 14 never applies independently but only in conjunction with a substantive Convention right. The prohibition of discrimination is thus said to be of an ‘accessory nature’.18 Article 14 complements, as a general rule, the other substantive provisions of the Convention. It does not, however, apply to the right of equality between spouses under Article 5 of Protocol No. 7 and to Article 1 of Protocol No. 12. Article 5 of Protocol No. 7 and Article 1 of Protocol No. 12 are leges speciales in relation to Article 14. The application of Article 14 does not necessarily presuppose a violation of a 5 Convention right or the determination of an interference. What is decisive is that the facts of a case fall within the ‘ambit’ of one or more of the Convention rights.19 14 ECtHR, 28/5/1985, Abdulaziz a. o. v UK, No. 9214/80 et al, §§ 84 et seq, 90 et seq (no discrimination based on race, no violation of Article 3); EComHR, 14/12/1973, East Africans Asians v UK, No. 4403/70 et al, DR 78-A, 5 (62 et seq); ECtHR, 12/7/2005, Moldovan (No. 2) v ROM, No. 41138/98, §§ 111 et seq; Reid, para. IIB-084. 15 ECtHR, 6/7/2005 (GC), Nachova a. o. v BUL, No. 43577/98 et al, §§ 145 et seq, 157 et seq (concerning racist motives); ECtHR, 2/10/2012, Virabyan v ARM, No. 40094/05, §§ 198 et seq, 216 et seq (concerning political motives). 16 See as to that effect the established case law of the Court, e.g. ECtHR, 13/6/1979, Marckx v BEL, No. 6833/74, § 32; ECtHR, 16/9/1996, Gaygusuz v AUT, No. 17371/90, § 36; cf. also Busuttil, in: de Salvia/Villiger, p. 32. 17 ECtHR, 23/7/1968, Case “relating to certain aspects of the laws on the use of languages in education in Belgium”, No. 1474/62 et al; ECtHR, 23/11/1983, van der Mussele v BEL, No. 8919/80, § 43. 18 Grabenwarter/Pabel, § 26 m.n. 2 with further references. 19 Established case law: cf. e.g. ECtHR, 28/5/1985, Abdulaziz a. o.v UK, No. 9214/80 et al, § 71; ECtHR, 28/10/1987, Inze v AUT, No. 8695/79, § 36; ECtHR, 18/7/1994, Karlheinz Schmidt v GER, No. 13580/88, § 22; ECtHR, 16/9/1996, Gaygusuz v AUT, No. 17371/90, § 36; ECtHR 8/7/2003 (GC), Sommerfeld v GER, No. 31871/96, § 84; ECtHR, 25/10/2005, Okpisz v GER, No. 59140/00,

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Art. 14

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Article 14 – Prohibition of discrimination

Thus, a measure which in itself is in conformity with the requirements of the Article enshrining the right or freedom in question may, however, infringe the provision when read in conjunction with Article 14 for the reason that it is of a discriminatory nature.20 To this extent Article 14 can be regarded as ‘autonomous’.21 When exercising scrutiny, the Court starts with examining whether certain facts fall within the scope of a substantive Convention guarantee.22 It particularly approves cases where there is a possible connection with the right to property under Article 1 of Protocol No. 1: According to the Court, even a remote connection with the property of an applicant suffices for examining a violation of Article 14. To give an example: The Court held that the entitlement to unemployment benefit23 or the exemption from contributions under a child care benefits scheme24 fell within the scope of Article 1 of Protocol No. 1.25 According to the Court, Article 14 applies even if cases are excluded from the scope of protection of a fundamental guarantee, thus if the facts at issue are not protected by the Convention. In the Karlheinz Schmidt Case, the applicant complained of a breach of the principle of sexual equality in so far as only men were subject to the obligation under the law of a German Land to serve as firemen or pay a financial contribution in lieu. The financial contribution was considered a ‘compensatory charge’. The Court therefore concluded that the obligation to pay, on account of its close links with the obligation to serve, constituted a ‘normal civic obligations’ within the meaning of Article 4 (3) (d), which was excluded from the prohibition of forced labour under Article 4 (2). It held that the purpose of paragraph 3 was not to ‘limit’ the exercise of the right guaranteed by paragraph 2 but to ‘delimit’ the very content of that right as it formed a whole with paragraph 2 and indicated what the term forced or compulsory labour should not include.26 6 Article 14 is concerned with the avoidance of discrimination in the enjoyment of the Convention rights in so far as the requirements of the Convention as to those rights can be complied with in different ways. The notion of discrimination within the meaning of Article 14 includes, in general, cases where a person or group is treated, without proper justification, less favourably than another, even though the more favourable treatment is not called for by the Convention. Thus, the prohibition of discrimination applies even if the national standard of protection goes §§ 30 et seq; Wintemute, “Within the Ambit”: How Big is the “Gap” in Article 14 European Convention on Human Rights, EHRLR 2004, p. 366 (369 et seq). 20 Grabenwarter/Pabel, § 26 m.n. 3 with further references. 21 E.g. ECtHR, 28/5/1985, Abdulaziz a. o. v UK, No. 9214/80 et al, § 71; Heringa/van Hoof, Prohibition of discrimination (Article 14), in: van Dijk/van Hoof/van Rijn/Zwaak (ed.), Theory and Practice of the European Convention on Human Rights, 4th ed., 2006, p. 1027 (1028 et seq). 22 Grabenwarter/Pabel, § 26 m.n. 3 with further references; Heringa/van Hoof, in: van Dijk/van Hoof/van Rijn/Zwaak, p. 1029 (‘some kind of relation’). 23 ECtHR, 16/9/1996, Gaygusuz v AUT, No. 17371/90, § 41. 24 ECtHR, 21/2/1997, van Raalte v NED, No. 20060/92, §§ 33 et seq. 25 Cf. also ECtHR, 4/6/2002, Wessels-Bergervoet v NED, No. 34462/97, § 43 (entitlement to a pension as a pecuniary right); ECtHR, 11/6/2002, Willis v UK, No. 36042/97, §§ 39 et seq (entitlement to a widow’s payment as a pecuniary right); ECtHR, 30/9/2003, Koua Poirrez v FRA, No. 40892/98, §§ 39 et seq (payment of a non-contributory benefit as a pecuniary right); ECtHR, 28/9/2010, J.M. v UK, No. 37060/06, § 46 (entitlement to child support). 26 ECtHR, 18/7/1994, Karlheinz Schmidt v GER, No. 13580/88, § 22; ECtHR, 20/6/2006, Zarb Adami v MLT, No. 17209/02, §§ 44 et seq (obligation to serve as a juror).

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beyond the requirements of the Convention.27 If a State affords rights to individuals beyond the scope of what the Convention requires, further state obligations may be drawn indirectly from Article 14.28 In practice, a breach of Article 14 is typically complained of in conjunction with 7 certain specific fundamental guarantees under the Convention. Various groups of cases may thus be distinguished: In the first place, there are particularly many cases of complaints of a breach of Article 14 taken together with the right to respect for private and family life under Article 8. The scope of Article 8 includes, in particular, cases on sexual orientation,29 on family law issues such as their living together,30 the according of the right to child custody, the status of a father in relation to his child,31 the recording of a joint surname32 and the granting of child benefits.33 In the Court’s view, even matters of intestate succession between near relatives fall within the scope of Article 8 as they represent a feature of family life.34 A second group of cases concerns the alleged violation of Article 14 taken together with Article 9, where discriminations in respect of the freedom of religion are complained of.35 Thirdly, there are cases where individuals are burdened with different economic or financial difficulties, and where the Court thus examines a violation of the prohibition of discrimination in conjunction with Article 1 of Protocol No. 1.36 Lastly, discriminatory treatment is often complained of in the context of unequal treatment in respect of the procedural rights under Article 6.37

III. Determination of a discrimination 1. Unequal treatment of persons in analogous or relevantly similar situations Discrimination within the meaning of Article 14 presupposes that individuals, 8 placed in analogous or relevantly similar situations, are discriminated against in the enjoyment of their Convention rights and freedoms. When examining whether a violation has occurred, it first must be demonstrated that analogous or 27 ECtHR, 23/7/1968, Case “relating to certain aspects of the laws on the use of languages in education in Belgium”, No. 1474/62 et al; ECtHR, 28/5/1985, Abdulaziz a. o. v UK, No. 9214/80 et al, § 82; ECtHR, 27/3/1998, Petrovic v AUT, No. 20458/92, §§ 27 et seq. 28 Grabenwarter/Pabel, § 26 m.n. 4 with further references. 29 ECtHR, 22/10/1981, Dudgeon v UK, No. 7525/76, §§ 66 et seq; ECtHR, 27/9/1999, LustigPrean a. o. v UK, No. 31417/96, § 108; ECtHR, 24/7/2003, Karner v AUT, No. 40016/98, § 33. 30 ECtHR, 28/5/1985, Abdulaziz a. o. v UK, No. 9214/80 et al, § 71. 31 ECtHR, 24/2/1995, McMichael v UK, No. 16424/90, §§ 94 et seq. 32 ECtHR, 22/2/1994, Burghartz v SUI, No. 16213/90, §§ 22 et seq. 33 ECtHR, 25/10/2005, Niedzwiecki v GER, No. 58453/00, § 31. 34 ECtHR, 3/10/2000, Camp a. Bourimi v NED, No. 28369/95, § 35. 35 ECtHR, 6/4/2000, Thlimmenos v GRE, No. 34369/97, § 42, where national legislation did not directly restrict the right to freedom of religion but where the factual situation fell within the ambit of Article 9 in that the application of the relevant law made no distinction between persons convicted of offences committed exclusively because of their religious beliefs and persons convicted of other offences. 36 ECtHR, 28/10/1987, Inze v AUT, No. 8695/79, §§ 38 et seq; ECtHR, 23/10/1990, Darby v SWE, No. 11581/85, §§ 33 et seq; ECtHR, 16/9/1996, Gaygusuz v AUT, No. 17371/90, § 41; ECtHR, 21/2/ 1997, van Raalte v NED, No. 20060/92, § 34. 37 ECtHR, 2/3/1987, Monnell a. Morris v UK, No. 9562/81 et al, §§ 74 et seq; ECtHR, 29/2/1988, Bouamar v BEL, No. 9106/80, §§ 66 et seq.

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relevantly similar situations were treated differently.38 The fact that the applicant’s situation is not fully analogous to that of other individuals does not preclude the application of Article 14. The Court does not apply a strict standard in this regard, especially as the positions and interests referred to are also of relevance in determining whether the difference of treatment was justified.39 Discrimination potentially contrary to the Convention may result not only from a legislative measure, but also from a practice of the authorities concerned.40 According to the Court, a different remuneration of legal counsels and legal counsels in training, and of other judicial professions does not disclose any similarity between the disparate situations.41 Similarly, where legal representation before courts and other authorities is necessary, practising legal counsels and notaries on the one hand and other legally trained persons on the other are not in a relevantly similar situation.42 The Court also found that rules prohibiting press publications on parliamentary debates but not prohibiting publications on the very debates by the parliament itself do not violate Article 14 as the press and parliamentarians, due to their respective ‘duties and responsibilities’, could not be considered to be ‘placed in comparable situations’.43 In cases where a person is denied a social benefit, the relevant test is whether, but for the condition of his entitlement, he would have had a right, enforceable under domestic law, to receive the benefit in question.44 Social security systems, including pension schemes, are designed to ensure certain minimum standards of living for the residents of a State. Thus, the Court considers that persons living outside the territory of the respective State (if there is no reciprocal social security agreement) are in no relevantly similar situation to its residents.45 In the case of retired Russian military personnel residing in Estonia who on the basis of an Estonian-Russian agreement were granted a minimum old-age pension in Estonia on condition that they did not receive a Russian military pension at the same time, the Court concluded that they were not in a comparable situation with any other group of retired persons.46 In a case concerning the liability to pay inheritance tax, the Court found that the relationship between siblings was qualitatively of a different nature to that between married couples and homosexual civil partners and that thus the siblings had not been discriminated against.47 The essential difference was that marriage was expressly and deliberately entered into and conferred on the partners a special status, whereas the very essence of the connection between siblings was consanguinity.48 Due to the 38 ECtHR, 13/6/1979, Marckx v BEL, No. 6833/74, § 32; ECtHR, 23/11/1983, van der Mussele v BEL, No. 8919/80, § 46. 39 Cf. ECtHR, 28.11.1984, Rasmussen v DEN, Nr. 8777/79, § 37; see also ECtHR, 13/7/2010, Clift v UK, No. 7205/07, § 66. 40 E.g. ECtHR, 20/6/2006, Zarb Adami v MLT, No. 17209/02, § 76. 41 ECtHR, 23/11/1983, van der Mussele v BEL, No. 8919/80, § 46. 42 ECtHR, 18/10/2011, Graziani-Weiss v AUT, No. 31950/06, § 65. 43 ECtHR, 26/4/1979, Sunday Times v UK, Nr. 6538/74, § 72. 44 ECtHR, 12/4/2006 (GC), Stec a. o. v UK, No. 65731/01, § 55; ECtHR, 18/2/2009 (GC), Andrejeva v LAT, Nr. 55707/00, § 79. 45 ECtHR, 16/3/2010 (GC), Carson a. o. v UK, No. 42184/05, §§ 85 et seq. 46 ECtHR, 4/11/2010, Tarkoev a. o. v EST, No. 14480/08 et al, §§ 61 et seq. 47 ECtHR, 29/4/2008 (GC), Burden v UK, No. 13378/05, §§ 62 et seq; as to that Margue ´naud, L’affaire Burden ou l’humiliation de la fraterie, RTDH 2009, p. 513 (513 et seq). 48 Already the Commission noted that married couples with their specific legal status were not in an analogous position to unmarried couples: EComHR, 11/11/1986, Lindsay v UK, No. 11089/84; the

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special status of marriage, same-sex couples who have concluded a civil partnership and married couples cannot be said to be in a relevantly similar situation for the purpose of adoption.49 There is no obligation to extend the right to second-parent adoption to unmarried couples. If, however, domestic law provides for this possibility in unmarried opposite-sex couples, same-sex couples are considered, as the Grand Chamber has recently found, to be in a relevantly similar situation to them.50 Whether or not a prisoner can claim to be in an analogous position to a person who is not imprisoned depends on the rights concerned. Prisoners are, at any rate, entitled to the same standards of health care as persons at liberty. Furthermore, the Convention requires a uniform standard as regards the affiliation of prisoners to old-age pension systems for their work performed in prison.51 Remand prisoners can claim to be in a relevantly similar situation to convicted prisoners if the different treatment relates to issues which are of relevance to all persons detained in prison, such as visiting rights and access to television.52 Inmates who wish to have telephone conversations with their spouses and inmates who wish to have such conversations with their unmarried partners with whom they have established a family life are in substantially similar situations.53 With respect to prohibiting prisoners from wearing emblems outside their cell, States have a wide margin of appreciation in assessing which emblems could potentially inflame existing tensions if displayed publicly and which should not have this effect. Consequently, the Court held that prisoners wearing an emblem directly linked to a community conflict were not in an analogous position to prisoners who were wearing an emblem which distinguished one community from another. Where an applicant complains of indirect discrimination – namely the existence of discriminatory rules couched in apparently neutral terms54 – the Court holds it sufficient that he produces the prima facie evidence by adducing statistics which on critical examination appear reliable and significant.55 The right not to be discriminated against is also violated if States, without objective and reasonable justification, fail to treat differently persons whose situations are significantly different.56 Court adopted this view in cases where benefits to unmarried surviving partners were denied, and, additionally, held that such a distinction was in principle proportionate: ECtHR, 27/4/2000, Shackell v UK, No. 45851/99; cf. also ECtHR, 20/11/2010 (GC), Serife Yig˘it v TUR, No. 3976/05, § 72. 49 ECtHR, 15/3/2012, Gas a. Dubois v FRA, No. 25951/07, § 68 (simple adoption by homosexual partner of biological mother); ECtHR, 19/2/2013 (GC), X a. o. v AUT, No. 19010/07, §§ 106, 109, 112 (second-parent adoption in same-sex couple); the same applies to anonymous donor insemination, see ECtHR, 15/3/2012, Gas a. Dubois v FRA, No. 25951/07, § 63. 50 ECtHR, 19/2/2013 (GC), X a. o. v AUT, No. 19010/07, § 112. 51 ECtHR, 4/1/2008, Shelley v UK, No. 23800/06; cf. also ECtHR, 7/7/2011 (GC), Stummer v AUT, No. 37452/02, § 95 (exemption of working prisoners from affiliation to the old-age pension system). 52 ECtHR, 13/12/2011, Laduna v SVK, No. 31827/02, §§ 57 et seq. 53 ECtHR, 22/5/2008, Petrov v BUL, No. 15197/02, §§ 53 et seq. 54 Cf. Article 2 (2) Council Directive 97/80/EC of 15 December 1997 on the burden of proof in cases of discrimination based on sex. 55 ECtHR, 13/11/2007 (GC), D.H. a. o. v CZE, No. 57325/00, §§ 187 et seq; see as to that Dubout, L’interdiction des discriminations indirectes par la cour europe´enne des droits de l’homme, RTDH 2008, p. 821 (838 et seq); cf. also already ECtHR, 20/6/2006, Zarb Adami v MLT, No. 17209/02, §§ 77 et seq. 56 ECtHR, 6/4/2000, Thlimmenos v GRE, No. 34369/97, § 44; ECtHR, 29/4/2002, Pretty v UK, No. 2346/02, §§ 88 et seq; ECtHR, 26/7/2007, Angelova a. Iliev v BUL, No. 55523/00, § 117 (killing of the applicant’s relative, requirement of distinguishing between racially and non-racially moti-

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2. Grounds of discrimination Article 14 provides for a list of prohibited grounds of discrimination. Persons in analogous or relevantly similar situations may only be treated differently on these grounds if there is an objective and reasonable justification. The wording of the Article shows that the list of grounds contained therein is not exhaustive. It enumerates various distinguishing features, which typically lead to undue discriminations. Any distinction on the grounds of ‘other status’ (‘toute autre situation’) – if falling within the ambit of a substantive Convention right – must also be objectively and reasonably justified.57 10 The grounds of discrimination are mostly self-explanatory. According to the Court’s case law, ethnicity and race are related concepts, and discrimination on account of a person’s ethnic origin is a form of racial discrimination.58 A comparison shows that the grounds of sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth under Article 14 correspond to the grounds protected by national principles of equality.59 Article 14 expressly prohibits unfavourable treatment for reasons of national origin or association with a national minority, and thereby refers to aspects which at the international level are of particular importance. A prohibited ground of discrimination not expressly listed in Article 14 is the distinction between legitimate and illegitimate children; though it is included in the protected ground of birth.60 The grounds of age and sexual orientation, which are mentioned in Article 19 TFEU and Article 21 EU Charter, are not expressly enshrined in Article 14. Such distinguishing features are, however, covered by the term ‘other status’, for which persons may only be treated differently by the States if there is an objective and reasonable justification for it.61 The words ‘other status’ have a wide meaning. The Court has consistently referred to the need for a distinction based on ‘personal characteristics’. The term ‘personal characteristics’ does not only mean characteristics which are innate or immutable to an individual62 but also situations, including legal situations, which are inextricably bound up with an individual’s personal circumstances and existence.63 9

vated offences); ECtHR, 14/12/2010, Milanovic´ v SRB, No. 44614/07, § 97; ECtHR, 14/2/2012, B. v UK, No. 36571/06, § 58 (sufficiently different situation between someone who does not have the cognitive capacity to understand an obligation to report to the authorities and someone who does); ECtHR, 26/6/2012 (GC), Kuric´ a. o. v SLO, No. 26828/06, § 388. 57 Cf. with an overview over the Court’s case law ECtHR, 13/7/2010, Clift v UK, No. 7205/07, §§ 56 et seq. 58 ECtHR, 22/12/2009 (GC), Sejdic ´ a. Finci v BIH, No. 27996/06 et al, § 43. 59 Grabenwarter/Pabel, § 26 m.n. 8 with reference to the Austrian, German and Swiss legal situation. 60 Grabenwarter/Pabel, § 26 m.n. 8 with further references. 61 Cf. ECtHR, 10/2/2004, B.B. v UK, No. 53760/00, § 26 (the grounds of age); ECtHR, 1/12/2009, G. N. a. o. v ITA, No. 43134/05, § 126 (medical condition); ECtHR, 16/3/2010 (GC), Carson a. o. v UK, No. 42184/05, §§ 70 et seq; ECtHR, 10/6/2010, Schwizgebel v SUI, No. 25762/07, § 85 (distinction on the grounds of age); ECtHR, 2/11/2010 (GC), Serife Yig˘it v TUR, No. 3976/05, § 78 (a distinction between religious and civil marriage comes under the heading of ‘other status’). 62 ECtHR, 13/7/2010, Clift v UK, No. 7205/07, § 58; ECtHR, 6/11/2012, Hode a. Abdi v UK, No. 22341/09, § 46. 63 On a general basis: ECtHR, 27/9/2011, Bah v UK, No. 56328/07, § 46; ECtHR, 13/7/2010, Clift v UK, No. 7205/07, § 58; ECtHR, 6/11/2012, Hode a. Abdi v UK, No. 22341/09, § 46; for a list of

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Distinguishing between different forms of cohabitation, such as marriage, longlasting life communities between heterosexuals and homosexuals, or homosexual civil partnership, does not necessarily give rise to discrimination prohibited by Article 14.64 Initiated by the progressive extension of the meaning of ‘other status’ (‘personal characteristics’)65 the prohibition of discrimination has been developed towards a sort of principle of equal treatment, which applies, however, only within the ambit of the Convention rights. The determination of the discriminatory ground primarily serves the purpose of determining the State’s margin of appreciation.

IV. Justification In spite of the very general wording of the French version (‘sans distinction 11 aucune’), Article 14 does not prohibit all differences in treatment in the exercise of the rights and freedoms recognised. A difference of treatment is in violation of the Convention only if the distinction has no objective and reasonable justification.66 The different treatment by the state measure in question has to pursue a legitimate aim and there must be a reasonable relationship of proportionality between the means employed and the aim sought to be realised. When determining a violation of other Convention rights – in particular of Articles 8 to 11 –, compliance with the principle of proportionality is also examined in the context of an alleged violation of the prohibition of discrimination. According to the Court, the same requirements must be fulfilled in order to 12 justify equal treatment of disparate situations.67 Equal treatment of disparate situations must be proportionate in relation to the aim sought to be realised.68 In the Pretty Case, the Court held that there is objective and reasonable justification for not distinguishing in law between those who are and those who are not physically capable of committing suicide.69

1. Legitimate aim Unlike Articles 8 to 11, Article 14 does not contain a list of legitimate aims for 13 the realisation of which a difference in treatment is permitted. Thus, when examining whether a state measure is discriminatory, the Court does not have to determine which of the aims mentioned in these Articles is pursued.

grounds of discrimination which are considered to fall within the notion of ‘other status’ see m.n. 24 and m.n. 27. 64 ECtHR, 12/5/2009, Korelc v SLO, No. 28456/03, §§ 89 et seq. 65 ECtHR, 13/7/2010, Clift v UK, No. 7205/07, § 58. 66 As to that effect the consistent case law of the Court since ECtHR, 23/7/1968, Case “relating to certain aspects of the laws on the use of languages in education in Belgium”, No. 1474/62 et al. 67 Goedertier, Verbod van discriminatie in: vande Lanotte/Haeck (ed.), Handboek EVRM Deel 2, 2004, p. 127 (159 et seq) with further references; Grabenwarter/Pabel, § 26 m.n. 11 with further references. 68 ECtHR, 6/4/2000, Thlimmenos v GRE, No. 34369/97, §§ 46 et seq; ECtHR, 29/4/2002, Pretty v UK, No. 2346/02, §§ 88 et seq. 69 ECtHR, 29/4/2002, Pretty v UK, No. 2346/02, § 89.

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States enjoy a wide margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment. The scope of this margin varies according to the circumstances, the subject-matter and the background. According to the Court, the margin of appreciation is wider in decisions which involve the appreciation of political, economic and social questions. Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is in the public interest on social or economic grounds. The Court therefore generally respects the legislature’s policy choice unless it is ‘manifestly without reasonable foundation’.70 Thus, the legitimate aim pursued has only little limiting function.71 In most cases, the Court finds that differences in treatment pursue legitimate aims. However, the definition of the legitimate aim influences the outcome of the justification test as it determines a factor in the examination of whether there was a reasonable relationship of proportionality between the means employed and the aim sought to be realised. In child custody cases and cases concerning a parent’s personal contact with the child, the Court finds it legitimate that States pursue the aim of protecting the health and rights of the children as well as their well-being.72 Where property is concerned, the economic well-being of the States or the establishment of a socialsecurity scheme are considered legitimate aims.73 In general, when examining whether state measures are based on an objective and reasonable justification, the Court accepts a wide range of sometimes very specific legitimate aims, such as the protection of the family in the traditional sense,74 the protection of marriage,75 or the desire to spare the feelings of unmarried childless women,76 some of which could as well fall within the aims expressly mentioned in Articles 8 to 11.77 In a few cases the Court found that the unequal treatment did not pursue a legitimate aim, and consequently held that they violated the prohibition of discrimination. Where, for instance, traditions were referred to the Court held that in any event the Convention must be interpreted in the light of present-day conditions. In the Burghartz Case, the Court was not persuaded by the Government’s argument that the legislation complained of, which allowed only a single joint family surname, aimed at preserving family unity and avoiding a break with tradition. It reasoned that a genuine tradition was not at issue in the present case 70 ECtHR, 12/4/2006 (GC), Stec a. o. v UK, No. 65731/01, § 52; ECtHR, 6/11/2012, Hode a. Abdi v UK, No. 22341/09, § 52. 71 Grabenwarter/Pabel, § 26 m.n. 11 with further references. 72 ECtHR, 23/6/1993, Hoffmann v AUT, No. 12875/87, § 34; ECtHR, 11/10/2001, Hoffmann v GER, No. 34045/96, § 59; ECtHR, 26/2/2002, Frette´ v FRA, No. 36515/97, § 38. 73 ECtHR, 21/2/1997, van Raalte v NED, No. 20060/92, § 41; ECtHR, 8/9/2005, Ackermann a. Fuhrmann v GER, No. 71477/01 (obligatory affiliation of employees to the pension scheme as opposed to self-employed persons and civil servants). 74 ECtHR, 24/7/2003, Karner v AUT, No. 40016/98, § 40; ECtHR, 2/3/2010, Kozak v POL, No. 13102/02, § 97; ECtHR, 22/3/2012, Ahrens v GER, No. 45071/09, § 89 and ECtHR, 22/3/2012, Kautzor v GER, No. 23338/09, §§ 78, 91 (precedence of the existing family relationship between the child and his legal parents over the relationship with the biological father). 75 ECtHR, 20/11/2010 (GC), Serife Yig ˘it v TUR, No. 3976/05, § 72. 76 ECtHR, 21/2/1997, van Raalte v NED, No. 20060/92, §§ 43 et seq. 77 Cf. e.g. ECtHR, 30/6/2005 (GC), Jahn a. o. v GER, No. 46720/99, §§ 123 et seq (expropriation without compensation of land acquired under the land reform to correct the effects of omissions of GDR authorities).

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and that family unity would be no less reflected if the husband added his own surname to his wife’s, adopted as the joint family name, than it is by the converse legal arrangement.78 In the Inze Case, it held that the precedence accorded by law to legitimate children in the context of inheriting farms, which corresponded to what was presumed to be the deceased’s intentions, was a too general and abstract considerations to justify a discrimination of illegitimate children; also in this context the Government could not successfully refer to the convictions of the rural population which the Court considered to merely reflect the traditional outlook.79 A legitimate aim was neither found in the Gaygusuz Case, which concerned a difference in treatment between nationals and non-nationals as regards their entitlement to benefits under an unemployment insurance system80 nor in the Darby Case where the right to exemption was reserved for persons formally registered as residents.81 A different treatment of parents who were and who were not in possession of a stable residence permit in respect of child benefits also lacked sufficient justification.82 Where natural and legal persons are treated differently with respect to legal aid, it is in particular the necessity to control the use of public funds for financing litigation by private companies which constitutes a legitimate aim. Treating domestic and foreign legal entities differently can be justified in particular based on the principle of reciprocity.83 For the purposes of family reunion, refugees who are granted limited leave to 14 remain are in an analogous position to students and workers with limited leave to remain.84 The Court recognised that offering incentives to certain groups of immigrants may amount to a legitimate aim. However, it required objective and reasonable justification for the particularly disadvantaged position of refugees whose spouses were not entitled to join them compared to students and workers with limited leave to remain whose spouses were entitled to join them.85 Occasionally, the assessment of whether two situations are relevantly similar and whether a difference in treatment was justified overlap since the relevant factors for determining a similarity between two situations may at the same time constitute objective and reasonable justification for the unequal treatment.86 This problem is reflected in the van Raalte Case. The factual difference between men and women in their respective biological possibilities to procreate constitutes a ‘difference in treatment’ between persons in similar situations, based on gender. It is precisely this distinction which is at the heart of the question whether the difference in treatment complained of can be justified.87

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ECtHR, 22/2/1994, Burghartz v SUI, No. 16213/90, §§ 28 et seq ECtHR, 28/10/1987, Inze v AUT, No. 8695/79, §§ 43 et seq. 80 ECtHR, 16/9/1996, Gaygusuz v AUT, No. 17371/90, §§ 46 et seq. 81 ECtHR, 23/10/1990, Darby v SWE, No. 11581/85, §§ 33 et seq; see also Reid, para. IIB-080. 82 ECtHR, 25/10/2005, Niedzwiecki v GER, No. 58453/00, §§ 24, 33. 83 ECtHR, 22/3/2012, Granos Organicos Nacionales S.A. v GER, No. 19508/07, § 57. 84 ECtHR, 6/11/2012, Hode a. Abdi v UK, No. 22341/09, § 50. 85 ECtHR, 6/11/2012, Hode a. Abdi v UK, No. 22341/09, § 53. 86 ECtHR, 22/10/1996, Stubbings a. o. v UK, No. 22083/93 et al, §§ 73 et seq; cf. Reid, para. IIB-078. 87 ECtHR, 21/2/1997, van Raalte v NED, No. 20060/92, § 40. 79

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2. The principle of proportionality a) General 15

Differences in treatment are justified if they comply with the principle of proportionality. However, States enjoy a wide margin of appreciation in assessing the appropriateness of measures.88 The scope of the States’ margin of appreciation varies according to the circumstances, the subject-matter and the background of the case concerned.89 Accordingly, objective and reasonable grounds suffice to justify unequal treatment in some cases, whereas in others weighty reasons must be put forward. As a general rule, where a difference in treatment is based on a legal status that contains an element of choice (such as the immigration status), the justification required is not as weighty as where a different treatment is based on inherent or immutable personal characteristics (such as sex or race)90 or where there is no such element of choice (e.g. refugee status).91 The Court, when exercising scrutiny, requires that a difference in treatment must pursue a legitimate aim. In many instances, however, the Court does not clearly distinguish between the determination of a legitimate aim and the proportionality test.92 One of the relevant factors determining the degree of scrutiny exercised by the Court is the existence or non-existence of a European consensus on a certain subject matter.93 The fact that a State by granting certain rights to a particular group of persons acts in fulfilment of an international obligation does not in itself justify a difference in treatment of persons in analogous positions to that group.94

b) Grounds of sex 16

The Court exercises closer scrutiny particularly in cases of discrimination on the grounds of sex. In order for a difference in treatment on this ground to be justified

88

Grabenwarter/Pabel, § 26 m.n. 12 with further references. Cf. ECtHR, 28.11.1984, Rasmussen v DEN, No. 8777/79, § 40; ECtHR, 28/5/1985, Abdulaziz a. o. v UK, No. 9214/80 et al, § 78; ECtHR, 27/3/1998, Petrovic v AUT, No. 20458/92, § 38; ECtHR, 26/2/2002, Frette´ v FRA, No. 36515/97, § 40; as to that see also Wintemute, Filling the Article 14 “Gap”: Government Ratification and Judicial Control of Protocol No. 12 ECHR, EHRLR 2004, p. 484 (487 et seq). 90 ECtHR, 27/9/2011, Bah v UK, No. 56328/07, § 47. 91 As to that effect ECtHR, 27/9/2011, Bah v UK, No. 56328/07, §§ 46–47 and ECtHR, 6/11/2012, Hode a. Abdi v UK, No. 22341/09, §§ 47, 53. 92 Cf. e.g. ECtHR, 6/4/2000, Thlimmenos v GRE, No. 34369/97, § 47, where the Court holds that the sanction imposed on the applicant was disproportionate and that thus it did not pursue a legitimate aim; cf. Partsch, Discrimination, in: Macdonald/Matscher/Petzold (ed.), The European System for the Protection of Human Rights, 1993, p. 571 (590). 93 Cf. ECtHR, 28.11.1984, Rasmussen v DEN, No. 8777/79, § 40; ECtHR, 13/6/1979, Marckx v BEL, No. 6833/74, §§ 41 et seq; ECtHR, 9/1/2003, L. a. V. v AUT, No. 39392/98, § 50 and ECtHR, 9/1/2003, S.L. v AUT, No. 45330/99, § 42; the lack of a ‘common ground’ in the Member States justified a difference in treatment in the Frette´ Case (prohibition of adoption by homosexual parents), ECtHR, 26/2/2002, Frette´ v FRA, No. 36515/97, §§ 40 et seq; cf., however, recent developments in m.n. 18. 94 ECtHR, 6/11/2012, Hode a. Abdi v UK, No. 22341/09, § 55 (no justification for a difference in treatment with respect to family reunion between refugees who married their spouses pre-flight and those who married them post-flight). 89

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‘very weighty reasons’95 or even ‘compelling reasons’ must be put forward.96 This is, as the Court holds, because the advancement of gender equality is today a major goal in the Member States.97 States may thus not justify unequal treatment of the sexes with reference to general assumptions, prevailing social attitudes or national traditions; rather the Convention must be interpreted in the light of present-day conditions,98 since otherwise gender stereotypes would be perpetuated and the aim of equality between the sexes could not be achieved. On the other hand, differences in treatment are justified where no common ground exists in the legal systems of the Member States.99 A number of cases before the Court which concerned the alleged discrimination on the grounds of sex were lodged by men.100 The complaints did not concern measures aiming at positively promoting equality of women, such as gender quota systems.101 They mostly concerned family law issues in a broader sense, such as the fathers’ right to accompany their children, the right of fathers to personal contact with their children, the entitlement to parental leave, or the right to choose names. In order to determine the extent of the States’ margin of appreciation in the sphere of equal treatment of men and women, the Court examines whether there exists a European consensus on the matter concerned. In the absence of a common ground, the margin of appreciation is wider. Nevertheless, the Court has regard to the changing conditions in the Member States, which may over time lead to a closer scrutiny.102 In the Petrovic Case, for instance, the Court still considered it justified to treat men and women differently as regards their entitlement to parental leave.103 However, in the Konstantin Markin Case, the Court found a violation of Article 14 and noted, inter alia, that a significant number of European societies had moved towards a more equal sharing between men and women of the responsibility for the upbringing of their children, and that men’s caring role had gained recognition.104 The Court grants a wide margin of appreciation to the States in deciding the precise timing and means of adjusting the different retirement age for men and 95 ECtHR, 24/6/1993, Schuler-Zgraggen v SUI, No. 14518/89, § 67; ECtHR, 22/2/1994, Burghartz v SUI, No. 16213/90, § 27; ECtHR, 21/2/1997, van Raalte v NED, No. 20060/92, § 39; ECtHR, 27/3/ 1998, Petrovic v AUT, No. 20458/92, § 37. 96 ECtHR, 21/2/1997, van Raalte v NED, No. 20060/92, § 42. 97 ECtHR, 24/6/1993, Schuler-Zgraggen v SUI, No. 14518/89, § 67; ECtHR, 21/2/1997, van Raalte v NED, No. 20060/92, § 39; ECtHR, 27/3/1998, Petrovic v AUT, No. 20458/92, § 37. 98 Cf. ECtHR, 22/2/1994, Burghartz v SUI, No. 16213/90, § 28; ECtHR, 22/3/2012 (GC), Konstantin Markin v RUS, No. 30078/06, § 127. 99 ECtHR, 27/3/1998, Petrovic v AUT, No. 20458/92, §§ 40 et seq. 100 As to that effect: ECtHR, 28/5/1985, Abdulaziz a. o. v UK, No. 9214/80 et al, §§ 74 et seq; ECtHR, 22/2/1994, Burghartz v SUI, No. 16213/90, §§ 27 et seq; ECtHR, 27/3/1998, Petrovic v AUT, No. 20458/92, §§ 37 et seq; ECtHR, 18/7/1994, Karlheinz Schmidt v GER, No. 13580/88, §§ 24 et seq; ECtHR, 11/6/2002, Willis v UK, No. 36042/97, §§ 39 et seq; Reid, para. IIB-082. 101 As to that Busuttil, in: de Salvia/Villiger, p. 33; cf., however, EComHR, 11/11/1986, Lindsay v UK, No. 11089/84 (unfavourable treatment of married couples in which the man is the main breadwinner in respect of the liability to pay income tax). 102 ECtHR, 10/6/2010, Schwizgebel v SUI, No. 25762/07, §§ 80 et seq. 103 ECtHR, 27/3/1998, Petrovic v AUT, No. 20458/92, §§ 38 et seq. 104 ECtHR, 22/3/2012 (GC), Konstantin Markin v RUS, No. 30078/06, § 140 (The Court considered servicemen to be in an analogous situation to servicewomen. Given the importance of the army for the protection of national security, certain non-discriminatory restrictions on the entitlement to parental leave could be justifiable, see §§ 131, 147); see also ECtHR, 2/10/2012, Hulea v ROM, No. 33411/05, § 47 (refusal to award compensation to a serviceman, discrimination with respect to his right to parental leave: violation).

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women. Accordingly, the Court did not consider it unreasonable that the State removed the inequality, which originally intended to counterbalance the disadvantaged economic position of women, by carrying out a thorough process of consultation and review and by introducing the reform slowly and in stages since national authorities were in principle better placed to appreciate what is in the public interest on social or economic grounds. Consequently, the Court held that there was a reasonable relationship of proportionality for the decision of the UK to equalise retirement age for men and women progressively until 2020.105 The Court more easily finds a violation of Article 14 in cases where legal equality between men and women is concerned than in cases on entitlement to benefits, which cannot be based on a Convention guarantee but which form part of a State’s concept of family life. In the Willis Case, where a widower was entitled to significantly fewer financial benefits upon his wife’s death than he would have been if he were a woman and she had been a man, despite the fact that his wife paid full social-security contributions in exactly the same way as a man in her position would have done, the Court found a violation of Article 14 taken together with Article 1 of Protocol No. 1.106 17 It flows from Article 3 of Protocol No. 1 taken together with Article 14 that the position of a political party that women should not be allowed to stand for elected office in general representative bodies of the State on its own lists of candidates, even if animated by a deeply-held religious conviction, is unacceptable under the Convention.107 The Court, when drawing its conclusion, referred to the fact that democracy was the only political model contemplated by the Convention and the only one compatible with it; a political party must not be intrinsically inimical to the fundamental principles of democracy, and the advancement of gender equality was a major goal in the Member States.108

c) Grounds of race, colour, language or national origin 18

Very weighty reasons must also be advanced in order to justify a difference in treatment based exclusively on the grounds of nationality.109 States may not argue 105

ECtHR, 12/4/2006 (GC), Stec a. o. v UK, No. 65731/01, §§ 57 et seq (use of the pension age as the cut-off point for the receiving of another social benefit was justified as a matter of administrative economy and coherence and with regard to the purpose of the respective social benefit); ECtHR, 22/8/2006, Barrow v UK, No. 42735/02, §§ 36 et seq.; as to an amendment in the legislation which introduced further differentiation and thereby frustrated the planned equalisation cf. ECtHR, 29/6/2006, Zeman v AUT, No. 23960/02, §§ 39 et seq; ECtHR, 17/2/2011, Andrle v CZE, No. 6268/08, § 60 (lowering of retirement age for women who had raised children but not for men: no violation). 106 ECtHR, 11/6/2002, Willis v UK, No. 36042/97, § 39; also ECtHR, 14/11/2006, Hobbs a. o. v UK, No. 63684/00, §§ 53 et seq. 107 ECtHR, 10/7/2012, Staatkundig Gereformeerde Partij v NED, No. 58369/10, § 77 (it is sufficient that the denial of a fundamental political right based solely on the grounds of gender is publicly espoused and followed in practice. It makes little difference whether or not it is laid down in the party’s bye-laws or any other internal document, see § 76). 108 ECtHR, 10/7/2012, Staatkundig Gereformeerde Partij v NED, No. 58369/10, §§ 71–72, 77. 109 ECtHR, 16/9/1996, Gaygusuz v AUT, No. 17371/90, § 42; ECtHR, 30/9/2003, Poirrez v FRAU, No. 40892/98, § 46; ECtHR, 27/11/2007, Luczak v POL, No. 77782/01, §§ 48 et seq; ECtHR, 18/2/ 2009 (GC), Andrejeva v LAT, Nr. 55707/00, §§ 87 et seq (no ‘reasonable relationship of proportionality’ where periods of employment in what was USSR territory were reckoned only for the calculation of the pension of recognised Latvian citizens); ECtHR, 22/3/2012, Rangelov v GER,

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that the difference in treatment is based on the idea that a State has special responsibility for its own nationals and that at the material time it was not bound by an international treaty to treat non-nationals equally.110 According to the Court, persons who are treated differently based on their place of residence are as a rule less in need of protection since they may freely choose where to live.111 Where the difference in treatment is based on race, colour or ethnic origin, the notion of objective and reasonable justification must be interpreted as strictly as possible.112 In the Orsˇusˇ Case, the Court found a violation of Article 14 taken together with Article 2 of Protocol No. 1 where Roma children, according to a practice in Croatia, were regularly placed in separate classes. This separation was said not to be based on ethnic grounds but to be best to address the learning difficulties of Roma children lacking proficiency of the language of instruction. While recognising the efforts made by the Croatian authorities to ensure that Roma children received schooling, the Court considered that under the circumstances of the case there had been no objective and reasonable justification for placing the applicants in Roma-only classes.113 The requirement of aliens without permanent residence to pay fees for education may violate Article 14 taken in conjunction with Article 2 of Protocol No. 1 too. The State’s margin of appreciation in this domain increases with the level of education, in inverse proportion to the importance of the education for those concerned and for society at large.114 In view of the States moving towards a ‘knowledge based’ society and the ever increasing role of secondary education, the Court, in the Ponomaryovi Case, accordingly applied stricter scrutiny in the assessment of the proportionality of the obligation to pay secondary school fees.115 Article 14 also applies to the right to vote. In the Grand Chamber’s Sejdic´ a. Finci 19 judgment, the Court found a violation of Article 14 taken together with Article 3 of Protocol No. 1 where a Roma and a Jew on the grounds of their origin were ineligible to stand for election to the House of Peoples and the Presidency of Bosnia and Herzegovina.116 The rules of the Dayton Peace Agreement (DPA) which aimed at facilitating the peaceful coexistence of the various ethnic groups in the area, were thereby generally compromised. No. 5123/07, § 87 (refusal of social therapy or relaxation of the conditions of preventive detention on the grounds of nationality). 110 ECtHR, 16/9/1996, Gaygusuz v AUT, No. 17371/90, §§ 45, 50. 111 ECtHR, 16/3/2010 (GC), Carson a. o. v UK, No. 42184/05, § 80 (proportionality in cases where States do not conduct a cost of living/value based comparison between people living in the respective State and people living abroad); ECtHR, 28/8/2012, Vucˇkovic´ a. o. v SRB, No. 17153/11 et al, §§ 84 et seq (difference in treatment in respect of payments to military reservists merely on the grounds of their residence not justified; pending with the GC). 112 E.g. as regards the Roma community see ECtHR, 13/11/2007 (GC), D.H. a. o. v CZE, No. 57325/00, §§ 182, 196 (disproportionately large numbers of Roma children were placed in special schools); ECtHR, 16/3/2010 (GC), Orsˇusˇ a. o. v CRO, No. 15766/03, § 156; ECtHR, 26/6/ 2012 (GC), Kuric´ a. o. v SLO, No. 26828/06, § 386 (difference in treatment between ‘real aliens’ and citizens of former SFRY Republics other than Slovenia as regards residence-related matters). 113 ECtHR, 16/3/2010 (GC), Ors ˇusˇ a. o. v CRO, No. 15766/03, §§ 156 et seq; ECtHR, 11/12/2012, Sampani a. o. v GRE, No. 59608/09, §§ 90 et seq (failure to provide schooling for and subsequent placement in special clases of Roma children: violation). 114 ECtHR, 21/6/2011, Ponomaryovi v BUL, No. 5335/05, § 56. 115 ECtHR, 21/6/2011, Ponomaryovi v BUL, No. 5335/05, §§ 57–58. 116 ECtHR, 22/12/2009 (GC), Sejdic ´ a. Finci v BIH, No. 27996/06 et al, §§ 45 et seq.

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d) Grounds of religion 20

Due to the obligation of Member States to remain neutral and impartial in exercising their regulatory power in the sphere of religious freedom, the Court exercises particular scrutiny where a difference in treatment is based on religion.117 When examining the process of recognition of the Jehova’s Witnesses as a religious society or community, the Court found a violation of Article 14. It could accept that the ten-year waiting period before a religious association that had been granted legal personality could obtain the status of a public-law body might be necessary in exceptional circumstances such as would be in the case of newly established and unknown religious groups, but found that it hardly appeared justified in respect of religious groups with a long-standing existence. Further, the example of the Coptic Orthodox Church, which was recognised by a specific law within a shorter period of time, showed that the State (Austria) did not consider the application on an equal basis of such a waiting period to be an essential instrument for pursuing its policy in that field.118 Exempting exclusively members of recognised religious societies from the obligation to perform military service and alternative civilian service is thus discriminatory and not objectively and reasonably justified.119 Religious grounds do not justify discrimination in the right of access to children. In the Hoffmann Case, the Court had to decide whether it complied with the Convention that the parental rights were granted to the father instead of the mother who was a member of the Jehova’s Witnesses. It found that the aim pursued, namely the protection of the health and rights of the children, was legitimate, but that a discrimination based essentially on a difference in religion alone was, in view of the required reasonable relationship of proportionality between the means employed and the aim pursued, not acceptable.120

e) Grounds of political or other opinion 21

A violation of Article 14 on the grounds of political or other opinion may occur as a consequence of a different treatment with a view to the rights under Articles 10, 11 and Article 3 of Protocol No. 1. The refusal of financial aid to political parties that have not received a statutory minimum number of votes required to qualify for public funding does not violate Article 14 in conjunction with Article 3 of Protocol No. 1 if the threshold set is not excessively high so as to monopolise the receipt of public resources with the political parties represented in parliament and to infringe the rights of those parties 117 ECtHR, 31/7/2008, Religionsgemeinschaft der Zeugen Jehovas u. a. v AUT, No. 40825/98, § 97 on the occasion of an examination of the conditions for recognition. 118 ECtHR, 31/7/2008, Religionsgemeinschaft der Zeugen Jehovas u. a. v AUT, No. 40825/98, §§ 84, 98. 119 ECtHR, 12/3/2009, Lo ¨ ffelmann v AUT, No. 42967/98, §§ 54 et seq; ECtHR, 12/3/2009, Gu¨tl v AUT, No. 49686/99, §§ 39 et seq; ECtHR, 19/3/2009, Lang v AUT, No. 28648/03, §§ 31 et seq; no violation as the applicant was member of a non-registered religious community, which had not been arbitrarily refused this legal status: ECtHR, 10/12/2009, Koppi v AUT, No. 33001/03, §§ 34 et seq. 120 ECtHR, 23/6/1993, Hoffmann v AUT, No. 12875/87, §§ 34 et seq; differently, however, ECtHR, 29/11/2007, Ismailova v RUS, No. 37614/02, §§ 59 et seq, and ECtHR, 27/7/2010, Gineitiene v LTU, No. 20719/05, §§ 39 et seq, where the decision to grant parental authority to the father was not the mother’s religious affiliation but the negative influence of her religion on the well-being of the children.

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that enjoy significant support from the electorate. This applies even more where there exist alternative forms of public assistance to those who fail to secure a minimum level of support among citizens.121

f) Grounds of birth, social origin and other status States must advance very weighty reasons in order to justify a difference in 22 treatment between legitimate and illegitimate children, which is a sphere where the Court exercises close scrutiny.122 Accordingly, the denial of citizenship to a child solely for the reason that he or she has been born out of wedlock is in violation of Article 14 in conjunction with Article 8.123 Differences in treatment between legitimate and illegitimate children in the field of inheritance law, too, were considered discriminations within the meaning of Article 14 taken together with Article 1 of Protocol No. 1 or Article 8 respectively.124 Children who have been adopted are in the same legal position as biological children in all respects: relations and consequences connected with their family life and the resulting property rights.125 The family status of fathers of illegitimate children comes under the heading of 23 ‘other status’ within the meaning of Article 14. So far, the legal position of these individuals has been notably strengthened through the Court’s case law.126 The Court expressly pointed out, for instance, that the aim of protecting the interests of children and their parents could also have been achieved without distinction on the grounds of birth.127 A judgment not awarding custody to the father of an illegitimate child based only on the family status or a prohibition of further contact with the child thus constitutes discrimination for the purpose of Article 14 taken together with Article 8.128 In the Zaunegger Case, the Court held that the law in question, which stipulated that the attribution of joint parental authority over children born out of wedlock depended not only on the absence of a threat to their well-being by negligence on ¨ zgu¨rlu¨k ve Dayanis˛ma Partisi v TUR, No. 7819/03, §§ 44 et seq. ECtHR, 10/5/2012, O Beginning with ECtHR, 13/6/1979, Marckx v BEL, No. 6833/74, §§ 28 et seq; ECtHR, 28/10/ 1987, Inze v AUT, No. 8695/79, §§ 35 et seq; ECtHR, 24/2/1995, McMichael v UK, No. 16424/90, §§ 94 et seq; ECtHR, 3/10/2000, Camp a. Bourimi v NED, No. 28369/95, §§ 33 et seq; ECtHR, 11/10/2001, Hoffmann v GER, No. 34045/96, §§ 49 et seq; ECtHR, 7/2/2013 (GC), Fabris v FRA, No. 16574/08, § 59. 123 ECtHR, 11/10/2011, Genovese v MLT, No. 53124/09, § 45. 124 ECtHR, 28/10/1987, Inze v AUT, No. 8695/79, §§ 43 et seq; ECtHR, 3/10/2000, Camp a. Bourimi v NED, No. 28369/95, §§ 38 et seq; ECtHR, 22/12/2004, Merger a. Cros v FRA, No. 68864/01, §§ 33 et seq, 46 et seq (discrimination of children on the grounds of birth out of wedlock); ECtHR, 28/5/2009, Brauer v GER, No. 3545/04, §§ 43 et seq; ECtHR, 7/2/2013 (GC), Fabris v FRA, No. 16574/08, §§ 73 et seq (‘protecting the ‘legitimate expectation’ [within the meaning of Article 1 of Protocol No. 1] of the deceased and their families must be subordinate to the imperative of equal treatment between children born outside and children born within marriage’, see § 68). 125 ECtHR, 13/7/2004, Pla a. Puncernau v AND, No. 69498/01, § 61; ECtHR, 3/5/2011, Ne ´gre´pontis-Giannisis v GRE, No. 56759/08, §§ 82–83. 126 Cf. ECtHR 8/7/2003 (GC), Sommerfeld v GER, No. 31871/96, §§ 91 et seq; ECtHR, 8/7/2003 (GC), Sahin v GER, No. 30943/96, §§ 92 et seq. 127 ECtHR, 11/10/2001, Hoffmann v GER, No. 34045/96, §§ 59 et seq. 128 ECtHR, 11/10/2001, Hoffmann v GER, No. 34045/96, §§ 59 et seq; ECtHR 8/7/2003 (GC), Sommerfeld v GER, No. 31871/96, §§ 91 et seq; still differently in the McMichael Case, where the Court held that in order to protect the interests of the illegitimate child and the mother it was justified that the father was accorded parental rights only after he had been identified a ‘meritorious’ father, cf. ECtHR, 24/2/1995, McMichael v UK, No. 16424/90, § 98. 121 122

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the mother’s part but also on the mother’s consent, constituted a disproportionate discrimination on the grounds of sex as well as on the grounds of legitimate or illegitimate birth.129 Discrimination may follow from legal restrictions on the possibility to bring an action for disavowal of paternity. The ECtHR concluded that the rigid application of time-limits, coupled with the refusal to grant the right to proceed with a paternity action, which only applied to the husband of a mother’s child but not to other interested parties, disproportionately discriminated against the husband on the grounds of sex as well as of his status as the legally presumed father. The judicial procedure for challenging paternity must be designed so as to provide the presumed father the opportunity to disavow the child.130 The Court did not either find a justification for a difference in treatment as regards the tax deductibility of child maintenance payments made by married fathers, now divorced and separated from the mother, and unmarried fathers, not cohabiting with the mother, who undertook similar relationships.131

g) Grounds of legal status 24

The term ‘other status’ in Article 14 also covers legal situations which are inextricably bound up with an individual’s personal circumstances and existence.132 This includes a distinction based on, for instance, the holding, or otherwise, of a high office133 or on military rank,134 on the type of sentence imposed on a prisoner135 or the status as a prisoner on remand,136 on the immigration status137 and even more so on the refugee status,138 on the status as a formerly internally displaced person,139 on whether the landlord is a State or a

129

ECtHR, 3/12/2009, Zaunegger v GER, No. 22028/04, §§ 51 et seq. ECtHR, 12/1/2006, Mizzi v MLT, No. 26111/02, §§ 129 et seq; cf. also ECtHR, 10/10/2006, Paulı´k v SVK, No. 10699/05, § 58 (no procedure for disavowing paternity, which had been determined by a final and binding decision); a time limit of five years after the birth of the child or 12 months after becoming cognisant of the circumstances for the legally presumed father to institute paternity proceedings is, however, proportionate, ECtHR, 28.11.1984, Rasmussen v DEN, No. 8777/79, §§ 38 et seq; as to the violation of Article 14 taken together with Article 6 for the rejection of the applicant’s request to obtain legal aid for litigation costs that could be caused by the action contesting paternity on the ground that he had no residence permit, see ECtHR, 10/3/2009, Anakomba Yula v BEL, No. 45413/07, §§ 34 et seq. 131 ECtHR, 19/7/2005, P. M v UK, No. 6638/03, § 28. 132 ECtHR, 27/9/2011, Bah v UK, No. 56328/07, § 46; ECtHR, 13/7/2010, Clift v UK, No. 7205/07, § 58; ECtHR, 6/11/2012, Hode a. Abdi v UK, No. 22341/09, § 46. 133 ECtHR, 25/10/2011, Valkov a. o. v BUL, No. 2033/04, § 115. 134 ECtHR, 8/6/1976, Engel a. o. v NED, No. 5100/71 et al, § 72 (military rank); ECtHR, 27/7/ 2004, Sidabras a. Dzˇiautas v LTU, No. 55480/00 et al and ECtHR, 7/4/2009, Zˇicˇkus v LTU, No. 26652/02, § 45 (status as a former KGB officer). 135 ECtHR, 13/7/2010, Clift v UK, No. 7205/07; ECtHR, 4/1/2008, Shelley v UK, No. 23800/06. 136 ECtHR, 13/12/2011, Laduna v SVK, No. 31827/02, § 55. 137 Tacitly in ECtHR, 19/2/2009 (GC), A. a. o. v UK, No. 3455/05, §§ 182–190; expressly in ECtHR, 27/9/2011, Bah v UK, No. 56328/07, § 46. 138 ECtHR, 27/9/2011, Bah v UK, No. 56328/07, § 46; ECtHR, 6/11/2012, Hode a. Abdi v UK, No. 22341/09, §§ 47–48 (both the refugee who married post-flight and his spouse enjoy ‘other status’). 139 ECtHR, 8/3/2011, S ˇ ekerovic´ a. Pasˇalic´ v BIH, § 37. 130

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private owner,140 on the type of outline planning permission,141 or on the kind of paternity a man enjoys.142 Treating religious and civil marriage differently (e.g. as regards a widow’s 25 allowance or social insurance) does not violate Article 14 if the legal consequences are clear and accessible and the arrangements for contracting a civil marriage are straightforward and do not place an excessive burden on the persons concerned and if the persons concerned could have contracted a civil marriage.143 Imposing greater restrictions on remand prisoners than on convicted prisoners 26 may in some instances be justified for security reasons or to protect the legitimate interests of an investigation. However, in order to be justified, means must be chosen which take into account the presumption of innocence and do not affect all remand prisoners in a general manner regardless of whether they were actually required; for instance, different categories of detention may be set up or particular restrictions imposed as may be required in an individual case.144

h) Other grounds of discrimination The term ‘other status’ includes among others personal characteristics which are 27 innate or immutable to an individual145 and situations which are inextricably bound up with an individual’s personal circumstances and existence.146 Accordingly, the Court considered that physical disabilities and various health impairments, such as HIV infection, fall within the notion of ‘other status’.147 Age148 and sexual orientation,149 too, constitute grounds of discrimination for the purposes of Article 14. Where discrimination is based on disability, the Court affords to the States only a 28 very limited margin of appreciation and reviews the assessment of the relevant circumstances. The obligation to pay a tax to be exempted from military service on medical grounds as laid down in Swiss law did not comply with Article 14. What was decisive was that the applicant had no other option than paying the tax, such as, for instance, to perform alternative civilian service, which required less physical effort.150 The grounds of age fall within the ambit of Article 14, too.151 In this area, the 29 margin of appreciation accorded to the Member States varies according to the 140

ECtHR, 18/2/1999 (GC), Larkos v CYP, No. 29515/95, § 21. Tacitly in ECtHR, 29/11/1991, Pine Valley Developments Ltd a. o. v IRE, No. 12742/87, § 64. 142 ECtHR, 10/10/2006, Paulik v SVK, No. 10699/05, § 54. 143 ECtHR, 20/11/2010 (GC), Serife Yig ˘it v TUR, No. 3976/05, §§ 86 et seq; differently ECtHR, ~oz Dı´az v ESP, No. 49151/07, §§ 61 et seq, where a woman married according to 8/12/2009, Mun the rites of the Roma community considered herself as married, which was supported by national authorities). 144 ECtHR, 13/12/2011, Laduna v SVK, No. 31827/02, § 66. 145 ECtHR, 13/7/2010, Clift v UK, No. 7205/07, § 58; ECtHR, 6/11/2012, Hode a. Abdi v UK, No. 22341/09, § 46. 146 ECtHR, 27/9/2011, Bah v UK, No. 56328/07, § 46; ECtHR, 13/7/2010, Clift v UK, No. 7205/07, § 58; ECtHR, 6/11/2012, Hode a. Abdi v UK, No. 22341/09, § 46. 147 ECtHR, 30/4/2009, Glor v SUI, No. 13444/04, §§ 53–56; ECtHR, 1/12/2009, G.N. a. o. v ITA, No. 43134/05, § 119; ECtHR, 10/3/2011, Kiyutin v RUS, No. 2700/10, § 57. 148 See m.n. 29. 149 See m.n. 30. 150 ECtHR, 30/4/2009, Glor v SUI, No. 13444/04, §§ 84, 94 et seq. 151 ECtHR, 10/2/2004, B.B. v UK, No. 53760/00, § 26 (age of consent in homosexual relations); ECtHR, 10/6/2010, Schwizgebel v SUI, No. 25762/07, § 85 (lower and upper age limits for adoption and limits in respect of age difference between the adopter and the adopted child). 141

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circumstances, the subject matter and the background.152 A broad margin of appreciation is granted, for instance, in respect of setting age limits for adoption.153 30 The Court points out that when a distinction is made in an ‘intimate and vulnerable sphere’ of an individual’s private life, such as his sexual orientation, particularly convincing and serious reasons must be advanced before discrimination on the grounds of sexual orientation can be legitimate for the purpose of Article 8.154 Where there is little common ground amongst the Member States on the rights of homosexuals, such as for example their right to adopt a child, and where the law appears to be in a transitional stage, a wide margin of appreciation must be left to the authorities of each State.155 By reason of their direct and continuous contact with the vital forces of their countries, the national authorities are in principle better placed than an international court to evaluate local needs and conditions.156 If the scientific community is divided over the possible consequences of certain matters, such as, for instance, the adoption of a child by one or more homosexual parents, States do not infringe the principle of proportionality by relying on one of the scientific approaches, even if it entails unequal treatment.157 Differences based solely on considerations of sexual orientation are in any event unacceptable.158 Accordingly, no reasonable relationship of proportionality existed where the homosexuality of the father was the sole decisive factor for awarding parental responsibility to the mother of the child.159 Likewise, it constituted sustained discrimination where the main reason for keeping a homosexual prisoner in total isolation from prison life for more than eight months was not to protect him from fellow prisoners but his sexual orientation.160 In Europe there is an increasing acceptance of both types of sexual orientation and a trend towards abolishing laws providing for special legal positions of homosexuals and transsexuals. Thus, the margin of appreciation afforded to the States by the Court is getting narrower where there is a difference in treatment based on sex or sexual orientation.161 The E.B. Case implies this conclusion: A homosexual woman was refused the authorisation to adopt a child even though French law recognised the right of single persons to apply for authorisation to adopt. The ground systematically referred to by the domestic authorities related to the lack of a ‘paternal referent’; the applicant’s homosexuality was thus a decisive 152

ECtHR, 10/6/2010, Schwizgebel v SUI, No. 25762/07, § 79. ECtHR, 10/6/2010, Schwizgebel v SUI, No. 25762/07, § 93. 154 ECtHR, 22/10/1981, Dudgeon v UK, No. 7525/76, § 52; ECtHR, 27/9/1999, Lustig-Prean a. o. v UK, No. 31417/96, § 82; ECtHR, 9/1/2003, L. a. V. v AUT, No. 39392/98, §§ 47 et seq, and ECtHR, 9/1/2003, S.L. v AUT, No. 45330/99, §§ 37 et seq; ECtHR, 2/3/2010, Kozak v POL, No. 13102/02, § 92; ECtHR, 24/7/2003, Karner v AUT, No. 40016/98, §§ 37, 42; ECtHR, 19/2/2013 (GC), X a. o. v AUT, No. 19010/07, §§ 99, 151 (second-parent adoption in same-sex couples). 155 ECtHR, 26/2/2002, Frette ´ v FRA, No. 36515/97, § 42; ECtHR, 19/2/2013 (GC), X a. o. v AUT, No. 19010/07, § 102. 156 ECtHR, 26/2/2002, Frette ´ v FRA, No. 36515/97, § 41. 157 ECtHR, 26/2/2002, Frette ´ v FRA, No. 36515/97, § 42. 158 ECtHR, 21/12/1999, Salgueiro da Silva Mouta v POR, No. 33290/96, §§ 36; ECtHR, 22/1/2008 (GC), E.B. v FRA, No. 43546/02, §§ 93, 96; ECtHR, 19/2/2013 (GC), X a. o. v AUT, No. 19010/07, § 99. 159 ECtHR, 21/12/1999, Salgueiro da Silva Mouta v POR, No. 33290/96, §§ 35 et seq. 160 ECtHR, 9/10/2012, X v TUR, No. 24626/09, § 64. 161 ECtHR, 24/7/2003, Karner v AUT, No. 40016/98, § 41; as to that effect also ECtHR, 9/1/2003, L. a. V. v AUT, No. 39392/98 et al, § 50; ECtHR, 9/1/2003, S.L. v AUT, No. 45330/99, § 42; ECtHR, 19/2/2013 (GC), X a. o. v AUT, No. 19010/07, § 99. 153

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factor leading to the decision to refuse her authorisation to adopt, which constituted an illegitimate discrimination under the Convention.162 It does not constitute discrimination based on sexual orientation if the raising of children in the common household is a condition of insurance policy as long as it is formulated in a neutral way.163 A blanket exclusion of persons living in a homosexual relationship from succession to a tenancy violates Article 14 taken in conjunction with Article 8.164 Article 14 neither taken in conjunction with Article 8 nor with Article 12 requires the States to grant same-sex couples access to marriage. Even assuming that for this purpose a married transgender person was in a relevantly similar situation to any other person, which the Court rejected, Article 14 taken together with Article 8 could not be interpreted as imposing an obligation on the States to grant a same-sex couples (after gender re-assignment surgery) a right to remain married.165 Against the background of the increasing acceptance of both types of sexual orientation, there is an emerging European consensus towards legal recognition of same-sex couples. If States choose to provide them with alternative means of legal recognition, they enjoy a certain margin of appreciation regarding the exact status conferred.166 Cases in which the applicants are denied access to social security systems or 31 entitlements to certain social benefits on discriminatory grounds constitute a particular group of cases. Violations of Article 14 in this field may be found in conjunction with various grounds of discrimination; most frequently on the grounds of sex and nationality. When it comes to general measures of economic or social strategy, a wide margin of appreciation is usually afforded to the States.167 The Court acknowledges that any welfare system, to be workable, may have to use broad categorisations to distinguish between different groups in need; and notes that for its part it is concerned with the compatibility of such systems with Article 14 and not with the individual facts or circumstances of the particular applicants or of others who are or might be affected by the legislation.168 In creating a scheme of benefits it is sometimes necessary to use cut-off points that apply to large groups of people; this

162 ECtHR, 22/1/2008 (GC), E.B. v FRA, No. 43546/02, §§ 73 et seq (where the applicant’s qualities and her child-raising and emotional capacities were no reason to doubt, unlike in Frette´ where the applicant was deemed to have difficulties in envisaging the practical consequences of the upheaval occasioned by the arrival of a child, see § 71); as to the unequal treatment of a homosexual in her maintenance obligation towards her children see ECtHR, 28/9/2010, J.M. v UK, No. 37060/ 06, §§ 55 et seq. 163 ECtHR, 22/7/2010, P.B. a. J.S. v AUT, No. 18984/02, §§ 40, 43, 47. 164 ECtHR, 24/7/2003, Karner v AUT, No. 40016/98, §§ 42 et seq; ECtHR, 2/3/2010, Kozak v POL, No. 13102/02, § 99. 165 ECtHR, 13/11/2012, H. v FIN, No. 37359/09, §§ 65–66 (pending with the GC). 166 ECtHR, 24/6/2010, Schalk a. Kopf v AUT, No. 30141/04, §§ 49–64, 101, 108; ECtHR, 15/3/2012, Gas a. Dubois v FRA, No. 25951/07, § 66; ECtHR, 19/2/2013 (GC), X a. o. v AUT, No. 19010/07, §§ 104, 106. 167 ECtHR, 18/2/2009 (GC), Andrejeva v LAT, Nr. 55707/00, § 83; ECtHR, 29/10/2009, Si Amer v FRA, No. 29137/06, § 40; Potvin-Solis, La liason entre le principe de non-discrimination et les liberte´s et droits fundamentaux des personnes dans les jurisprudences europe´ennes, RDTH 2009, p. 967 (980 et seq). 168 ECtHR, 16/3/2010 (GC), Carson a. o. v UK, No. 42184/05, § 62.

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is an inevitable consequence of introducing new schemes. The choice of a cut-off date falls within the margin of appreciation afforded to a State.169 States enjoy a wide margin of appreciation in introducing progressively the full equality of persons in the pension systems.170 The reasons for maintaining a difference in treatment between similar situations must, however, not be based solely on a ground such as religion. Accordingly, the Court held in the Manzanas Martı´n Case that a different treatment of Evangelical Church ministers and Catholic priests as regards the number of years of pastoral activity taken into account when calculating the pension rights was not justified.171 No European consensus exists on the affiliation of prison workers to old-age pension systems, although there is an evolving trend that they shall be included. Against this background, it does not violate Article 14 if working prisoners are not affiliated to the old-age pension system.172 A difference in treatment in the access to a social security system or the denial of social benefits, which is exclusively based on the grounds of nationality, requires very weighty reasons in order to be justified.173 The denial of an allowance for large families174 or of an allowance for newborn children175 based exclusively on the grounds of nationality thus has no objective and reasonable justification. The same applies in respect of denying a retirement pension on the grounds of lacking citizenship.176

V. Positive obligations 32

Due to the structure of Article 14, no positive obligations within the meaning of the case law to Articles 8 to 11 may be derived from the prohibition of discrimination. Article 14 provides for a prohibition of discrimination and, vice versa, an obligation to equal treatment, which determine the conduct of the Member States. If, however, substantive provisions of the Convention impose on the Member States positive obligations, they must be fulfilled in a manner compliant with Article 14.177 Where Articles 2 and 3 impose an obligation to investigate, the Court concludes that States have the additional duty to take all reasonable steps to unmask any racist motive and to establish whether or not ethnical hatred or prejudice may have played a role in the events. Treating racial violence equally to other acts of not 169 ECtHR, 20/5/2008, Twizell v UK, No. 25379/02, § 24; ECtHR, 31/5/2011, Maggio a. o. v ITA, No. 46286/09, § 73. 170 ECtHR, 12/4/2006 (GC), Stec a. o. v UK, No. 65731/01, § 49 (progressive equalisation of retirement age of men and women); ECtHR, 3/4/2012, Manzanas Martı´n v ESP, No. 17966/10, § 53. 171 ECtHR, 3/4/2012, Manzanas Martı´n v ESP, No. 17966/10, § 55. 172 ECtHR, 7/7/2011 (GC), Stummer v AUT, No. 37452/02, §§ 105, 109. 173 ECtHR, 18/2/2009 (GC), Andrejeva v LAT, Nr. 55707/00, § 87; ECtHR, 29/10/2009, Si Amer v FRA, No. 29137/06, § 39. 174 ECtHR, 28/10/2010, Fawsie v GRE, No. 40080/07, §§ 35 et seq; ECtHR, 28/10/2010, Saidoun v GRE, No. 40083/07, §§ 35 et seq. 175 ECtHR, 31/3/2009, Weller v HUN, No. 44399/05, §§ 33 et seq, 36 et seq. 176 ECtHR, 18/2/2009 (GC), Andrejeva v LAT, No. 55707/00, §§ 88 et seq; different in its conclusion ECtHR, 29/10/2009, Si Amer v FRA, No. 29137/06, §§ 43 et seq. 177 As to the obligation to investigate in a non-discriminatory manner, see ECtHR, 10/3/2009, Turan Cakir v BEL, No. 44256/06, §§ 77, 80; ECtHR, 14/12/2010, Milanovic´ v SRB, No. 44614/07, §§ 96 et seq.

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racially motivated violence, constitutes a violation of Article 14.178 The same applies to political motivation for ill-treatment. State authorities must take all reasonable steps to unmask any political motive and establish whether or not intolerance towards a dissenting political opinion may have played a role in the events.179 The ECtHR, found a violation of Article 14 taken together with Article 2 where a Member State concluded out-of-court settlements with a group of persons, which was infected following transfusions with contaminated blood, while it did not with other groups of persons infected under the same circumstances.180 In order to eliminate any form of racial or ethnical discrimination, particularly of 33 Sinti and Roma, the Court tends to refer to Article 14 without giving convincing reasons for the violation of Article 14 in the individual case.181 It notes the need to reassert continuously society’s condemnation of racism and to maintain the confidence of minorities in the authorities’ ability to protect them from the threat of racist violence.182 Similar arguments were put forward by the Court in cases of domestic violence, where it found a violation of Articles 2 and 3. In the Opus Case, it considered that the violence suffered by the applicant and her mother, perpetrated by the husband and son-in-law respectively, may be regarded as gender-based violence and held that the ineffectiveness of domestic remedies in providing equal protection of law amounted to a violation of Article 14 taken together with Article 2 and 3.183 In a case where a staff member of an airline complained that domestic law had failed to adequately protect her right to manifest her religious belief by wearing a cross visible at work, the Court found that positive obligations arose under Article 9 of the Convention, namely the obligation to either regulate the wearing of religious clothing and symbols in the workplace by law or to provide individuals with the possibility of lodging discrimination claims before domestic courts.184 Such a complaint may also be based on Article 14 taken in conjunction with Article 9.185 The Court derives positive obligations from Article 14 taken in conjunction with Article 11. It required a State to adopt effective and clear judicial protection against discrimination (e.g. by the employer) on the grounds of trade union membership, which constituted an association within the meaning of Article 11.186 178 ECtHR, 10/3/2009, Turan Cakir v BEL, No. 44256/06, §§ 77, 80; ECtHR, 14/12/2010, Milanovic´ v SRB, No. 44614/07, §§ 96 et seq; ECtHR, 14/12/2010, Mizˇiga´rova´ v SVK, No. 74832/01, § 119; ECtHR, 10/6/2010, Vasil Sashev Petrov v BUL, No. 63106/00, § 72; ECtHR, 22/2/2011, Soare a. o. ROM, No. 24329/02, § 208 (The statement by a police officer, who had fired a shot at a man of Roma ethnic origin, that he had been ‘attacked by a Gypsy’ is not in itself sufficient to require the authorities to investigate into his possibly racist motives), ECtHR, 24/7/2012, B.S. v ESP, No. 47159/08, §§ 58 et seq (ineffective investigation into possible racist motivation for ill-treatment allegedly suffered by Nigerian prostitute in the course of police questioning). 179 ECtHR, 2/10/2012, Virabyan v ARM, No. 40094/05, § 218. 180 ECtHR, 1/12/2009, G. N. a. o. v ITA, No. 43134/05, §§ 129 et seq. 181 ECtHR, 16/3/2010 (GC), Ors ˇusˇ a. o. v CRO, No. 15766/03, §§ 180 et seq. 182 ECtHR, 26/7/2007, Angelova a. Iliev v BUL, No. 55523/00, § 116. 183 ECtHR, 9.6.2009, Opuz v TUR, No. 33401/02, §§ 199 et seq. 184 ECtHR, 15/1/2013, Eweida a. o. v UK, No. 48420/10, §§ 91 et seq. 185 In the light of the finding of a violation of Article 9, the Court did not find that a separate examination of her complaint under Article 14 in conjunction with Article 9 was necessary. 186 ECtHR, 30/7/2009, Danilenkov a. o. v RUS, No. 67336/01, §§ 123, 136.

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Protocol No. 1 Article 1 – Protection of property Every 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. 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. Article 1 – Protection de la proprie´te´ Toute personne physique ou morale a droit au respect de ses biens. Nul ne peut eˆtre prive´ de sa proprie´te´ que pour cause d’utilite´ publique et dans les conditions pre´vues par la loi et les principes ge´ne´raux du droit international. Les dispositions pre´ce´dentes ne portent pas atteinte au droit que posse`dent les Etats de mettre en vigueur les lois qu’ils jugent ne´cessaires pour re´glementer l’usage des biens conforme´ment a` l’inte´reˆt ge´ne´ral ou pour assurer le paiement des impoˆts ou d’autres contributions ou des amendes. Bibliography: Bıˆrsan, La protection du droit de proprie´te´: de´veloppements re´cents de la jurisprudence de la Cour europe´enne des droits de l’homme, in: Caflisch/Callewert/Liddell/Mahoney/ Villinger (ed.), Human Rights – Strasbourg Views, Liber Amicorum Wildhaber, 2007, p. 5; Hostiou, La Cour europee´ne des droits de l’ homme et la the´orie de l’ expropriation indirecte, RTDH 2007, p. 385; Pellonpa¨a¨, Reflexion on the notion of ‘deprivation of possessions’ in Art. 1 of the first protocol to the European Convention on Human Rights, in: Mahoney/Matscher/Petzold/Wildhaber (ed.), Protecting Human Rights: The European Perspective, Studies in memory of Rolv Ryssdal, 2007, p. 1087; Ress, Reflections on the Protection of Property under the European Convention on Human Rights, in: Breitenmoser/Ehrenzeller/Sasso`li/Stoffel/Wagner-Pfeifer (ed.), Human Rights, Democracy and the Rule of Law, Studies in honour of Luzius Wildhaber, 2007, p. 625; Schreuer/ Kriebaum, The Concept of Property in Human Rights Law and International Investment Law, in: Breitenmoser/Ehrenzeller/Sasso`li/Stoffel/Wagner-Pfeifer (ed.), Human Rights, Democracy and the Rule of Law, Studies in honour of Luzius Wildhaber, 2007, p. 743; Tomuschat, Social Rights under the European Convention on Human Rights, in: Breitenmoser/Ehrenzeller/Sasso`li/Stoffel/WagnerPfeifer (ed.), Human Rights, Democracy and the Rule of Law, Studies in honour of Luzius Wildhaber, 2007, p. 837; van Rijn, Right to the peaceful enjoyment of one’s possessions (Article 1 of Protocol No. 1), in: van Dijk/van Hoof/van Rijn/Zwaak (ed.), Theory and Practice of the European Convention on Human Rights, 4th ed., 2006, p. 881. Leading cases: ECtHR, 23/9/1982, Sporrong a. Lo¨nnroth v SWE, No. 7151/75 et al (other interferences); ECtHR, 29/5/1986, Deumeland v GER, No. 9384/81 (widow’s supplementary pension); ECtHR, 29/5/1986, Feldbrugge v NED, No. 8562/79 (sickness allowances); ECtHR, 8/7/1986, Lithgow a.o. v UK, No. 9006/80 et al (compensation terms in violation of the right to property); ECtHR, 24/10/1986, AGOSI v UK, No. 9118/80 (control of the use of property); ECtHR, 24/6/1993, Papamichalopoulos v GRE, No. 1455/89 (de facto expropriation); ECtHR, 9/12/1994, The Holy Monasteries v GRE, No. 13092/87 et al (no compensation for the taking of land); ECtHR,

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9/12/1994, Stran Greek Refineries a.o. v GRE, No. 13427/87 (other interferences); ECtHR, 16/9/ 1996, Gaygusuz v AUT, No. 17371/90 (entitlement to unemployment benefit); ECtHR, 15/11/1996, Katikaridis a.o. v GRE, No. 19385/92 (amount of compensation); ECtHR, 15/11/1996, Tsomtsos a.o. v GRE, No. 20680/92 (amount of compensation); ECtHR, 22/6/2004 (GC), Broniowski v POL, No. 31443/96 (impossibility to enforce entitlement to compensation); ECtHR, 28/9/2004 (GC), Kopecky´ v SVK, No. 44912/98 (no legitimate expectation of receiving restitution); ECtHR, ¨ neryildiz v TUR, No. 48939/99 (obligation to protect); ECtHR, 30/5/2005 30/11/2004 (GC), O (GC), Jahn a.o. v GER, Nr. 46720/99 (lack of any compensation for the taking of property under the land reform); ECtHR, 30/8/2007 (GC), J.A. Pye (Oxford) Ltd. a.o. v UK, No. 44302/02 (loss of title to the land as a consequence of illegal possession); ECtHR, 3/4/2012 (GC), Kotov v RUS, No. 54522/00 (positive obligations in the context of insolvency procedures); ECtHR, 25/10/2012 (GC), Vistinsˇ a. Perepjolkins v LET, No. 71243/01 (compensation significantly lower than current cadastral value of land expropriated following restoration of Latvian independence). Outline I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Scope of protection. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Personal scope . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Material scope. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Interferences. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Deprivation of possessions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Control of use of property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Other interferences with the right to property. . . . . . . . . . . . . . . . . . . . . . . . . . IV. Justification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Deprivation of possessions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Control of the use of property. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Other interferences with the right to property. . . . . . . . . . . . . . . . . . . . . . . . . . 4. Peaceful enjoyment of possessions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Positive obligations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 2 2 3 8 9 11 13 14 14 20 21 22 23

I. Introduction 1

Although when drafting the Convention it was generally agreed to insert a right to property into the text, the negotiating parties failed to reach an agreement on its content in time. Thus, a separate additional protocol was subsequently adopted, containing, inter alia, the guarantee of property.1 Article 1 of Protocol No. 1 comprises three distinct, interrelated rules: The first enounces the general principle of peaceful enjoyment of property (paragraph 1, first sentence), the second covers protection against deprivation of possessions (paragraph 1, second sentence) and the third contains a guarantee concerning the control of the use of property (paragraph 2). The second and third rule constitute special cases of interference with the right to property, which should be interpreted in the light of the general principle enunciated in the first rule. Before considering whether the first rule was complied with, the Court must examine whether the last two rules are applicable.2

1 2

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Grabenwarter/Pabel, § 25 m.n. 1 with further references. ECtHR, 23/9/1982, Sporrong a. Lo¨nnroth v SWE, No. 7151/75 et al, § 61.

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II. Scope of protection

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II. Scope of protection 1. Personal scope The personal scope of Article 1 of Protocol No. 1 explicitly includes legal persons, 2 and thereby takes into account that legal persons often are subject to infringements of (at least) their right to property.3

2. Material scope The wordings ‘peaceful enjoyment of his possessions’ and ‘droit au respect de ses 3 biens’ in the authentic language versions of the Protocol express a broad international legal concept of property comprising all ‘acquired’ rights that constitute assets.4 Thus, at least assets under civil law are protected. That is, first, property rights under domestic law and, secondly, – going beyond the national legal concept of property5 – claims which are ‘sufficiently established to be enforceable’.6 The scope of protection of Article 1 of Protocol No. 1 includes, at any rate, claims awarded to an individual by a ‘final and binding’ judgment or arbitration award.7 Furthermore, it comprises claims in respect of which a person has ‘legitimate expectations of obtaining effective enjoyment of a property right’.8 For determining whether such ‘legitimate expectations’ exist, the Court does not consider a ‘genuine dispute’ or an ‘arguable claim’ as criteria but requires that the claim has a sufficient basis in national law; this is, for example, where there is a settled case law of domestic courts confirming the claim.9 No legitimate expectation can be said to arise where there is a dispute as to the correct interpretation and application of domestic law.10 The mere hope of securing an asset is not sufficient to establish 3

As to the protection of legal persons under public law cf. Article 34 of the ECHR. Cf. ECtHR, 26/6/1986, Van Marle a.o. v NED, No. 8543/79 et al, § 41. 5 ECtHR, 23/11/2000 (GC), Former King of Greece a.o. v GRE, No. 25701/94, § 60. 6 ECtHR, 9/12/1994, Stran Greek Refineries a.o. v GRE, No. 13427/87, § 59; ECtHR, 28/9/2004 (GC), Kopecky´ v SVK, No. 44912/98, §§ 25 et seq, 7 ECtHR, 9/12/1994, Stran Greek Refineries a.o. v GRE, No. 13427/87, §§ 59 et seq; ECtHR, 3/4/ 2008, Regent Company v UKR, No. 773/03, §§ 61 et seq. (final and binding arbitration award). 8 ECtHR, 25/10/2001, Saggio v ITA, No. 41879/98, § 24; as to that effect already ECtHR, 29/11/ 1991, Pine Valley Developments Ltd. a.o. v IRL, No. 12742/87, § 51; ECtHR, 20/11/1995, Pressos Compania Navierra v BEL, No. 17849/91, § 31; ECtHR, 16/4/2002, Dangeville v FRA, No. 36677/97, § 48. 9 ECtHR, 28/9/2004 (GC), Kopecky ´ v SVK, No. 44912/98, §§ 45 et seq; ECtHR, 6/10/2005 (GC), Maurice v FRA, No. 11810/03, §§ 63 et seq (the applicants’ legitimate expectation of obtaining compensation for the damage suffered as a result of the disabilities of their child, which had not been detected on account of gross negligence, was based on the established case law of French administrative courts); ECtHR, 24/2/2005, Veselinski v MKD, No. 45658/99, §§ 80 et seq (In this case, a law providing for the sale of apartments to army servicemen at a beneficial price was abrogated. The applicant, a former army serviceman, was regarded as having a legitimate expectation to purchase an apartment at a reduced price based on the pre-existing legal position and practice and taking into account his previous contributions); ECtHR 7/10/2009, Plechanow v POL, No. 22279/04, §§ 83 et seq; ECtHR, 23/10/2012, Ramaer a. Van Willigen v NED, No. 34880/12, § 81. 10 ECtHR, 28/9/2004 (GC), Kopecky ´ v SVK, No. 44912/98, § 50; ECtHR, 11/1/2007 (GC), Anheuser-Busch Inc. v POR, No. 73049/01, § 65. 4

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property within the meaning of Article 1 of Protocol No. 1;11 thus the mere hope that a claim might be acknowledged in a pending case does not give rise to ‘legitimate expectations’.12 Claims subject to conditions do not suffice either.13 The provisional approval of subsidies granted in proportion to the amounts companies invest might, however, be sufficient for establishing property within the meaning of Article 1 of Protocol No. 1.14 A claim to property restitution may also give rise to ‘legitimate expectations’.15 ‘Legitimate expectations’ protected by Article 1 of Protocol No. 1 arise, in particular, where a State, subsequent to the transition from a socialist system to a market economy, enacts legislation establishing claims to restitution or compensation.16 The loss of future income, on the other hand, is not protected by the right to property since it is based on personal economic contributions.17 Future income constitutes a possession only if the income has been earned or where an enforceable claim to it exists.18 If a Member State enacts a law awarding compensation to a specific population group, the State is obliged to secure the practical and legal requirements for its implementation. The legal beneficiaries may ‘legitimately expect’ the implementation of the law.19 A State may not interfere with the right of individuals to build on the plots of land they have retained by way of a deed of sale with the State by implementing a new land-use plan for the municipality concerned.20 4 The term ‘property’ includes physical goods, chattels and immovable objects as well as certain other rights. The co-ownership of corporations, in particular shares, 11 ECtHR, 23/10/2012, Ramaer a. Van Willigen v NED, No. 34880/12, § 81: In the present case, the applicants based their claim on the hope that their insurance contracts, after having been terminated ex lege following the implementation of an EEC regulation, would be continued, or renewed, on terms no less favourable for them than those which they enjoyed previously. 12 ECtHR, 13/12/2000 (GC), Malhous v CZE, No. 33071/96 (recognition of restitution for longterm deprivation of the right to property). 13 ECtHR, 10/2/2009, Mu ¨ hle v GER, No. 21773/05; ECtHR, 30/9/2010, 92.9 Hit FM Radio GmbH v AUT, No. 6754/05. 14 ECtHR, 18/5/2010, Plalam S.P.C. v ITA, No. 16021/02, § 38. 15 EComHR, 16/4/1998, Gospodinova v BUL, No. 37912/97. 16 ECtHR, 13/12/2005, Bergauer a. o. v the CZE, No. 17120/04 (regarding property deprived based on the Benesˇ decree); ECtHR, 7/10/2008, Preussische Treuhand GmbH v POL, No. 47550/06, § 64; ECtHR, 28/9/2004 (GC), Kopecky´ v SVK, No. 44912/98, § 38 (The same may apply in respect of arrangements for restitution or compensation established under pre-ratification legislation, if such legislation remained in force after the State ratified Protocol No. 1, see § 35); ECtHR, 9/3/ 2010, Gesine Mielke v GER No. 37142/07. 17 ECtHR, 25/1/2000, Ian Edgar (Liverpool) Limited v UK, No. 37683/97; ECtHR, 26/9/2000, Denimark Ltd. a. o. v UK, No. 37660/97; however, Article 1 of Protocol No. 1 encompasses law firms and their clientele, cf. ECtHR, 9/11/1999, Doring v GER, No. 37595/97; ECtHR, 6/2/2003, Wendenburg v GER, No. 71630/01; ECtHR, 11/1/2007 (GC), Anheuser-Busch Inc. v POR, No. 73049/01, § 64. 18 ECtHR, 11/1/2007 (GC), Anheuser-Busch Inc. v POR, No. 73049/01, § 64. 19 ECtHR, 11/2/2010, Malysh a. o. v RUS, No. 30280/03, § 71; cf. also ECtHR, 25/9/2012, Catholic Archdiocese of Alba Iulia v ROM, No. 33003/03, §§ 82 et seq, 97 (where, based on an emergency order and later a law which explicitly referred to the obligation to return to the applicant association certain property and expressly mentioned its ownership, the applicant association enjoyed at least a legitimate expectation that the issue of ownership of assets would be decided rapidly). 20 ECtHR, 18/11/2010, Richet a. Le Ber v FRA, No. 18990/07 et al, §§ 92 et seq.

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II. Scope of protection

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is covered by the guarantee of property.21 Intellectual property (copyright,22 patents and trademark rights,23 right to a business name of a company engaged in ecommerce, use of certain internet domains24) is protected, too. The scope of protection further extends to economic interests that are a principal condition for carrying on business activities.25 This was expressly held by the Court with respect to a restaurant licensed to serve alcoholic beverages for which the sale of alcoholic beverages was very significant in relation to the total turnover of the company. As the license was one of the principal conditions for carrying on the applicant company’s business, its withdrawal had adverse effects on both the goodwill and value of the restaurant; the Court found that in the circumstances of the case such withdrawal constituted an interference with the ‘right to peaceful enjoyment of possessions’.26 A company’s clientele or its goodwill also falls within the ambit of Article 1 of Protocol No. 1;27 however, what is not covered by the scope of protection is the clientele in the form of future income.28 For instance, the clientele of an advocate constitutes a property interest for the purposes of Article 1 of Protocol No. 1, as does the clientele of an open-air cinema.29 Furthermore, the guarantee of property may encompass claims under public law. 5 These comprise, firstly, claims on taxes or other contributions, as well as penalties. This already follows from Article 1 (2) of Protocol No. 1.30 In cases of social insurance law, the question of whether a legal position constituted an asset under Article 1 of Protocol No. 1 was, for a long time, judged by the fact whether the benefit was acquired by way of paying contributions.31 The scope of 21 ECtHR, 23/2/1995, Gasus Dosier- und Fo ¨ rdertechnik GmbH v NED, No. 15375/89, § 53; Schreuer/Kriebaum, The Concept of Property in Human Rights Law and International Investment Law, in: Breitenmoser/Ehrenzeller/Sasso`li/Stoffel/Wagner-Pfeifer (ed.), Human Rights, Democracy and the Rule of Law, Studies in honour of Luzius Wildhaber, p. 743 (752 et seq); shares in an estate under joint ownership constitute a ‘possession’ too, see ECtHR, 8/12/2011, Go¨bel v GER, No. 35023/04, § 37. 22 ECtHR, 29/1/2008, Balan v MDA, No. 19247/03, §§ 34 et seq (use of a picture, published by the applicant, as a background for identity cards without remuneration for his protected work). 23 ECtHR, 11/1/2007 (GC), Anheuser-Busch Inc. v POR, No. 73049/01, § 72 (The application for the registration of a trade mark may come within Article 1 of Protocol No. 1. This is due to financial rights and interests that arise upon an application, which thus possesses a substantial economic value, see §§ 76 et seq); ECtHR, 18/9/2007, Paeffgen GmbH v GER, No. 25379/04 et al. 24 ECtHR, 18/9/2007, Paeffgen GmbH v GER, No. 25379/04 et al. 25 ECtHR, 26/6/1986, Van Marle a. o. v NED, No. 8543/79 et al, § 42; ECtHR, 7/7/1989, Tre Trakto¨rer Aktiebolag v SWE, No. 10873/84, § 55; ECtHR, 25/3/1999, Iatridis v GRE, No. 31107/96, § 54. 26 ECtHR, 7/7/1989, Tre Trakto ¨ rer Aktiebolag v SWE, No. 10873/84, § 53. 27 ECtHR, 26/6/1986, Van Marle a. o. v NED, No. 8543/79 et al, § 41. 28 ECtHR, 13/3/2012, Malik v UK, No. 23780/08, §§ 88 et seq. 29 ECtHR, 30/11/1987, H. V BEL, No. 8950/80, § 47; ECtHR, 25/3/1999, Iatridis v GRE, No. 31107/96, § 54. 30 As to taxes expressly in ECtHR, 23/10/1990, Darby v SWE, No. 11581/85, § 30; ECtHR, 16/4/ 2002, Dangeville v FRA, No. 36677/97, § 48; ECtHR, 22/7/2003, Sa Cabinet Diot a. Sa Gras Savoye v FRA, No. 49217/99 et al, § 26. 31 ECtHR, 29/5/1986, Feldbrugge v NED, No. 8562/79, § 40 (sickness allowances); ECtHR, 29/5/ 1986, Deumeland v GER, No. 9384/81, § 74 (widow’s supplementary pension); ECtHR, 26/11/1992, F. Lombardo v ITA, No. 11519/85, § 17 and ECtHR, 26/11/1992, G. Lombardo v ITA, No. 12490/86, § 16; ECtHR, 24/8/1993, Massa v ITA, No. 14399/88, § 26 (entitlement to reversionary pension of the widower of a public servant); ECtHR, 16/9/1996, Gaygusuz v AUT, No. 17371/90, § 41 (unemployment benefit).

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protection of the right to property was later extended to welfare benefits unconditional on the prior payment of contributions.32 The Court explained this change in case law by referring to the variety of funding methods and the interlinked benefits in most social systems. Accordingly, it found a restriction of the scope of Article 1 of Protocol No. 1 to benefits based on the payment of contributions to seem increasingly artificial. Moreover, if benefits funded by general taxation were not granted to claimants, it would be ignored that they had contributed to the financing of this system by means of paying taxes.33 With this, the Court has developed the right to property further towards a general claim to welfare benefits granted by law to those who meet the legal requirements.34 Protocol No. 1 does not provide for the right to receive a social security payment of any kind;35 a State may freely choose whether to create a benefit scheme and whether and to what extent differences in otherwise similar situations justify a different treatment. However, if a State does decide to create a benefits scheme, it must do so in a manner which is compatible the principle of non-discrimination under Article 14.36 6 Lastly, inheritance rights fall within the ambit of the right to property.37 However, the right to property applies only to a person’s existing possessions and does not guarantee the right to acquire possessions whether on intestacy or through voluntary dispositions.38 Thus, the legal status of the heir is protected if he has acquired by inheritance a right to a share of the deceased’s estate39 since the heir has a ‘legitimate expectation’ of effective enjoyment of a property right. This applies even in cases where national law requires the application of the principle of ‘reciprocity’ within the ambit of the law of succession but where national courts apply the principle in a manner contravening the Convention.40 32 ECtHR, 6/7/2005 (GC), Stec a. o. v UK, No. 65731/01 et al, §§ 47 et seq; the development of the case law was triggered by ECtHR, 16/9/1996, Gaygusuz v AUT, No. 17371/90, §§ 39, 41 and ECtHR, 30/9/2003, Poirrez v FRA, No. 40892/98, §§ 37, 42. 33 ECtHR, 6/7/2005 (GC), Stec a. o. v UK, No. 65731/01 et al, § 50; Bıˆrsan, La protection du droit de proprie´te´: de´veloppements re´cents de la jurisprudence de la Cour europe´enne des droits de l’homme, in: Caflisch/Callewaert/Liddell/Mahoney/Villinger (ed.), Human Rights – Strasbourg Views, Liber Amicorum Wildhaber, p. 5 (10); Ress, Reflections on the Protection of Property under the European Convention on Human Rights, in: Breitenmoser/Ehrenzeller/Sasso`li/Stoffel/WagnerPfeifer (ed.), Human Rights, Democracy and the Rule of Law, Studies in honour of Luzius Wildhaber, p. 625 (630, 636). 34 Grabenwarter/Pabel, § 25 m.n. 5 with further references. 35 ECtHR, 12/4/2006 (GC), Stec a. o. v UK, No. 65731/01 et al, § 51; Tomuschat, Social Rights under the European Convention on Human Rights, in: Breitenmoser/Ehrenzeller/Sasso`li/Stoffel/ Wagner-Pfeifer (ed.), Human Rights, Democracy and the Rule of Law, Studies in honour of Luzius Wildhaber, 2007, p. 837 (859). 36 ECtHR, 12/4/2006 (GC), Stec a. o. v UK, No. 65731/01 et al, § 53; ECtHR, 7.7.2011 (GC) Stummer v AUT, No. 37452/02, § 83. 37 ECtHR, 13/6/1979, Marckx v BEL, No. 6833/74, § 63; ECtHR, 28/10/1987, Inze v AUT, No. 8695/79, § 40; ECtHR, 1/2/2000, Mazurek v FRA, No. 34406/97, §§ 42–43; ECtHR, 3/5/2011, Ne´gre´pontis-Giannisis v GRE, No. 56759/08, §§ 97, 104 (refusal of domestic court to recognise adoptive status and, consequently, the applicant’s inheritance rights); ECtHR, 22/12/2004, Merger a. Cros v FRA, § 32; ECtHR, 7/2/2013 (GC), Fabris v FRA, No. 16574/08, § 55. 38 ECtHR, 13/6/1979, Marckx v BEL, No. 6833/74, § 50. 39 ECtHR, 28/10/1987, Inze v AUT, No. 8695/79, § 38; ECtHR, 19/6/2001, Zwierzynski v POL, No. 34049/96, § 64; ECtHR, 8/1/2008, Nacaryan a. Deryan v TUR, No. 19558/02 et al, §§ 57, 60. 40 ECtHR, 27/3/2007, Apostolidi a. o. v TUR, No. 45628/99, §§ 70 et seq; ECtHR, 8.1.2008, Nacaryan a. Deryan v TUR, No. 19558/02 et al, §§ 47 et seq; ECtHR, 29.9.2009, Fokas v TUR, No. 31206/02, §§ 37 et seq.

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III. Interferences

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III. Interferences Following the Court’s case law, and in accordance with the structure of Article 1 8 of Protocol No. 1, three types of interference with the right to property may be distinguished: (a) Deprivation of possessions (paragraph 1 second sentence), (b) control of the use of property (paragraph 2) and (c) other interferences with the right to property (paragraph 1 first sentence).

1. Deprivation of possessions In this context, formal and de facto expropriation need to be distinguished.41 9 Formal expropriation includes interferences with the right to property on the ground of formal transfer of property; this is (generally) linked with a loss of property for the benefit of the State or in the public interest, and holds true irrespective of whether the expropriation was based on laws, administrative acts or civil law contracts.42 Expropriation for the benefit of individuals represents another case of formal expropriation43 if the grounds for it are set in law or if it is based on acts attributable to the State.44 However, it is not necessary that the State concerned has already acquired full 10 ownership of the property asset.45 In The Holy Monasteries Case, the Court identified a case of expropriation even though the property had not yet been transferred to the State. It considered it unimportant that the statutory two-month period for the transfer of property to the State had not been respected since the law in question, which provided for the transfer of property, was still in force.46 In the Skrzynski Case, the Court held that a local land development plan providing for a future expropriation of land infringed Article 1 of Protocol No. 1 if the future expropriation was to be carried out at an undetermined and not even approximately indicated future date.47 Nationalisation constitutes another case of formal expropriation.48 This does not apply to cases where no compensation is paid for a confiscation if the measure aims at realising a specific purpose.49 De facto expropriations do not require a formal taking of property. It encompasses authoritative measures whose effects are as seriously adverse as the effects of a formal expropriation. In this context, the Court assesses whether the remaining legal position 41 Cf. Pellonpa ¨ a¨, Reflexion on the notion of ‘deprivation of possessions’ in Art. 1 of the first protocol to the European Convention on Human rights, in: Mahoney/Matscher/Petzold/Wildhaber (ed.), Protecting Human Rights: The European Perspective, Studies in memory of Rolv Ryssdal, 2007, p. 1087 (1092 et seq). 42 As to expropriation by law cf. ECtHR, 22/9/1994, Hentrich v FRA, No. 13616/88, § 42; ECtHR, 7/8/1996, Zubani v ITA, No. 14025/88, § 49. 43 Cf. ECtHR, 12/2/1986, James a. o. v UK, No. 8793/79, § 40; however, ECtHR, 30/8/2007 (GC), J.A. Pye (Oxford) Ltd. a. o. v UK, No. 44302/02, § 66 (‘adverse’ unchallenged possession over a lengthy period of 12 years does not deprive the paper owner of his possessions but rather affects him by means of ‘control of use’). 44 Pellonpa ¨ a¨, Studies in memory of Rolv Ryssdal, pp. 1093 et seq. 45 ECtHR, 9/12/1994, The Holy Monasteries v GRE, No. 13092/87 et al, § 65. 46 ECtHR, 9/12/1994, The Holy Monasteries v GRE, No. 13092/87 et al, § 65. 47 ECtHR, 6/9/2007, Skrzynski v POL, No. 38672/02, § 71. 48 ECtHR, 8/7/1986, Lithgow a. o. v UK, No. 9006/80 et al. 49 See m.n. 12 below.

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of a proprietor still allows a meaningful use of the property in question.50 In order to distinguish expropriation from the control of the use of property it is decisive whether a party was able to legitimately expect to continue exercising property rights without any state interference and whether a personal relationship between the individual concerned and the property he was deprived of existed.51 In the Papamichalopoulos Case, the Court found that the applicants had been de facto expropriated when Greece, after democracy had been restored, had taken possession of land for military purposes without compensating the expropriated individuals with land of equal value. The law designed to remedy the situation was not implemented for over 10 years, which caused the owner to lose all ability to dispose of the land at issue.52 It also amounts to a de facto expropriation when a final court decision restores the title to a property to the owner, while State authorities do all to delay the restitution.53 The Court identified another case of de facto expropriation when Italian authorities took possession of land for the benefit of public road construction projects by way of an accelerated procedure and started the construction work without formally expropriating the owners of the respective land,54 as well as when a flat was sold by a Polish company while proceedings on the question of restitution were pending with a court, which, in the following course, confirmed the applicant’s title to the entire property but refused to order the return of the flat.55 The Court noted that it amounted to de facto expropriation when private land was dedicated as a public forest56 and when shares in the stock of a capital corporation were – following an increase in capital – reduced.57 The cancellation of occupancy rights preventing individuals from getting back their pre-war flats, too, deprives them of their possessions.58

2. Control of use of property 11

Regulations to control the use of property (Article 1 of Protocol No. 1 (2)) are measures of the sovereign that command or forbid a certain use of property. This includes, for instance, construction bans,59 restrictions under planning law,60 sovereign authorisation to exercise an economic activity,61 restrictions in occupancy 50 ECtHR, 28/10/1999, Brumarescu v ROM, No. 28342/95, § 77; ECtHR, 8/12/2009, Christa Henne v GER, No. 28092/07. 51 As to legitimate expectations: ECtHR, 23/9/1982, Sporrong a. Lo ¨ nnroth v SWE, No. 7151/75 et al, §§ 70 et seq; ECtHR, 25/10/1989, Allan Jacobsson (No. 1) v SWE, No. 10842/84, § 54; ECtHR, 18/2/1991, Fredin (No. 1) v SWE, No. 12033/86, §§ 46, 52 et seq; as to the severity of the measure: ECtHR, 24/6/1993, Papamichalopoulos v GRE, No. 1455/89, $ 40 et seq. 52 ECtHR, 24/6/1993, Papamichalopoulos v GRE, No. 14556/89, §§ 43 et seq; cf. also ECtHR, 16/1/2003, Karagiannis a. o. v GRE, No. 51354/99, § 41. 53 ECtHR, 19/6/2001, Zwierzynski v POL, No. 34049/96, § 69 54 ECtHR, 30/3/2006, Gianni a. o. v ITA, No. 35941/03, § 82. 55 ECtHR, 21/7/2005, Strain a. o. v ROM, No. 57001/00, § 43. 56 ECtHR, 22/7/2008, Ko ¨ ktepe v TUR, No. 35785/03, § 84. 57 ECtHR, 7/11/2002, Olczak v POL, No. 30417/96, § 61 (reduction of the share from 45 % to 0,4 %). 58 ECtHR, 3/5/2012, Mago a. o. v BIH, No. 12959/05 et al, § 95. 59 ECtHR, 25/10/1989, Allan Jacobsson (No. 1) v SWE, No. 10842/84, § 53. 60 ECtHR, 29/11/1991, Pine Valley Developments Ltd. a. o. v IRL, No. 12742/87, § 56. 61 ECtHR, 26/6/1986, Van Marle a. o. v NED, No. 8543/79 et al, § 43; ECtHR, 7/7/1989, Tre Trakto¨rer Aktiebolag v SWE, No. 10873/84, § 54; ECtHR, 18/2/1991, Fredin (No. 1) v SWE, No. 12033/86, § 47.

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and tenancy law,62 the imposition of compulsory administration in insolvency proceedings,63 measures affecting the possibility of engaging in the activity corresponding to a licence,64 the denial of a vehicle’s registration65 or the denial of the right to use the internet domain registered.66 Control of the use of property under the second paragraph further encompasses interferences with the right to property which are necessary ‘to secure payment of taxes or other contributions or penalties’.67 This includes procedural and substantive rules in the said fields of law. Temporary or ultimate confiscation of unlawfully used items (sequestration) 12 constitutes a special case of the control of use of property since the loss of property is of at least temporary nature.68 This is due to the fact that such interferences aim at compliance with property laws and that it conforms with the general principle of law of Member States that ‘items whose use has been lawfully adjudged illicit and dangerous to the general interest are forfeited’.69 The British import ban on gold thus does not constitute a measure to ‘control the use of property’.70 More problematic is the question whether refusing to restore gold coins confiscated because of the import ban to the owner represents such a case. The Court decided that no such violation had occurred where legal remedies were granted to an individual that allowed a judicial review of the discretionary decision of an administrative authority to not restore the property, as well as of the innocence and the lack of negligence of the person in question.71 Where possessions are confiscated outside the context of criminal proceedings, the confiscation order constitutes not a control of the use of property but a deprivation of property.72

62

ECtHR, 19/12/1989, Mellacher a. o. v AUT, No. 10522/83 et al, § 44. ECtHR, 25/10/2001, Saggio v ITA, No. 41879/98, § 28. 64 ECtHR, 7/6/2012 (GC), Centro Europa 7 S.r.l. a. Di Stefano v ITA, No. 38433/09, § 186 (in the present case the measures affected a licence for nationwide terrestrial television broadcasting and were delaying the start-up date). 65 This had the effect that the applicant was not able to use the car he acquired at an auction for a period over two years, ECtHR, 24/5/2005, Sildedzis v POL, No. 45214/99, §§ 45 et seq. 66 ECtHR, 18/9/2007, Paeffgen GmbH v GER, No. 25379/04 et al. 67 ECtHR, 16/4/2002, Dangeville v FRA, No. 36677/97, § 51; ECtHR, 10/7/2007, Bimer S.A. v MDA, No. 15084/03, § 51; other contributions are, for instance, legal fees, see ECtHR, 16/10/2010 (GC), Perdiga˜o v POR, No. 24768/06, §§ 60 et seq. 68 ECtHR, 7/12/1976, Handyside v UK, No. 5493/72, § 62; ECtHR, 24/10/1986, AGOSI v UK, No. 9118/80, § 51; ECtHR, 18/7/1994, Vendittelli v ITA, No. 14804/89, § 38; ECtHR, 22/2/1994, Raimondo v ITA, No. 12954/87, §§ 27 et seq; ECtHR, 23/2/1995, Gasus Dosier- und Fo¨rdertechnik GmbH v NED, No. 15375/89, § 59; ECtHR, 8/10/2009, Adzhigovich v RUS, No. 23202/05, § 27. 69 Cf. ECtHR, 7/12/1976, Handyside v UK, No. 5493/72, § 63. 70 ECtHR, 24/10/1986, AGOSI v UK, No. 9118/80, § 52. 71 ECtHR, 24/10/1986, AGOSI v UK, No. 9118/80, § 60. 72 ECtHR, 24/7/2012, Waldemar Nowakowski v POL, No. 55167/11, §§ 46: confiscation of a collection of antique arms without distinction of whether they could still be qualified as weapons as the owner did not have a licence: violation; in such circumstances, regard must be had as to whether the confiscation imposes an excessive burden on the individual concerned both as regards the pecuniary and sentimental value, and to alternative measures in order to alleviate the burden imposed on him (§§ 52 et seq). 63

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3. Other interferences with the right to property 13

The so-called ‘other interferences’ is the third category of interference with the right to property and is laid down in Article 1 of Protocol No. 1 (1) first sentence. It is a catch-all provision encompassing all those interferences that may not be classified into neither of the aforementioned categories73 – even if it is for a complex factual and legal situation. ‘Other interferences’ include violations of the right to property by way of forestalling the attainment of the right to property over a period of decades,74 the non-enforcement of court or administrative property decisions in the applicants’ favour,75 the intervention of the legislator in ongoing procedures,76 certain planning policies exceeding the scope of the control of the use of property,77 the declaration that including land in nature conservancy projects constitutes public interest,78 the refusal of national authorities to pay interest to compensate for the delay in refunding taxes unduly paid,79 the privileged status of public hospitals in calculating the default interest payable for outstanding salary to the detriment of their employers compared to non-public hospitals,80 or an employer’s action for redundancy payments rejected by domestic courts.81 The Sporrong and Lonnroth case of 1982 is the leading decision in the category ‘other interferences’ with the right to property.82 The applicant claimed that his right to property had been violated by expropriation permits that remained in force for years and prohibitions on construction, issued by the government, that were closely linked to it. The Court held that neither the expropriation permits nor the prohibitions on construction were measures to control the use of property within the meaning of paragraph 2, but that they rather constituted the initial stage of expropriation as its purpose was not to limit or control the use of the property. According to the Court, it neither constituted expropriation since the land had, due to these measures, lost value but was not deprived from the owner. The interference with the right to property rather resulted from its limited usability. The Court found a violation of the right to property in a case where a construction company had terminated a contract with the Greek government on the construction of an oil refinery, in which the State committed itself to expropriate the proprietors of a certain area and provide the applicant company with the land for construction. At a time when the law for the expropriation had already been 73

ECtHR, 5/1/2000 (GC), Beyeler v ITA, No. 33202/96, § 106. ECtHR 23/4/1987, Erkner a. Hofauer v AUT, No. 9616/81, § 76 75 ECtHR, 2/3/2004, Popescu v ROM, No. 48102/99, § 80; ECtHR, 13/11/2007, Ramadhi a. o. v ALB, No. 38222/02, §§ 45 et seq, 83 et seq. (non-enforcement of judgments and/or decisions for the restitution of property); ECtHR, 17/4/2012, Ilyushkin a. o. v RUS, No. 5734/08, § 58 (non-enforcement of order to provide housing); ECtHR, 31/7/2012, Manushaqe Puto a. o. v ALB, No. 604/07 et al, § 93 (delays in enforcing final administrative property decisions). 76 ECtHR, 9/12/1994, Stran Greek Refineries a. o. v GRE, No. 13427/87, § 68; ECtHR, 20/11/1995, Pressos Compania Navierra v BEL, No. 17849/91, § 34. 77 ECtHR, 23/9/1982, Sporrong a. Lo ¨ nnroth v SWE, No. 7151/75 et al, § 69; ECtHR, 15/11/1996, Pro¨tsch v AUT, No. 15508/89, § 42. 78 ECtHR, 16/9/1996, Matos e Silva, Lda. a. o. v POR, No.15777/89, § 79. 79 ECtHR, 9/3/2006, Eko-Elda Avee v GRE, No. 10162/02, § 28. 80 ECtHR, 22/5/2008, Meı¨danis v GRE, No. 33977/06, § 32. 81 ECtHR, 23/10/2007, Cazacu v MDA, No. 40117/02, §§ 46 et seq. 82 ECtHR, 23/9/1982, Sporrong a. Lo ¨ nnroth v SWE, No. 7151/75 et al. 74

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adopted and the expropriation proceedings were concluded, the government decided to return the land to the proprietors and ordered that the construction should cease. On the ground of an arbitration clause, the construction company obtained an arbitration award according to which it was entitled to reimbursement of costs and expenses. A law later adopted by the legislator annulled the arbitration award. Such interference was considered as ‘other interference’ with the right to property.83

IV. Justification 1. Deprivation of possessions Expropriation is, pursuant to Article 1 of Protocol No. 1 permissible only if 14 provided for by law and only in the public interest and by means which are appropriate and proportionate to achieve the aim sought to be realised. As regards the requirement of a legal basis of an interference with the right to property, the general principles developed in cases of legal reservations under Articles 8 to 11 apply. Due to the different systems of sources of law in the Member States, justification not always relies on a law adopted in the legislative procedure. Executive orders may as well serve as a legal basis as long as they are based on an authorisation by the parliament.84 More generally speaking, any interference must be based on an instrument of general application. However, in exceptional situations, the Court is prepared to accept the existence of special laws laying down specific conditions that apply to one or more named individuals.85 In any case, the legal basis needs to be of a certain quality, namely it must be compatible with the rule of law and must provide guarantees against arbitrariness.86 Thus, the legal basis must be sufficiently accessible, precise and foreseeable in its application. As to the notion of ‘foreseeability’, its scope depends to a considerable degree on the content of the instrument in issue, the field it is designed to cover and the number and status of those to whom it is addressed.87 In particular, a rule is ‘foreseeable’ when it affords a measure of protection against arbitrary interferences by the public authorities and against the extensive application of a restriction to any party’s detriment.88 Similarly, the applicable law must

83

ECtHR, 9/12/1994, Stran Greek Refineries a .o. v GRE, No. 13427/87, § 74; cf. the qualification in ECtHR, 14/2/2006, Lecarpentier a. o. v FRA, No. 67847/01, § 40. 84 For further details see Grabenwarter/Pabel, § 18, m.n. 7 et seq; ECtHR, 23/06/2009, Minasyan a. Semerjyan v ARM, No. 27651/05, §§ 69 et seq. 85 ECtHR, 25/10/2012 (GC), Vistins ˇ a. Perepjolkins v LET, No. 71243/01, § 99 with reference to ECtHR, 23/6/1993, Ruiz-Mateos v ESP, ECtHR, 9/12/1994, The Holy Monasteries v GRE, No. 13092/87 et al, ECtHR, 9/12/1994, Stran Greek Refineries a. o. v GRE, No. 13427/87 and ECtHR, 23/11/2000 (GC), Former King of Greece a.o. v GRE, No. 25701/94, §§ 80 et seq. 86 ECtHR, 25/10/2012 (GC), Vistins ˇ a. Perepjolkins v LET, No. 71243/01, §§ 96 et seq. 87 Mutatis mutandis ECtHR, 10/5/2012, Sud Fondi S.r.l. a. o. v ITA, No. 75909/01, § 109; ECtHR, 25/10/2012 (GC), Vistinsˇ a. Perepjolkins v LET, No. 71243/01, § 97. 88 ECtHR, 24/11/2005, Tourancheau a. July v FRA, No. 53886/00, § 54; mutatis mutandis ECtHR, 8/7/1999 (GC), Bas˛kaya a. Okçuog˘lu v TUR, No. 23536/94 et al; ECtHR, 7/6/2012 (GC), Centro Europa 7 S.r.l. a. Di Stefano v ITA, No. 38433/09, § 143; ECtHR, 25/10/2012 (GC), Vistinsˇ a. Perepjolkins v LET, No. 71243/01, § 97.

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provide minimum procedural safeguards commensurate with the importance of the principle at stake.89 It is primarily for the domestic courts to interpret and apply domestic legislation. As long as the application is not tainted by any manifest arbitrariness, a reversal of jurisprudence falls within the discretionary powers of domestic courts, notably in countries having the system of written law and which are not bound by precedent.90 Taking this standard into consideration, the Court determined that the inconsistent application of the principle of acquisition by appropriation (‘occupazione aquisitiva’), developed in the Italian case law, violated the principle of the rule of law. This principle caused a transfer of property which was physically taken in possession but never formally expropriated to the State after construction work had been finished and thus enabled authorities to benefit from the unlawful situation.91 In case no legal basis satisfies the requirement of foreseeability, the risk of any mistake made by a State authority must be borne by the State, especially where no other conflicting private interest is at stake.92 An individual acting in good faith may generally rely on statements of the State or one of its officials if they are or seem to be vested with the necessary authority. An individual may expect that internal regulations and procedures have been observed, unless he may expect the opposite based on publicly accessible documents (including primary and secondary legislation) or should have known that a certain official has not the necessary authority to legally oblige the State. A soldier could reasonably rely on the information of his immediate superiors that his entitlement to a special daily allowance was not in dispute, which they repeated on several occasions, although they were not authorised to decide upon the soldier’s claim, since there was no clear legal provision or publicly accessible document.93 15 States enjoy a wide margin of appreciation in determining what is in the public interest, especially when implementing social and economic policies. Only the deprivation of possessions, manifestly without reasonable foundation, does not satisfy the requirements of the public interest.94 This is equally true for the protection of the environment or of a country’s historical or cultural heritage.95 Measures of deprivation of property are manifestly without reasonable foundation

89 Mutatis mutandis ECtHR, 14/9/2010 (GC), Sanoma Uitgevers B.V. v NED, No. 38224/03, § 88; ECtHR, 25/10/2012 (GC), Vistinsˇ a. Perepjolkins v LET, No. 71243/01, §§ 97 et seq. 90 ECtHR, 24/1/2012, Torri a. o. v ITA, No. 11838/07, § 42. 91 ECtHR, 30/5/2000, Belvedere Alberghiera S.r.l. v ITA, No. 31524/96, §§ 58 et seq (constructive expropriations not benefiting the public interest); ECtHR, 30/5/2000, Carbonara a. Ventura v ITA, No. 24638/94, §§ 65 et seq (expropriation after the authorised period has expired); Hostiou, La Cour europee´ne des droits de l’ homme et la the´orie de l’ expropriation indirecte, RTDH 2007, p. 385 (385 et seq). 92 ECtHR, 11/6/2009, Trgo v CRO, No. 35298/04, § 67; ECtHR, 20/5/2010, Lelas v CRO, No.55555/08, § 74. 93 ECtHR, 20/5/2010, Lelas v CRO, No. 55555/08, § 74. 94 ECtHR, 28/7/1999 (GC), Immobiliare Saffi v ITA, No. 22774/93, § 49; ECtHR, 30/5/2005 (GC), Jahn a. o. v GER, No. 46720/99, § 91; ECtHR, 25/10/2012 (GC), Vistinsˇ a. Perepjolkins v LET, No. 71243/01, § 106; a wide margin of appreciation is granted in particular in the implementation of land development and town planning schemes, see ECtHR, 25/9/1996, Buckley v UK, No. 20348/92, § 75 and ECtHR, 11/10/2011, Vassallo v MLT, No. 57862/09, § 36. 95 ECtHR, 19/2/2009 (GC), Kozac{og ˘lu v TUR, No. 2334/03 § 53.

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where the implied public interest is not held genuinely.96 The placing in reserve of expropriated property, even for a long period of time, does not necessarily entail a breach of Article 1 of Protocol No. 1. The delay must, however, be based on publicinterest grounds and account must be taken of whether the property concerned generated a significant increase in value during the period of delay.97 The mere interest of the State’s cash flow cannot in itself be treated as a public or general interest justifying interference with individual rights.98 Regarding tax law, the Court held that the implementation of a EU Directive was, irrespective of its substantial content, to be considered a legitimate objective.99 Lastly, the principle of proportionality between the means employed and the 16 aim sought to be achieved must be satisfied.100 This requires that the measures of deprivation of possessions are suitable to achieve the aim pursued.101 Proportionality in a narrow sense requires a fair balance between the demands of the public interest and the requirements of the protection of the individual’s fundamental rights. According to the Court’s case law, it is primarily for the States to ensure a requisite balance between the opposing interests: hence national authorities have to strike a fair balance in each individual case, taking into account all relevant circumstances of the case, considering in particular the heaviness of the burden imposed on the expropriated individual and the extent of the benefit to the public.102 Thus, a manifestly unreasonable balance between the interests concerned gives rise to a violation of Article 1 of Protocol No. 1.103 A fair balance will not be struck where the person concerned has to bear ‘an individual and excessive burden’.104 However, the deprivation of possessions must not be a necessary 96 ECtHR, 14/2/2012, Tkachevy v RUS, No. 35430/05, § 39 (The expropriation of the building was declared to be in the public interest, first, of converting the property into non-residential premises and then of safety. Due to several inconsistencies, including the fact that after repairing the building it became residential premises contrary to the declared goals, it could not be clearly and convincingly shown that the expropriation had taken place in the public interest, see §§ 39 et seq). 97 ECtHR, 2/7/2002, Motais de Narbonne v FRA, No. 48161/99, §§ 19 et seq; ECtHR, 11/10/2011, Vassallo v MLT, No. 57862/09, § 41 et seq; ECtHR, 22/11/2011, Frendo Randon a. o. v MLT, No. 2226/10, §§ 59, 61. 98 ECtHR, 25/6/2009, Zouboulidis v GRE, No. 36963/06, § 35. 99 ECtHR, 16/4/2002, Dangeville v FRA, No. 36677/97, § 55; similarly on the occasion of a judicial review of the forfeiture of an airplane – thus an interference with Article 1 para 2 Protocol No. 1 – on the basis of a Regulation (EC): compliance with a legal obligation based in EU law strongly serves a public interest, ECtHR, 30/6/2005 (GC), Bosphorus Hava Yollari Turizm ve Ticaret Anonim Sirketi v IRL, No. 45036/98, § 150 (due to the equivalence of the human rights protection under EU law and Convention law it is presumed that the forfeiture was in conformity with the Convention, which was not refuted in the present case §§ 159 et seq). 100 ECtHR, 28/5/1985, Ashingdane v UK, No. 8225/78, § 57; ECtHR, 21/2/1986, James a. o. v UK, No. 8793/79, § 50; ECtHR, 18/2/1991, Fredin (No. 1) v SWE, No. 12033/86, § 51. 101 Cf. EComHR, Report of 3/10/1984, Gillow v UK, Series B 92, § 154. 102 ECtHR, 21/2/1986, James a. o. v UK, No. 8793/79, § 46; ECtHR, 27/10/1994, Katte Klitsche de la Grange v ITA, No. 12539/86, §§ 42 et seq (granting of legal protection in domestic law); ECtHR, 8/9/1995, Spadea a. Scalabrino v ITA, No. 12868/87, §§ 33 et seq; ECtHR, 27/11/2007, Urba´rska obec Trencianske Biskupice v SVK, No. 74258/01, §§ 120, 132 et seq. 103 ECtHR, 21/2/1986, James a. o. v UK, No. 8793/79, §§ 46, 50. 104 ECtHR, 21/2/1986, James a. o. v UK, No. 8793/79, § 50; ECtHR, 11/4/2002, Lallement v FRA, No. 46044/99, § 18; ECtHR, 6/11/2007, Bugajny a. o. v POL, No. 22531/05, § 74; this though was adopted from the case law to the category ‘other interferences’, for further information see m.n. 21 below.

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measure, meaning that national authorities do not have to use the least severe measures to achieve an objective.105 17 Specific questions of proportionality arise where a transition from a socialist system of property ownership to a free and democratic order and market economy has taken place. The enactment of laws providing for rehabilitation, restitution of confiscated property or compensation for such property (deprived of the proprietors under the preceding communist regime) obviously involves comprehensive consideration of manifold issues of a moral, legal, political and economic nature. Hence, Member States authorities have a wide margin of appreciation in this regard.106 As the case law shows, the Court still exercises its competence to judicial review and identifies violations of the right to property in this category. Under no circumstances, however, are States obliged to provide redress for wrongs or damage caused prior to their ratification of the Convention.107 States rather have the freedom to choose the conditions under which they agree to return property that has been transferred to them before they ratified the Convention.108 Restitution laws still in force after the ratification of the Convention may themselves be a right to property.109 18 The Court considered compensation terms material to the assessment whether the deprivation of possessions has been proportionate.110 Just compensation generally reaches a fair balance.111 With regard to the standard in the Member States, the taking of property in the public interest without payment of an amount reasonably related to its value will normally constitute a disproportionate interference with the right to property.112 The Court noted that under the legal systems of the Member States, the taking of property in the public interest without payment of compensation is justifiable only in exceptional circumstances.113 No violation of the right to property occurs where an expropriated person does not take the opportunity afforded to him by the State to obtain compensation.114 It must be assumed that both the nationals of a particular Member State and foreigners to this country have a general right to compensation under Article 1 of Protocol No. 1.115 The additional requirement of Article 1 of Protocol No. 1 of 105

Grabenwarter/Pabel, § 25 m.n. 18 with further references. ECtHR, 28/9/2004 (GC), Kopecky´ v SVK, No. 44912/98, § 37. 107 ECtHR, 13/12/2005, Bergauer a. o. v CZE, No. 17120/04 (on expropriation based on the ‘Benesˇ-Decrees’); ECtHR, 7/10/2008, Preussische Treuhand GmbH v POL, No. 47550/06. 108 ECtHR, 28/9/2004 (GC), Kopecky ´ v SVK, No. 44912/98, § 38. 109 ECtHR, 9/12/2008, Viasu v ROM, No. 75951/01, § 58; ECtHR, 9/3/2010, Gesine Mielke v GER, No. 37142/07. 110 ECtHR, 23/9/1982, Sporrong a. Lo ¨ nnroth v SWE, No. 7151/75 et al, § 69; ECtHR, 21/2/1986, James a. o. v UK, No. 8793/79, § 54; ECtHR, 8/7/1986, Lithgow a. o. v UK, No. 9006/80 et al; ECtHR, 24/11/1986, Gillow v UK, No. 9063/80, § 148. 111 As to that effect for the category ‘other interferences’, see ECtHR, 23/9/1982, Sporrong a. Lo¨nnroth v SWE, No. 7151/75 et al, § 71. 112 ECtHR, 8/7/1986, Lithgow a. o. v UK, No. 9006/80 et al; ECtHR, 18/6/2009, Novikov v RUS, No. 35989/02, § 51. 113 ECtHR, 23/11/2000 (GC), Former King of Greece a. o. v GRE, No. 25701/94, § 89; ECtHR, 20/7/2004, I.R.S. a. o. v TUR, No. 26338/95, § 49; ECtHR, 18/6/2009, Novikov v RUS, No. 35989/02, § 51; ECtHR, 25/10/2012 (GC), Vistinsˇ a. Perepjolkins v LET, No. 71243/01, § 112. 114 ECtHR, 30/9/2008, Maria Pia Marchi v ITA, No. 58492/00, §§ 29 et seq. 115 ECtHR, 21/2/1986, James a. o. v UK, No. 8793/79, § 54; ECtHR, 8/7/1986, Lithgow a. o. v UK, No. 9006/80 et al. 106

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meeting the conditions provided for by the general principles of international law is of no particular significance in this context.116 The principles in question are not applicable in cases where a State takes the property of its own nationals117 and does not provide for additional protection for foreigners.118 The amount of compensation is determined by an autonomous Convention 19 standard.119 However, Member States have a wide margin of appreciation. A tendency can be observed that expropriated individuals regularly receive compensation in the amount of the full market value of the property, whereas compensation for global expropriations may be appropriately limited. The Court in its case law determined a violation only in cases where a breach of the principle of the prohibition of arbitrary conduct has occurred.120 Compensation assessed on the basis of a hypothetical stock exchange quotation of unlisted shares is not unreasonable if all relevant factors are considered in an objective procedure.121 In particular, no compensation has to be paid for the loss of profit or in respect of mineral wealth contained in a piece of land which is not intended to be used in the foreseeable future.122 Moreover, the damage caused by a lower selling price that was the consequence of refusing the property transaction can be disregarded.123 A compensation system must be flexible enough to take account of the concrete situation or the disadvantages of the person expropriated. When determining the amount of compensation, benefits for property owners derived from infrastructural measures may be taken into account, but individual circumstances, such as a loss in the value of a property due to road projects, always need to be taken into consideration.124 The taking of land and forest property from Greek orthodox monasteries without payment of compensation constitutes a disproportionate burden and thus an interference with the right to property.125 Granting land to monasteries, which do not have sufficient immovable property, solely for the purposes of cultivation by the monks and the budgetary appropriation for supporting and maintaining the monasteries and strengthening the church’s cultural work cannot be regarded as payment of compensation.126

116 Grabenwarter/Pabel, § 25 m.n. 19 with further references; Kriebaum, Nationality and the Protection of Property under the European Convention on Human Rights, Festschrift Hafner, 2008, pp. 649 et seq. 117 Expressly in ECtHR, 21/2/1986, James a. o. v UK, No. 8793/79, § 59. 118 Grabenwarter/Pabel, § 25 m.n. 19 with further references. 119 In more detail: Haeck, Recht op bescherming van de eigendom, in: van de Lanotte/Haeck (ed.), Handboek EVRM Deel. 2, 2004, p. 295 (371 et seq); van Rijn, Right to the peaceful enjoyment of one’s possessions (Article 1 of Protocol No. 1), in: van Dijk/van Hoof/van Rijn/Zwaak (ed.), Theory and Practice of the European Convention on Human Rights, 4th ed., 2006, p. 881 (881 et seq). 120 ECtHR, 21/2/1986, James a. o. v UK, No. 8793/79, §§ 46, 54. 121 ECtHR, 8/7/1986, Lithgow a. o. v UK, No. 9006/80 et al. 122 EComHR, 13/12/1979, Andorfer Tonwerke a.o. v AUT, No. 7987/77, DR 18, 31 (48). 123 ECtHR, 21/2/1990, Håkansson a. Sturesson v SWE, No. 11855/85, § 54. 124 ECtHR, 15/11/1996, Katikaridis a. o. v GRE, No. 19385/92, § 49; ECtHR, 15/11/1996, Tsomtsos a. o. v GRE, No. 20680/92, § 40; ECtHR, 25/3/1999, Papachelas v GRE, No. 31423/96; ECtHR, 16/4/2009, Antonopoulou a. o. v GRE, No. 49000/06, §§ 56 et seq. 125 ECtHR, 9/12/1994, The Holy Monasteries v GRE, No. 13092/87 et al, §§ 71 et seq. 126 ECtHR, 9/12/1994, The Holy Monasteries v GRE, No. 13092/87 et al, § 74.

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The duty of taking account of the diversity of situations may entail more than financial compensation. If the expropriation deprives someone of his source of income a financial compensation cannot cover the loss. The appropriate form of compensation then is to offer comparable land to the land expropriated.127 It is also in breach of Article 1 of Protocol No. 1 if the historical value of property classified as cultural heritage is not taken into account when calculating the expropriation compensation.128 A compensation considerably lower than the market value violates Article 1 of Protocol No. 1.129 Legitimate objectives of ‘public interest’, such as pursued in measures of economic reform or measures designed to achieve greater social justice, may call for less than reimbursement of the full market value; this applies even more with respect to laws which are enacted in the context of a change of political and economic regime.130 However, even in the latter case, compensation of an amount less than one thousandth of the cadastral value of the land or some 350 times lower than the cadastral value of all the property respectively was considered to be so disproportionate so as to be almost tantamount to a complete lack of compensation. Only very exceptional circumstances may justify such an extreme disproportion. When ascertaining whether such circumstances exist, the Court examines the applicant’s personal situation and conduct, and the general historical and political background to the impugned measure.131 As a general rule, it conforms to the right to property when domestic law provides for ‘full’ compensation, except in case of excessive length of expropriation proceedings and/or when authorities refuse to pay compensation over a long period of time.132 According to the Court’s case law, delays in the payment of compensation over a period of five years are in breach with the right to property if this exceptionally long period of time causes significant financial losses to the individual concerned and leaves him in a state of uncertainty.133 This holds especially true for States with high inflation rates.134 It constitutes a disproportionate burden on the individual if the depreciation in the value of compensation for expropriation, resulting from the considerable amount of time that has passed between the dates on which the land has been valued and the compensation paid, is not offset.135 The Court found a violation of Article 1 of Protocol No. 1 in a case where the applicant’s share was sold at a price below market level to the co-owner of the 127

ECtHR, 11/4/2002, Lallement v FRA, No. 46044/99, § 23. ECtHR, 19/2/2009 (GC), Kozacioglu v TUR, No. 2334/03, §§ 69 et seq. 129 ECtHR, 29/3/2006 (GC), Scordino (No. 1) v ITA, No. 36813/97, §§ 82 et seq. (compensation in the amount of 40 % of the market value). 130 ECtHR, 21/2/1986, James a. o. v UK, No. 8793/79, § 54; ECtHR, 25/10/2012 (GC), Vistins ˇ a. Perepjolkins v LET, No. 71243/01, §§ 112 et seq. 131 ECtHR, 25/10/2012 (GC), Vistins ˇ a. Perepjolkins v LET, No. 71243/01, § 119 (compensation for expropriation following restoration of Latvian independence). 132 ECtHR, 7/8/1996, Zubani v ITA, No. 14025/88, § 49; ECtHR, 1/3/2001, Malama v GRE, ¨ zen v TUR, No. 20152/92, No. 43622/98, § 51 (no compensation for 75 years); ECtHR, 28/3/2002, O § 55; ECtHR, 9/3/2006, Mitzon v GER, No. 58182/00 (the enforcement of the refusal to pay was, however, in contradiction to the simultaneous appeal against the decision to restitute). 133 ECtHR, 10/7/2001, Ku ¨ çu¨k v TUR, No. 26398/95, §§ 25–26; cf. also ECtHR, 22/11/2011, Frendo Randon a.o. v MLT, No. 2226/10, §§ 63 et seq. (the applicants had not received any compensation, 42 years after the taking of their land; delay of 31 years in paying compensation). 134 ECtHR, 10/7/2001, Ku ¨ çu¨k v TUR, No. 26398/95, § 25. 135 ECtHR, 6/7/2010, Yetis ˛ a. o. v TUR, No. 40349/05, §§ 58 et seq. 128

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property during execution proceedings. It found that fair balance between the competing interests could have been struck by, for instance, allowing the co-owner to make use of his pre-emption right only after the close of the public auction.136 In the Court’s view, a State cannot appeal to compensation, which a third party agreed to pay in order to speed up the proceedings, as it held that the obligation to respect and protect individuals’ property cannot be dependent on the initiative of third parties.137 The Court does not review national systems of compensation for procedural costs. However, excessive costs may lead to a violation.138 A duty to retransfer property may arise when the purpose, at which the expropriation was aiming, will not be realised. Such an obligation only arises in case of an earlier expropriation,139 not, however, if the former proprietor has transferred his property to the State by sales contract.140

2. Control of the use of property The criteria for justifying interferences with the right to property by way of 20 controlling the use of property are similar to those applying in cases of deprivation of possessions. The requirement of a legal basis applies equally. The criterion ‘in accordance with the general interest’ conforms to the criterion of ‘in the public interest’ of paragraph 1 second sentence.141 Thus, the margin of appreciation granted to the States is the same.142 The criterion of public interest does not, however, apply to laws necessary ‘to secure the payment of taxes or other contributions or penalties’. Hence, in this respect, States enjoy a wider margin of appreciation.143 The principle of proportionality, which was derived from paragraph 1, must also be satisfied in cases under paragraph 2.144 In a series of cases the Court was concerned with the Italian rent law, especially the provisions on suspension or staggering of evictions which limited proprietors over years in their right to freely dispose of their property. Such a restriction was considered as imposing an excessive burden on the applicant and, as a corollary, a violation of Article 1 of Protocol No. 1.145 On the other hand, a statutory restriction 136

ECtHR, 10/7/2007, Kanala v SVK, No. 57239/00, § 61. ECtHR, 14/11/2008, Fakitidou a. Schina v GRE, No. 6789/06, § 53. 138 ECtHR, 16/10/2010 (GC), Perdiga ˜ o v POR, No. 24768/06, §§ 69 et seq. 139 ECtHR, 9/12/1994, Stran Greek Refineries a. o. v GRE, No. 13427/87, §§ 59 et seq.; ECtHR, 28/9/2004 (GC), Kopecky´ v SVK, No. 44912/98, § 49. 140 ECtHR, 24/4/2008, Kemp a. o. v LUX, No. 17140/05, § 76. 141 As to the Member States’ wide margin of appreciation in the field of planning law, ECtHR, 28/2/2006, Hellborg v SWE, No. 47473/99, § 49; ECtHR, 29/3/2010 (GC), Depalle v FRA, No. 34044/02, § 84; ECtHR, 29/3/2010 (GC), Brosset-Triboulet a. o. v FRA, No. 34078/02, § 87. 142 As to this result see, for instance, ECtHR, 19/12/1989, Mellacher a. o. v AUT, No. 10522/83 et al, §§ 46 et seq. 143 ECtHR, 23/2/1995, Gasus Dosier- und Fo ¨ rdertechnik GmbH v NED, No. 15375/89, § 60; ECtHR, 23/2/2006, Stere a. o. v ROM, No. 25632/02, §§ 52 et seq. (this might not justify the quashing of a final and binding judgment). 144 ECtHR, 23/2/1995, Gasus Dosier- und Fo ¨ rdertechnik GmbH v NED, No. 15375/89, § 62. 145 ECtHR, 28/7/1999 (GC), Immobiliare Saffi v ITA, No. 22774/93, §§ 54, 59; ECtHR, 29/1/2004, Bellini (No. 1) v ITA, No. 64258/01, §§ 27 et seq; ECtHR, 11/3/2004, Bellini (No. 2) v ITA, No. 64098/00, §§ 26 et seq; ECtHR, 4/3/2004, Fossi a. Mignolli v ITA, No. 48171/99, §§ 45 et seq. On comparable problems in the Polish legal order: ECtHR, 21/9/2004, Schirmer v POL, No. 68880/01, 137

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in Portuguese law on the owner’s right to terminate a long-term lease of property was not deemed to be disproportionate or unjustified.146 A statutory right for lessees to demand an indefinite extension of the ground lease contracts on unchanged conditions instead of redemption was, however, considered a disproportionate burden on the lessors.147 The Court did not consider it disproportionate that a Swedish administrative board refused the request of the applicant to exclude his property from the game conservation area to which his property it belonged. The applicant had requested the exclusion because he wanted to hunt in the manner which he personally preferred. His interest stood opposite to the public interest in effective game conservation, which the Swedish administrative board considered to be more effective if the game conservation area was not divided into smaller sections.148 On the other hand, the fair balance between the protection of the right of property and the requirements of the general interest is liable to be upset, where a landowner opposed to the hunt on ethical grounds is obliged by law to tolerate hunting on his property and to join a hunting association.149 Compensation in return for the use of his land is not decisive.150 The suspension of a licence of an internet provider for failure to inform about a change of address in due time was considered to be a disproportionate measure to control the use of property in violation of Article 1 of Protocol No. 1.151 It is permissible, however, to prohibit a person from using or disposing of his internet domain in order to protect a trademark.152 Where possessions are confiscated, the striking of a fair balance depends on many factors, one of them being the owner’s behaviour, including his degree of fault or care or, at least, the relationship between his conduct and the offences which had been committed.153 It is disproportionate to confiscate a sum of money and impose a fine of half that amount for failure to declare it when crossing a border. The Court emphasised the severity of the penalty imposed and observed that in other Member States the penalty most frequently applied in such cases was lighter.154 The same §§ 39 et seq; ECtHR, 19/6/2006 (GC), Hutten-Czapska v POL, No. 35014/97, §§ 223 et seq. (disproportionate burden imposed upon landlords by a State rent-control scheme, especially the detailed regulations on the calculation of rent, including maintenance costs and a restriction on the right to terminate leases); and in the Maltese legal order: ECtHR, 15/9/2009, Amato Gauci v MLT, No. 47045/ 06, §§ 56 et seq. 146 ECtHR, 21/12/2010, Almeida Ferreira a. Melo Ferreira v POR, No. 41696/07, § 35 et seq. 147 ECtHR, 12/6/2012, Lindheim a.o. v NOR, No. 13221/08, §§ 126 et seq. 148 ECtHR, 26/2/2008, Nilsson v SWE, No. 11811/05. 149 ECtHR, 26/6/2012 (GC), Herrmann v GER, No. 9300/07, §§ 80 et seq; see also ECtHR, 29/4/ 1999 (GC), Chassagnou a. o. v FRA, No. 25088/94 et al, §§ 75 et seq; ECtHR, 10/7/2007, Schneider v LUX, No. 2113/04, §§ 45 et seq; ECtHR, 22/9/2011, A.S.P.A.S. a. Lasgrezas v FRA, No. 29953/08, §§ 38 et seq. (no violation where the landowner may object to the inclusion of his property in the hunting association or may periodically request its removal); no violation of Article 14 in conjunction with Article 1 of Protocol No. 1 from the inability of landholders to have their land removed from control of approved hunters’ association other than on ethical grounds: ECtHR, 4/10/2012 (GC), Chabauty v FRA, No. 57412/08, §§ 41 et seq. 150 ECtHR, 10/7/2007, Schneider v LUX, No. 2113/04, § 49; ECtHR, 26/6/2012 (GC), Herrmann v GER, No. 9300/07, §§ 77, 90 et seq. 151 ECtHR, 8/4/2008, Megadat.com SRL v MDA, No. 21151/04, § 79. 152 ECtHR, 18/9/2007, Paeffgen GMBH v GER, No. 25379/04 et al. 153 ECtHR, 10/4/2012, Silickiene ˙ v LTU, No. 20496/02, § 66 (confiscation of property of an accused’s widow: no violation). 154 ECtHR, 26/5/2009, Grifhorst v FRA, No. 28336/02, §§ 101 et seq.

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applies when a sum of money is confiscated not as pecuniary compensation for damage but for punitive reasons, even though a sentence of imprisonment has already been imposed on the individual concerned.155 Where the listing of land as a historic monument results in far-reaching restrictions on its use and obligations on the proprietor, it may be necessary to provide an individual with the possibility to compel the authorities to expropriate.156 Proportionality is required in proceedings on the enforcement of tax debts too. In order to strike a fair balance, given the influence of enforcement measures on a company’s future and notwithstanding a State’s wide margin of appreciation in this field, authorities have an obligation to take careful and explicit account of a number of factors specified by the Court in order to mitigate the damage to the company’s structure and prevent, if possible, its demise.157 The Court accepted that there was nothing wrong in principle with requiring a debtor to pay expenses relating to enforcement or threaten a debtor with a sanction to incite voluntary payment. The flat-rate fee payable must, however, be proportionate to the actual enforcement expenses. Another factor that may contribute to the lack of a fair balance is the pace of enforcement proceedings, including whether authorities refuse to concede to the demand for additional time.158

3. Other interferences with the right to property Other interferences are not subject to any written limitation. At any rate, a 21 sufficient legal basis is required159 and the States’ margin of appreciation is limited by the principle of proportionality. According to case law, a fair balance needs to be struck between the demands of the public interest and the requirements of the protection of the individual’s fundamental rights.160 A balance is not reached in case of ‘an individual and excessive burden’ of the person concerned.161 The essential criteria are that a State may review whether an interference with the right to property was lawful, the flexibility of the applicable system, the period of time over which the state of uncertainty as to the final fate of a property remained as well as the possibility to receive compensation and the certainty of the respective entitlement.162 There is no absolute obligation to compensate. In the context of property rights particular importance must be attached to the principle of good governance, or as the Court puts it: ‘It is 155

ECtHR, 6/11/2008, Ismayilov v RUS, No. 30352/03, § 38. ECtHR, 28/7/1999 (GC), Immobiliare Saffi v ITA, No. 22774/93, § 56; ECtHR, 29/3/2011, Potomska a. Potomski v POL, No. 33949/05, § 75. 157 As to the factors to be taken into account see ECtHR, 20/9/2011, OAO Neftyanaya Kompaniya Yukos v RUS, No. 14902/04, § 651. 158 ECtHR, 20/9/2011, OAO Neftyanaya Kompaniya Yukos v RUS, No. 14902/04, §§ 655 et seq. 159 ECtHR, 27/6/2006, Mazelie ´ v FRA, No. 5356/04, §§ 28 et seq (a mistake of law entirely attributable to the authorities regarding the ownership of a rampart, thus full responsibility for maintenance). 160 ECtHR, 23/9/1982, Sporrong a. Lo ¨ nnroth v SWE, No. 7151/75 et al, § 69; ECtHR, 15/11/1996, Pro¨tsch v AUT, No. 15508/89, §§ 43 et seq. 161 Cf. ECtHR, 23/9/1982, Sporrong a. Lo ¨ nnroth v SWE, No. 7151/75 et al, § 73; ECtHR, 23/4/ 1996, Phocas v FRA, No. 17869/91, §§ 53 et seq.; ECtHR, 8/1/2008, Jucy v LTU, No. 5457/03, §§ 38 et seq; ECtHR, 16/3/2010, Di Belmonte v ITA, No. 72638/01, §§ 43 et seq. 162 ECtHR, 23/4/1987, Poiss v AUT, No. 9816/82, §§ 66, 69. 156

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desirable that public authorities act with the utmost scrupulousness, in particular when dealing with matters of vital importance to individuals, such as welfare benefits and other property rights.163 Changes to pension rights may legitimately be made as long as they are fair and proportionate, not, however, if benefits are considerably reduced in spite of nonaltering personal circumstances of an individual.164 Thus, when amending social legislation, the legislator may either reduce the pension entitlements to a reasonable and commensurate degree or afford to the individuals concerned a transitional period within which they may adjust to the new scheme.165 In the Court’s view it appears arbitrary and is likely to lead to unjustified results if the date from which the applicant is entitled to his pension is determined solely on the basis of the time the authorities and administrative courts take to reach their decisions, especially when proceedings are taking a long time; Rather, dates of commencement or expiry of rights must be clearly defined and linked to concrete, objective facts.166 A total and automatic forfeiture of social rights following a criminal conviction of a 69-year-old constitutes a disproportionate interference with the right to property.167 States may well impose fines on individuals. The circumstances of the case concerned, however, amounted not only to double punishment but also had the effect of extinguishing the principal means of subsistence of a person, including his social-security rights. The fact that the pension – of a reduced amount – had been transferred to the applicant’s family did not suffice to offset that loss.168 Similarly, while States may have a legitimate interest in prohibiting insolvent lawyers from practising, this interest cannot, in the absence of any punitive element, justify the forfeiture of all pension claims.169 On the other hand, the non-affiliation of a prisoner to the pension system for work performed in prison for many years does not violate the right to property if social cover is granted otherwise. However, at the same time, the Court required the State concerned to keep the issue under review since in its view a new European standard was evolving in this matter.170 In any event, Article 1 of Protocol No. 1 does

163

ECtHR, 15/2/2009, Moskal v POL, No. 10373/05, § 72. ´ smundsson v This holds true if pensions are discontinued altogether: ECtHR, 12/10/2004, A ISL, No. 60669/00, §§ 43 et seq (payments were discontinued after about 20 years in order to resolve the pension fund’s financial difficulties); ECtHR, 9/7/2009, Zeı¨bek v GRE, No. 46368/06, §§ 46 et seq; ECtHR, 24/1/2012, Torri a. o. v ITA, No. 11838/07, §§ 43 et seq (the essence of the pension right is impaired in case of a total deprivation of the entitlement or a loss of substantial amounts of the pension). 165 ECtHR, 13/12/2011, Lakic ´evic´ a. o. v MNE a. SRB, No. 27458/06 et al, § 72 (suspension of pension payments following a change in legislation concerning the right to do part-time work); see also ECtHR, 22/9/2005, Goudswaard-van der Lans v NED, No. 75255/01, B.3 (widow’s insurance); ECtHR, 31/5/2011, Maggio a. o. v ITA, No. 46286/09 et al, §§ 62 et seq. (loss of considerably less than half of pension constitutes reasonable and commensurate reduction); ECtHR, 25/10/2011, Valkov a. o. v BUL, No. 2033/04, § 94 (capping of pension not in itself disproportionate). 166 ECtHR, 4/12/2008, Reveliotis v GRE, No. 48775/06, §§ 32 et seq. 167 ECtHR, 22/10/2009, Apostolakis v GRE, No. 39574/07, §§ 39 et seq. 168 ECtHR, 22/10/2009, Apostolakis v GRE, No. 39574/07, §§ 39 et seq. 169 ECtHR, 3/3/2011, Klein v AUT, No. 57028/00, § 53 (When it comes to a compulsory pension scheme, regulations must take into account exceptional situations like the present one, see § 56). 170 ECtHR, 12/4/2006 (GC), Stec a. o. v UK, No. 65731/01 et al, § 53; ECtHR, 7/7/2011 (GC) Stummer v AUT, No. 37452/02, §§ 109 et seq. 164

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not grant a right to a pension of a particular amount.171 The quashing of an enforceable judgment in a person’s favour – uprating his retirement pension – on the ground of newly discovered circumstances frustrates his reliance on a binding judicial decision and deprives him of the opportunity to receive the money he has legitimately expected to receive. In these circumstances, the quashing of a judgment places an excessive burden on the individual.172

4. Peaceful enjoyment of possessions As the three types of interference are connected and the applicable principles 22 similar, the Court, in certain cases, does not find it necessary to decide whether an interference should be examined under the heading of ‘deprivation of possessions’, ‘control of the use of property’ or ‘other interferences’.173 In such cases, it examines the situation complained of in the light of the general principle of peaceful enjoyment of property.174 This is particularly so in respect of cases that cannot be easily classified under one of the three rules. One of the cases examined under the heading of the general rule set forth in the first sentence of the first paragraph was the Lavrechov Case, which concerned the forfeiture of the applicant’s bail even though he had been acquitted.175 The Court held that since States had a legitimate interest in ensuring that individuals in respect of whom there existed a reasonable suspicion did not try to evade justice or undermine the smooth conduct of the proceedings, the outcome of the proceedings had no direct relevance to the question whether the security for bail should be forfeited. Rather, it must be examined whether the forfeiture was proportionate. In this context, it is decisive whether the individual concerned was or must have been aware that he was in breach of his bail conditions and for what period of time he was in breach of them. Furthermore, it must be taken into account whether the procedural requirements under Article 1 of Protocol No. 1 have been complied with.176

V. Positive obligations In order to ensure the effective exercise of the right to property, States are required 23 not only to refrain from unjustified interferences with the right to property but are also subject to positive obligations,177 whose nature and extent vary depending on the ´ smundsson v ISL, No. 60669/00, § 39 (disability pension); this does not ECtHR, 12/10/2004, A apply in cases where the benefit bases on a final judgment: ECtHR, 18/11/2004, Pravednaya v RUS, No. 69529/01, § 37 (retroactive recalculation of the old-age pension); ECtHR, 12/7/2005, Solodyuk v RUS, No. 67099/01, § 26 (effects of inflation on the applicants’ delayed pension payments); ECtHR, 24/1/2012, Torri a. o. v ITA, No. 11838/07, § 33. 172 ECtHR, 19/4/2011, Khrykin v RUS, No. 33186/08, § 56; ECtHR, 19/4/2011, Baturlova v RUS, No. 33188/08, § 57. 173 ECtHR, 12/2/1986, James a. o. v UK, No. 8793/79, § 37; ECtHR, 20/6/2013, Lavrechov v CZE, No. 57404/08, 43. 174 Mutatis mutandis ECtHR, 22/6/2004 (GC), Broniowski v POL, No. 31443/96, § 136; ECtHR, 6/12/2011, Gladysheva v RUS, No. § 71; ECtHR, 20/6/2013, Lavrechov v CZE, No. 57404/08, § 43. 175 ECtHR, 20/6/2013, Lavrechov v CZE, No. 57404/08, §§ 50 et seq. 176 ECtHR, 20/6/2013, Lavrechov v CZE, No. 57404/08, §§ 54–55. 177 First approaches in ECtHR, 21/2/1986, James a. o. v UK, No. 8793/79, §§ 37 et seq; ECtHR, 25/4/1996 (GC), Gustafsson (No. 1) v SWE, No. 15573/89, § 60. 171

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circumstances.178 The structure of the right to property does not differ from the structure of other freedom rights under the Convention. Thus, the principles on positive obligations established thereto in the Court’s case law apply equally to Article 1 of Protocol No. 1. 24 The question of whether the State has an obligation to adopt positive measures of protection in a particular case is determined by striking a fair balance between the demands of the public interest and the requirements of the protection of the individual’s fundamental rights.179 States are obliged to adopt positive measures of protection particularly where there is a direct link between the measures an applicant may legitimately expect from the authorities and his effective enjoyment of his possessions.180 In horizontal relations between private persons or entities, too, there may be public-interest considerations involved which may impose some obligations on the State.181 ¨ neryildiz, the Court found a direct causal link between the positive measures of In O protection that the State should have adopted and the eruption and engulfment of the applicant’s slum dwelling following a methane explosion. The administrative authorities’ conduct in failing to take all the measures necessary to avoid the risk of a methane explosion, and hence the ensuing landslide, also ran counter to the requirement of ‘practical and effective’ protection of the right to property. The Court found a direct link between the measures an applicant may legitimately expect from the authorities and his effective enjoyment of his possessions. It therefore found that there was a causal link between the negligent omissions attributable to the authorities and the loss of human life during the accident. It held that the resulting infringement amounts not to ‘interference’ but to the breach of a positive obligation.182 Remarkably, the Court acknowledges the wide margin of appreciation States enjoy when fulfilling the requirement of adopting positive measures of protection, while, on the other hand, it refers to a specific measure, which, in its view, would have been necessary and adequate to satisfy the obligation to protect.183 Article 1 of Protocol No. 1 does not require that States take preventive measures to protect private possessions in all situations and areas prone natural disasters. Since States have to make operational choices in terms of priorities and resources, the obligations arising from Article 1 of Protocol No. 1 cannot be interpreted so as to impose an impossible or disproportionate burden on the authorities.184 178

ECtHR, 3/4/2012 (GC), Kotov v RUS, No. 54522/00, § 111. ECtHR, 22/6/2004 (GC), Broniowski v POL, No. 31443/96, § 144; ECtHR, 3/4/2012 (GC), Kotov v RUS, No. 54522/00, § 110. 180 ECtHR, 30/11/2004 (GC), O ¨ neryildiz v TUR, No. 48939/99, § 134; ECtHR, 22/11/2007, Ukraine-Tyumen v UKR, No. 22603/02, §§ 58, 61; ECtHR, 28/2/2012, Kolyadenko a. o. v RUS, No. 17423/05 et al, §§ 215 et seq. 181 ECtHR, 22/6/2004 (GC), Broniowski v POL, No. 31443/96, § 143; ECtHR, 29/1/2013, Zolotas (No. 2) v GRE, No. 66610/09, §§ 39, 53–54 (State must require bank to inform the holders of dormant accounts when the limitation period is due to expire and thus afford them the possibility to stop the limitation period running). 182 ECtHR, 30/11/2004 (GC), O ¨ neryildiz v TUR, No. 48939/99, §§ 134 et seq. 183 ECtHR, 30/11/2004 (GC), O ¨ neryildiz v TUR, No. 48939/99, §§ 136, 107 et seq (installation of a ‘vertical and horizontal drainage system’ allowing the controlled release into the atmosphere of the accumulated gas). 184 ECtHR, 28/2/2012, Kolyadenko a.o. v RUS, No. 17423/05 et al, §§ 160, 183 (no impossible or disproportionate burden to comply with their own decisions and, in particular, take the action indicated therein to clean up the Pionerskaya river to increase its throughput capacity and to 179

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States enjoy a wide margin of appreciation when adopting positive measures of 25 protection. Thus, the Court exercises a low degree of scrutiny as regards the striking of a fair balance between the competing interests in the context of justifying an interference with the right to property. States have an even wider margin of appreciation where they are required to take positive action. In a different context, the Court acknowledges that it is not its task to substitute for the views of the local authorities its own view of the best policy to adopt in dealing with the social, economic and urban problems.185 Thus, States particularly enjoy a wide margin of appreciation in difficult social and technical spheres.186 In particular, Article 1 of Protocol No. 1 does not oblige the State to maintain the purchasing power of sums deposited with financial institutions or to compensate for losses caused by inflation.187 The State, as a general rule, is not directly liable for debts of private actors or the faults committed by their managers.188 Whether a State can be held directly responsible for the wrongful acts of a private bank’s liquidator depends on whether his actions can be considered as such of a state agent. A decisive factor in the assessment of this question is the degree of the liquidator’s operational and institutional independence from the State.189 The Court, in its case law, recognised the existence of procedural positive obliga- 26 tions under Article 1 of Protocol No. 1, both in cases involving state authorities and in cases between private parties only.190 An individual must be afforded a sufficient opportunity to effectively challenge the measure imposed on it by the State, limiting its right to property, such as the imposition of a fine.191 This right to legal protection derived from the right to property complements the corresponding guarantee of Article 13 in conjunction with Article 1 of Protocol No. 1. In cases between private parties only, the States must afford judicial procedures that offer the necessary procedural guarantees and therefore enable the domestic courts and tribunals to adjudicate effectively and fairly any disputes between private persons.192 This is in order not to seriously fall short of their obligation to protect the rule of law and restore the emergency warning system at the Pionerskoye reservoir); ECtHR, 15/5/2012, Hadzhiyska v BUL, No. 20701/09, § 16 (no arguable claim on the ground that the damage suffered by the applicant was caused not by man-made activities but as a result of heavy rainfall; it was unclear whether the damage could be attributed to State negligence, furthermore, it was not shown that the authorities caused or contributed to the damage sustained). 185 ECtHR, 30/11/2004 (GC), O ¨ neryildiz v TUR, No. 48939/99, § 107. 186 ECtHR, 8/7/2003 (GC), Hatton a. o. v UK, No. 36022/97, §§ 100 et seq; ECtHR, 2/2/2010, Aizpurua Ortiz a. o. v ESP, No. 42430/05, § 52. 187 ECtHR, 29/8/2002, Appolonov v RUS, No. 47578/01; ECtHR, 24/7/2003, Ryabykh v RUS, No. 52854/99, § 63, ECtHR, 8/10/2009, Merzhoyev v RUS, No. 68444/01, § 50; the same applies to a sum deposited with non-financial institutions, see ECtHR, 29/5/2012, Flores Cardoso v POR, No. 2489/09, §§ 54 et seq (deposit with Portuguese Consulate on the independence of Mozambique). 188 Instead of many ECtHR, 3/4/2012 (GC), Kotov v RUS, No. 54522/00, §§ 90, 116 with further references to the Court’s case law. 189 ECtHR, 3/4/2012 (GC), Kotov v RUS, No. 54522/00, § 107. 190 ECtHR, 3/4/2012 (GC), Kotov v RUS, No. 54522/00, § 114. 191 ECtHR, 23/7/2009, Bowler International Unit v FRA, No. 1946/06, §§ 45 et seq. 192 ECtHR, 3/4/2012 (GC), Kotov v RUS, No. 54522/00, §§ 114, 117 (For instance, where a private bank’s liquidator cannot be considered to be a state agent but where his wrongdoings are serious and occur in an area where the State’s negligence in combating malfunctioning and fraud can have devastating effects on the economy, affecting a large number of individual property rights, States are under a duty to set up at least a minimum legislative framework to enable people in the applicant’s position to assert their property rights effectively, see §§ 109 et seq, 117).

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prevent arbitrariness. A State may be held responsible for losses caused by court decisions if they were not given in accordance with domestic law or if they were flawed by arbitrariness or manifest unreasonableness,193 or if the act of a State creates a situation in which third parties are able to interfere with another’s possessions.194 States are, under Article 1 of Protocol No. 1, obliged to ensure the effective enforceability of court decisions, even if it resolves a property dispute between private parties. In enforcement proceedings all relevant domestic procedures must be complied with.195 It is thus the State’s responsibility to make use of all available legal means at its disposal to enforce a final court decision, such as an eviction order.196 193

ECtHR, 10/1/2012, Vulakh a. o. v RUS, No. 33468/03, §§ 44 et seq. ECtHR, 20/9/2011, Shesti Mai Engineering OOD a.o. v BUL, No. 17854/04, §§ 79 et seq, where the fraudulent takeover of the applicants’ company was linked to the actions of the State to a degree that was sufficient to justify the conclusion that the authorities had interfered with their possessions. 195 ECtHR, 28/4/2009, Bijelic ´ v MNE a. SRB, No. 11890/05, § 83; see also ECtHR, 7/6/2005, Fuklev v UKR, No. 71186/01, § 91; ECtHR, 30/10/2007, Marcˇic´ a.o. v SRB, No. 17556/05, § 56; ECtHR, 16/7/2009, Zehentner v AUT, No. 20082/02. 196 ECtHR, 28/4/2009, Bijelic ´ v MNE a SRB, No. 11890/05, § 83; see also ECtHR, 25/11/2008, Kostic´ v SRB, No. 41760/04, § 74. 194

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I. Introduction

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Article 2 – Right to education No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions. Article 2 – Droit a` l’instriction Nul ne peut se voir refuser le droit a` l’instruction. L’Etat, dans l’exercice des fonctions qu’il assumera dans le domaine de l’e´ducation et de l’enseignement, respectera le droit des parents d’assurer cette e´ducation et cet enseignement conforme´ment a` leurs convictions religieuses et philosophiques. Bibliography: Wildhaber, Right to Education and Parental Rights, in: Macdonald/Matscher/Petzold (ed.), The European System for the Protection of Human Rights, 199, p. 531; Berka, Human rights: A Challenge to Educational Law: a Survey within the System of the European Convention on Human Rights, in: de Groofs/Malherbe (ed.), Human Rights in South African Education, 1997, p. 199 Delbru¨ck, The Right to Education as an International Human Right, GYIL 35 (1992) p. 92; Liddy, The Case-Law of the Commission as Regards the Right to Education (Article 2 of Protocol No. 1), in: de Salvia/Villiger (ed.), The Birth of European Human Rights Law, Liber Amicorum Carl Aage Nørgaard, 1998, p. 111; Vermeulen, The right to education (Article 2 of Protocol No. 1), in: van Dijk/van Hoof/van Rijn/Zwaak (ed.), Theory and Practice of the European Convention on Human Rights, 4th ed., 2006, p. 895. Case law: ECtHR, 23/7/1963, Case ‘relating to certain aspects of the laws on the use of languages in education in Belgium’ v BEL, No. 1474/62 et al (education at school in the language of one’s choice); ECtHR, 7/12/1976, Kjeldsen a.o. v DEN, No. 5095/71 et al (sexual instruction at school in Denmark); ECtHR, 25/2/1982, Campbell a. Cosans v UK, No. 7511/76 et al (corporal punishment at Scottish schools); ECtHR, 10/11/2005 (GC), Leyla Sahin v TUR, No. 44774/98 (admission to university); ECtHR, 29/6/2007 (GC), Folgerø a.o. v NOR, No. 15472/02 (exemption from instruction in Christianity); ECtHR, 18/3/2011 (GC), Lautsi a.o. v ITA, No. 30814/06 (crucifixes in State-school classrooms). Outline I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Right to education. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Scope of protection. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Proportionality of interferences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Positive obligations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Right of parents to respect for their convictions . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Scope of protection. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Proportionality of interferences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Positive obligations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 4 4 9 11 13 13 17 22

I. Introduction Article 2 of Protocol No. 1 provides for two separate rights: the general individual 1 right to education and the right of parents to education in conformity with their convictions. The guarantee also lays down the positive obligations to establish a school system and to provide access to education. The second sentence limits the 389

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educational mandate of States and has a double function. First, States are bound in the organisation of an education system by the rights of the parents and, secondly, at the same time, it confers individual rights to the parents. The second sentence reflects the possible conflicts between these two positions. Both sentences of Article 2 of Protocol No. 1 have to be read in the light of the Convention as a whole and, in particular, in the light not only of each other but also of Articles 8, 9 and 10.1The right to education is closely linked to the prohibition of discrimination under Article 14. The phrase ‘No person shall…’ lays down the principle of equality of treatment of everyone permanently and lawfully residing in a Member State in the exercise of his or her right to education.2 According to Article 14 read in conjunction with Article 2 of Protocol No. 1, the access to existing educational institutions must be free of discrimination.3 2 Article 14 EU Charter contains a right to education which was drafted on the basis of Article 2 of Protocol No. 1. In addition to the ECHR, this Article also guarantees the access to vocational and continuing training (paragraph 1), a right to free compulsory education (paragraph 2) and, explicitly, the freedom to found educational establishments ‘with due respect for democratic principles’. 3 At a universal level, the right to education is enshrined in Article 13 ICESCR. Its paragraph 1 contains a general rule and is of a rather programmatic character. Paragraph 2 contains a list of positive obligations, such as to provide free compulsory primary education, to make secondary and higher education generally accessible, to encourage or intensify fundamental education for those who have not completed their primary education, and to improve the material conditions of teaching staff. Paragraph 3 corresponds to the second sentence of Article 2 of Protocol No. 1 to the Convention but additionally provides for the right to choose private schools which conform to minimum educational standards approved by the State. Paragraph 4 provides for an explicit right to establish and direct private educational institutions. Article 28 of the Convention on the Rights of the Child enshrines another right to education. It contains a number of programmatic rules but also some concrete rights, such as the right to free primary education, to school education without violence, and the protection of the child’s human dignity.

II. Right to education 1. Scope of protection The right to education refers in particular to the right to education in school. The education of children is the whole process whereby, in any society, adults endeavour to transmit their beliefs, culture and other values to the young, whereas teaching or instruction refers in particular to the transmission of knowledge and to intellectual development.4 5 Article 2 of Protocol No. 1 guarantees a right of access to educational institutions existing at a given time and the possibility of drawing, by official recognition of the 4

1

ECtHR, 7/12/1976, Kjeldsen a.o. v DEN, No. 5095/71 et al, § 52. ECtHR, 10/11/2005 (GC), Leyla Sahin v TUR, No. 44774/98, § 153. 3 ECtHR, 10/11/2005 (GC), Leyla Sahin v TUR, No. 44774/98, § 152. 4 ECtHR, 25/2/1982, Campbell a. Cosans v UK, No. 7511/76 et al, §§ 33. 2

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studies which a person has completed, profit from the education received.5 The right is not limited to elementary school; it also extends to higher education and, in particular, to universities6. Special schools or special classes for members of ethnic minorities may conflict 6 with this right. A number of European States encountered and to some extent still encounter serious difficulties in providing adequate schooling for Roma children. A special procedure of school enrolment of Roma children and their placement in special preparatory classes – in an annexe to the main school building – was found to be discriminatory.7 The temporary placement of Roma children in a separate class on the grounds that they lacked adequate command of the language of instruction may pursue the legitimate aim of adapting the education system to the specific needs of the children. If such a measure disproportionately or even exclusively affects members of a specific ethnic group, appropriate safeguards have to be put in place at each stage of its implementation.8 In the Orsus Case, the State had taken a number of steps. However, according to a narrow majority of the Grand Chamber, the State by simply reducing the curriculum in Roma-only classes by up to 30 % failed to adopt appropriate positive measures with a view to assisting the applicants in acquiring the necessary language skills in the shortest time possible, notably by means of special language lessons. The safeguards must ensure that, in the exercise of its margin of appreciation in the education sphere, the State has sufficient regard to the special needs of members of a disadvantaged group and that there are clear or transparent criteria as regards the transfer of them to mixed classes.9 As for disabled children, the protection afforded by the Convention is rather 7 weak. According to the practice of the former Commission, disabled children do not have rights that go beyond the general right to access to schools and there is no right that the State must establish special schools. Furthermore, there is no right of access to regular schools if a State has established special schools for disabled pupils.10 It is a necessary element of the right to education that everyone who has finished 8 a particular educational course, school or studies at university may make use of it. This means that diploma and degrees of state institutions or equivalent educational institutions are recognised by the same State.11 In view of the integration reached within the EU, it is clear that, in a EU Member State, this right also extends to degrees and diploma of other EU Member States. However, there is no right to 5 ECtHR, 7/12/1976, Kjeldsen a.o. v DEN, No. 5095/71 et al, § 52; ECtHR, 23/7/1963, Case “relating to certain aspects of the laws on the use of languages in education in Belgium” v BEL, No. 1474/62 et al, I.B. § 4; ECtHR, 29/6/2007 (GC), Folgerø a.o. v NOR, No. 15472/02, § 84. 6 ECtHR, 10/11/2005 (GC), Leyla Sahin v TUR, No. 44774/98, § 152; ECtHR, 7/2/2006, Mu ¨ rsel Eren v TUR, No. 60856/00, § 41. 7 ECtHR, 5/6/2008, Sampanis a.o. v GRE, No. 32526/05, §§ 89, 96. 8 ECtHR, 16/3/2010 (GC), Ors ˇusˇ a.o. v CRO, No. 15766/03, § 157 with reference to case law. 9 ECtHR, 16/3/2010 (GC), Ors ˇusˇ a.o. v CRO, No. 15766/03, §§ 156 et seq. 10 Grabenwarter/Pabel, § 22 m.n. 89. 11 ECtHR, 23/7/1963, Case “relating to certain aspects of the laws on the use of languages in education in Belgium” v BEL, No. 1474/62 et al, I B § 4; as to that Liddy, The Case-Law of the Commission as Regards the Right to Education (Article 2 of Protocol No. 1), in: de Salvia/Villiger (ed.), The Birth of European Human Rights Law, Liber Amicorum Carl Aage Nørgaard, 1998, p. 111 (111 et seq.).

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recognition of degrees of educational institutions of third states, regardless of whether they are members to the Convention or not.

2. Proportionality of interferences 9

Although interferences with the right to education are not subject to explicit limitations, Article 2 of Protocol No. 1 is not an absolute right. The right is subject to implicit limitations as it calls ‘by its very nature’ for regulation by the State.12 Interferences must meet the requirements of the principle of proportionality.13 At any rate, no regulation must ever injure the very essence, i. e. – in the words of the Court – the ‘substance’ of the right to education.14 Against the background of the wide margin of appreciation of the Member States and in view of the wording of Article 2 of Protocol No. 1 and the travaux pre´paratoires, the right to education Article 2 does not require a State to establish at its own expense, or to subsidise, education of any particular type or at any particular level which did not exist at the date of ratification15 nor does it provide for a right of access to a particular school.16 As for universities, there is no duty to offer an unlimited number of university places in order to ensure that everyone interested may begin the studies of his or her choice. The exclusion of pupils from school is an interference with the right to education that may be justified depending on the level of education and on the circumstances that lead to this measure. The Court found no violation in a case where an English pupil was excluded from secondary school for a long but temporary period on account of criminal investigation into an incident at school as he was offered alternative education. Even though the alternative education did not cover the full national curriculum, the exclusion was not disproportionate.17 In cases of permanent exclusion, the requirements are higher. Fees for pupils or students in secondary or higher education are interferences that may be justified under certain – exceptional – circumstances. The Court, in the Ponomaryovi Case, acknowledges that education is an activity that is complex to organise and expensive to run, whereas the resources that the authorities can devote to it are necessarily finite. In deciding how to regulate access to education, and in particular whether or not to charge fees for it and to whom, a State must strike a balance between, on the one hand, the educational needs of those under its jurisdiction and, on the other, its limited capacity to accommodate them. However, the Court cannot overlook the fact that, unlike some other public services, education is a right that enjoys direct protection under Article 2 of Protocol No. 1 to the Convention. According to the Court, it is also a very particular type of public 12 ECtHR, 23/7/1963, Case “relating to certain aspects of the laws on the use of languages in education in Belgium” v BEL, No. 1474/62 et al, I.B. § 5. 13 ECtHR, 10/11/2005 (GC), Leyla Sahin v TUR, No. 44774/98, §§ 154 et seq. 14 ECtHR, 23/7/1963, Case “relating to certain aspects of the laws on the use of languages in education in Belgium” v BEL, No. 1474/62 et al, I. B. § 5. 15 ECtHR, 23/7/1963, Case “relating to certain aspects of the laws on the use of languages in education in Belgium” v BEL, No. 1474/62 et al, II B § 3; Vermeulen, The right to education (Article 2 of Protocol No. 1), in: van Dijk/van Hoof/van Rijn/Zwaak (ed.), Theory and Practice of the European Convention on Human Rights, 4th ed., 2006, p. 895 (896 et seq). 16 ECtHR, 7/2/2006, D.H. a.o. v CZE, No. 57325/00, § 47. 17 ECtHR, 11/1/2011, Ali v UK, No. 40385/06, §§ 59 et seq.

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service, which not only directly benefits those using it but also serves broader societal functions. Indeed, the Court has already had occasion to point out that “[i]n a democratic society, the right to education … is indispensable to the furtherance of human rights [and] plays … a fundamental role…”18 Moreover, in order to achieve pluralism and thus democracy, society has an interest in the integration of minorities (see Konrad and Others, cited above). In the Court’s view, the State’s margin of appreciation in this domain increases with the level of education, in inverse proportion to the importance of that education for those concerned and for society at large. Thus, at the university level, which to this day remains optional for many people, higher fees for aliens – and indeed fees in general – seem to be commonplace and can be considered fully justified. The opposite goes for primary schooling, which provides basic literacy and numeracy – as well as integration into and first experiences of society – and is compulsory in most countries.19 The distinction between the three levels of education is confirmed by the ICESCR.20 In particular, the legislature may lay down conditions for the access to institutions 10 of higher education, such as entrance examinations for university.21 Furthermore, disciplinary measures within an institution, such as suspension or expulsion, in order to ensure compliance with internal rules may be in line with the Convention.22 The Grand Chamber of the Court did not find a violation in the Leyla Sahin Case in which the authorities of a Turkish university refused to admit the applicant, a student who ignored the prohibition of wearing Islamic headscarfs to lectures and written examinations.23 However, the Court found a violation in the case of 18 students of Kurdish origin who requested optional Kurdish language courses at a Turkish university and who were subsequently suspended from the university for a period of two terms as this disciplinary sanction could not be considered reasonable or proportionate.24 Article 2 of Protocol No. 1 also provides for a right to found private schools and to have access to such schools.25 In view of the rights of parents, the school system as a whole (public and private sector) must offer the safeguards under the second sentence of Article 2.26 On the other hand, a State may not justify its failure to comply with positive obligations27 simply by referring to the possibility of founding private schools. It is fully in line with the Convention if a State lays down certain conditions for founding private schools. The State may also provide for an authorisation procedure. In particular, the State may (and to a certain extent is obliged to) provide for certain standards in education and teaching at private schools.

18

ECtHR, 10/11/2005 (GC), Leyla Sahin v TUR, No. 44774/98, § 137. ECtHR, 21/6/2011, Ponomaryovi v BUL, No. 5335/05, §§ 55–56. 20 See m.n. 3 above 21 ECtHR, 7/2/2006, Mu ¨ rsel Eren v TUR, No. 60856/00, § 48; ECtHR, 25/5/2000, Jimenez Alonso a. Jimenez Merino v ESP, No. 51188/99. 22 ECtHR, 10/11/2005 (GC), Leyla Sahin v TUR, No. 44774/98, § 156. 23 ECtHR, 10/11/2005 (GC), Leyla Sahin v TUR, No. 44774/98, §§ 157 et seq. 24 ECtHR, 3/3/2009, Irfan Temel a.o. v TUR, No. 36458/02, §§ 43 et seq. 25 Explicitely in EComHR, 21/3/1975, Kjeldsen, Busk, Madsen a. Pedersen v DEN, No. 5095/71 et al, Series B 21, p. 44; with reference to the travaux pre´paratoires ECtHR, 7/12/1976, Kjeldsen a.o. v DEN, No. 5095/71 et al, § 50. 26 See below m.n. 13 et seq. 27 See below m.n. 22. 19

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3. Positive obligations The right to education entails positive obligations. The Court refers to the aim of Article 2 of Protocol No. 1 and notes that all Member States of the Council of Europe had, at the time of the opening of the Protocol for signature, and still have in place, a general and official education system. Thus, there neither was nor is now an obligation of the States to establish such a system. States are merely required to guarantee to persons subject to their jurisdiction the right to avail themselves of the means of instruction existing at a given time. However, an increasing number of States is moving towards a so-called ‘knowledge-based’ society; therefore, and against the background of the ever-increasing role of higher education in successful personal and professional development and in the social and professional integration of the individuals and the social and economic consequences of having no more than basic knowledge and skills, States are under an obligation to provide individuals with educational opportunities. Whether or not education must be compulsory or free of charge depends on the level of education.28 Article 2 of Protocol No. 1 does not lay down specific obligations concerning the extent of the means of an educational system and the manner of its organisation or subsidisation. In particular, as the Court held in the Belgian Linguistic Case, the first sentence of Article 2 of Protocol No. 1 does not specify the language in which education must be conducted in order that the right to education should be respected. It does not contain precise provisions similar to those enshrined in Articles 5 (2) or Article 6 (3) (a) and (e). However, the right to education would be meaningless if it did not imply, in favour of its beneficiaries, the right to be educated in the national language or in one of the national languages.29 As conflicts in matters of education between parents and their children are not covered by Article 2 of Protocol No. 1 there are no positive obligations in this respect. Rather, Article 8 may be relevant in this context. 12 There is no positive obligation to fund private schools. However, a State funding or co-funding private schools must respect the requirements of Article 14. Funding religious schools while not funding other private schools may be justified if church schools are so widespread in a country that if the educational services which they provide fell to be met by the State, there would be a considerable burden on the State as it would have to make up the shortfall in schools.30 11

III. Right of parents to respect for their convictions 1. Scope of protection 13

Although the wording of Article 2 of Protocol No. 1 does not explicitly refer to an individual right of parents, the right to education of their children is well established in the case law of the ECtHR. It follows implicitly from the obligation of the State to 28

ECtHR, 21/6/2011, Ponomaryovi v BUL, No. 5335/05, §§ 53, 55, 57. ECtHR, 23/7/1963, Case “relating to certain aspects of the laws on the use of languages in education in Belgium” v BEL, No. 1474/62 et al, I B § 3. 30 EComHR, 6/9/1995, Verein Gemeinsam Lernen v AUT, No. 23419/94. 29

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respect the right of parents to ensure such education and teaching as is in conformity with their own religious and philosophical convictions. It is in the discharge of a natural duty towards their children – parents being primarily responsible for the ‘education and teaching’ of their children – that parents may require the State to respect their religious and philosophical convictions. Their right thus corresponds to a responsibility closely linked to the enjoyment and the exercise of the right to education31. It is on to the fundamental right to education that is grafted the right of parents 14 to respect for their religious and philosophical convictions, and the first sentence does not distinguish, any more than the second, between State and private teaching. The second sentence of Article 2 of Protocol No. 1 aims, in short, at safeguarding the possibility of pluralism in education, which is essential for the preservation of the ‘democratic society’ as conceived by the Convention. In view of the power of the modern State, it is above all through State teaching that this aim must be realised.32 The duty to respect parents’ convictions, be they religious or philosophical, relates to the entire State education programme.33 It is broad in its scope as it applies not only to the content of education and the manner of its provision but also to the performance of all the ‘functions’ assumed by the State. The notion of ‘respect’ is broader in its meaning than the notions of ‘acknowledge’ or ‘take into account’. The term ‘conviction’, in itself, is not synonymous with the words ‘opinions’ and ‘ideas’. It denotes views that attain a certain level of cogency, seriousness, cohesion and importance.34 Article 2 of Protocol No. 1 protects religious and philosophical convictions. 15 While it is relatively easy to determine religious convictions – at least those which are orientated towards religious communities –, the definition of philosophical convictions is more difficult. The word ‘philosophy’ may relate to a fully-fledged system of thought or, rather loosely, to views on more or less trivial matters. According to the Court, none of the two alternatives would be adequate: the former would too much restrict the scope of a right that is guaranteed to all parents and the latter might result in the inclusion of matters of insufficient weight or substance. Departing from the two extremes mentioned by the EComHR, the Court gave a first definition of ‘philosophy’ in the Campbell and Cosans Case; according to the Court the expression ‘philosophical convictions’ in the context of Article 2 of Protocol No. 1 denotes such convictions as are worthy of respect in a ‘democratic society’ and are not incompatible with human dignity; in addition, they must not conflict with the fundamental right of the child to education. Parents’ views that relate to a weighty and substantial aspect of human life and behaviour, namely the integrity of the person, the propriety or otherwise of the infliction of corporal punishment and the exclusion of the distress which the risk of such punishment entails fulfil the criteria of a philosophical view.35 Article 2 of Protocol No. 1 second sentence does not guarantee respect of a right for parents to have education conducted in a language other than that of the

31

ECtHR, 7/12/1976, Kjeldsen a.o. v EN, No. 5095/71 et al, § 52. ECtHR, 7/12/1976, Kjeldsen a.o. v EN, No. 5095/71 et al, § 50. 33 ECtHR, 7/12/1976, Kjeldsen a.o. v EN, No. 5095/71 et al, § 51. 34 ECtHR, 18/12/1996, Valsamis v GRE, No. 21787/93, §§ 25, 27; ECtHR, 25/2/1982, Campbell a. Cosans v K, No. 7511/76 et al, §§ 36–37. 35 ECtHR, 25/2/1982, Campbell a. Cosans v UK, No. 7511/76 et al, § 36. 32

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country in question; this follows from the ordinary meaning of the words and is confirmed by the ‘preparatory work’ of Protocol No. 1.36 16 According to Article 2 of Protocol No. 1, the State shall respect the convictions of the parents. As the Court pointed out, the meaning of the word ‘respect’ is broader than that of ‘acknowledge’ or ‘take into account’. This view is confirmed by the history of the drafting of Article 2 of Protocol No. 1, during which the words ‘have regard to’ were replaced by the word ‘respect’.37 In general, parents do not have a right that the State defines its aims or adjusts the content and methods of education to their particular convictions. It must only take account of them, for instance, by granting the possibility of leave or alternative education programmes where appropriate. Under Article 2 of Protocol No. 1, there is no right to home schooling, not even in cases in which parents assert that school education was contrary to their religious or philosophical convictions.38

2. Proportionality of interferences Although, in the context of Article 2 of Protocol No. 1, the Court did not explicitly refer to a principle of proportionality like in the cases concerning Articles 8 to 11, the reasoning is very much influenced by the necessity test. The first three major cases before the Court concerned the language of education in Belgium schools, corporal punishment in the UK and sexual education in Danish schools.39 The Court, once more, afforded a certain margin of appreciation to the Member States. In particular, it referred to the notion of ‘respect’ and held that the requirements flowing from this duty to respect vary considerably from case to case, given the diversity of the practices followed and the situations obtaining in the States. As a result, the Member States enjoy a wide margin of appreciation in determining the steps to be taken to ensure compliance with the Convention with due regard to the needs and resources of the community and of individuals. Owing to this margin of appreciation, Article 2 of Protocol No. 1 cannot be interpreted to mean that parents can require the States to provide a particular form of teaching.40 18 The setting and planning of the curriculum fall in principle within the competence of the Member States. This mainly involves questions of expediency on which it is not for the Court to rule and whose solution may legitimately vary according to the country and the era.41 In particular, the second sentence of Article 2 of Protocol No. 1 does not prevent States from imparting through teaching or education information or knowledge of a directly or indirectly religious or philosophical kind. It does not even permit parents to object to the integration of such teaching 17

36

ECtHR, 23/7/1963, Case “relating to certain aspects of the laws on the use of languages in education in Belgium” v BEL, No. 1474/62 et al, I B. § 5. 37 ECtHR, 25/2/1982, Campbell a. Cosans v UK, No. 7511/76 et al, § 37, referring to document CDH (67) 2*, p. 163. 38 ECtHR, 11/9/2006, Konrad a.o. v GER, No. 35504/03. 39 ECtHR, 23/7/1963, Case “relating to certain aspects of the laws on the use of languages in education in Belgium” v BEL, No. 1474/62 et al; ECtHR, 25/2/1982, Campbell a. Cosans v UK, No. 7511/76 et al; ECtHR, 7/12/1976, Kjeldsen a.o. v DEN, No. 5095/71 et al. 40 ECtHR, 18/3/2011 (GC), Lautsi a.o. v ITA, §§ 61–62, 69–70. 41 ECtHR, 18/12/1996, Valsamis v GRE, No. 21787/93, § 28.

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or education in the school curriculum, for otherwise all institutionalised teaching would run the risk of proving impracticable.42 Although individual interests must on occasion be subordinated to those of a group, democracy does not simply mean that the views of a majority must always prevail: a balance must be achieved which ensures the fair and proper treatment of minorities and avoids any abuse of a dominant position43. The second sentence of Article 2 of Protocol No. 1 implies, on the other hand, that the State, in fulfilling the functions assumed by it in regard to education and teaching, must take care that information or knowledge included in the curriculum is conveyed in an objective, critical and pluralistic manner. The State is not allowed to pursue an aim of indoctrination that might be considered as not respecting parents’ religious and philosophical convictions. This limit must not be exceeded44. In order to examine the legislation which allegedly is in violation of Article 2 of 19 Protocol No. 1, one must, while avoiding any evaluation of the legislation’s expediency, have regard to the material situation that it sought and still seeks to meet. Certainly, abuses may occur as to the manner in which the provisions in force are applied by a given school or teacher and the competent authorities have a duty to take the utmost care to see to it that parents’ religious and philosophical convictions are not disregarded at this level by carelessness, lack of judgment or misplaced proselytism.45 A number of cases concern conflicts between various religious convictions in 20 schools. The Court made it clear in the Kjeldsen Case that the second sentence of Article 2 of Protocol 1 does not prevent States from imparting through teaching or education information or knowledge of a directly or indirectly religious or philosophical kind. It does not even permit parents to object to the integration of such teaching or education in the school curriculum, for otherwise all institutionalised teaching would run the risk of proving impracticable. In fact, it seems very difficult for many individuals taught at school not to have, to a greater or lesser extent, some philosophical complexion or implications. The same is true of religious affinities if one remembers the existence of religions forming a very broad dogmatic and moral entity which has or may have answers to every question of a philosophical, cosmological or moral nature. In the Folgerø Case, the legislator did not meet the requirements of Article 2 of 21 Protocol No. 1. In this case, the Court was called upon to examine the content of ‘Christianity, religion and philosophy’ (KRL) lessons in Norway. It found that the fact that knowledge of the Christian religion represented a greater part of the curriculum than knowledge about other religions and philosophies could not in itself be viewed as a departure from the principles of pluralism and objectivity amounting to indoctrination. In view of the place occupied by Christianity in the history and tradition of Norway, this question had to be regarded as falling within the margin of appreciation left to it in planning and setting the curriculum.46 The Court reached a similar conclusion in the context of ‘religious culture and ethics’ 42

ECtHR, 7/12/1976, Kjeldsen a.o. v DEN, No. 5095/71 et al, § 53. ECtHR, 18/12/1996, Valsamis v GRE, No. 21787/93, § 27, ECtHR, 29/6/2007 (GC), Folgerø a.o. v NOR, No. 15472/02, § 84. 44 ECtHR, 7/12/1976, Kjeldsen a.o. v DEN, No. 5095/71 et al, § 53. 45 ECtHR, 7/12/1976, Kjeldsen a.o. v DEN, No. 5095/71 et al, § 54. 46 ECtHR, 29/6/2007 (GC), Folgerø a.o. v NOR, No. 15472/02, § 89. 43

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classes in Turkish schools. The curriculum gave greater prominence to knowledge of Islam on the ground that, notwithstanding the State’s secular nature, Islam was the majority religion practised in Turkey.47

IV. Positive obligations 22

Despite the term ‘respect’ of convictions in Article 2 of Protocol No. 1, second sentence, which aims only at a limitation of interferences, it also implies some positive obligation on the part of the State.48 This being so, the duty to respect parental convictions cannot be overridden by the alleged necessity of striking a balance between the conflicting views involved nor is the government’s policy to move gradually towards the abolition of corporal punishment in itself sufficient to comply with this duty.49 In the first place, positive obligations arise in the context of conflicting interests among different groups of parents who may have colliding views on the methods and content of education and teaching, in particular in cases involving a minority as opposed to a majority that would not accept deviant views. Positive obligations with a view to organisation of the educational system are inherent in Article 2 of Protocol No. 1 as far as the task of setting and planning of the curriculum in State schools are concerned. As it is the aim of Article 2 of Protocol No. 1 to safeguard the possibility of pluralism in education, it requires the State, in exercising its functions with regard to education and teaching, to take care that information or knowledge included in the curriculum is conveyed in an objective, critical and pluralistic manner, enabling pupils to develop a critical mind particularly with regard to religion in a calm atmosphere free of any proselytism. The State is forbidden to pursue an aim of indoctrination that might be considered as not respecting the parents’ religious and philosophical convictions. States must not exceed this limit.50 As to private schools, positive obligations may arise in the context of control and protection of education and teaching in those schools, especially in cases where disciplinary measures are taken against pupils and students.51 47

ECtHR, 9/10/2007, Hasan a. Eylem Zengin v TUR, No. 1448/04, § 63. ECtHR, 29/6/2007 (GC), Folgerø a.o. v NOR, No. 15472/02, § 84. 49 ECtHR, 25/2/1982, Campbell a. Cosans v UK, No. 7511/76 et al, § 37. 50 ECtHR, 18/3/2011 (GC), Lautsi a.o. v ITA, § 62. 51 E.g. corporal punishment, see ECtHR, 25/3/1993, Costello-Roberts v UK, No. 13134/87. 48

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P1 – 3 Article 3 – Right to free elections The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature. Article 3 – Droit a` des e´lections libres Les Hautes Parties contractantes s’engagent a` organiser, a` des intervalles raisonnables, des e´lections libres au scrutin secret, dans les conditions qui assurent la libre expression de l’opinion du peuple sur le choix du corps le´gislatif. Bibliography: Cremona, The right to free elections in the European Convention on Human Rights, in: Mahoney/Matscher/Petzold/Wildhaber (ed.), Protecting Human Rights: The European Perspective, Studies in memory of Rolv Ryssdal, 2007, p. 309; Desmecht, Le Droit aux Elections libres dans la Convention europe´enne des Droits de l’Homme, Chronique de droit public, 2002; De Meyer, Electoral Rights, in: Macdonald/Matscher/Petzold (ed.), The European System for the Protection of Human Rights, 1993, p. 553; Schokkenbroek, Free elections by secret ballot (Article 3 of Protocol No. 1), in: van Dijk/van Hoof/van Rijn/Zwaak (ed.), Theory and Practice of the European Convention on Human Rights, 4th ed., 2006, p. 911. Leading cases: ECtHR, 2/3/1987, Mathieu-Mohin a. Clerfayt v BEL, No. 9267/81 (basic decision on electoral law on the occasion of proceedings against Belgium); ECtHR, 18/2/1999 (GC), Matthews v GBR, No. 24833/94 (right to vote in the elections to the European Parliament); ECtHR, 9/4/ 2002, Podkolzina v LAT, No. 46726/99 (exclusion from the right to stand for election on the ground of inadequate command of language); ECtHR, 11/6/2002, Selim Sadak a.o. v TUR, No. 25144/94 et al (right to be elected); ECtHR, 19/10/2004, Melnychenko v UKR, No. 17707/02 (different requirements for the justification of interferences with the right to vote and the right to stand for elections); ECtHR, 6/10/2005 (GC), Hirst (No. 2) v GBR, No. 74025/01 (exclusion of convicted prisoners from the right to vote); ECtHR, 16/3/2006 (GC), Zˇdanoka v LAT, No. 58278/00 (implied restrictions, deprivation of the right to stand for election on the ground of former membership of a communist party); ECtHR, 8/ 7/2008 (GC), Yumak a. Sadak v TUR, No. 10226/03 (10 % threshold in national elections in order to be represented seats in parliament); ECtHR, 6/1/2011 (GC), Paksas v LTU, No. 34932/04 (disqualification of a former president from the right to stand for election following his removal from office). Outline I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Scope of protection. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Personal scope . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Material scope. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a) Elections. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b) Legislative bodies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . c) Voting principles. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . d) The right to vote and to stand for elections . . . . . . . . . . . . . . . . . . . . . . . . . III. Interferences. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Justification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. General. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Legitimate aim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Proportionality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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I. Introduction 1

The right to vote is different from other Convention guarantees for a number of reasons. This is, first, due to the wording of Article 3 of Protocol No. 1. Unlike most of the other rights in the Convention, it does neither expressly confer a subjective ‘right’ nor prohibit or abolish anything, but it is formulated as an obligation of the Member States. Unlike all other rights in the Convention, the wording does not refer to individual persons, which enjoy a certain guarantee, but to the ‘opinion of the people’ and its ‘free expression’. The right to vote is the basis of democracy. As democracy is also a precondition for membership in the ECHR, it is surprising that the right is not part of Section I of the ECHR but the third guarantee in Protocol No. 1.1 Although one expects the conditions of the right to vote to be defined in the national constitutions, there is no antagonism between democracy and human rights. Section 2 of the Virginia Declaration of Rights already stated that ‘all power [was] vested in, and derived from the people’; Section 6 required that elections be free. Article 6 of the French Declaration of Human and Civic Rights of 1789 conferred on every citizen the right to participate in the legislative process, either in person or through representatives. This link between human rights and democracy has been maintained and strengthened in the UN documents. Both, the UNDHR and ICCPR, provide for a list of human rights. According to Article 21 UNDHR, ‘the will of the people shall by the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures’. In a similar way, Article 25 ICCPR provides for a right ‘to vote and to be elected at genuine periodic elections […], guaranteeing the free expression of the will of the electors; the principles of election shall be universal and equal suffrage and secret ballot.’ The main difference to the rights under Article 3 of Protocol No. 1 is that it is explicitly referred to as a ‘right and an ‘opportunity’, that it is expressly restricted to citizens and guaranteed without discrimination and without unreasonable restrictions. The ECtHR in its case law has constantly referred to the interrelation between Article 3 of Protocol No. 1 and democracy. It was already in its very first judgment on the Article that the Court emphasised the ‘prime importance [of the Article 3 of Protocol No. 1] in the Convention system’. Since then, over the last 25 years, it has developed the guarantee step by step to a fully-fledged human right with a structure similar to the other Convention rights, although the wording of Article 3 of Protocol No. 1 is entirely different from the wording of other Convention guarantees. Within the Council of Europe there is an increasing body of soft law influencing the interpretation of Article 3 of Protocol No. 1. There are many documents adopted by the OHDIR and the Venice Commission that refer either to specific issues of national election systems or to issues of election law in general. The most important source of soft law among these documents is the Venice Commission’s ‘Code of good conduct in electoral matters’.2 1 It is therefore still not binding upon Switzerland and Monaco which have not ratified the Protocol. 2 www.venice.coe.int/WebForms/documents/by_opinion.aspx (2013-09-19).

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II. Scope of protection 1. Personal scope Unlike Article 25 ICCPR, Article 3 of Protocol No. 1 does not limit the scope 2 explicitly to citizens. However, such a restriction in national law would not be in conflict with the Convention, there is not even a need for justifying reasons. The purpose of the guarantee is to enable the people to express their ‘free will’. Although there is no definition of the ‘people’ in the Convention, it is fully in line with the Convention if the national constitution defines the people, i. e. the electorate for parliamentary elections, as the citizens of the State.3 This is also the practice of the vast majority of Member States. In particular, there is no duty to confer the right to vote to long-time or long-term residents.4 It is also in line with Article 3 of Protocol No. 1 if a State decides to confer the right to vote on certain aliens, for instance, for historic reasons. In this respect States enjoy a wide margin of appreciation. There is, in particular, neither a duty under Article 14 to extend the right to vote to other groups of aliens nor are States obliged to open the electorate for parliamentary elections to them only because aliens are allowed to vote in local elections. As far as the right to stand for elections is concerned, the personal scope of the guarantee extends to political parties. Political parties have a core function in a representative democracy, which is protected in a number of European constitutions. In particular, the persons standing for all parliamentary elections in Europe are organised in one way or the other in political parties. The key function of political parties for democracy has repeatedly been emphasised in Court judgments on Article 10 and 11.5 Therefore, there is no reason to exclude political parties from the scope of Article 3 of Protocol No. 1.

2. Material scope a) Elections Article 3 of Protocol No. 1 imposes on the Member States the duty to hold 3 elections. It does not extend to other forms of participation of the people in contributing to the will of the legislature or any other form of participation in the government. In particular, no right to referendum may be derived from Article 3 of Protocol No. 1.6 In a democracy it is decisive that the election period is not too long. Therefore, Article 3 requires that elections are held at reasonable intervals. The Commission finds that the question whether elections are held at reasonable intervals must be determined by reference to the purpose of parliamentary elections. The former 3

See ECtHR, 2/3/1987, Mathieu-Mohin a. Clerfayt v BEL, No. 9267/81, § 54 (‘all citizens’) Similar in result while not based on the notion of ‘people’: Schokkenbroek, Free elections by secret ballot (Article 3 of Protocol No. 1), in: van Dijk/van Hoof/van Rijn/Zwaak (ed.), Theory and Practice of the European Convention on Human Rights, 4th ed., 2006, p. 911 (920 et seq.). 5 See Article 11, m.n. 3. 6 See ECtHR, 7/9/1999, Hilbe v LIE, No. 31981/96; ECtHR, 6/1/2011 (GC), Paksas v LTU, No. 34932/04, § 72; see also De Meyer, Electoral Rights, in: Macdonald/Matscher/Petzold (ed.), The European System for the Protection of Human Rights, 1993, p. 553 (556). 4

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Commission found that Article 3 shall ensure that fundamental changes in prevailing public opinion are reflected in the opinions of the representatives of the people. Parliament must in principle be in a position to develop and execute its legislative intentions. Too short an interval between elections may impede political planning for the implementation of the will of the electorate; too long an interval could lead to the petrification of political groupings in parliament which may no longer bear any resemblance to the prevailing will of the electorate.7 While the Commission was right in describing the problems of too long and too short intervals between elections, there is a large margin of appreciation in choosing the length of an election period. In accordance with the practice of the Member States, election periods of four or five years are reasonable in any case; but also periods of six years may be reasonable and adequate. Although too short periods do not facilitate the work of parliament, it cannot be said that periods of two or three years would to a lesser extent secure the free expression of the will of the people. In the light of these considerations, it cannot be said that a five years interval between elections does not ensure the free expression of the opinion of the people in the choice of the legislature and is therefore not in line with the Convention. Even a practice of annual or biannual elections due to the specific situation of a Member State therefore fully complies with Article 3 of Protocol No. 1.

b) Legislative bodies 4

The wording of the Article does not refer to a particular type of election. However, the last part of the guarantee determines the aim of the guarantee of elections under Article 3 of Protocol No. 1: the free expression of the will of the people in the choice of the legislature. Thus, the guarantee only covers elections to parliament or to equivalent legislative bodies. Whether a body qualifies as ‘legislature’ has to be answered in the light of the constitutional structure of the State in question; the body needs sufficient competences that are typical for a legislative body, in particular the competence to enact laws. Therefore, for instance, the elections to the Regional Councils of the Communities in Belgium, the legislative bodies of the Cantons in Switzerland, and the Laender in Germany or Austria8 are covered by the guarantee. At a European level, the European Parliament qualifies as legislature within the meaning of Article 3 of Protocol No. 1.9 Today it has not only competences to enact general legal acts which can be compared to national laws, such as EU regulations, but also in the field of EU budget and the election of the Commission. Elections of local bodies with no legislative competences, of self-governing bodies or of heads of State10 do not fall in the ambit of Article 3 of Protocol No. 1.

c) Voting principles 5

Article 3 of Protocol No. 1 provides for a number of core principles of election law: free elections, secret ballot, equal suffrage and universal suffrage. 7

EComHR, 11/09/1995, Timke v GER, No. 27311/95. For the German Land of Lower Saxony (Niedersachsen) see EComHR, 11/09/1995, Timke v GER, No. 27311/95. 9 See already ECtHR, 18/2/1999 (GC), Matthews v UK, No. 24833/94, § 54. 10 ECtHR, 7/9/1999, Hilbe v LIE, No. 31981/96; ECtHR, 6/1/2011 (GC), Paksas v LTU, No. 34932/04, § 72; see also De Meyer, in: Macdonald/Matscher/Petzold, p. 556. 8

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First and foremost, elections must be free. This principle refers to the period prior to an election, in order to safeguard the free formation of the voter’s opinion; it protects against indoctrination by the State or a private person and, in particular, by a political party. No voter must be put under pressure to vote for a certain party or a certain candidate. Moreover, free suffrage requires a voting procedure that guarantees the free expression of the individual voter’s will. Finally, free elections require safeguards against fraud and other irregularities in the course of counting the votes and establishing the result of the election. The free expression of the voter’s will is also safeguarded by the requirement of secret ballot as it reduces the danger of influence or pressure on the voter.11 Equal suffrage is not explicitly guaranteed in Article 3 of Protocol No. 1. However, the Court made it clear from the very beginning that the guarantee implies the principle of equality of treatment of all citizens in the exercise of their right to vote and their right to stand for election. This does not mean that all votes must necessarily have equal weight as regards the outcome of the election or that all candidates must have equal chances of victory. ‘Wasted votes’ are common in every electoral system and do not – as such – result in a system being in conflict with the Convention.12

d) The right to vote and to stand for elections In the first place, Article 3 of Protocol No. 1 protects the right to vote (active 6 right) in elections. This right is guaranteed subject to the conditions laid down by the legislature in accordance with the principles mentioned above. The other guarantee under the Article is the right to stand for elections. It covers the rights of individuals that want to be elected to be put on the list of a party or where appropriate to stand for elections on their own. Furthermore, elected members of parliament are granted the right to exercise a mandate for the whole election period.13 The latter right under Article 3 of Protocol No. 1 also extends to political parties. They enjoy not only the right to submit a list and to take part in elections under a certain name but also, in principle, the right to choose the persons on the list of candidates.14 In particular, parties enjoy the right to decide on the list of their ‘candidates’. Issues, such as party symbols, party programme etc., that are primarily protected under Article 11 may also fall within the scope of Article 3 of Protocol No. 1 if the party stands for elections and respective restrictions are imposed on it. There is no explicit ‘negative’ right under Article 3 of Protocol No. 1. However, it seems consistent to assume that the concept of ‘free elections’ also covers the right not to vote.

III. Interference The most important interferences with Article 3 of Protocol No. 1 are restrictions 7 on the right to vote or to stand for election. In particular, the exclusion of prisoners 11 Cremona, The right to free elections in the European Convention on Human Rights, in: Mahoney/Matscher/Petzold/Wildhaber (ed.), Protecting Human Rights: The European Perspective, Studies in memory of Rolv Ryssdal, 2007, p. 309 (313). 12 ECtHR, 2/3/1987, Mathieu-Mohin a. Clerfayt v BEL, No. 9267/81, § 54. 13 ECtHR, 6/4/2000 (GC), Labita v ITA, No. 26772/95, § 201. 14 ECtHR, 10/7/2012, Staatkundig Gereformeerde Partij v NED, No. 58369/10.

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from voting interferes with the rights under Article 3 of Protocol No. 1.15 The same is true for a legislation that excludes civil servants or members of other political bodies from standing for election.16 The requirement of a minimum age for voting or being elected amounts to an interference. Other interferences are the requirement of residence in the country17 concerned. Examples for interferences with the aim to the right to stand for elections are the requirement of sufficient language skills,18 of an electoral deposit or a minimum number of supporting signatures. As regards the right to remain in the legislative body until the end of the election period, the exclusion from parliament or the loss of a mandate interfere with the rights under Article 3 of Protocol No. 1. Interferences with the right to vote may also occur when voting principles are modified. It would constitute a modification of voting principles if for example a voter was forced to vote in public or if the names of citizens abstaining from voting are published. Mandatory voting interferes with the right to vote, too.

IV. Justification 1. General 8

The wording of Article 3 of Protocol No. 1 does not refer to interference and their justification. In the course of time, the ECtHR developed criteria for the justification that get more and more similar to those under Articles 8 to 11 ECHR. The examination of interferences includes the requirement of a legitimate aim and a kind of necessity-test. For the time being the Court refers to the specific concept of ‘implied limitations’ under Article 3 of Protocol No. 1which forms the basis for a ‘modified proportionality-test’.

2. Legitimate aim 9

Article 3 of Protocol No. 1 does not contain a list of ‘legitimate aims’ capable of justifying restrictions on the exercise of the rights it guarantees and does not refer to those enumerated in Articles 8 to 11. Thus, the States are free to rely on an aim not contained in that list to justify a restriction, provided that the compatibility of that aim with the principle of the rule of law and the general objectives of the Convention is proved in the particular circumstances of a case.19

15 ECtHR, 6/4/2000 (GC), Labita v ITA, No. 26772/95, § 201; ECtHR, 6/10/2005 (GC), Hirst (No. 2) v UK, No. 74025/01, §§ 63 et seq.; ECtHR, 22/6/2004, Aziz v CYP, No. 69949/01, §§ 25, 28; ECtHR, 1/7/2008, Calmanovici v ROM, No. 42250/02, §§ 153–154. 16 ECtHR, 2/9/1998, Ahmed v UK, No. 22954/93, § 75. 17 As to standing for elections, ECtHR, 7/9/1999, Hilbe v LIE, No. 31981/96; ECtHR, 6/7/2007, Sevinger a. o. v NED, No. 17173/07 et al; as to eligibility ECtHR, 11/1/2005, Py v FRA, No. 66289/01, §§ 43 et seq.; ECtHR, 19/10/2004, Melnychenko v UKR, No. 17707/02, § 56. 18 ECtHR, 9/4/2002, Podkolzina v LAT, No. 46726/99, § 33. 19 ECtHR, 16/3/2006 (GC), Z ˇ danoka v LAT, No. 58278/00, § 115.

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The aims relied on by the States are very often accepted by the Court.20 For instance, when a former president, as a consequence of his removal from office following impeachment proceedings, forfeited the right to stand for election, the Court held that this measure served the legitimate aim of determining the constitutional liability of the highest-ranking state officials for acts carried out while in office which undermine the authorities’ credibility.21 Loyalty of members of parliament to the government is incompatible with the concept of a democratic state committed to the rule of law. On the other hand, loyalty to the State in the sense of respect for the constitution, laws, institutions, independence and territorial integrity constitutes a legitimate aim which may justify restrictions on electoral rights. Any desire to bring about changes to any of those aspects must be pursued in accordance with the laws of the State.22

3. Proportionality As to the necessity of an interference, the Court does not apply the traditional 10 test of ‘necessity’ and ‘pressing social need’ which is used in the context of Articles 8 to 11 of the Convention. In examining compliance with Article 3 of Protocol No. 1, the Court mainly focuses on two criteria: whether there has been arbitrariness or a lack of proportionality, and whether the restriction has interfered with the free expression of the opinion of the people. In this connection, the Court grants a wide margin of appreciation to the Member States.23 In addition, the Court has stressed the need to assess any electoral legislation in the light of the political evolution of the country concerned, with the result that features unacceptable in the context of one system may be justified in the context of another24. The need for individualisation of a legislative measure and the degree of that individualisation where it is required by the Convention, depend on the circumstances of each particular case, namely the nature, type, duration and consequences of the impugned statutory restriction. For a restrictive measure to comply with Article 3 of Protocol No. 1, a lesser degree of individualisation may be sufficient, in contrast to situations concerning an alleged breach of Articles 8 to 11 of the Convention.25 In case a restriction of the right to vote laid down by law is in itself consistent with the Convention, the ECtHR usually does not exercise any further scrutiny. As regards the right to stand for election, (‘passive’ aspect of the rights under Article 3 of Protocol No. 1), the Court has been even more cautious in its assessment of restrictions in that context than when it has been called upon to examine restrictions on the right to vote, the so-called ‘active’ element. Stricter requirements may be imposed on the eligibility to stand for election to parliament than on the eligibility to vote.26 While the test relating to the ‘active’ aspect of Article 3 of 20 ECtHR, 16/3/2006 (GC), Z ˇ danoka v LAT, No. 58278/00, § 115; ECtHR, 27/4/2010 (GC), ˘ Tanase v MDA, No. 7/08, § 164; ECtHR, 6/1/2011 (GC), Paksas v LTU, No. 34932/04, § 100. 21 ECtHR, 6/1/2011 (GC), Paksas v LTU, No. 34932/04, § 100. 22 ECtHR, 27/4/2010 (GC), Ta ˘ nase v MDA, No. 7/08, §§ 65 et seq. 23 ECtHR, 16/3/2006 (GC), Z ˇ danoka v LAT, No. 58278/00, § 115. 24 ECtHR, 2/3/1987, Mathieu-Mohin a. Clerfayt v BEL, No. 9267/81, § 54; ECtHR, 9/4/2002, Podkolzina v LAT, No. 46726/99, § 33; Case law in this respect mainly concerns states of the former Soviet Union that by and by acceded to the ECHR after the year 1990. 25 ECtHR, 16/3/2006 (GC), Z ˇ danoka v LAT, No. 58278/00, § 115. 26 ECtHR, 19/10/2004, Melnychenko v UKR, No. 17707/02, § 57.

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Protocol No. 1 usually includes a wider assessment of the proportionality of the statutory provisions disqualifying a person or a certain group of persons from the right to vote, the Court’s test in relation to the ‘passive’ aspect of the above provision is more or less limited to a check on the absence of arbitrariness in the domestic procedures leading to disqualification of an individual from standing as a candidate27. Modifications of the voting principles may be justified. These principles do not have to be respected in each case and system in the same manner. As the Court points out in the Mathieu-Mohin Case, all electoral systems seek to fulfil objectives which are often not compatible with each other: on the one hand, to reflect fairly faithfully the opinions of the people, and on the other, to channel currents of thought so as to promote the emergence of a sufficiently clear and coherent political will. Here, too, the Court recognises that the Contracting States have a wide margin of appreciation, given that their legislation on the matter varies from place to place and from time to time. 11 Restrictions on the electoral rights may be justified under certain conditions, such as citizenship and age.28 Furthermore, having to satisfy a residence or length-ofresidence requirement in order to have or exercise the right to vote in elections is not, in principle, an arbitrary restriction of the right to vote and is therefore not incompatible with Article 3 of Protocol No. 1.29 In general terms, Article 3 of Protocol No. 1 does not impose upon the States to introduce a system enabling expatriate citizens to exercise their voting rights from abroad. In case domestic law provides for the right to vote of non-resident citizens, the Court is of the view that it is not its task to indicate to the national authorities to what time and in what manner they should give effect to the right in question.30 General, automatic and indiscriminate disenfranchisement of all serving prisoners is not compatible with Article 3 of Protocol No. 1.31 Likewise, an absolute bar on voting by any person under partial guardianship, irrespective of his or her actual faculties, does not fall within an acceptable margin of appreciation. Rather, it is required that an individualised judicial evaluation must take place.32 Suspending temporarily the voting rights of persons against whom there is evidence of Mafia membership pursues a legitimate aim. However, disenfranchisement based on the mere suspicion that someone belongs to the Mafia which is not corroborated by any concrete evidence cannot be regarded as proportionate.33 States enjoy considerable latitude to establish rules within their constitutional order governing parliamentary elections and the composition of the parliament. However, these rules should not be such as to exclude some persons or groups of persons from participating in the political life of the country and, in particular, in the choice of the legislature. Accordingly, the Court found a violation of Article 3 of Protocol No. 1 where a member of the Turkish-Cypriot community living in the ECtHR, 16/3/2006 (GC), Zˇdanoka v LAT, No. 58278/00, §§ 106 et seq., 115. EComHR, 11/12/1976, X. v UK, No. 7566/76; EComHR, 28/2/1979, X. v UK, No. 7730/76; EComHR, 6/5/1981, X. a. Association v ITA, No. 8987/80. 29 ECtHR, 11/1/2005, Py v FRA, No. 66289/01, §§ 48 et seq. 30 ECtHR, 15/3/2012 (GC), Sitaropoulos a. Giakoumopoulos v. GRE, No. 42202/07, § 75–76. 31 ECtHR, 6/10/2005 (GC), Hirst (No. 2) v UK, No. 74025/01, §§ 77 et seq.; ECtHR, 8/4/2010, Frodl v AUT, No. 20201/04, §§ 31 et seq; ECtHR, 22/5/2012 (GC), Scoppola (No. 3) v ITA, No. 126/05, § 96. 32 ECtHR, 20/5/2010, Alajos Kiss v HUN, No. 38832/06, §§ 42 et seq. 33 ECtHR, 6/4/2000, Labita v ITA, No. 26772/95, §§ 202–203. 27 28

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government-controlled area of Cyprus was completely deprived of any opportunity to express his opinion in the choice of the members. Domestic law provided for two separate electoral lists, one for the Greek-Cypriot community and one for the Turkish-Cypriot community; however, starting with 1963, the relevant articles of the constitution providing for the parliamentary representation of the TurkishCypriot community and the quotas to be adhered to by the two communities became impossible to implement in practice.34 In the Yumak and Sadak Case, the ECtHR held that the requirement for political 12 parties to obtain at least 10 % of the vote in national elections in order to be represented in parliament was, as a general rule, disproportionate. However, in the light of the specific political context of the elections in question (in particular: economic crises, earthquakes), and attended as it was by correctives and other guarantees which had limited its effects in practice, the Court was not persuaded that the threshold had had the effect of impairing in their essence the rights secured to the applicants by Article 3 of Protocol No. 1.35 An active system of voter registration does not in itself amount to a breach of Article 3 of Protocol No. 1.36 According to the Court, it is particularly important in the period preceding an election that opinions and information of all kinds are permitted to circulate freely. Thus, the Court found a violation of Article 10 of the Convention where a man was prohibited from distributing leaflets against abortion during the six weeks preceding the election. In certain circumstances, however, it may be necessary, in the period preceding or during an election, to place certain restrictions, of a type which would not usually be acceptable, on freedom of expression, in order to prevent voters from being influenced.37 According to the Court, stricter requirements may be imposed for the eligibility 13 to stand for election to parliament, as distinguished from voting eligibility.38 In such cases, the Court usually confines itself to assessing whether removing or restricting the right to stand for election was tainted by arbitrariness.39 The requirement of paying an electoral deposit as a precondition for registering as a candidate in elections pursues, among others, the legitimate aim of guaranteeing the right to effective, streamlined representation by enhancing the responsibility of those standing for election and confining elections to serious candidates.40 As long as the electoral deposit is not excessive or does not constitute an insurmountable administrative or financial barrier for a determined candidate wishing to take part in elections, and even less so an obstacle to the emergence of sufficiently representative political currents or an interference with the principle of pluralism, Article 3 of Protocol No. 1 cannot be said to be violated.41 The same applies with respect to the requirement of support by a certain number of signatures in order to be 34

ECtHR, 22/6/2004, Aziz v CYP, No. 69949/01, §§ 28–29. ECtHR, 8/7/2008 (GC), Yumak a. Sadak v TUR, No. 10226/03, § 147. 36 ECtHR, 8/7/2008, Georgian Labour Party v GEO, No. 9103/04, § 92. 37 ECtHR, 19/2/1998 (GC), Bowman v UK, No. 24839/94, §§ 45 et seq. 38 ECtHR, 19/10/2004, Melnychenko v UKR, No. 17707/02, § 57; ECtHR, 27/4/2010 (GC), Ta ˘ nase v MDA, No. 7/08, § 155. 39 ECtHR, 30/6/2009, Etxeberria a. o. v ESP, No. 35579/03 et al, § 50. 40 ECtHR, 28/3/2006, Sukhovetskyy v UKR, No. 13716/02, § 62. 41 ECtHR, 28/3/2006, Sukhovetskyy v UKR, No. 13716/02, § 73. 35

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presented on the electoral list.42 The requirement of residence in a particular State for a certain period of time to stand for election can be justified if the specific situation of the individual concerned is taken into account.43 The Court examines with particular care any measure which appears to operate solely, or principally, to the disadvantage of the opposition, especially where the nature of the measure is such that it affects the very prospect of opposition parties gaining power at some point in the future.44 A ban on individuals with dual or multiple nationalities from becoming members of parliament is in violation of the right to stand for election. While, in this context, the need to ensure loyalty to the State might well constitute a legitimate aim which justifies restrictions on electoral rights, general restrictions on electoral rights are disproportionate if there is no proof of disloyalty to the State in the individual case. Any restriction on electoral rights must not be such as to exclude some persons or groups of persons from participating in the political life of the country.45 In order for a decision on the eligibility of candidates to be in conformity with the Convention, it is required that the finding on his or her eligibility must be reached by an independent and impartial body; thereby, any discriminatory practice vis-a`-vis members of national minorities should be prevented.46 Barring members of an electoral group from standing for election on the grounds that the group is carrying on activities of parties that have been declared illegal is in compliance with the right to stand for election if they are barred on an individual basis and in adversarial and non-arbitrary proceedings.47 The forfeiture of parliamentary seats as a consequence of the dissolution of the political party and regardless of the personal political activities of its individual members cannot be regarded as proportionate.48 According to the Court, electoral law must clearly stipulate the procedure to be followed for the allocation of the parliamentary seat reserved for the winning organisation representing a national minority. The lack of clarity of the electoral law as regards national minorities and the lack of sufficient guarantees as to the impartiality of the bodies responsible for examining the candidate’s challenges impaired the very essence of the rights guaranteed by Article 3 of Protocol No. 1.49 14 In several Member States, there exist rules in domestic law laying down criteria for disqualification according to which certain holders of public office are disqualified from being a member of parliament. According to case law, such rules interfere with the rights under Article 3 of Protocol No. 1. They may, however, be justified as they pursue the legitimate aim of ensuring the proper functioning and upholding of democratic regimes, namely ensuring that candidates of different

42

EComHR, 12/7/1976, X. v AUT, No. 7008/75. ECtHR, 19/10/2004, Melnychenko v UKR, No. 17707/02, §§ 61–62 44 ECtHR, 27/4/2010 (GC), Ta ˘ nase v MDA, No. 7/08, § 179. 45 ECtHR, 27/4/2010 (GC), Ta ˘ nase v MDA, No. 7/08, §§ 175, 178 46 ECtHR, 9/4/2002, Podkolzina v LAT, No. 46726/99, §§ 35, 41–42. 47 ECtHR, 30/6/2009, Etxeberria a. o. v ESP, No. 35579/03 et al, §§ 53 et seq; ECtHR, 30/6/2009, Herritarren Zerrenda v ESP, No. 43518/04, § 43. 48 ECtHR, 11/6/2002, Selim Sadak a. o. (No. 2) v TUR, No. 25144/94 et al, §§ 37 et seq. 49 ECtHR, 2/3/2010, Grosaru v ROM, No. 78039/01, §§ 49, 54–55. 43

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political persuasions enjoy equal means of influence and protecting the electorate from pressure from such officials.50 Election irregularities may affect the right to vote as then the election results might not reflect the opinion of the people. Election irregularities may also affect the right to stand for election if the candidate, contrary to electoral law, is not becoming a member of parliament. It is not required under the Convention to verify whether any alleged irregularity had amounted to a breach of national electoral law. The Court is not in a position to examine the alleged irregularities in detail.51 Rather, the domestic system must provide for an effective examination of individual complaints and appeals in matters concerning electoral rights.52 A fair procedure for recounting votes where such a recount is possible is an important safeguard of the fairness and success of the entire election process.53 States have a wide discretion as regards the setting up of a procedure of effective examination of election irregularities. However, it is particularly important for an agency in charge of electoral administration to function in a transparent manner and to maintain impartiality and independence from political manipulation.54 In case a court or other authority issues a decision on election issues, the agency in charge of electoral administration is obliged to abide by the final decision and, for instance, to reinstate a person on the list of candidates.55 50

ECtHR, 1/7/1997, Gitonas a. o. v GRE, No. 18747/91 et al, §§ 39–40. ECtHR, 8/4/2010, Namat Aliyev v AZE, No. 18705/06, § 77. 52 ECtHR, 8/4/2010, Namat Aliyev v AZE, No. 18705/06, § 81. 53 ECtHR 30/9/2010, Kerimova v AZE, No. 20799/06, § 49. 54 ECtHR, 8/7/2008, Georgian Labour Party v GEO, No. 9103/04, § 101; ECtHR, 8/4/2010, Namat Aliyev v AZE, No. 18705/06, § 73; ECtHR 30/9/2010, Kerimova v AZE, No. 20799/06, § 45. 55 ECtHR, 11/6/2009, Petkov a. o. v BUL, No. 77568/01 et al, §§ 63 et seq. 51

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P4 – 1

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Article 1 – Prohibition of imprisonment for debt

Protocol No. 4 Article 1 – Prohibition of imprisonment for debt No one shall be deprived of his liberty merely on the ground of inability to fulfil a contractual obligation. Article 1 – Interdiction de l’emprissonnement pour dette Nul ne peut eˆtre prive´ de sa liberte´ pour la seule raison qu’il n’est pas en mesure d’exe´cuter une obligation contractuelle. Outline I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Scope of protection. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 2

I. Introduction 1

According to Article 1 of Protocol No. 4, no one shall be deprived of his liberty merely on the ground of inability to fulfil a contractual obligation. This fundamental right remains to this day without significance.

II. Scope of protection 2

The scope of Article 1 of Protocol No. 4 extends to the ‘liberty’ of person. The notion of ‘liberty’ is identical to that under Article 5.1 As regards interferences with the prohibition of imprisonment for debt, the principles established under Article 5 apply to it, too.2 The guarantee prohibits the detention of a debtor for the sole reason (‘merely’) that he does not have the material means to fulfil his contractual obligations (‘inability’). Deprivation of liberty is not forbidden if the debtor does not pay his debt for any other or an additional reason, such as if he acts with malicious or fraudulent intent or if his inability to fulfil the obligation is due to negligence.3 In any case, Article 1 of Protocol No. 4 does not apply to cases of noncompliance with a court order or a legal obligation.4 Rather, the obligation must arise from a civil contract (‘contractual obligation’).

1

See Article 5, m.n. 3. See Article 5, m.n. 5 et seq. 3 Explanatory Report to Protocol No. 4, m.n. 5. 4 EComHR, 15/5/1996, Ninin v FRA, No. 27373/95. 2

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P4 – 2 Article 2 – Freedom of movement 1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence. 2. Everyone shall be free to leave any country, including his own. 3. No restrictions shall be placed on the exercise of these rights other than such as are in accordance with law and are necessary in a democratic society in the interests of national security or public safety, for the maintenance of ordre public, for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. 4. The rights set forth in paragraph 1 may also be subject, in particular areas, to restrictions imposed in accordance with law and justified by the public interest in a democratic society. Article 2 – Liberte´ de circulation 1. Quiconque se trouve re´gulie`rement sur le territoire d’un Etat a le droit d’y circuler librement et d’y choisir librement sa re´sidence. 2. Toute personne est libre de quitter n’importe quel pays, y compris le sien. 3. L’exercice de ces droits ne peut faire l’objet d’autres restrictions que celles qui, pre´vues par la loi, constituent des mesures ne´cessaires, dans une socie´te´ de´mocratique, a` la se´curite´ nationale, a` la suˆrete´ publique, au maintien de l’ordre public, a` la pre´vention des infractions pe´nales, a` la protection de la sante´ ou de la morale, ou a` la protection des droits et liberte´s d’autrui. 4. Les droits reconnus au paragraphe 1 peuvent e´galement, dans certaines zones de´termine´es, faire l’objet de restrictions qui, pre´vues par la loi, sont justifie´es par l’inte´reˆt public dans une socie´te´ de´mocratique. Leading Cases: ECtHR, 6/11/1980, Guzzardi v ITA, No. 7367/76 (compulsory residence on an island); ECtHR, 27/4/1995, Piermont v FRA, No. 15773/89 et al (restriction of freedom of travel to member of European Parliament); ECtHR, 6/4/2000, Labita v ITA, No. 26772/95 (confiscation of passport); ECtHR, 22/5/2001, Baumann v FRA, No. 33592/96 (confiscation of passport); ECtHR, 23/5/2001, Denizci a.o. v CYP, No. 25316/94 et al (restrictions on movement between northern and southern part of Cyprus); ECtHR, 4/6/2002, Olivieira v NED, No. 33129/96 (order prohibiting to enter city centre of Amsterdam); ECtHR, 10/7/2008, Hajibeyli v AZE, No. 16528/05 (prohibition to leave place of residence). Outline I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Scope of protection. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Freedom to choose one’s residence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Freedom to leave a country . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Interferences. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Justification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 2 3 6 7 10

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P4 – 2

1–4

Article 2 – Freedom of movement

I. Introduction 1

The freedom of movement is an inherent part of international human rights protection.1 Article 2 of Protocol No. 4 provides for a wide scope of protection. It guarantees everyone the comprehensive right to liberty of movement and freedom to choose one’s residence. Within the EU the right to move freely is further provided by Article 21 TFEU for every citizen of the Union. It was incorporated into the EU-Charter as a so-called ‘citizens’ right’.2

II. Scope of protection 2

Article 2 of Protocol No. 4 includes three independent guarantees which are connected and relate to each other: within the territory of a Member State everyone has the right to liberty of movement and freedom to choose his residence (paragraph 1) and the right to freely leave his country (paragraph 2).

1. Freedom to choose one’s residence It is a precondition for the freedom of movement and freedom of residence that the person is lawfully on the territory of the Member State, i. e. in accordance with domestic law.3 This is generally assumed in cases of citizens, as shown by Article 3 of Protocol No. 4.4 In cases concerning citizens of EU member states the persons must be on the territory in accordance with European Union law. In cases of other aliens it is required that the persons had entered the territory lawfully or hold a lawful residence permit.5 The legal conditions for a residence permit must be fulfilled.6 It is for the domestic law and organs to lay down the conditions which must be fulfilled for a person’s presence in the territory to be considered ‘lawful’, thus, Member States may impose territorial restrictions on the right to take up residence and may limit the free movement e.g. to a certain district.7 The duration of an alien’s residency is not a relevant factor; also a temporary stay in a Member State is protected by Article 2.8 4 The first limb of Article 2 (1) of Protocol No. 4 provides for the liberty to move freely within the territory of the Member State.9 Thereby it is irrelevant for what purpose the person wants to move from one place to the other. The choice of a particular means of transport or a certain route does not fall within the scope of 3

1 Cf. Article 13 UDHR; Article 12 ICCPR. See also ECtHR, 22/3/2001, Streletz, Kessler, Krenz v GER, No. 34044/96 et al. 2 Grabenwarter/Pabel § 21 m.n. 40 with further references. 3 Velu/Ergec, La Convention Europe ´nne des Droits de l’Homme, (1990), m.n. 367; EComHR, 1/12/1986, Udayanan a. Sivakumaran v GER, No. 11825/85. 4 Grabenwarter/Pabel, § 21 m.n. 41 with further references. 5 ECtHR, 27/4/1995, Piermont v FRA, No. 15773/89 et al. 6 EComHR, 1/12/1986, Udayanan a. Sivakumaran v GER, No. 11825/85. 7 EComHR, 1/12/1986, Udayanan a. Sivakumaran v GER, No. 11825/85; EComHR, 9/10/1989, Aygu¨n, DR 63, 195 (198 et seq); ECtHR, 20/11/2007, Omwenykeke v GER, No. 44294/04. 8 Velu/Ergec, m.n. 367. 9 Cf. for the territorial scope of protection Article 5 (4) of Protocol No. 4 to the Convention.

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III. Interferences

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protection, as long as the person is not hindered in the effective exercise of his right to get to a certain place.10 The second limb of Article 2 (1) guarantees the freedom to choose one’s 5 residence in the Member State concerned. Residence is a settlement for a certain length of time, going beyond a short stay in a particular location. The right is not limited to one place of residence, also the establishment of a secondary residency (e.g. holiday home) falls within the scope of protection. Here again, the lawfulness of the residency on the State’s territory is a precondition for the exercise of the guarantee.

2. Freedom to leave a country Article 2 (2) protects the freedom to leave a country. No one may be deprived of 6 the possibility to leave the territory of a Member State. This guarantee exists irrespective of whether the person is a citizen of the State he wants to leave. The person may leave the country permanently or temporarily (e.g. for a vacation or for professional reasons). Article 2 (2) is not guaranteeing a right to take along one’s belongings.11 The right to liberty of movement within a territory and to leave that territory implies a right to leave for such country of the person’s choice to which he may be admitted.12 It may not be derived from Article 2 (2) that a person is protected from being compelled to leave a country. This follows from paragraph 1 according to which Member States have the right to determine which persons stay lawfully within the territory. Further, Article 2 does not entail a right to return or enter a territory where an expulsion order had been served and the person is no longer lawfully on the State’s territory. In these cases again the principle applies that the lawfulness of an individual’s entry or stay is the precondition for protection under Article 2.13 Article 3 of Protocol No. 4 provides for guarantees in cases of citizens of Member States seeking for entry or residency in their State of citizenship.14

III. Interferences Interferences with Article 2 (1) can be divided into two categories: first, state 7 orders which oblige a person to reside in a certain place or prohibit leaving a particular place. The second category is the prohibition by a State to enter certain areas or places which limits a person’s mobility and freedom to choose his residence. In principle, interferences of the first category weigh more heavily than the second group of interferences.15

10

Grabenwarter/Pabel, § 21 m.n. 44 with further references. EComHR, 6/5/1985, S., No. 10653/83, DR 42, 224 (225). 12 ECtHR, 22/5/2001, Baumann v FRA, No. 33592/96, § 61; EComHR, 20/2/1995, Vesa Peltonen, DR 80-A, 38 (43). 13 ECtHR, 27/4/1995, Piermont v FRA, No. 15773/89 et al, §§ 40 et seq.; EComHR, 6/7/1982, X., Y. a. Z., No. 9285/81, DR 29, 205 (209) with further references EComHR, 1/12/1986, Udayanan a. Sivakumaran v GER, No. 11825/85. 14 See Article 3 of Protocol No. 4 m.n. 2. 15 Grabenwarter/Pabel, § 21 m.n. 45 with further references. 11

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Article 2 – Freedom of movement

Interferences with the freedom of movement were found in cases where persons are ordered not to leave their homes without informing the state authorities, curfews during the nighttimes or the general prohibition of visiting a certain area.16 The order of home arrest interferes with the person’s liberty of movement, as well as the obligation to report a change of place of residency to a state authority within three days of moving.17 The freedom of residence is restricted in cases where it is prohibited to settle in a particular place or the residency requires a special authorisation. The obligation to take up residence in a certain place – as in the case of an obligation to take up residence at the place of work for civil servants (so-called ‘Residenzpflicht’) – also constitutes an interference with one’s freedom of residence. 8 Interferences with the freedom of movement or freedom of residence may also raise an issue under the right to liberty guaranteed in Article 5 of the Convention. In the Court’s view the difference between deprivation of and restriction upon liberty is merely one of degree or intensity, and not one of nature or substance.18 When assessing which of the two fundamental guarantees is applicable in the individual case, the Court bases its decision on the concrete circumstances of the situation at hand. According to the Court’s case-law relevant factors are the kind and manner in which the liberty was restricted, the duration of the measure and its implications.19 In the early Guzzardi Case a person’s freedom of movement was limited to an area which far exceeded the dimensions of a cell and was not bounded by any physical barrier, but covered no more than a tiny fraction of an island to which access was difficult and about nine-tenths of which was occupied by a prison, the situation amounted to an deprivation of liberty within the meaning of Article 5.20 9 It is an interference with the freedom to leave a country when a State prohibits the departure from the state’s territory or makes it conditional upon an authorisation. The right to leave a country may be restricted by measures in family law proceedings, such as an order prohibiting one parent to take the children abroad.21 Furthermore, the confiscation or withholding of one’s travel documents interferes with the freedom to leave a country. It constitutes an interference even where a passport is confiscated only temporarily if the individual is not able to leave one country and enter another.22 If leaving a country has negative consequences of a certain degree the legal situation may amount to an interference. In any case, it is an interference if a State takes measures – in particular imposing fees – in order to prevent its citizens from leaving the country.

16 ECtHR, 22/2/1994, Raimondo v ITA, No. 12954/87, § 39; ECtHR, 6/4/2000, Labita v ITA, No. 26772/95, § 193. 17 ECtHR, 6/6/2002, Karalevicius v LTU, No. 53254/99. 18 ECtHR, 8/6/1976, Engel v NED, No. 5100/71 et al, §§ 58 et seq.; ECtHR, 6/11/1980, Guzzardi v ITA, No. 7367/76, § 93. 19 ECtHR, 8/6/1976, Engel v NED, No. 5100/71 et al, §§ 58 et seq.; ECtHR, 6/11/1980, Guzzardi v ITA, No. 7367/76, § 93. 20 ECtHR, 6/11/1980, Guzzardi v ITA, No. 7367/76, § 95. 21 ECtHR, 26/10/2000, Roldan v ITA, No. 40655/98. 22 ECtHR, 22/2/1994, Raimondo v ITA, No. 12954/87, § 39; ECtHR, 6/4/2000, Labita v ITA, No. 26772/95, § 193 (special surveillance by police despite acquittal by court ruling); ECtHR, 22/5/ 2001, Baumann v FRA, No. 33592/96, § 63; different conclusion in ECtHR, 27/4/1995, Piermont v FRA, No. 15773/89 et al, § 44.

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IV. Justification

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IV. Justification According to Article 2 (3) of Protocol No. 4 interferences with the rights under 10 paragraphs 1 and 2 are only justified when they are necessary for reaching the aims set forth by the provision. The limits for the interfering legislator in Article 2 (3) are similar to those in Articles 8 to 11 of the Convention. Interferences must be in accordance with law and necessary in a democratic society – restrictions must be proportionate.23 Where a state authority is acting in excess of his powers the impugned measure is not ‘in accordance with the law’.24 The legitimate aims listed in Article 2 (3) are interests of national security or public safety, the maintenance of ordre public, the prevention of crime, the protection of health or morals and the protection of the rights and freedoms of others. According to paragraph 4 the freedom of movement and freedom of residence (paragraph 1) – not the freedom to leave one’s country (paragraph 2) – may be subject to restrictions justified by the ‘public interest’ in a democratic society. Moreover, an interference must be limited to a particular geographical area; the restriction may only be imposed for certain areas such as a military zone, customs district, nature reserve or industrial zone.25 In any case, the measure must be proportionate.26 It follows from the history of the drafting of the Convention that purely economic considerations may not justify restrictions on the freedom to leave a country.27 The prohibition to leave a country during pending insolvency proceedings is a permissible restriction.28 For reasons of national security it is justified to assign residency in a particular area to an alien suspected of espionage until his expulsion.29 Restrictions on the liberty of movement resulting from special supervision of 11 criminals may be proportionate to the aims pursued which in these cases are the maintenance of ordre public and the prevention of crime. Restrictions of this kind could be the obligation to take up residence in a particular area and the imposition of further requirements e.g. the obligation to report to the authorities and subsequent curfews which puts the person under special supervision with the aim of separating the person concerned from a criminal organisation.30 On the contrary, an order to stay out of a certain place may also be justified for the prevention of crime.31 The imposition of reporting obligations and the confiscation of person’s passport may be necessary for ensuring his prosecution or the execution of a prison sentence.32 The preventive measure of putting a person under special police super23

Grabenwarter/Pabel, § 21 m.n. 48 with further references. ECtHR, 5/10/2006, Bolat v RUS, No. 14139/03, § 69. 25 Grabenwarter/Pabel § 21 m.n. 48 with further references. 26 Velu/Ergec, m.n. 369. 27 Grabenwarter/Pabel, § 21 m.n. 48 with further references. 28 EComHR, 10/3/1981, X., No. 8988/80, § 4; cf. also EComHR, 16/5/1977, X., No. 7680/80 (detention on remand during criminal proceeding). 29 EComHR, 13/12/1984, B., No. 10078/82, DR 41, 103 (121 et seq). 30 ECtHR, 22/2/1994, Raimondo v ITA, No. 12954/87, § 39; ECtHR, 6/4/2000, Labita v ITA, No. 26772/95, § 194. 31 ECtHR, 4/6/2002, Olivieira v NED, No. 33129/96, §§ 64 et seq; ECtHR, 4/5/2002, Landvreugd v NED, No. 37331/97, §§ 72 et seq. 32 EComHR, 9/7/1985, Schmid, DR 44, 195 (196 et seq). 24

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Article 2 – Freedom of movement

vision and requiring him to live in a particular town for three years – although he has been acquitted by the national court due to insufficient evidence – was found to be a disproportionate measure severely limiting the person’s freedom of movement.33 The Court also found a violation of Article 2 of Protocol No. 4 where a person released from detention on remand was not allowed to leave his place of residence for approximately five years and four months although the charges against him had become time-barred.34 Furthermore, it violates Article 2 not to inform a person under supervision until four months after the supervision order was rescinded.35 12 The lawful (in accordance with domestic law) expulsion of an alien to his home country is no violation of his freedom of movement although by nature he is not permitted to move to a country of his choice.36 The refusal to allow a convicted foreign national to return to his home country before he has served his prison sentence is in conformity with the legitimate aim of maintaining the ordre public which includes a State’s duty of the proper administration of justice.37 The State thereby also pursues the legitimate interest of ensuring that the person concerned does not illegally re-enter the country.38 In certain circumstances and subject to conditions, unpaid taxes may be a ground for restrictions on the debtor’s freedom of movement. The purpose of the restrictions is maintaining ordre public and protection of the rights of others. Nevertheless, even where a restriction on the individual’s freedom of movement was initially warranted, maintaining it automatically over a lengthy period of time may become a disproportionate measure violating the individual’s rights.39 The Court had to scrutinise in two cases whether general provisions restricting the freedom to leave a country were permissible under the Convention. In German case it found – although the issue was not subject to the complaint – that the GDR’s border-policing regime was a general measure preventing almost the entire population of a State from leaving in violation of Article 2 (2) of Protocol No. 4.40 In the second case against Cyprus the Court held that the Cypriot authorities closely monitoring the movements of citizens between the northern part and the south and within the south, were not necessary and had been a violation of their freedom of movement.41 13 Restrictions on the freedom to leave one’s country may also be justified. A lawful detention within the meaning of Article 5 is at the same time a lawful prevention of the detainee leaving the country.42 It is questionable whether it may be justified under Article 2 of Protocol No. 4 to temporarily or definitively withdraw or retain necessary travel documents. How33

ECtHR, 6/4/2000, Labita v ITA, No. 26772/95, §§ 63, 196. ECtHR, 10/7/2008, Hajibeyli v AZE, No. 16528/05, §§ 68 et seq. 35 ECtHR, 20/4/2010, Villa v ITA, No. 19675/06, §§ 52 et seq. 36 EComHR, 26/5/1970, X., No. 4436/70, Yb 13, 1028 (1035). 37 EComHR, 14/12/1970, X., No. 4256/69, CD 37, 67 (68 et seq) – citizen of Poland. 38 Cf. Hofmann, Die Ausreisefreiheit nach Vo ¨ lkerrecht und staatlichem Recht, 1988, p. 126. 39 ECtHR, 23/5/2006, Riener, No. 46343/99, §§ 116, 119 et seq. 40 ECtHR, 22/3/2001, Streletz, Kessler, Krenz v GER, No. 34044/96 et al, § 100. About the judgment see further Article 7 m.n. 11. 41 ECtHR, 23/5/2001, Denizci a.o. v CYP, No. 25316/94 et al, § 405. 42 EComHR, 16/5/1977, X., No. 7680/76, DR 9, 190 (193); EComHR, 2/12/1985, C., No. 10893/84, DR 45, 198 (204). 34

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IV. Justification

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ever, it can be assumed that it is in conformity with Article 2 of Protocol No. 4 to oblige a detainee – during the proceedings or after his conviction – to deposit his passport with the authorities.43 It is a violation of Article 2 of Protocol No. 4 when the passport retained by the authorities during the investigation procedure belongs to a third party which was not involved in the incident and was not given any reasons for the retention.44 However, it is not in breach of Article 2 of Protocol No. 4 but falls within a State’s margin of appreciation not to issue a passport on the grounds that the person did not complete his military service.45 The interference is considered necessary for the preservation of national security interests. Where an individual is prevented from leaving a country the State is under the 14 obligation to provide a judicial review of the measures concerned. It is also a violation of Article 2 of Protocol No. 4 where a person is subjected to measures of an automatic nature, with no limitation as to their scope or duration.46 43

EComHR, 6/3/1984, M., No. 10307/83, DR 37, 113 (118 et seq.). ECtHR, 22/5/2001, Baumann v FRA, No. 33592/96, § 67. 45 EComHR, 20/2/1995, Vesa Peltonen, DR 80-A, 38 (43 et seq.); EComHR, 24/5/1995, K. S., No. 21 228/93, DR 81-A, 42 (47). 46 ECtHR, 26/11/2009, Gochev v BUL, No. 34383/03, §§ 50 et seq. 44

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1, 2

Article 3 – Prohibition of expulsion of nationals

Article 3 – Prohibition of expulsion of nationals 1. No one shall be expelled, by means either of an individual or of a collective measure, from the territory of the State of which he is a national. 2. No one shall be deprived of the right to enter the territory of the State of which he is a national. Article 3 – Intediction des expulsions des nationaux 1. Nul ne peut eˆtre expulse´, par voie de mesure individuelle ou collective, du territoire de l’Etat dont il est le ressortissant. 2. Nul ne peut eˆtre prive´ du droit d’entrer sur le territoire de l’Etat dont il est le ressortissant. Bibliography: Schokkenbroek, Prohibition of expulsion of nationals and the right of nationals to enter their own country (Article 3 of Protocol No. 4), in: van Dijk/van Hoof/van Rijn/Zwaak (ed.), Theory and Practice of the European Convention on Human Rights, 4th ed., 2006, p. 947. Leading cases: EComHR, 13/5/1974, X. v AUT a. GER, No. 6189/73; EComHR, 27/5/1974, Bru¨ckmann v GER, No. 6242/73, DR 46/202. Outline I. II. III. IV.

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Scope of protection. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Interferences. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Justification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 2 4 5

I. Introduction 1

Article 3 (1) of Protocol No. 4 prohibits the expulsion of nationals. Article 3 (2) of Protocol No. 4 grants everyone the right to enter the territory of the State of which he is a national.

II. Scope of protection 2

According to Article 3 (1) of Protocol No. 4, no one shall be expelled, by means either of an individual or of a collective measure, from the territory of the State of which he is a national. This guarantee is complemented by the right to enter the territory of the State of which he is a national under Article 3 (2) of Protocol No. 4. The notion ‘territory’ refers to the territory of the Contracting State. Article 3 of Protocol No. 4 is only applicable if the individual concerned is a national of the expelling State.1 It is for him to prove that he has the citizenship of the State concerned.2 1

EComHR, 10/12/1984, L v GER, No. 10564/83. EComHR, 27/5/1974, Bru¨ckmann v GER, No. 6242/73, DR 46/202; EComHR, 10/12/1984, L. v GER, No. 10564/83; cf. Explanatory Report to Protocol No. 4, m.n. 26. 2

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IV. Justification

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The requirement of citizenship involves the risk that the State expelling one of its nationals does so after first depriving him of his nationality. Protocol No. 4 and, in particular, its Article 3 do not expressly provide for protection against an arbitrary deprivation of citizenship.3 In order to ensure effective protection of the prohibition of expulsion of nationals, it must be assumed that it is forbidden to arbitrarily deprive a national of his nationality for the sole purpose of expelling him.4 Arbitrary denial of citizenship to an individual for the purpose of expelling him may in exceptional cases fall within the scope of Article 3 of Protocol No. 4.5 Article 3 of Protocol No. 4 does not apply to cases of extradition.6 Extradition 3 means the transfer of a person from one jurisdiction to another for the purpose of his standing trial or for the execution of a sentence imposed upon him. The right not to be extradited by the State of which one is neither granted by Article 3 of Protocol No. 4 nor by any other provision of the Convention or its Protocols.7

III. Interferences It interferes with Article 3 of Protocol No. 4 if an individual is forced to leave the 4 territory of the State of his nationality permanently and without the possibility to return.8 Placing a national under house arrest does not interfere with the prohibition of expulsion of nationals as an expulsion requires that the transgression of a border.9 Temporary measures as quarantines do not interfere with this guarantee either. However, they may constitute a restriction of the freedom of movement within the meaning of Article 2 of Protocol No. 4.

IV. Justification Article 3 of Protocol No. 4 does not provide for a possibility to restrict the 5 prohibition of expulsion of nationals. The restrictions clauses under Article 8 to 11 cannot be applied by way of analogy; which is not least because of the wording of the provision. As a general rule, any interference with the prohibition of expulsion of nationals constitutes a violation of the guarantee under Article 3 of Protocol No. 4. So far, in all cases in which a violation of Article 3 of Protocol No. 4 had been invoked, the Court found that the provision was not applicable. Some cases concerned applications of UK nationals who were not granted entry into the UK. Since the UK had not had ratified Protocol No. 4, all applications were rejected. The application of members of the House Habsburg who were Austrian nationals but 3 As to that see Schokkenbroek, Prohibition of expulsion of nationals and the right of nationals to enter their own country (Article 3 of Protocol No. 4), in: van Dijk/van Hoof/van Rijn/Zwaak (ed.), Theory and Practice of the European Convention on Human Rights, 4th ed., 2006, p. 947 (950 et seq). 4 Cf. Explanatory Report to Protocol No. 4, m.n. 23. 5 As to that effect EComHR, 15/12/1969, X v GER, No. 3745/68; cf. also Schokkenbroek, in: van Dijk/van Hoof/van Rijn/Zwaak, p. 951. 6 EComHR, 27/5/1974, Bru ¨ ckmann v GER, No. 6242/73, DR 46/202; as to the distinction between expulsion and extradition cf. also Article 5 (1) (f), m.n. 26 et seq. 7 EComHR, 27/5/1974, Bru ¨ ckmann v GER, No. 6242/73, DR 46/202. 8 EComHR, 13/5/1974, X v AUT a. GER, No. 6189/73; EComHR, 27/5/1974, Bru ¨ ckmann v GER, No. 6242/73, DR 46/202. 9 Grabenwarter/Pabel, § 21 m.n. 54 with further references.

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5, 6

Article 3 – Prohibition of expulsion of nationals

were refused entry into the territory of Austria even though they had abdicated the throne was declared inadmissible as the Member State concerned had made a valid reservation to Protocol No. 4.10 6 Unlike the prohibition of expulsion of nationals, the right to enter the territory of the State of which he is a national may be restricted subject to certain conditions. Article 3 (2) of Protocol No. 4 does protect from a total deprivation of the right to enter the territory of one’s State.11 It cannot, however, be interpreted as conferring on an individual an absolute right to remain in the territory.12 It is conceivable, for instance, that a criminal who, having been extradited by the State of which he was a national, then escaped from prison in the other State, would not have an unconditional right to seek refuge in his own country. This is, as by granting him entry, the home State would act in breach of international obligations. Similarly, a soldier serving on the territory of a State other than that of which he is a national, would not have a right to repatriation in order to remain in his own country.13 10

EComHR, 14/12/1989, Carl-Ludwig a. Lorenz Habsburg-Lothringen v AUT, No. 15344/89. Grabenwarter/Pabel, § 21 m.n. 56 with further references. 12 Explanatory Report to Protocol No. 4, m.n. 28. 13 Explanatory Report to Protocol No. 4, m.n. 28; cf. also Schokkenbroek, in: van Dijk/van Hoof/ van Rijn/Zwaak, p. 949. 11

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II. The guarantee of Article 4 of Protocol No. 4

1, 2

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Article 4 – Prohibition of collective expulsion of aliens Collective expulsion of aliens is prohibited. Article 4 – Interdiction des expulsions collectives d’e´trangers Les expulsions collectives d’e´trangers sont interdites. Bibliography: Carlier, La de´tention et l’expulsion collective des e´trangers, RTDH 2003, p. 198. Leading cases: EComHR, 3/10/1975, Becker v DEN, No. 7011/75, DR 4, 215; ECtHR, 5/2/2002, ˇ onka v BEL, No. 51564/99 (expulsion of asylum seekers); ECtHR, 20/9/2007, Sultani v FRA, C No. 45223/05 (deportation in ‘grouped flights’). Outline I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. The guarantee of Article 4 of Protocol No. 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Justification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 2 4

I. Introduction Article 4 of Protocol No. 4 prohibits collective expulsion of aliens. This guaran- 1 tee in part corresponds to the prohibition of collective expulsion of aliens under Article 19 CFR.1 Article 1 of Protocol No. 7 provides for procedural safeguards relating to the expulsion of aliens who are lawfully resident in the territory of a Member State.2

II. The guarantee of Article 4 of Protocol No. 4 Collective expulsion within the meaning of Article 4 of Protocol No. 4 is to be 2 understood as any measure compelling aliens, as a group (based on general criteria such as nationality, race or colour), to leave a country, except where such a measure is taken on the basis of a reasonable and objective examination of the particular case of each individual alien in the group.3 This guarantee was originally inspired by the mass expulsion of peoples during World War II. Article 4 of Protocol No. 4 does not apply, however, to expulsion during that period as they occurred before Protocol No. 4 was ratified. The notion of ‘expulsion’ is understood as being territorial, as is the notion of ‘jurisdiction’. Where, however, a Member State exceptionally exercises its jurisdiction outside its national territory, the Court accepts that the exercise of extraterritorial jurisdiction by that State has taken the form of collective expulsion.4 The 1

Grabenwarter/Pabel, § 21 m.n. 51 with further references. As to that see Article 1 of Protocol No. 7, m.n. 3 et seq. 3 ECtHR, 5/2/2002, C ˇ onka v BEL, No. 51564/99, § 59; ECtHR, 20/9/2007, Sultani v FRA, No. 45223/05, §§ 81 et seq; EComHR, 3/10/1975, Becker v DEN, No. 7011/75; EComHR, 16/12/ 1988, Alibaks a.o., No. 14209/88. 2

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Article 4 – Prohibition of collective expulsion of aliens

Court so held in the Hirsi Jamaa Case, where migrants intercepted on the high seas were forced to return to the country of their departure without having their individual cases examined by the Italian authorities. The special nature of the maritime environment could not justify an area outside the law where individuals were covered by no legal system capable of affording them enjoyment of the rights and guarantees protected by the Convention. Even though Article 4 of Protocol No. 4 aims at protecting groups of individuals, it constitutes an individual human right, which is indirectly granted to each alien individually as any of them, after exhausting the domestic remedies, may lodge an application with the ECtHR.5 ˇ onka Case where the applications for asylum made by the applicants In the C were rejected, the Court found, for the first time, a violation of Article 4 of Protocol No. 4 as no reasonable and objective examination of the particular case of each individual alien in the group had been made.6 The fact that a number of aliens are subject to similar decisions does not in itself lead to the conclusion that there is a collective expulsion if each person concerned has been given the opportunity to put arguments against his expulsion to the competent authorities on an individual basis. Thus, in the Sultani Case, in which the French police had organised collective flights categorised according to the nationalities of the aliens to be expelled, the Court did not find a violation of Article 4 of Protocol No. 4.7 3 Interferences may also occur indirectly in that a measure compels aliens as a group to leave the country; for instance, in case a group of aliens is collectively denied a work permit and is thereby forced to leave a State.8

III. Justification 4

Article 4 of Protocol No. 4 does not provide for any possibility to restrict the prohibition contained therein. Any interference with the prohibition of collective expulsion of aliens thus constitutes a violation of the guarantee. Article 4 of Protocol No. 4 may only be restricted in times of emergency within the meaning of Article 15. It is particularly in times of emergency when mass expulsion must be expected. 4

ECtHR, 23/3/2012 (GC), Hirsi Jamaa a.o. v ITA, No. 27765/09, § 178. ˇ onka v BEL, No. 51564/99, §§ 56 et seq. Cf. ECtHR, 5/2/2002, C 6 ECtHR, 5/2/2002, C ˇ onka v BEL, No. 51564/99, §§ 61 et seq; as to that Carlier, La de´tention et l’expulsion collective des e´trangers, RTDH 2003, p. 198 (198 et seq). 7 ECtHR, 20/9/2007, Sultani v FRA, No. 45223/05, § 81. 8 EComHR, 3/10/1975, Becker v DEN, No. 7011/75; EComHR, 16/12/1988, Alibaks a.o., No. 14209/88. 5

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Protocol No. 6 to the ECHR P6

Protocol No. 6 Article 1 – Abolition of the death penalty The death penalty shall be abolished. No one shall be condemned to such penalty or executed. Article 2 – Death penalty in time of war A State may make provision in its law for the death penalty in respect of acts committed in time of war or of imminent threat of war; such penalty shall be applied only in the instances laid down in the law and in accordance with its provisions. The State shall communicate to the Secretary General of the Council of Europe the relevant provisions of that law. See Article 2 m.n. 9 et seq.

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1

Article 1 – Procedural safeguards relating to expulsion of aliens

Protocol No. 7 Article 1 – Procedural safeguards relating to expulsion of aliens 1. An alien lawfully resident in the territory of a State shall not be expelled therefrom except in pursuance of a decision reached in accordance with law and shall be allowed: (a) to submit reasons against his expulsion, (b) to have his case reviewed, and (c) to be represented for these purposes before the competent authority or a person or persons designated by that authority. 2. An alien may be expelled before the exercise of his rights under paragraph 1 (a), (b) and (c) of this Article, when such expulsion is necessary in the interests of public order or is grounded on reasons of national security. Article 1 – Guaranties proce´durales en cas d’expulsion d’e´trangers 1. Un e´tranger re´sidant re´gulie`rement sur le territoire d’un Etat ne peut en eˆtre expulse´ qu’en exe´cution d’une de´cision prise conforme´ment a` la loi et doit pouvoir: (a) faire valoir les raisons qui militent contre son expulsion, (b) faire examiner son cas, et (c) se faire repre´senter a` ces fins devant l’autorite´ compe´tente ou une ou plusieurs personnes de´signe´es par cette autorite´. 2. Un e´tranger peut eˆtre expulse´ avant l’exercice des droits e´nume´re´s au paragraphe 1 (a), (b) et (c) de cet article lorsque cette expulsion est ne´cessaire dans l’inte´reˆt de l’ordre public ou est base´e sur des motifs de se´curite´ nationale. Bibliography: Flinterman, Expulsion of aliens (Article 1 of Protocol No. 7), in: van Dijk/van Hoof/ van Rijn/Zwaak (ed.), Theory and Practice of the European Convention on Human Rights, 4th ed., 2006, p 965; Harris/O’Boyle/Warbrick, Law of the European convention on Human Rights, 2nd ed., 2009. Outline I. II. III. IV.

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Scope of protection. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Procedural safeguards under Article 1 of Protocol No. 7. . . . . . . . . . . . . . . . . Restrictions of the procedural safeguards. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 2 3 5

I. Introduction 1

Article 1 of Protocol No. 7 affords minimum guarantees to aliens lawfully resident in the territory of a State in the event of their expulsion therefrom. This guarantee adds to the procedural guarantees under Article 6 (1) and (3) which are wider in scope but apply only to civil and criminal proceedings. It was this gap for which the introduction of procedural safeguards relating to the expulsion of aliens 424

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III. Procedural safeguards under Article 1 of Protocol No. 7

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was deemed to be necessary. Article 1 of Protocol No. 7 does not limit a State’s right to determine the conditions which must be fulfilled so that a person’s presence in the territory is considered ‘lawful’. Even before Protocol No. 7 entered into force, certain safeguards against arbitrary expulsion of aliens were provided for by the Convention. For instance, aliens benefited and still benefit from the prohibition of inhuman or degrading treatment under Article 3 and the right to respect for private and family life under Article 8. Article 1 of Protocol No. 7 adds to these guarantees certain procedural safeguards.

II. Scope of protection Article 1 of Protocol No. 7 affords minimum procedural safeguards in expulsion 2 proceedings. ‘Expulsion’ in this sense is an autonomous concept which is independent of any definition contained in domestic legislation. It refers to any measure compelling the departure of an alien from the territory but does not include extradition.1 Article 1 of Protocol No. 7 applies only to aliens which are ‘lawfully resident’ on the territory of a certain Member State. It is for the States to determine under which conditions a person’s presence in the territory is considered ‘lawful’. An alien whose visa or residence permit has expired cannot, at least normally, be regarded as being ‘lawfully resident’ in the country.2 In case a visa or residence permit has expired or the addressee of it trespasses the geographical limitation laid down in it or does not comply with visa or residence permit conditions, a person cannot be said to be ‘lawfully resident’.3 Any alien who has arrived at a port or other point of entry but has not yet passed through the immigration control or who has been admitted to the territory for the purpose only of transit or for a limited period for a nonresidential purpose. This period also covers the period pending a decision on a request for a residence permit;4 the position of an alien is regularised if a residence permit is ultimately granted to him.5 A person cannot be said to be unlawfully resident in case his residence permit is annulled but the implementation of the expulsion order is suspended pending a review of the lawfulness of the measure.6

III. Procedural safeguards under Article 1 of Protocol No. 7 Article 1 (1) of Protocol No. 7 establishes as the basic guarantee that a person 3 may be expelled only ‘in pursuance of a decision reached in accordance with law’. 1 ECtHR, 5/10/2006, Bolat v RUS, No. 14139/03, § 79; Explanatory Report to Protocol No. 7, m.n. 10. 2 EComHR, 14/10/1992, M., No. 17392/90; cf. Flinterman, Expulsion of aliens (Article 1 of Protocol No. 7), in: van Dijk/van Hoof/van Rijn/Zwaak (ed.), Theory and Practice of the European Convention on Human Rights, 4th ed., 2006, p. 965 (966); EComHR, 13/1/1993, Voulfovitch a.o., No. 19373/92. 3 EComHR, 13/1/1993, Voulfovitch a.o., No. 19373/92. 4 Explanatory Report to Protocol No. 7, m.n. 9; Harris/O’Boyle/Warbrick, Law of the European convention on Human Rights, 2nd ed., 2009, p. 747; Flinterman, in: van Dijk/van Hoof/van Rijn/ Zwaak, p. 966; Explanatory Report to Protocol No. 7, m.n. 9. 5 Cf. Explanatory Report to Protocol No. 7, m.n. 9. 6 ECtHR, 5/10/2006, Bolat v RUS, No. 14139/03, § 78.

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Article 1 – Procedural safeguards relating to expulsion of aliens

The term ‘law’ refers to the domestic law of the State concerned.7 The law must be accessible and foreseeable and must afford a measure of protection against arbitrary interferences by the public authorities with the rights secured in the Convention.8 When exercising scrutiny, the Court thus only examines whether a State has acted in an arbitrary manner.9 Any expulsion order must contain a reference to the offence allegedly committed by the addressee in order not to violate Article 1 of Protocol No. 7.10 The ‘competent authority’ may be administrative or judicial.11 Expulsion orders must give adequate reasons. 4 According to Article 1 (1) (a) of Protocol No. 7, an alien has the right to submit reasons against his expulsion. The conditions governing the exercise of this right are a matter for domestic legislation. According to Article 1 (1) (b) of Protocol No. 7, the person concerned has the right to have his case reviewed. States must not necessarily introduce a two-stage procedure before different authorities. The ‘competent authority’ for the purpose of reviewing a case does not have to be the authority with whom the final decision on the question of expulsion rests. Rather, it is sufficient that the authority can make recommendations of expulsion to an administrative authority with whom the final decision lays. It is also consistent with Article 1 (1) (b) of Protocol No. 7 if the competent authority reviews a case only in the light of the reasons against expulsion submitted by the person concerned.12 Article 1 of Protocol No. 7 does not require that the alien concerned should be permitted to remain in the territory of the State pending the outcome of the appeal introduced against the decision taken following the review of his case.13 Even though, unlike Article 6 (3), Article 1 of Protocol No. 7 does not expressly provide so, the applicant must be adequately informed of the reasons for his expulsion.14 Furthermore, the alien has the right to be represented before the authorities. Article 1 of Protocol No. 7 does not lay down any requirements as to the qualification of the person representing an alien. Thus, the alien may be represented by a legal counsel or by any other representative of his choice. States may, however, regulate who is authorised to represent the alien. There is no right to an oral hearing.15 If domestic law provides for the possibility of lodging an appeal against the expulsion order, Article 1 of Protocol No. 7 does not apply to the appeal proceedings.

IV. Restrictions of the procedural safeguards 5

Article 1 (2) of Protocol No. 7 stipulates that an alien, by way of exception, may be expelled before the exercise of his rights under paragraph 1, when such expulsion 7

ECtHR, 5/10/2006, Bolat v RUS, No. 14139/03, §§ 81 et seq. ECtHR, 8/6/2006, Lupsa v ROM, No. 10337/04, § 55; ECtHR, 12/10/2006, Kaya v ROM, No. 33970/05, § 55 (expusion for national security reasons on the basis of an emergency order). 9 Cf. Explanatory Report, HRLJ 5 (1985), 84. 10 ECtHR, 13/7/2010, Ahmed v ROM, No. 34621/03, §§ 53 et seq. 11 Explanatory Report to Protocol No. 7, m.n. 13.3. 12 Explanatory Report to Protocol No. 7, m.n. 13.2; Harris/O’Boyle/Warbrick, p. 748; Flinterman, in: van Dijk/van Hoof/van Rijn/Zwaak, p. 967. 13 Explanatory Report to Protocol No. 7, m.n. 13.2; Flinterman, in: van Dijk/van Hoof/van Rijn/ Zwaak, p. 967. 14 ECtHR, 8/6/2006, Lupsa v ROM, No. 10337/04, § 59; ECtHR, 12/10/2006, Kaya v ROM, No. 33970/05, § 59. 15 Explanatory Report to Protocol No. 7, m.n. 14. 8

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IV. Restrictions of the procedural safeguards

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is necessary in the interests of public order or is grounded on reasons of national security. According to the Explanatory Report, these exceptions are to be applied taking into account the principle of proportionality as defined in the case law of the ECtHR.16 States relying on public order to expel an alien must be able to show that the exceptional measure was necessary in the particular case.17 If expulsion is for reasons of national security, this in itself must be accepted as sufficient justification.18 The principle of proportionality test does not apply to the expulsion itself but only applies if an alien is expelled before he was able to exercise his rights under paragraph 1 subparas. a, b and c. In both exceptional cases, however, the person concerned should be entitled to exercise the rights specified in Article 1 (1) of Protocol No. 7 after his expulsion.19 16 Explanatory Report to Protocol No. 7, m.n. 15; cf. also Flinterman, in: van Dijk/van Hoof/van Rijn/Zwaak, p. 968 17 ECtHR, 24/4/2008, C.G. a.o. v BUL, No. 1365/07, §§ 78 et seq.; ECtHR, 17/01/2012, Takush v GRE, No. 2853/09, § 63. 18 Explanatory Report to Protocol No. 7, m.n. 15. 19 Explanatory Report to Protocol No. 7, m.n. 15.

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1

Article 2 – Right of appeal in criminal matters

Article 2 – Right of appeal in criminal matters 1. Everyone convicted of a criminal offence by a tribunal shall have the right to have his conviction or sentence reviewed by a higher tribunal. The exercise of this right, including the grounds on which it may be exercised, shall be governed by law. 2. This right may be subject to exceptions in regard to offences of a minor character, as prescribed by law, or in cases in which the person concerned was tried in the first instance by the highest tribunal or was convicted following an appeal against acquittal. Article 2 – Droit a` un double degre´ de jurisdiction en matie`re pe´nale 1. Toute personne de´clare´e coupable d’une infraction pe´nale par un tribunal a le droit de faire examiner par une juridiction supe´rieure la de´claration de culpabilite´ ou la condamnation. L’exercice de ce droit, y compris les motifs pour lesquels il peut eˆtre exerce´, sont re´gis par la loi. 2. Ce droit peut faire l’objet d’exceptions pour des infractions mineures telles qu’elles sont de´finies par la loi ou lorsque l’inte´resse´ a e´te´ juge´ en premie`re instance par la plus haute juridiction ou a e´te´ de´clare´ coupable et condamne´ a` la suite d’un recours contre son acquittement. Bibliograhphy: Flinterman, The right to a review by a higher tribunal (Article 2 of Protocol No. 7), in: van Dijk/van Hoof/van Rijn/Zwaak (ed.), Theory and Practice of the European Convention on Human Rights, 4th ed., 2006, p. 971. Leading cases: ECtHR, 31/8/1999, Hubner v AUT, No. 34311/96 (administrative court refused to deal with part of complaint); ECtHR, 13/2/2001, Krombach v FRA, No. 29731/96 (restriction of the right; principle of proportionality); ECtHR, 6/9/2005, Gurepka v UKR, No. 61406/00 (proportionality; direct access to a remedy); ECtHR, 30/11/2006, Grecu v ROM, No. 75101/01 (decision by tribunals at – at least – two levels of jurisdiction; offences of a minor character). Outline I. II. III. IV.

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Scope of protection. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The guarantee of Article 2 of Protocol No. 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Exceptions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Offences of a minor character . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Trial at first instance by the highest tribunal . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Conviction following an appeal against acquittal. . . . . . . . . . . . . . . . . . . . . . .

1 2 3 4 6 7 8

I. Introduction 1

Article 2 of Protocol No. 7 provides for the right to seek review of conviction and sentence by a higher tribunal. This right basically corresponds to the one under Article 14 (5) ICCPR and constitutes an entirely new Convention guarantee. Article 6 does provide for a right of access to court; it does not, however, stipulate a right of access to a court of second instance. The right to an effective remedy 428

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III. The guarantee of Article 2 of Protocol No. 7

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under Article 13 for its part does not require that a decision must be issued by a tribunal.1 Article 2 of Protocol No. 7 adds to the other Convention guarantees. Thus, it cannot be construed as limiting the scope of Article 6 guarantees in appellate proceedings.2

II. Scope of protection Article 2 of Protocol No. 7 applies where an individual has been convicted of a 2 criminal offence. The notion of ‘criminal offence’ is identical to the one under Article 7 of the Convention, which is based on the notion of ‘criminal charge’ within the meaning of Article 6.3 Consequently, Article 2 of Protocol No. 7 also applies to disciplinary and administrative proceedings which fall within the scope of Article 6.4 Due to the requirement of a conviction, it does not apply to proceedings in which the person concerned is being acquitted – either owing to a lack of evidence or in the absence of proof of his guilt.5 Article 2 of Protocol No. 7 requires that the individual be convicted ‘by a tribunal’. In case the decision at first instance has been issued by an administrative authority, it must be possible that it is reviewed at two levels of jurisdiction by an independent tribunal.6

III. The guarantee of Article 2 of Protocol No. 7 According to Article 2 of Protocol No. 7, the exercise of the right of appeal in 3 criminal matters, including the grounds on which it may be exercised, is governed by domestic law. Hence, Member States have discretion as to the modalities for the exercise of the right to review.7 The review may encompass both questions of fact and law or may be limited to questions of law.8 The tribunal reviewing the case must thus not have the same competences as a tribunal within the meaning of Article 6.9 A limited review of questions of law that may not lead to a quashing or amendment of the judgment does not suffice for the purposes of Article 2 of Protocol No. 7.10 If a higher tribunal has been installed, it must in principle fulfil the procedural requirements under Article 6.11 The quality of the procedure does 1

See Article 13, m.n. 14. ECtHR, 22/2/2011, Lalmahomed v NED, No. 26036/08, § 38. 3 See Article 6, m.n. 17. 4 Flinterman, The right to a review by a higher tribunal (Article 2 of Protocol No. 7), in: van Dijk/ van Hoof/van Rijn/Zwaak (ed.), Theory and Practice of the European Convention on Human Rights, 4th ed., 2006, p. 971 (971 et seq). 5 ECtHR, 8/1/2009, Patsouris v GRE, No. 44062/05, §§ 35 et seq; ECtHR, 8/1/2009, Panou v GRE, No. 44058/05, §§ 30 et seq; Flinterman, in: van Dijk/van Hoof/van Rijn/Zwaak, p. 972 6 ECtHR, 30/11/2006, Grecu v ROM, No. 75101/01, §§ 83 et seq. (appeal against the order of the attorney general); Flinterman, in: van Dijk/van Hoof/van Rijn/Zwaak, p. 974 (restricted, however, to Article 2 of Protocol No. 7 third case). 7 ECtHR, 31/8/1999, Hubner v AUT, No. 34311/96. 8 Explanatory Report to Protocol No. 7, m.n. 18; ECtHR, 18/9/2008, Mu ¨ ller (No. 2) v AUT, No. 28034/04, § 37 9 See Article 6, m.n. 34 et seq. 10 Flinterman, in: van Dijk/van Hoof/van Rijn/Zwaak, p. 973. 11 Grabenwarter/Pabel, § 24 m.n. 154 with further references. 2

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Article 2 – Right of appeal in criminal matters

not have to be in line with every requirement of Article 6. A remedy is insufficient for the purposes of Article 2 of Protocol No. 7 if domestic law does not provide for a clear and accessible right to appeal – whether or not upon the individual’s request – and lacks any clearly defined procedure or time-limits.12

IV. Exceptions Article 2 of Protocol No. 7 is subject to two exceptions. The Court, by analogy with the right of access to court embodied in Article 6,13 found that any restriction contained in domestic legislation must pursue a legitimate aim and must not infringe the very essence of that right.14 Member States enjoy a wide margin of appreciation in determining how the right secured by Article 2 of Protocol No. 7 to the Convention is to be exercised.15 However, to be effective, a remedy must be independent of any discretionary action by the authorities and must be directly available to those concerned.16 However, it is in line with Article 2 of Protocol No. 7 if the review of a criminal case depends on a prior decision on the application for leave of appeal.17 In these cases, a right to apply for leave to appeal to a higher court, as well as the decision by a higher court to decline to deal with or to reject an appeal can in itself be regarded as a review within the meaning of Article 2 of Protocol No. 7.18 5 Furthermore, the right of appeal in criminal matters is subject to the exceptions laid down in paragraph 2 of Article 2 of Protocol No. 7: A legislator may restrict the right in regard to offences of a minor character, in cases in which the person concerned was tried in the first instance by the highest tribunal and in cases in which a person was convicted following an appeal against acquittal. 4

1. Offences of a minor character 6

The question of whether an offence is of a minor character must be defined in the abstract and not on a case-to-case basis. In this context, it is not the sentence which is imposed on a person that is decisive but rather the sentence liable to be imposed.19 An important criterion is the question of whether the offence is punishable by imprisonment or not.20 12 ECtHR, 15/11/2007, Galstyan v ARM, No. 26986/03, § 126; ECtHR, 2/10/2012, Kakabadze a.o. v GEO, No. 1484/07, § 97. 13 See Article 6, m.n. 66 et seq. 14 ECtHR, 6/9/2005, Gurepka v UKR, No. 61406/00, § 59. 15 ECtHR, 13/2/2001, Krombach v FRA, No. 29731/96, § 96; ECtHR, 6/9/2005, Gurepka v UKR, No. 61406/00, § 59. 16 ECtHR, 6/9/2005, Gurepka v UKR, No. 61406/00, § 59; see also ECtHR, 31/7/2007, Zaicevs v LAT, No. 65022/01, §§ 56 et seq. 17 ECtHR, 31/8/1999, Hubner v AUT, No. 34311/96; EComHR, 31/7/1996, Hauser, DR 84-A, 164 (168). 18 Explanatory Report to Protocol No. 7, m.n. 19; ECtHR, 31/8/1999, Hubner v AUT, No. 34311/96; ECtHR, 6/5/2008, Karg v AUT, No. 29749/04. 19 Grabenwarter/Pabel, § 24, m.n. 156 with further references. 20 ECtHR, 30/11/2006, Grecu v ROM, No. 75101/01, § 82 (deprivation of liberty liable to be imposed ranging from 6 months to 5 years); ECtHR, 23/4/2009, Kamburov (No. 2) v BUL, No. 31001/02, §§ 23 et seq. (deprivation of liberty liable to be imposed: 15 days).

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The amount of a fine is assessed in the context of the system of sanctions and the purchasing power in a particular Member State. The same amount of a fine may hint at an offence of a minor character in one Member State, whereas in another State it is not minor anymore.

2. Trial at first instance by the highest tribunal The second exception concerns cases in which the person concerned was tried in 7 the first instance by the highest tribunal. According to the Explanatory Report, a person may be tried at first instance by the highest tribunal, for instance, if he is the holder of high office (e.g. a minister or a judge) or because of the nature of the offence.21

3. Conviction following an appeal against acquittal The third exception concerns cases where a conviction is pronounced following 8 an appeal against an acquittal; the appeal will usually be lodged by the prosecutor. Restrictions of the right of appeal under Article 2 of Protocol No. 7 are permissible in so far as that the determination of questions of fact and law by the tribunal of second instance does not have to be subject to review.22 21 22

Explanatory Report to Protocol No. 7, m.n. 20. Cf. Flinterman, in: van Dijk/van Hoof/van Rijn/Zwaak, p. 974.

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1

Article 3 – Compensation for wrongful conviction

Article 3 – Compensation for wrongful conviction When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed, or he has been pardoned, on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to the law or the practice of the State concerned, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him. Article 3 – Droit d’indemnisation en cas d’erreur judiciaire Lorsqu’une condamnation pe´nale de´finitive est ulte´rieurement annule´e, ou lorsque la graˆce est accorde´e, parce qu’un fait nouveau ou nouvellement re´ve´le´ prouve qu’il s’est produit une erreur judiciaire, la personne qui a subi une peine en raison de cette condamnation est indemnise´e, conforme´ment a` la loi ou a` l’usage en vigueur dans l’Etat concerne´, a` moins qu’il ne soit prouve´ que la non-re´ve´lation en temps utile du fait inconnu lui est imputable en tout ou en partie. Bibliography: Flinterman, Compensation for miscarriage of justice (Article 3 of Protocol No. 7), in: van Dijk/van Hoof/van Rijn/Zwaak (ed.), Theory and Practice of the European Convention on Human Rights, 4th ed., 2006, p. 975. Leading cases: ECtHR, 12/7/2013 (GC), Allen v UK, No. 25424/09 (relation to Article 6(2)); ECtHR, 12/6/2012, Poghosyan a. Baghdasaryan v ARM, No. 22999/06 (compensation to recover pecuniary and non-pecuniary damage). Outline I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Requirements for claiming compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Right to compensation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 2 4

I. Introduction 1

Article 3 of Protocol No. 7 confers the right to compensation on persons convicted as a result of a miscarriage of justice, where such conviction has been reversed by the domestic courts or where he has been pardoned. The wording of Article 3 of Protocol No. 7 is almost identical to the wording of Article 14 (6) ICCPR and adds to the guarantee under Article 5 (5) of the Convention. Article 5 (5) grants the right to compensation to everyone who has been deprived of his liberty in contravention to Article 5 (1) (a), according to which a person may be deprived of his liberty in case of a ‘lawful detention after conviction by a competent court’. Unlike Article 5 (5), Article 3 of Protocol No. 7 does not require that the conviction that is being reversed is lawful.

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Article 3 of Protocol No. 7 is not a lex specialis excluding the application of Article 6 (2) as these provisions concern entirely different aspects of the criminal process.1

II. Requirements for claiming compensation A person may only claim compensation if he has been convicted for his criminal 2 conduct and has, at least in part, served the sentence imposed on him, and if the conviction has subsequently been reversed or he has been pardoned.2 In any case, Article 3 of Protocol No. 7 applies only if there has been a miscarriage of justice. It also applies to disciplinary and administrative proceedings of a criminal nature and falls within the scope of Article 6.3 The miscarriage of justice must be established after a judgment has become final; 3 this means that no other remedy is available under domestic law. Thus, Article 3 of Protocol No. 7 does not apply to cases where an indictment has been dismissed or where the defendant has been acquitted (by a court of first instance or, after lodging an appeal, by a higher court).4 The same applies where a conviction is quashed due to the reassessment of evidence that has already been used in the criminal proceedings.5 Rather, new or newly discovered facts must show conclusively that there has been a miscarriage of justice.6

III. Right to compensation Compensation is payable ‘according to the law or the practice of the State 4 concerned’. However, compensation is due even where domestic law or practice makes no provision for such compensation.7 The reference to the domestic law or practice concerns the manner of calculating the damage suffered; the amount of compensation must be adequate.8 The purpose of Article 3 of Protocol No. 7 is not merely to recover any pecuniary loss caused by a wrongful conviction but also to provide a person convicted as a result of a miscarriage of justice with compensation for any non-pecuniary damage such as distress, anxiety, inconvenience and loss of enjoyment of life.9

1

ECtHR, 12/7/2013 (GC), Allen v UK, No. 25424/09, § 105. Explanatory Report to Protocol No. 7, m.n. 23; Trechsel, Human Rights in Criminal Proceedings, 2005, pp. 375 et seq. 3 Flinterman, Compensation for miscarriage of justice (Article 3 of Protocol No. 7), in: van Dijk/ van Hoof/van Rijn/Zwaak (ed.), Theory and Practice of the European Convention on Human Rights, 4th ed., 2006, p. 975 (976); cf. as to that Article 6, m.n. 18 et seq. 4 Explanatory Report, to Protocol No. 7, m.n. 22. 5 ECtHR, 3/7/2008, Matveyev v RUS, No. 26601/02, §§ 41 et seq. 6 Explanatory Report to Protocol No. 7, m.n. 23. 7 ECtHR, 12/6/2012, Poghosyan a. Baghdasaryan v ARM, No. 22999/06, § 51; see also Explanatory Report to Protocol No. 7, m.n. 25; cf. also Flinterman, in: van Dijk/van Hoof/van Rijn/Zwaak, p. 977 (in analogy to Article 5 (5) ECHR). 8 Flinterman, in: van Dijk/van Hoof/van Rijn/Zwaak, p. 977. 9 ECtHR, 12/6/2012, Poghosyan a. Baghdasaryan v ARM, No. 22999/06, § 51. 2

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Article 3 – Compensation for wrongful conviction

According to Article 3 of Protocol No. 7, there is no right to compensation if it can be shown that the non-disclosure of the unknown facts in time was wholly or partly attributable to the person convicted. The situation is difficult if the withholding of relevant information must also be attributed to other persons.10 10 Cf. Flinterman, in: van Dijk/van Hoof/van Rijn/Zwaak, p. 976, who suggests paying partial compensation in such cases.

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P7 – 4 Article 4 – Right not to be tried or punished twice 1. No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State. 2. The provisions of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case. 3. No derogation from this Article shall be made under Article 15 of the Convention. Article 4 – Droit a` ne pas eˆtre juge´ ou puni deux fois 1. Nul ne peut eˆtre poursuivi ou puni pe´nalement par les juridictions du meˆme Etat en raison d’une infraction pour laquelle il a de´ja` e´te´ acquitte´ ou condamne´ par un jugement de´finitif conforme´ment a` la loi et a` la proce´dure pe´nale de cet Etat. 2. Les dispositions du paragraphe pre´ce´dent n’empeˆchent pas la re´ouverture du proce`s, conforme´ment a` la loi et a` la proce´dure pe´nale de l’Etat concerne´, si des faits nouveaux ou nouvellement re´ve´le´s ou un vice fondamental dans la proce´dure pre´ce´dente sont de nature a` affecter le jugement intervenu. 3. Aucune de´rogation n’est autorise´e au pre´sent article au titre de l’article 15 de la Convention. Bibliography: Bleichrodt, Ne bis in idem (Article 4 of Protocol No. 7), in: van Dijk/van Hoof/van Rijn/Zwaak (ed.), Theory and Practice of the European Convention on Human Rights, 4th ed., 2006, p. 979; Charrier, Code de la Convention europe´enne des Droits de l’Homme, 2000; Karakosta, Ne bis in idem: une jurisprudence peu visible pour un droit intangible, RTDH 2008, p. 25; Lo˜hmus, The ne bis in idem Principle in the Case-law of the European Court of Justice and of the European Court of Human Rights, in: Breitenmoser/Ehrenzeller/Sasso`li/Stoffel/Wagner-Pfeifer (ed.), Human Rights, Democracy and the Rule of Law, Liber Amicorum Luzius Wildhaber, 2007, p. 411; Mock, Ne bis in idem: Strasbourg tranche en faveur de l’identite´ des faits, RDTH 2009, p. 867; van Bockel, The Ne Bis In Idem Principle in EU Law, 2010; Nowak, U.N. Covenant on Civil and Political Rights, 2nd ed., 2005. Leading cases: ECtHR, 23/10/1995, Gradinger v AUT, No. 15963/90 (focus on the ‘same conduct’ irrespective of the legal classification); ECtHR, 30/7/1998, Oliveira v SUI, No. 25711/94 (a single act constituting various offences); ECtHR, 29/5/2001, Franz Fischer v AUT, No. 37950/97 (same offence: where the elements of the offences are essentially the same); ECtHR, 20/7/2004, Nikitin v RUS, No. 50178/99 (valid grounds for revoking the finality of a judgment); ECtHR, 10/2/2009 (GC), Zolotukhin v RUS, No. 14939/03 (same offence: where the second offence arises from identical facts or facts which are substantially the same); ECtHR, 13/11/2012, Margusˇ v CRO, No. 4455/10 (grant of amnesty in respect of ‘international crimes’). Outline I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. The scope of protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Article 4 – Right not to be tried or punished twice

III. The guarantee of Article 4 of Protocol No. 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Exceptions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3 6

I. Introduction 1

Among the fundamental guarantees provided for in Protocol No. 7 to the Convention, Article 4 attained the greatest significance. It provides for the right not to be tried or punished twice (‘ne bis in idem’). The principle of ne bis in idem is an old principle not only in criminal law systems of continental Europe but also in the Anglo-Saxon legal tradition where the term ‘double jeopardy’ became common. The principle is also provided for in international criminal law and EU law.1 Article 50 of the EU Charter stipulates that no one shall be liable to be tried or punished again in criminal proceedings for an offence for which he has already been finally acquitted or convicted within the EU in accordance with the law. The principle is also recognised as a general principle of EU law – at least in the relationship between the EU and its Member States.2 Lastly, Article 54 of the Convention Implementing the Schengen Agreement (CISA)3 and Article 14 (7) ICCPR4 contain the principle of ne bis in idem. Going beyond Article 4 of Protocol No. 7, Article 54 CISA stipulates that a person whose trial has been finally disposed of in one contracting party may not be prosecuted for the same act in another contracting party, provided that, if a penalty has been imposed, it has been enforced, is actually in the process of being enforced or can no longer be enforced under the laws of the sentencing contracting party. The international application of ne bis in idem is the result of legal cooperation and harmonisation within the EU (in particular the former work of the Police and Judicial Cooperation in Criminal Matters [PJCCM]). Article 14 (7) ICCPR, on which Article 4 of Protocol No. 7 is historically based, provides that ‘[n]o one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country’. Thus, it states less clearly whether the principle of ne bis in idem applies internationally or only within the same State, which is an issue that is still contended.5

II. The scope of protection 2

According to Article 4 of Protocol No. 7 ‘no one shall be liable to be tried or punished again in criminal proceedings’. Hence, Article 4 of Protocol No. 7 is not confined to the right not to be punished twice but extended to the right not to be prosecuted or tried twice for an offence for which an accused has already been finally acquitted or convicted. Thus, even if criminal proceedings are concluded by 1

Article 20 ICJ Statute. As to the CJEU case law on the right not to be punished twice see Lo˜hmus, The ne bis in idem Principle in the Case-law of the European Court of Justice and of the European Court of Human Rights, in: Breitenmoser/Ehrenzeller/Sasso`li/Stoffel/Wagner-Pfeifer (ed.), Human Rights, Democracy and the Rule of Law, Liber Amicorum Luzius Wildhaber, 2007, p. 411 (416 et seq). 3 See also m.n. 5 below. 4 See also m.n. 4 below. 5 Nowak, U.N. Covenant on Civil and Political Rights, 2nd ed., 2005, Article 14, m.n. 99; van Bockel, The Ne Bis In Idem Principle in EU Law, 2010, pp. 13 et seq. 2

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an acquittal, a new trial or punishment is barred by the ne bis in idem principle.6 Article 4 of Protocol No. 7 does not apply to proceedings which end with sanctions of a non-criminal nature (e.g. disciplinary measures).7 Article 4 of Protocol No. 7 applies to proceedings ‘under the jurisdiction of the same State’. This means that the guarantee does not apply between the States, but rather protects an individual from being tried and punished twice for an offence within the same State.8 The legal orders of most of the Member States stipulate that sentences served abroad are deduced from the penalty which was imposed inland for the same offence.9 Article 4 of Protocol No. 7 applies only to criminal proceedings which have been concluded by a final decision, i. e. a conviction or an acquittal.10 A decision is final if, according to the traditional expression, it has acquired the force of res judicata.11 The Court left open the question of whether the termination of criminal proceedings on the ground that amnesty had been granted could be regarded as a final decision within the meaning of Article 4 of Protocol No. 7.12 In the Margusˇ Case it considered only that, in view of the fact that amnesty had been granted without having conducted any investigation into the charges brought against the applicant and without having assessed his guilt, it was open to question whether such termination could be regarded as a ‘final acquittal or conviction’. Moreover, this guarantee only applies to cases where, after the imposition of a criminal sanction within the meaning of the Convention, another criminal sanction is imposed upon an individual for an offence of the same essential elements.13 The notion ‘criminal’ in Article 4 of Protocol No. 7 equates with the concept of ‘criminal’ as under Article 6 and 7.14 A measure depriving the applicant of his right to practice as a legal counsel because of the opening of bankruptcy proceedings against him cannot be considered a punishment within the meaning of this provision.15 Criminal proceedings cannot be considered as duplicated if only additional or secondary penalties were imposed which constituted part of the first trial, even if the penalty was imposed by a different authority. The Court is quite generous in accepting that ‘secondary’ penalties do not violate Article 4, particularly in cases of sanctions for traffic offences. The withdrawal of a driving licence, which is akin to a penalty and no automatic consequence of a criminal conviction for driving under

6

ECtHR, 29/5/2001, Franz Fischer v AUT, No. 37950/97, § 25. Explanatory Report to Protocol No. 7, m.n. 32. 8 Grabenwarter/Pabel, § 24 m.n. 147 with further references. 9 Grabenwarter/Pabel, § 24 m.n. 147 with further references. 10 ECtHR, 23/10/1995, Gradinger v AUT, No. 15963/90, § 53; ECtHR, 29/5/2001, Franz Fischer v AUT, No. 37950/97, § 22; ECtHR, 20/7/2004, Nikitin v RUS, No. 50178/99, § 37. 11 E.g. ECtHR, 20/7/2004, Nikitin v RUS, No. 50178/99, § 37. 12 ECtHR, 13/11/2012, Margus ˇ v CRO, No. 4455/10, §§ 66 et seq. 13 See m.n. 4 below. 14 Charrier, Code de la Convention europe ´enne des Droits de l’Homme, 2000, p. 352; Bleichrodt, Ne bis in idem (Article 4 of Protocol No. 7), in: van Dijk/van Hoof/van Rijn/Zwaak (ed.), Theory and Practice of the European Convention on Human Rights, 4th ed., 2006, p. 979 (980); as to the notion of ‘criminal law’ within the meaning of Article 6 cf. m.n. 18 et seq. 15 ECtHR, 4/5/2006, Klein v AUT, No. 57028/00. 7

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the influence of alcohol, constitutes an integral part of the principal penalty if the withdrawal is a direct and foreseeable consequence of the criminal conviction.16

III. The guarantee of Article 4 of Protocol No. 7 Article 4 of Protocol No. 7 prohibits prosecuting or trying an individual twice for the same criminal offence for which he has already been finally acquitted or convicted.17 The mere discontinuance of criminal proceedings cannot be regarded as a final decision. Further prosecution is thus not precluded.18 4 Where a person has been convicted twice, it has to be examined whether he was convicted of the same criminal offence (French: ‘infraction’).19 In contrast to Article 14 (7) ICCPR, it is not decisive for Article 4 of Protocol No. 7 whether the two decisions concerned were based on the same conduct.20 The mere fact that a single act constitutes more than one offence is not contrary to this Article.21 However, there are cases where an act constitutes two offences, which both encompass the same wrongs. At any rate, there is a violation of Article 4 of Protocol No. 7 if a person, on the basis of one act, is tried and punished twice under the same criminal provision, or under the head of different criminal provisions but where the offences contained therein do not differ in their essential elements.22 The Court’s first two judgments within this ambit, the Oliveira and Gradinger Case, had caused an irreconcilable contradiction.23 For a long time (starting with the Fischer Case until recently), the Court examined whether the offences in question had the ‘same essential elements’.24 In case a single act constituted various offences, which had the same essential elements, Article 4 of Protocol No. 7 was considered to be violated. There was no breach of the Article, however, if the offences differed in their essential elements (‘concours ide´al d’infractions’).25 This approach took account of the European standard of criminal justice systems. 5 In the Zolotukhin Case, the Court deviated from its established case law. Despite the different wording, it applied the interpretation of the ACHR by the IACHPR 3

16 ECtHR, 28/10/1999 (GC), Escoubet v BEL, No. 26780/95, §§ 37 et seq; ECtHR, 30/5/2000, R. T. v SUI, No. 31982/96; ECtHR, 20/3/2001, Hangl v AUT, No. 38716/97; ECtHR, 13/12/2005, Nilsson v SWE, No. 73661/01; ECtHR, 21/9/2006, Maszni v ROM, No. 59892/00, §§ 68 et seq. 17 As to the individual factual elements Karakosta, Ne bis in idem: une jurisprudence peu visible pour un droit intangible, RTDH 2008, p. 25 (29 et seq.); ECtHR, 10/2/2009 (GC), Zolotukhin v RUS, No. 14939/03, § 83. 18 ECtHR, 3/10/2002, Smirnova a.o. v RUS, No. 46133/99 et al; ECtHR, 15/3/2005, Horciag v ROM, No. 70982/01; ECtHR, 29/11/2005, Wassdahl v SWE, No. 36619/03; ECtHR, 22/11/2005, Sundqvist v SWE, No. 75602/01; ECtHR, 7/12/2006, Harutyunyan v ARM, No. 34334/04; ECtHR, 18/9/2008, Mu¨ller (No. 2) v AUT, No. 28034/04, § 34 (setting aside of an information by the public prosecutor). 19 ECtHR, 30/7/1998, Oliveira v SUI, No. 25711/94, §§ 26 et seq; ECtHR, 29/5/2001, Franz Fischer v AUT, No. 37950/97, §§ 23 et seq; obsolete: ECtHR, 23/10/1995, Gradinger v AUT, No. 15963/90, § 55. 20 ECtHR, 23/10/1995, Gradinger v AUT, No. 15963/90, § 55. 21 ECtHR, 29/5/2001, Franz Fischer v AUT, No. 37950/97, § 25. 22 ECtHR, 29/5/2001, Franz Fischer v AUT, No. 37950/97, §§ 25, 29. 23 Grabenwarter/Pabel, § 24 m.n. 149 with further references. 24 ECtHR, 29/5/2001, Franz Fischer v AUT, No. 37950/97, § 25; reaffirmed in ECtHR, 6/6/2002, Sailer v AUT, No. 38237/97, § 25. 25 ECtHR, 30/7/1998, Oliveira v SUI, No. 25711/94, § 26.

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and the interpretation of the CISA by the CJEU respectively to the ECHR; this by referring to the principle of effectiveness. Accordingly, the Court took the view that Article 4 of Protocol No. 7 must be understood as prohibiting the prosecution or trial of a second ‘offence’ in so far as it arises from identical facts or facts which are substantially the same.26 This approach cannot be based on the principles of interpretation of the Convention as applied by the Court. It is remarkable that national supreme and constitutional courts openly did not follow the Zoloutukhin approach in comparable cases. The Swedish Supreme Administrative Court, for instance, held that the particular features of a legal system, which may include the punishment regime, must be taken into account when interpreting Article 4 of Protocol No. 7, and thus found no violation of the guarantee in a case where an individual was convicted for an aggravated tax crime and at the same time imposed tax surcharges.27 The Austrian Constitutional Court, too, refused to follow the Court’s new approach as regards the notion of ‘the same offence’. It agreed that legal certainty was essential but held at the same time that a consistent case law was in the interest of legal certainty, foreseeability and equality. According to the Austrian Constitutional Court, it was therefore in line with Article 4 of Protocol No. 7 that a single act constituted various offences as long as they differed in their essential elements.28 Moreover, the Constitutional Court referred at length to the interpretation rules (in particular Article 31 of the Vienna Convention on the Law of the Treaties [VCLT]). Against this background the Austrian Constitutional Court referred to the wording of the travaux pre´paratoires and the object and purpose of the guarantee of Article 4 of Protocol No. 7 and came to the conclusion, that the right not to be punished twice was not violated as the proceedings concerned two different offences. Having regard to the ‘margin of appreciation’ States enjoy, these findings may well co-exist with the recent case law of the Court. At any rate, an acquittal of the essential element of a certain offence does not preclude a decision on additional elements.29 Article 4 of Protocol No. 7 does not prohibit trying or punishing an individual twice if the charges brought against him do not concern the same offence or do not relate to the same events.30

IV. Exceptions Article 4 of Protocol No. 7 does not expressly provide for conditions under which 6 it is permissible to restrict the guarantee contained therein. Its paragraph 2 does, however, provide for an exception, which allows the reopening of a case if there is 26 ECtHR, 10/2/2009 (GC), Zolotukhin v RUS, No. 14939/03, §§ 80 et seq; reaffirming ECtHR, 16/6/2009, Ruotsalainen v FIN, No. 13079/03, § 56; ECtHR, 25/6/2009, Maresti v CRO, No. 55759/07, § 63; ECtHR, 14/1/2010, Tsonev (No. 2) v BUL, No. 2376/03, § 52; cf. also Mock, Ne bis in idem: Strasbourg tranche en faveur de l’identite´ des faits, RDTH 2009, p. 867 (867 et seq.). 27 See the reference in ECtHR, Henriksson v SWE, No 7396/10 (communicated case). 28 Verfassungsgerichtshof, 2/7/2009, B 559/08, VfSlg. 18833/2009. 29 ECtHR, 2/9/2004, Bachmaier v AUT, No. 77413/01; ECtHR, 11/12/2012, Asadbeyli a.o. v AZE, No. 3653/05 et al, § 161 (prosecution for the isolated incident of non-compliance with a police order and prosecution, in subsequent criminal proceedings, for other actions committed before or after the isolated incident). 30 ECtHR, 5/10/2006, Marcello Viola v ITA, No. 45106/04 (charged with a number of counts of illegally carrying weapons).

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6, 7

Article 4 – Right not to be tried or punished twice

evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings.31 This provision limits the possible grounds for reopening a case under the various national procedural laws. 7 A fundamental defect in the proceedings allowing for the reopening of a case is, for instance, the grant of amnesty in respect of war crimes against the civilian population. It may be assumed that the same holds true in respect of other ‘international crimes’, including crimes against humanity and genocide, as the state of international law, the decisions of international and domestic courts and the developing state practice show that granting amnesty in respect of such ‘international crimes’ is increasingly considered to be prohibited by international law.32 31 ECtHR, 20/7/2004, Nikitin v RUS, No. 50178/99, §§ 45 et seq (the ‘supervisory review’ under Russian law as such an exception); ECtHR, 29/7/2008, Xheraj v ALB, No. 37959/02, § 74. 32 ECtHR, 13/11/2012, Margus ˇ v CRO, No. 4455/10, §§ 72 et seq.

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I. Scope of protection

1–3

P7 – 5

Article 5 – Equality between spouses Spouses shall enjoy equality of rights and responsibilities of a private law character between them, and in their relations with their children, as to marriage, during marriage and in the event of its dissolution. This Article shall not prevent States from taking such measures as are necessary in the interests of the children. Article 5 – Egalite´ entre e´poux Les e´poux jouissent de l’e´galite´ de droits et de responsabilite´s de caracte`re civil entre eux et dans leurs relations avec leurs enfants au regard du mariage, durant le mariage et lors de sa dissolution. Le pre´sent article n’empeˆche pas les Etats de prendre les mesures ne´cessaires dans l’inte´reˆt des enfants. Outline I. Scope of protection. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Relationship to other Convention guarantees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 2

I. Scope of protection Article 5 of Protocol No. 7 lays down the principle of equal treatment between 1 spouses. It requires that men and women enjoy the same rights and responsibilities under private law as between them, and in their relations with their children, as to marriage, during marriage and in the event of its dissolution. The scope of Article 5 of Protocol No. 7 is thus limited to this particular group of persons. Spouses further enjoy the protection of other equality rights. The notion of ‘marriage’ under Article 5 of Protocol No. 7 corresponds to that of 2 Article 12 ECHR. This particular principle of equal treatment does only apply if the individuals concerned intend to conclude a marriage as provided for in domestic law, that they have already concluded a marriage or that they have dissolved it.1 The guarantee of Article 5 of Protocol No. 7 imposes upon the States the obligation to provide for civil law (e.g. concerning matrimonial co-habitation or property, child custody and care or divorce) that conforms to the principle of equal treatment.2 Article 5 of Protocol No. 7 does not apply to other fields of law, such as administrative, fiscal, criminal, social, ecclesiastical or labour law.3 Article 5 of Protocol No. 7 expressly stipulates that it does not prevent States 3 from taking such measures as are necessary in the interests of the children. This constitutes Thereby it lays down an exception to the general principle of equal

1

Explanatory Report to Protocol No. 7, m.n. 37. Grabenwarter/Pabel, § 26 m.n. 23 with further references. 3 EComHR, 18/1/1996, Klo ¨ pper v SUI, No. 25053/94. 2

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3–5

Article 5 – Equality between spouses

treatment in marriage. In view of this exception, States may adopt laws that treat differently the mother or father of a child. 4 The wording of Article 5 of Protocol No. 7 shows that States do not have to provide for the possibility to dissolve a marriage; in particular they do not have to provide for the right to divorce.4 This conclusion is supported by the explanatory report to Article 5 of Protocol No. 7.5 The conditions of capacity to enter into marriage do not either fall under the principle of equal treatment.6

II. Relationship to other Convention guarantees 5

Article 5 of Protocol No. 7 is of little practical importance. The right to respect for family life (Article 8), the right to marry (Article 12) and the prohibition of discrimination (Article 14) protect aspects of life which, in part, also fall within the ambit of Article 5 of Protocol No. 7; in part the scope of the former is broader than that of the latter.7 In particular, Article 5 of Protocol No. 7 is not a lex specialis in relation to Article 8. It is only an addition to the Convention and can thus not replace Article 8 or reduce its scope.8 Up to now, the Court has not yet found a violation of Article 5 of Protocol No. 7. 4

ECtHR, 18/12/1986, Johnston a.o. v IRL, No. 9697/82, § 53. Explanatory Report to Protocol No. 7, m.n. 39. 6 Explanatory Report to Protocol No. 7, m.n. 37. 7 Cf. e.g. ECtHR, 23/9/1994, Hokkanen v FIN, No. 19823/92, § 66: The Court, after finding a violation of Article 8, held that no separate issue arose under Article 5 of Protocol No. 7. 8 ECtHR, 22/2/1994, Burghartz v SUI, No. 16213/90, §§ 22 et seq. 5

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I. Introduction

1

P12 – 1

Protocol No. 12 Article 1 – General prohibition of discrimination 1. The enjoyment of any right set forth by law 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. 2. No one shall be discriminated against by any public authority on any ground such as those mentioned in paragraph 1. Article 1 – Interdiction ge´ne´rale de la discrimination 1. La jouissance de tout droit pre´vu par la loi doit eˆtre assure´e, sans discrimination aucune, fonde´e notamment sur le sexe, la race, la couleur, la langue, la religion, les opinions politiques ou toutes autres opinions, l’origine nationale ou sociale, l’appartenance a` une minorite´ nationale, la fortune, la naissance ou toute autre situation. 2. Nul ne peut faire l’objet d’une discrimination de la part d’une autorite´ publique quelle qu’elle soit fonde´e notamment sur les motifs mentionne´s au paragraphe 1. Bibliography: Beco, Le Protocole No 12 a` la Convention Europe´nne des Droits de l’Homme, RTDH 2010, p. 591. Leading cases: ECtHR, 22/12/2009 (GC), Sejdic´ a. Finci v BIH, No. 27996/06 et al; ECtHR, 9/12/ 2010, Savez Crkava ‘Rijecˇ Zˇivoka’ v CRO, No. 7798/08; ECtHR, 18/7/2013 (GC), Maktouf a. Damjanovic´ v BIH, No. 2312/08, § 81 (‘discrimination’; different sentences by different courts). Outline I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. The scope of Article 1 of Protocol No. 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 2

I. Introduction The key provision of Protocol No. 12 is Article 1, which contains a general 1 prohibition of discrimination.1 Its paragraph 1 prohibits any discrimination on the same grounds as those mentioned in Article 14 of the Convention. Unlike Article 14, Article 1 of Protocol No. 12 applies independently of the rights and freedoms of the Convention and the Protocols. It may also be invoked with a view to any right specifically granted to an individual under national law.2 In order to determine whether the general prohibition of discrimination is applicable, the Court, for the interpretation of the notion ‘any right set forth by law’, refers to 1 So far, of the EU Member States, Finland, Luxembourg, the Netherlands, Romania, Slovenia, Spain, Croatia, and Cyprus have ratified Protocol No. 12. 2 See as to that de Beco, Le Protocole No 12 a ` la Convention Europe´nne des Droits de l’Homme, RTDH 2010, p. 591 (597 et seqq.).

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Article 1 – General prohibition of discrimination

paragraph 22 of the Explanatory Report to Protocol No. 12.3 The Explanatory Report clarifies that the scope of Article 1 of Protocol No. 12 encompasses four categories of rights. The enjoyment of these rights must be granted without any discrimination. Paragraph 2 of Article 1 of Protocol No. 12 adds that no one shall be discriminated against by any public authority on any ground such as those mentioned in paragraph 1. As the Explanatory Report states, it is unnecessary to specify which of the four categories are covered by paragraph 1 and which by paragraph 2 of Article 1 of Protocol No. 12 since the two paragraphs are complementary and their combined effect is that all four categories are covered by the Article.

II. The scope of Article 1 of Protocol No. 12 Article 1 of Protocol No. 12 encompasses the protection offered by Article 14 but is wider in scope.4 The general prohibition of discrimination concerns, first, the right not to be discriminated against in the enjoyment of any right specifically granted under national law. It is doubtful whether the scope of Article 1 of Protocol No. 12 is thereby extended beyond what is already protected under the current legal situation since the Court already exercises a generous scrutiny when determining whether the facts of a case fall within the ambit of a substantive right under the Convention. Secondly, an individual must not be discriminated against in the enjoyment of a right which may be inferred from a clear obligation of a public authority under national law, that is, where a public authority is under an obligation under national law to behave in a particular manner; or, thirdly, by a public authority in the exercise of discretionary power.5 Fourthly, an individual must not be discriminated against by any other act or omission by a public authority. The scope of protection is not extended by this category either: Article 14, too, is binding upon the Member States in respect of all state activities, including the administration. What has not yet been finally determined by the Court is the relationship in the application between Article 14 and Article 1 of Protocol No. 12. In the Sejdic´ and Finci Case, after holding that there had been a violation of Article 14, the Court identified a breach of Article 1 of Protocol No. 12 while only giving scant reasons.6 In the Savez Crkava ‘Rijecˇ Zˇivoka’ Case, however, it considered that, having regard to the finding that there had been a violation of Article 14, it was not necessary to examine separately whether there had also been a breach of Article 1 of Protocol No. 12.7 3 The main difference between the prohibitions of discrimination under the two provisions is that Article 1 of Protocol No. 12 is not accessory to the rights and freedoms of the Convention and the Protocols: There is no requirement that the 2

ECtHR, 9/12/2010, Savez Crkava ‘Rijecˇ Zˇivoka’ v CRO, No. 7798/08, §§ 104 et seq. Cf. Explanatory Report to Protocol No. 12, m.n. 22, 33; cf. ECtHR, 18/7/2013 (GC), Maktouf a. Damjanovic´ v BIH, No. 2312/08, § 81. 5 Cf. Explanatory Report to Protocol No. 12, m.n. 22. 6 ECtHR, 22/12/2009 (GC), Sejdic ´ a. Finci v BIH, No. 27996/06 et al, §§ 55 et seq. 7 ECtHR, 9/12/2010, Savez Crkava ‘Rijec ˇ Zˇivoka’ v CRO, No. 7798/08, § 110 et seq. 3 4

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II. The scope of Article 1 of Protocol No. 12

3

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facts of a case fall within the ‘scope’ of a substantive provision of the Convention. Thereby, the scope of application of the prohibition of discrimination is extended. This extension constitutes the main difficulty of the general prohibition of discrimination. In general, the degree of scrutiny exercised by the Court when determining whether certain facts fall within the scope of a substantive right under the Convention and thus whether Article 14 is applicable is rather low. However, in certain fields of law (e.g. fiscal law), where the right not to be discriminated against plays a more important role, the Court is rather reluctant. It is doubtful whether it can uphold this reluctance. Thereby, however, the Court gains a function comparable to those of constitutional courts; it is questionable whether the Court will be able to fulfil this function. The Court should rather limit its examination of an alleged discrimination to the question whether a state acted arbitrarily.8 Another problem (of political rather than legal nature) which may arise is that different standards of protection might develop in the Member States as regards the prohibition of discrimination if the number of ratifications will not increase considerably. What remains unclear is whether the general prohibition of discrimination has a third party effect (‘Drittwirkung’): The Explanatory Report states that Article 1 of Protocol No. 12 does not impose a general positive obligation on the States to take measures to prevent or remedy all instances of discrimination in relations between private persons.9 In view of the Court’s case law on positive obligations of the Member States, it is questionable whether it will follow the Explanatory Report.10 8

Grabenwarter/Pabel, § 26 m.n. 26 with further references. Cf. Explanatory Report to Protocol No. 12, m.n. 25; cf. also de Beco, Le Protocole No 12 a` la Convention Europe´nne des Droits de l’Homme, RTDH 2010, 591 (606 et seq). 10 For basic considerations see Grabenwarter/Pabel, § 19. 9

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P13 – 1

Article 1 – Abolition of the death penalty

Protocol No. 13 Article 1 – Abolition of the death penalty The death penalty shall be abolished. No one shall be condemned to such penalty or executed. See Article 2 m.n. 9 et seq.

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EUROPEAN CONVENTION ON HUMAN RIGHTS (Full text in English) (as amended by Protocols Nos. 11 and 14) CONTENTS Convention for the Protection of Human Rights and Fundamental Freedoms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 447 Protocol No. 1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 465 Protocol No. 4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 467 Protocol No. 6. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 470 Protocol No. 7. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 473 Protocol No. 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 477 Protocol No. 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 480

ARTICLE 1 Obligation to respect human rights The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.

SECTION I RIGHTS AND FREEDOMS ARTICLE 2 Right to life 1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. 2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary:

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ECHR Articles 2–5 (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection. ARTICLE 3 Prohibition of torture No one shall be subjected to torture or to inhuman or degrading treatment or punishment. ARTICLE 4 Prohibition of slavery and forced labour 1. No one shall be held in slavery or servitude. 2. No one shall be required to perform forced or compulsory labour. 3. For the purpose of this Article the term “forced or compulsory labour” shall not include: (a) any work required to be done in the ordinary course of detention imposed according to the provisions of Article 5 of this Convention or during conditional release from such detention; (b) any service of a military character or, in case of conscientious objectors in countries where they are recognised, service exacted instead of compulsory military service; (c) any service exacted in case of an emergency or calamity threatening the life or well-being of the com-munity; (d) any work or service which forms part of normal civic obligations. ARTICLE 5 Right to liberty and security 1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a) the lawful detention of a person after conviction by a competent court; (b) the lawful arrest or detention of a person for non– compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law; (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

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Articles 5, 6

2. 3.

4.

5.

ECHR

(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority; (e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants; (f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation. ARTICLE 6 Right to a fair trial

1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice. 2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. 3. Everyone charged with a criminal offence has the following minimum rights: (a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; (b) to have adequate time and facilities for the preparation of his defence;

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ECHR Articles 6–9 (c) to 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; (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; (e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court. ARTICLE 7 No punishment without law 1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed. 2. This Article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations. ARTICLE 8 Right to respect for private and family life 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. ARTICLE 9 Freedom of thought, conscience and religion 1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. 2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

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Articles 10–13

ECHR

ARTICLE 10 Freedom of expression 1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary. ARTICLE 11 Freedom of assembly and association 1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, 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. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State. ARTICLE 12 Right to marry Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right. ARTICLE 13 Right to an effective remedy Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity. 451

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ECHR Articles 14–17 ARTICLE 14 Prohibition of discrimination The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. ARTICLE 15 Derogation in time of emergency 1. In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law. 2. No derogation from Article 2, except in respect of deaths resulting from lawful acts of war, or from Articles 3, 4 (paragraph 1) and 7 shall be made under this provision. 3. Any High Contracting Party availing itself of this right of derogation shall keep the Secretary General of the Council of Europe fully informed of the measures which it has taken and the reasons therefore. It shall also inform the Secretary General of the Council of Europe when such measures have ceased to operate and the provisions of the Convention are again being fully executed. ARTICLE 16 Restrictions on political activity of aliens Nothing in Articles 10, 11 and 14 shall be regarded as preventing the High Contracting Parties from imposing restrictions on the political activity of aliens. ARTICLE 17 Prohibition of abuse of rights Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.

452

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Articles 18–22

ECHR

ARTICLE 18 Limitation on use of restrictions on rights The restrictions permitted under this Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed.

SECTION II EUROPEAN COURT OF HUMAN RIGHTS ARTICLE 19 Establishment of the Court To ensure the observance of the engagements undertaken by the High Contracting Parties in the Convention and the Protocols thereto, there shall be set up a European Court of Human Rights, hereinafter referred to as “the Court”. It shall function on a permanent basis. ARTICLE 20 Number of judges The Court shall consist of a number of judges equal to that of the High Contracting Parties. ARTICLE 21 Criteria for office 1. The judges shall be of high moral character and must either possess the qualifications required for appointment to high judicial office or be jurisconsults of recognised competence. 2. The judges shall sit on the Court in their individual capacity. 3. During their term of office the judges shall not engage in any activity which is incompatible with their independence, impartiality or with the demands of a full-time office; all questions arising from the application of this paragraph shall be decided by the Court. ARTICLE 22 Election of judges The judges shall be elected by the Parliamentary Assembly with respect to each High Contracting Party by a majority of votes cast from a list of three candidates nominated by the High Contracting Party.

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ECHR Articles 23–26 ARTICLE 23 Terms of office and dismissal 1. The judges shall be elected for a period of nine years. They may not be reelected. 2. The terms of office of judges shall expire when they reach the age of 70. 3. The judges shall hold office until replaced. They shall, however, continue to deal with such cases as they already have under consideration. 4. No judge may be dismissed from office unless the other judges decide by a majority of two-thirds that that judge has ceased to fulfil the required conditions. ARTICLE 24 Registry and rapporteurs 1. The Court shall have a Registry, the functions and organisation of which shall be laid down in the rules of the Court. 2. When sitting in a single-judge formation, the Court shall be assisted by rapporteurs who shall function under the authority of the President of the Court. They shall form part of the Court’s Registry. ARTICLE 25 Plenary Court The plenary Court shall (a) elect its President and one or two Vice-Presidents for a period of three years; they may be re-elected; (b) set up Chambers, constituted for a fixed period of time; (c) elect the Presidents of the Chambers of the Court; they may be re-elected; (d) adopt the rules of the Court; (e) elect the Registrar and one or more Deputy Registrars; (f) make any request under Article 26, paragraph 2. ARTICLE 26 Single-judge formation, Committees, Chambers and Grand Chamber 1. To consider cases brought before it, the Court shall sit in a single-judge formation, in committees of three judges, in Chambers of seven judges and in a Grand Chamber of seventeen judges. The Court’s Chambers shall set up committees for a fixed period of time. 2. At the request of the plenary Court, the Committee of Ministers may, by a unanimous decision and for a fixed period, reduce to five the number of judges of the Chambers.

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Articles 26–28

ECHR

3. When sitting as a single judge, a judge shall not examine any application against the High Contracting Party in respect of which that judge has been elected. 4. There shall sit as an ex-officio member of the Chamber and the Grand Chamber the judge elected in respect of the High Contracting Party concerned. If there is none or if that judge is unable to sit, a person chosen by the President of the Court from a list submitted in advance by that Party shall sit in the capacity of judge. 5. The Grand Chamber shall also include the President of the Court, the VicePresidents, the Presidents of the Chambers and other judges chosen in accordance with the rules of the Court. When a case is referred to the Grand Chamber under Article 43, no judge from the Chamber which rendered the judgment shall sit in the Grand Chamber, with the exception of the President of the Chamber and the judge who sat in respect of the High Contracting Party concerned. ARTICLE 27 Competence of single judges 1. A single judge may declare inadmissible or strike out of the Court’s list of cases an application submitted under Article 34, where such a decision can be taken without further examination. 2. The decision shall be final. 3. If the single judge does not declare an application inadmissible or strike it out, that judge shall forward it to a committee or to a Chamber for further examination. ARTICLE 28 Competence of Committees 1. In respect of an application submitted under Article 34, a committee may, by a unanimous vote, (a) declare it inadmissible or strike it out of its list of cases, where such decision can be taken without further examination; or (b) declare it admissible and render at the same time a judgment on the merits, if the underlying question in the case, concerning the interpretation or the application of the Convention or the Protocols thereto, is already the subject of well-established case-law of the Court. 2. Decisions and judgments under paragraph 1 shall be final. 3. If the judge elected in respect of the High Contracting Party concerned is not a member of the committee, the committee may at any stage of the proceedings invite that judge to take the place of one of the members of the committee, having regard to all relevant factors, including whether that Party has contested the application of the procedure under paragraph 1.b.

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ECHR Articles 29–32 ARTICLE 29 Decisions by Chambers on admissibility and merits 1. If no decision is taken under Article 27 or 28, or no judgment rendered under Article 28, a Chamber shall decide on the admissibility and merits of individual applications submitted under Article 34. The decision on admissibility may be taken separately. 2. A Chamber shall decide on the admissibility and merits of inter-State applications submitted under Article 33. The decision on admissibility shall be taken separately unless the Court, in exceptional cases, decides otherwise. ARTICLE 30 Relinquishment of jurisdiction to the Grand Chamber Where a case pending before a Chamber raises a serious question affecting the interpretation of the Convention or the Protocols thereto, or where the resolution of a question before the Chamber might have a result inconsistent with a judgment previously delivered by the Court, the Chamber may, at any time before it has rendered its judgment, relinquish jurisdiction in favour of the Grand Chamber, unless one of the parties to the case objects. ARTICLE 31 Powers of the Grand Chamber The Grand Chamber shall (a) determine applications submitted either under Article 33 or Article 34 when a Chamber has relinquished jurisdiction under Article 30 or when the case has been referred to it under Article 43; (b) decide on issues referred to the Court by the Committee of Ministers in accordance with Article 46, paragraph 4; and (c) consider requests for advisory opinions submitted under Article 47. ARTICLE 32 Jurisdiction of the Court 1. The jurisdiction of the Court shall extend to all matters concerning the interpretation and application of the Convention and the Protocols thereto which are referred to it as provided in Articles 33, 34, 46 and 47. 2. In the event of dispute as to whether the Court has jurisdiction, the Court shall decide.

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Articles 33–35

ECHR

ARTICLE 33 Inter-State cases Any High Contracting Party may refer to the Court any alleged breach of the provisions of the Convention and the Protocols thereto by another High Contracting Party. ARTICLE 34 Individual applications The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right. ARTICLE 35 Admissibility criteria 1. The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken. 2. The Court shall not deal with any application submitted under Article 34 that (a) is anonymous; or (b) is substantially the same as a matter that has already been examined by the Court or has already been submitted to another procedure of international investigation or settlement and contains no relevant new information. 3. The Court shall declare inadmissible any individual application submitted under Article 34 if it considers that: (a) the application is incompatible with the provisions of the Convention or the Protocols thereto, manifestly ill-founded, or an abuse of the right of individual application; or (b) the applicant has not suffered a significant disadvantage, unless respect for human rights as defined in the Convention and the Protocols thereto requires an examination of the application on the merits and provided that no case may be rejected on this ground which has not been duly considered by a domestic tribunal. 4. The Court shall reject any application which it considers inadmissible under this Article. It may do so at any stage of the proceedings.

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ECHR Articles 36–39 ARTICLE 36 Third party intervention 1. In all cases before a Chamber or the Grand Chamber, a High Contracting Party one of whose nationals is an applicant shall have the right to submit written comments and to take part in hearings. 2. The President of the Court may, in the interest of the proper administration of justice, invite any High Contracting Party which is not a party to the proceedings or any person concerned who is not the applicant to submit written comments or take part in hearings. 3. In all cases before a Chamber or the Grand Chamber, the Council of Europe Commissioner for Human Rights may submit written comments and take part in hearings. ARTICLE 37 Striking out applications 1. The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that (a) the applicant does not intend to pursue his application; or (b) the matter has been resolved; or (c) for any other reason established by the Court, it is no longer justified to continue the examination of the application. However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires. 2. The Court may decide to restore an application to its list of cases if it considers that the circumstances justify such a course. ARTICLE 38 Examination of the case The Court shall examine the case together with the representatives of the parties and, if need be, undertake an investigation, for the effective conduct of which the High Contracting Parties concerned shall furnish all necessary facilities ARTICLE 39 Friendly settlements 1. At any stage of the proceedings, the Court may place itself at the disposal of the parties concerned with a view to securing a friendly settlement of the

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Articles 39–43

ECHR

matter on the basis of respect for human rights as defined in the Convention and the Protocols thereto. 2. Proceedings conducted under paragraph 1 shall be confidential. 3. If a friendly settlement is effected, the Court shall strike the case out of its list by means of a decision which shall be confined to a brief statement of the facts and of the solution reached. 4. This decision shall be transmitted to the Committee of Ministers, which shall supervise the execution of the terms of the friendly settlement as set out in the decision. ARTICLE 40 Public hearings and access to documents 1. Hearings shall be in public unless the Court in exceptional circumstances decides otherwise. 2. Documents deposited with the Registrar shall be accessible to the public unless the President of the Court decides otherwise. ARTICLE 41 Just satisfaction If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party. ARTICLE 42 Judgments of Chambers Judgments of Chambers shall become final in accordance with the provisions of Article 44, paragraph 2. ARTICLE 43 Referral to the Grand Chamber 1. Within a period of three months from the date of the judgment of the Chamber, any party to the case may, in exceptional cases, request that the case be referred to the Grand Chamber. 2. A panel of five judges of the Grand Chamber shall accept the request if the case raises a serious question affecting the interpretation or application of the Convention or the Protocols thereto, or a serious issue of general importance. 3. If the panel accepts the request, the Grand Chamber shall decide the case by means of a judgment.

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ECHR Articles 44–46 ARTICLE 44 Final judgments 1. The judgment of the Grand Chamber shall be final. 2. The judgment of a Chamber shall become final (a) when the parties declare that they will not request that the case be referred to the Grand Chamber; or (b) three months after the date of the judgment, if reference of the case to the Grand Chamber has not been requested; or (c) when the panel of the Grand Chamber rejects the request to refer under Article 43. 3. The final judgment shall be published. ARTICLE 45 Reasons for judgments and decisions 1. Reasons shall be given for judgments as well as for decisions declaring applications admissible or inadmissible. 2. If a judgment does not represent, in whole or in part, the unanimous opinion of the judges, any judge shall be entitled to deliver a separate opinion. ARTICLE 46 Binding force and execution of judgments 1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties. 2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution. 3. If the Committee of Ministers considers that the supervision of the execution of a final judgment is hindered by a problem of interpretation of the judgment, it may refer the matter to the Court for a ruling on the question of interpretation. A referral decision shall require a majority vote of two thirds of the representatives entitled to sit on the committee. 4. If the Committee of Ministers considers that a High Contracting Party refuses to abide by a final judgment in a case to which it is a party, it may, after serving formal notice on that Party and by decision adopted by a majority vote of two thirds of the representatives entitled to sit on the committee, refer to the Court the question whether that Party has failed to fulfil its obligation under paragraph1. 5. If the Court finds a violation of paragraph 1, it shall refer the case to the Committee of Ministers for consideration of the measures to be taken. If the Court finds no violation of 26 27 paragraph 1, it shall refer the case to the Committee of Ministers, which shall close its examination of the case. 460

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Articles 47–51

ECHR

ARTICLE 47 Advisory opinions 1. The Court may, at the request of the Committee of Ministers, give advisory opinions on legal questions concerning the interpretation of the Convention and the Protocols thereto. 2. Such opinions shall not deal with any question relating to the content or scope of the rights or freedoms defined in Section I of the Convention and the Protocols thereto, or with any other question which the Court or the Committee of Ministers might have to consider in consequence of any such proceedings as could be instituted in accordance with the Convention. 3. Decisions of the Committee of Ministers to request an advisory opinion of the Court shall require a majority vote of the representatives entitled to sit on the committee. ARTICLE 48 Advisory jurisdiction of the Court The Court shall decide whether a request for an advisory opinion submitted by the Committee of Ministers is within its competence as defined in Article 47. ARTICLE 49 Reasons for advisory opinions 1. Reasons shall be given for advisory opinions of the Court. 2. If the advisory opinion does not represent, in whole or in part, the unanimous opinion of the judges, any judge shall be entitled to deliver a separate opinion. 3. Advisory opinions of the Court shall be communicated to the Committee of Ministers. ARTICLE 50 Expenditure on the Court The expenditure on the Court shall be borne by the Council of Europe. ARTICLE 51 Privileges and immunities of judges The judges shall be entitled, during the exercise of their functions, to the privileges and immunities provided for in Article 40 of the Statute of the Council of Europe and in the agreements made thereunder.

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ECHR Articles 52–56 SECTION III MISCELLANEOUS PROVISIONS ARTICLE 52 Inquiries by the Secretary General On receipt of a request from the Secretary General of the Council of Europe any High Contracting Party shall furnish an explanation of the manner in which its internal law ensures the effective implementation of any of the provisions of the Convention. ARTICLE 53 Safeguard for existing human rights Nothing in this Convention shall be construed as limiting or derogating from any of the human rights and fundamental 28 29 freedoms which may be ensured under the laws of any High Contracting Party or under any other agreement to which it is a party. ARTICLE 54 Powers of the Committee of Ministers Nothing in this Convention shall prejdice the powers conferred on the Committee of Ministers by the Statute of the Council of Europe. ARTICLE 55 Exclusion of other means of dispute settlement The High Contracting Parties agree that, except by special agreement, they will not avail themselves of treaties, conventions or declarations in force between them for the purpose of submitting, by way of petition, a dispute arising out of the interpretation or application of this Convention to a means of settlement other than those provided for in this Convention. ARTICLE 56 Territorial application 1. Any State may at the time of its ratification or at any time thereafter declare by notification addressed to the Secretary General of the Council of Europe that the present Convention shall, subject to paragraph 4 of this Article, extend to all or any of the territories for whose international relations it is responsible. 2. The Convention shall extend to the territory or territories named in the notification as from the thirtieth day after the receipt of this notification by the Secretary General of the Council of Europe.

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Articles 56–58

ECHR

3. The provisions of this Convention shall be applied in such territories with due regard, however, to local requirements. 4. Any State which has made a declaration in accordance with paragraph 1 of this Article may at any time thereafter declare on behalf of one or more of the territories to which the declaration relates that it accepts the competence of the Court to receive applications from individuals, non-governmental organisations or groups of individuals as provided by Article 34 of the Convention. ARTICLE 57 Reservations 1. Any State may, when signing this Convention or when depositing its instrument of ratification, make a reservation in respect of any particular provision of the Convention to the extent that any law then in force in its territory is not in conformity with the provision. Reservations of a general character shall not be permitted under this Article. 2. Any reservation made under this Article shall contain a brief statement of the law concerned. ARTICLE 58 Denunciation 1. A High Contracting Party may denounce the present Convention only after the expiry of five years from the date on which it became a party to it and after six months’ notice contained in a notification addressed to the Secretary General of the Council of Europe, who shall inform the other High Contracting Parties. 2. Such a denunciation shall not have the effect of releasing the High Contracting Party concerned from its obligations under this Convention in respect of any act which, being capable of constituting a violation of such obligations, may have been performed by it before the date at which the denunciation became effective. 3. Any High Contracting Party which shall cease to be a member of the Council of Europe shall cease to be a Party to this Convention under the same conditions. 4. The Convention may be denounced in accordance with the provisions of the preceding paragraphs in respect of any territory to which it has been declared to extend under the terms of Article 56.

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ECHR Article 59 ARTICLE 59 Signature and ratification 1. This Convention shall be open to the signature of the members of the Council of Europe. It shall be ratified. Ratifications shall be deposited with the Secretary General of the Council of Europe. 2. The European Union may accede to this Convention. 3. The present Convention shall come into force after the deposit of ten instruments of ratification. 4. As regards any signatory ratifying subsequently, the Convention shall come into force at the date of the deposit of its instrument of ratification. 5. The Secretary General of the Council of Europe shall notify all the members of the Council of Europe of the entry into force of the Convention, the names of the High Contracting Parties who have ratified it, and the de-posit of all instruments of ratification which may be effected subsequently. DONE AT ROME THIS 4TH DAY OF NOVEMBER 1950, in English and French, both texts being equally authentic, in a single copy which shall remain deposited in the archives of the Council of Europe. The Secretary General shall transmit certified copies to each of the signatories.

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Articles 1–3

Protocol No. 1

Protocol No. 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms Paris, 20.III.1952 THE GOVERNMENTS SIGNATORY HERETO, being members of the Council of Europe, Being resolved to take steps to ensure the collective enforcement of certain rights and freedoms other than those already included in Section I of the Convention for the Protection of Human Rights and Fundamental Freedoms signed at Rome on 4 November 1950 (hereinafter referred to as “the Convention”), Have agreed as follows:

ARTICLE 1 Protection of property Every 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. 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. ARTICLE 2 Right to education No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions. ARTICLE 3 Right to free elections The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.

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Protocol No. 1 Articles 4–6 ARTICLE 4 Territorial application Any High Contracting Party may at the time of signature or ratification or at any time thereafter communicate to the Secretary General of the Council of Europe a declaration stating the extent to which it undertakes that the provisions of the present Protocol shall apply to such of the territories for the international relations of which it is responsible as are named therein. Any High Contracting Party which has communicated a declaration in virtue of the preceding paragraph may from time to time communicate a further declaration modifying the terms of any former declaration or terminating the application of the provisions of this Protocol in respect of any territory A declaration made in accordance with this Article shall be deemed to have been made in accordance with paragraph 1 of Article 56 of the Convention. ARTICLE 5 Relationship to the Convention As between the High Contracting Parties the provisions of Articles 1, 2, 3 and 4 of this Protocol shall be regarded as additional Articles to the Convention and all the provisions of the Convention shall apply accordingly. ARTICLE 6 Signature and ratification This Protocol shall be open for signature by the members of the Council of Europe, who are the signatories of the Convention; it shall be ratified at the same time as or after the ratification of the Convention. It shall enter into force after the deposit of ten instruments of ratification. As regards any signatory ratifying subsequently, the Protocol shall enter into force at the date of the deposit of its instrument of ratification. The instruments of ratification shall be deposited with the Secretary General of the Council of Europe, who will notify all members of the names of those who have ratified. DONE AT PARIS ON THE 20TH DAY OF MARCH 1952, in English and French, both texts being equally authentic, in a single copy which shall remain deposited in the archives of the Council of Europe. The Secretary General shall transmit certified copies to each of the signatory governments.

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Articles 1, 2

Protocol No. 4

Protocol No. 4 to the Convention for the Protection of Human Rights and Fundamental Freedoms securing certain rights and freedoms other than those already included in the Convention and in the First Protocol thereto Strasbourg, 16.IX.1963 THE GOVERNMENTS SIGNATORY HERETO, being members of the Council of Europe, Being resolved to take steps to ensure the collective enforcement of certain rights and freedoms other than those already included in Section I of the Convention for the Protection of Human Rights and Fundamental Freedoms signed at Rome on 4th November 1950 (hereinafter referred to as the “Convention”) and in Articles 1 to 3 of the First Protocol to the Convention, signed at Paris on 20th March 1952, Have agreed as follows:

ARTICLE 1 Prohibition of imprisonment for debt No one shall be deprived of his liberty merely on the ground of inability to fulfil a contractual obligation. ARTICLE 2 Freedom of movement 1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence. 2. Everyone shall be free to leave any country, including his own. 3. No restrictions shall be placed on the exercise of these rights other than such as are in accordance with law and are necessary in a democratic society in the interests of national security or public safety, for the maintenance of ordre public, for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. 4. The rights set forth in paragraph 1 may also be subject, in particular areas, to restrictions imposed in accordance with law and justified by the public interest in a democratic society.

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Protocol No. 4 Articles 3–5 ARTICLE 3 Prohibition of expulsion of nationals 1. No one shall be expelled, by means either of an individual or of a collective measure, from the territory of the State of which he is a national. 2. No one shall be deprived of the right to enter the territory of the state of which he is a national. ARTICLE 4 Prohibition of collective expulsion of aliens Collective expulsion of aliens is prohibited. ARTICLE 5 Territorial application 1. Any High Contracting Party may, at the time of signature or ratification of this Protocol, or at any time thereafter, communicate to the Secretary General of the Council of Europe a declaration stating the extent to which it undertakes that the provisions of this Protocol shall apply to such of the territories for the international relations of which it is responsible as are named therein. 2. Any High Contracting Party which has communicated a declaration in virtue of the preceding paragraph may, from time to time, communicate a further declaration modifying the terms of any former declaration or terminating the application of the provisions of this Protocol in respect of any territory. 3. A declaration made in accordance with this Article shall be deemed to have been made in accordance with paragraph 1 of Article 56 of the Convention. 4. The territory of any State to which this Protocol applies by virtue of ratification or acceptance by that State, and each territory to which this Protocol is applied by virtue of a declaration by that State under this Article, shall be treated as separate territories for the purpose of the references in Articles 2 and 3 to the territory of a State. 5. Any State which has made a declaration in accordance with paragraph 1 or 2 of this Article may at any time thereafter declare on behalf of one or more of the territories to which the declaration relates that it accepts the competence of the Court to receive applications from individuals, nongovernmental organisations or groups of individuals as provided in Article 34 of the Convention in respect of all or any of Articles 1 to 4 of this Protocol.

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Articles 6, 7

Protocol No. 4

ARTICLE 6 Relationship to the Convention As between the High Contracting Parties the provisions of Articles 1 to 5 of this Protocol shall be regarded as additional Articles to the Convention, and all the provisions of the Convention shall apply accordingly. ARTICLE 7 Signature and ratification 1. This Protocol shall be open for signature by the members of the Council of Europe who are the signatories of the Convention; it shall be ratified at the same time as or after the ratification of the Convention. It shall enter into force after the deposit of five instruments of ratification. As regards any signatory ratifying subsequently, the Protocol shall enter into force at the date of the deposit of its instrument of ratification. 2. The instruments of ratification shall be deposited with the Secretary General of the Council of Europe, who will notify all members of the names of those who have ratified. In witness whereof the undersigned, being duly authorised thereto, have signed this Protocol. DONE AT STRASBOURG, THIS 16TH DAY OF SEPTEMBER 1963, in English and in French, both texts being equally authoritative, in a single copy which shall remain deposited in the archives of the Council of Europe. The Secretary General shall transmit certified copies to each of the signatory states.

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Protocol No. 6 Articles 1–4 Protocol No. 6 to the Convention for the Protection of Human Rights and Fundamental Freedoms concerning the Abolition of the Death Penalty Strasbourg, 28.IV.1983 THE MEMBER STATES OF THE COUNCIL OF EUROPE, signatory to this Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950 (hereinafter referred to as “the Convention”), Considering that the evolution that has occurred in several member States of the Council of Europe expresses a general tendency in favour of abolition of the death penalty; Have agreed as follows:

ARTICLE 1 Abolition of the death penalty The death penalty shall be abolished. No one shall be condemned to such penalty or executed. ARTICLE 2 Death penalty in time of war A State may make provision in its law for the death penalty in respect of acts committed in time of war or of imminent threat of war; such penalty shall be applied only in the instances laid down in the law and in accordance with its provisions. The State shall communicate to the Secretary General of the Council of Europe the relevant provisions of that law. ARTICLE 3 Prohibition of derogations No derogation from the provisions of this Protocol shall be made under Article 15 of the Convention. ARTICLE 4 Prohibition of reservations No reservation may be made under Article 57 of the Convention in respect of the provisions of this Protocol. 470

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Articles 5–8

Protocol No. 6

ARTICLE 5 Territorial application 1. Any State may at the time of signature or when depositing its instrument of ratification, acceptance or approval, specify the territory or territories to which this Protocol shall apply. 2. Any State may at any later date, by a declaration addressed to the Secretary General of the Council of Europe, extend the application of this Protocol to any other territory specified in the declaration. In respect of such territory the Protocol shall enter into force on the first day of the month following the date of receipt of such declaration by the Secretary General. 3. Any declaration made under the two preceding paragraphs may, in respect of any territory specified in such declaration, be withdrawn by a notification addressed to the Secretary General. The withdrawal shall become effective on the first day of the month following the date of receipt of such notification by the Secretary General. ARTICLE 6 Relationship to the Convention As between the States Parties the provisions of Articles 1 to 5 of this Protocol shall be regarded as additional Articles to the Convention and all the provisions of the Convention shall apply accordingly. ARTICLE 7 Signature and ratification The Protocol shall be open for signature by the member States of the Council of Europe, signatories to the Convention. It shall be subject to ratification, acceptance or approval. A member State of the Council of Europe may not ratify, accept or approve this Protocol unless it has, simultaneously or previously, ratified the Convention. Instruments of ratification, acceptance or approval shall be deposited with the Secretary General of the Council of Europe. ARTICLE 8 Entry into force 1. This Protocol shall enter into force on the first day of the month following the date on which five member States of the Council of Europe have expressed their consent to be bound by the Protocol in accordance with the provisions of Article 7. 2. In respect of any member State which subsequently expresses its consent to be bound by it, the Protocol shall enter into force on the first day of the 471

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Protocol No. 6 Articles 8, 9 month following the date of the deposit of the instrument of ratification, acceptance or approval. ARTICLE 9 Depositary functions The Secretary General of the Council of Europe shall notify the member States of the Council of: (a) any signature; (b) the deposit of any instrument of ratification, acceptance or approval; (c) any date of entry into force of this Protocol in accordance with Articles 5 and 8; (d) any other act, notification or communication relating to this Protocol. In witness whereof the undersigned, being duly authorised thereto, have signed this Protocol. DONE AT STRASBOURG, THIS 28TH DAY OF APRIL 1983, in English and in French, both texts being equally authentic, in a single copy which shall be deposited in the archives of the Council of Europe. The Secretary General of the Council of Europe shall transmit certified copies to each member State of the Council of Europe.

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Articles 1, 2

Protocol No. 7

Protocol No. 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms Strasbourg, 22.XI.1984 THE MEMBER STATES OF THE COUNCIL OF EUROPE, signatory hereto, Being resolved to take further steps to ensure the collective enforcement of certain rights and freedoms by means of the Convention for the Protection of Human Rights and Fundamental Freedoms signed at Rome on 4 November 1950 (hereinafter referred to as “the Convention”), Have agreed as follows:

ARTICLE 1 Procedural safeguards relating to expulsion of aliens 1. An alien lawfully resident in the territory of a State shall not be expelled therefrom except in pursuance of a decision reached in accordance with law and shall be allowed: (a) to submit reasons against his expulsion, (b) to have his case reviewed, and (c) to be represented for these purposes before the competent authority or a person or persons designated by that authority. 2. An alien may be expelled before the exercise of his rights under paragraph 1.a, b and c of this Article, when such expulsion is necessary in the interests of public order or is grounded on reasons of national security. ARTICLE 2 Right of appeal in criminal matters 1. Everyone convicted of a criminal offence by a tribunal shall have the right to have his conviction or sentence reviewed by a higher tribunal. The exercise of this right, including the grounds on which it may be exercised, shall be governed by law. 2. This right may be subject to exceptions in regard to offences of a minor character, as prescribed by law, or in cases in which the person concerned was tried in the first instance by the highest tribunal or was convicted following an appeal against acquittal.

473

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Protocol No. 7 Articles 3–6 ARTICLE 3 Compensation for wrongful conviction When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed, or he has been pardoned, on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to the law or the practice of the State concerned, unless it is proved that the nondisclosure of the unknown fact in time is wholly or partly attributable to him. ARTICLE 4 Right not to be tried or punished twice 1. No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State. 2. The provisions of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case. 3. No derogation from this Article shall be made under Article 15 of the Convention. ARTICLE 5 Equality between spouses Spouses shall enjoy equality of rights and responsibilities of a private law character between them, and in their relations with their children, as to marriage, during marriage and in the event of its dissolution. This Article shall not prevent States from taking such measures as are necessary in the interests of the children. ARTICLE 6 Territorial application 1. Any State may at the time of signature or when depositing its instrument of ratification, acceptance or approval, specify the territory or territories to which the Protocol shall apply and state the extent to which it undertakes that the provisions of this Protocol shall apply to such territory or territories.

474

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Articles 6–8

Protocol No. 7

2. Any State may at any later date, by a declaration addressed to the Secretary General of the Council of Europe, extend the application of this Protocol to any other territory specified in the declaration. In respect of such territory the Protocol shall enter into force on the first day of the month following the expiration of a period of two months after the date of receipt by the Secretary General of such declaration. 3. Any declaration made under the two preceding paragraphs may, in respect of any territory specified in such declaration, be withdrawn or modified by a notification addressed to the Secretary General. The withdrawal or modification shall become effective on the first day of the month following the expiration of a period of two months after the date of receipt of such notification by the Secretary General. 4. A declaration made in accordance with this Article shall be deemed to have been made in accordance with paragraph 1 of Article 56 of the Convention. 5. The territory of any State to which this Protocol applies by virtue of ratification, acceptance or approval by that State, and each territory to which this Protocol is applied by virtue of a declaration by that State under this Article, may be treated as separate territories for the purpose of the reference in Article 1 to the territory of a State. 6. Any State which has made a declaration in accordance with paragraph 1 or 2 of this Article may at any time thereafter declare on behalf of one or more of the territories to which the declaration relates that it accepts the competence of the Court to receive applications from individuals, non-governmental organisations or groups of individuals as provided in Article 34 of the Convention in respect of Articles 1 to 5 of this Protocol. ARTICLE 7 Relationship to the Convention As between the States Parties, the provisions of Article 1 to 6 of this Protocol shall be regarded as additional Articles to the Convention, and all the provisions of the Convention shall apply accordingly. ARTICLE 8 Signature and ratification This Protocol shall be open for signature by member States of the Council of Europe which have signed the Convention. It is subject to ratification, acceptance or approval. A member State of the Council of Europe may not ratify, accept or approve this Protocol without previously or simultaneously ratifying the Convention. Instruments of ratification, acceptance or approval shall be deposited with the Secretary General of the Council of Europe.

475

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Protocol No. 7 Articles 9, 10 ARTICLE 9 Entry into force 1. This Protocol shall enter into force on the first day of the month following the expiration of a period of two months after the date on which seven member States of the Council of Europe have expressed their consent to be bound by the Protocol in accordance with the provisions of Article 8. 2. In respect of any member State which subsequently expresses its consent to be bound by it, the Protocol shall enter into force on the first day of the month following the expiration of a period of two months after the date of the deposit of the instrument of ratification, acceptance or approval. ARTICLE 10 Depositary functions The Secretary General of the Council of Europe shall notify all the member States of the Council of Europe of: (a) any signature; (b) the deposit of any instrument of ratification, acceptance or approval; (c) any date of entry into force of this Protocol in accordance with Articles 6 and 9; (d) any other act, notification or declaration relating to this Protocol. In witness whereof the undersigned, being duly authorised thereto, have signed this Protocol. DONE AT STRASBOURG, THIS 22ND DAY OF NOVEMBER 1984, in English and French, both texts being equally authentic, in a single copy which shall be deposited in the archives of the Council of Europe. The Secretary General of the Council of Europe shall transmit certified copies to each member State of the Council of Europe.

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Articles 1, 2

Protocol No. 12

Protocol No. 12 to the Convention for the Protection of Human Rights and Fundamental Freedoms Rome, 4.XI.2000 THE MEMBER STATES OF THE COUNCIL OF EUROPE, signatory hereto, Having regard to the fundamental principle according to which all persons are equal before the law and are entitled to the equal protection of the law; Being resolved to take further steps to promote the equality of all persons through the collective enforcement of a general prohibition of discrimination by means of the Convention for the Protection of Human Rights and Fundamental Freedoms signed at Rome on 4 November 1950 (hereinafter referred to as “the Convention”); Reaffirming that the principle of non-discrimination does not prevent States Parties from taking measures in order to promote full and effective equality, provided that there is an objective and reasonable justification for those measures, Have agreed as follows:

ARTICLE 1 General prohibition of discrimination 1. The enjoyment of any right set forth by law 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. 2. No one shall be discriminated against by any public authority on any ground such as those mentioned in paragraph 1. ARTICLE 2 Territorial application 1. Any State may, at the time of signature or when depositing its instrument of ratification, acceptance or approval, specify the territory or territories to which this Protocol shall apply. 2. Any State may at any later date, by a declaration addressed to the Secretary General of the Council of Europe, extend the application of this Protocol to any other territory specified in the declaration. In respect of such territory the Protocol shall enter into force on the first day of the month following the expiration of a period of three months after the date of receipt by the Secretary General of such declaration.

477

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Protocol No. 12 Articles 2–5 3. Any declaration made under the two preceding paragraphs may, in respect of any territory specified in such declaration, be withdrawn or modified by a notification addressed to the Secretary General of the Council of Europe. The withdrawal or modification shall become effective on the first day of the month following the expiration of a period of three months after the date of receipt of such notification by the Secretary General. 4. A declaration made in accordance with this Article shall be deemed to have been made in accordance with paragraph 1 of Article 56 of the Convention. 5. Any State which has made a declaration in accordance with paragraph 1 or 2 of this Article may at any time thereafter declare on behalf of one or more of the territories to which the declaration relates that it accepts the competence of the Court to receive applications from individuals, nongovernmental organisations or groups of individuals as provided by Article 34 of the Convention in respect of Article 1 of this Protocol. ARTICLE 3 Relationship to the Convention As between the States Parties, the provisions of Articles 1 and 2 of this Protocol shall be regarded as additional Articles to the Convention, and all the provisions of the Convention shall apply accordingly. ARTICLE 4 Signature and ratification This Protocol shall be open for signature by member States of the Council of Europe which have signed the Convention. It is subject to ratification, acceptance or approval. A member State of the Council of Europe may not ratify, accept or approve this Protocol without previously or simultaneously ratifying the Convention. Instruments of ratification, acceptance or approval shall be deposited with the Secretary General of the Council of Europe. ARTICLE 5 Entry into force 1. This Protocol shall enter into force on the first day of the month following the expiration of a period of three months after the date on which ten member States of the Council of Europe have expressed their consent to be bound by the Protocol in accordance with the provisions of Article 4. 2. In respect of any member State which subsequently expresses its consent to be bound by it, the Protocol shall enter into force on the first day of the month following the expiration of a period of three months after the date of the deposit of the instrument of ratification, acceptance or approval.

478

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Article 6

Protocol No. 12

ARTICLE 6 Depositary functions The Secretary General of the Council of Europe shall notify all the member States of the Council of Europe of: (a) any signature; (b) the deposit of any instrument of ratification, acceptance or approval; (c) any date of entry into force of this Protocol in accordance with Articles 2 and 5; (d) any other act, notification or communication relating to this Protocol. In witness whereof the undersigned, being duly authorised thereto, have signed this Protocol. DONE AT ROME, THIS 4TH DAY OF NOVEMBER 2000, in English and in French, both texts being equally authentic, in a single copy which shall be deposited in the archives of the Council of Europe. The Secretary General of the Council of Europe shall transmit certified copies to each member State of the Council of Europe.

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Protocol No. 13 Articles 1–3 Protocol No. 13 to the Convention for the Protection of Human Rights and Fundamental Freedoms concerning the abolition of the death penalty in all circumstances Vilnius, 3.5.2002 THE MEMBER STATES OF THE COUNCIL OF EUROPE, signatory hereto, Convinced that everyone’s right to life is a basic value in a democratic society and that the abolition of the death penalty is essential for the protection of this right and for the full recognition of the inherent dignity of all human beings; Wishing to strengthen the protection of the right to life guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms signed at Rome on 4 November 1950 (hereinafter referred to as “the Convention”); Noting that Protocol No. 6 to the Convention, concerning the Abolition of the Death Penalty, signed at Strasbourg on 28 April 1983, does not exclude the death penalty in respect of acts committed in time of war or of imminent threat of war; Being resolved to take the final step in order to abolish the death penalty in all circumstances, Have agreed as follows:

ARTICLE 1 Abolition of the death penalty The death penalty shall be abolished. No one shall be condemned to such penalty or executed. ARTICLE 2 Prohibition of derogations No derogation from the provisions of this Protocol shall be made under Article 15 of the Convention. ARTICLE 3 Prohibition of reservations No reservation may be made under Article 57 of the Convention in respect of the provisions of this Protocol.

480

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Articles 4–7

Protocol No. 13

ARTICLE 4 Territorial application 1. Any state may, at the time of signature or when depositing its instrument of ratification, acceptance or approval, specify the territory or territories to which this Protocol shall apply. 2. Any state may at any later date, by a declaration addressed to the Secretary General of the Council of Europe, extend the application of this Protocol to any other territory specified in the declaration. In respect of such territory the Protocol shall enter into force on the first day of the month following the expiration of a period of three months after the date of receipt by the Secretary General of such declaration. 3. Any declaration made under the two preceding paragraphs may, in respect of any territory specified in such declaration, be withdrawn or modified by a notification addressed to the Secretary General. The withdrawal or modification shall become effective on the first day of the month following the expiration of a period of three months after the date of receipt of such notification by the Secretary General. ARTICLE 5 Relationship to the Convention As between the states Parties the provisions of Articles 1 to 4 of this Protocol shall be regarded as additional Articles to the Convention, and all the provisions of the Convention shall apply accordingly. ARTICLE 6 Signature and ratification This Protocol shall be open for signature by member states of the Council of Europe which have signed the Convention. It is subject to ratification, acceptance or approval. A member state of the Council of Europe may not ratify, accept or approve this Protocol without previously or simultaneously ratifying the Convention. Instruments of ratification, acceptance or approval shall be deposited with the Secretary General of the Council of Europe. ARTICLE 7 Entry into force 1. This Protocol shall enter into force on the first day of the month following the expiration of a period of three months after the date on which ten member states of the Council of Europe have expressed their consent to be bound by the Protocol in accordance with the provisions of Article 6.

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Protocol No. 13 Articles 7, 8 2. In respect of any member state which subsequently expresses its consent to be bound by it, the Protocol shall enter into force on the first day of the month following the expiration of a period of three months after the date of the deposit of the instrument of ratification, acceptance or approval. ARTICLE 8 Depositary functions The Secretary General of the Council of Europe shall notify all the member states of the Council of Europe of: (a) any signature; (b) the deposit of any instrument of ratification, acceptance or approval; (c) any date of entry into force of this Protocol in accordance with Articles 4 and 7; (d) any other act, notification or communication relating to this Protocol. In witness whereof the undersigned, being duly authorised thereto, have signed this Protocol. DONE AT VILNIUS, THIS 3RD DAY OF MAY 2002, in English and in French, both texts being equally authentic, in a single copy which shall be deposited in the archives of the Council of Europe. The Secretary General of the Council of Europe shall transmit certified copies to each member State of the Council of Europe.

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Rules of Court (1 July 2013) Table of Contents Rule 1 – Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 486 Title I – Organisation and Working of the Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 488 Chapter I – Judges. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rule 2 – Calculation of term of office. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rule 3 – Oath or solemn declaration. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rule 4 – Incompatible activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rule 5 – Precedence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rule 6 – Resignation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rule 7 – Dismissal from office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

488 488 488 488 489 489 489

Chapter II – Presidency of the Court and the role of the Bureau . . . . . . . 489 Rule 8 – Election of the President and Vice-Presidents of the Court and the Presidents and Vice-Presidents of the Sections . . . . . . 489 Rule 9 – Functions of the President of the Court . . . . . . . . . . . . . . . . . . . . . . . . 490 Rule 9A – Role of the Bureau . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 490 Rule 10 – Functions of the Vice-Presidents of the Court . . . . . . . . . . . . . . . 491 Rule 11 – Replacement of the President and the Vice-Presidents of the Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 491 Rule 12 – Presidency of Sections and Chambers . . . . . . . . . . . . . . . . . . . . . . . . . 491 Rule 13 – Inability to preside. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 491 Rule 14 – Balanced representation of the sexes. . . . . . . . . . . . . . . . . . . . . . . . . . . 491 Chapter III – The Registry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rule 15 – Election of the Registrar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rule 16 – Election of the Deputy Registrars . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rule 17 – Functions of the Registrar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rule 18 – Organisation of the Registry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rule 18A – Non-judicial rapporteurs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

492 492 492 492 493 493

Chapter IV – The Working of the Court. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rule 19 – Seat of the Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rule 20 – Sessions of the plenary Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rule 21 – Other sessions of the Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rule 22 – Deliberations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rule 23 – Votes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rule 23A – Decision by tacit agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

493 493 493 494 494 494 494

Chapter V – The Composition of the Court. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rule 24 – Composition of the Grand Chamber . . . . . . . . . . . . . . . . . . . . . . . . . . Rule 25 – Setting-up of Sections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rule 26 – Constitution of Chambers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rule 27 – Committees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rule 27A – Single-judge formation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rule 28 – Inability to sit, withdrawal or exemption . . . . . . . . . . . . . . . . . . . . . Rule 29 – Ad hoc judges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rule 30 – Common interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

494 494 496 496 497 497 497 498 499

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Rules of Court Title II – Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 499 Chapter I – General Rules. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rule 31 – Possibility of particular derogations. . . . . . . . . . . . . . . . . . . . . . . . . . . . Rule 32 – Practice directions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rule 33 – Public character of documents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rule 34 – Use of languages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rule 35 – Representation of Contracting Parties . . . . . . . . . . . . . . . . . . . . . . . . . Rule 36 – Representation of applicants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rule 37 – Communications, notifications and summonses . . . . . . . . . . . . . Rule 38 – Written pleadings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rule 38A – Examination of matters of procedure. . . . . . . . . . . . . . . . . . . . . . . . Rule 39 – Interim measures. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rule 40 – Urgent notification of an application . . . . . . . . . . . . . . . . . . . . . . . . . . Rule 41 – Order of dealing with cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rule 42 – Joinder and simultaneous examination of applications (former Rule 43). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rule 43 – Striking out and restoration to the list (former Rule 44) . . . Rule 44 – Third-party intervention. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rule 44A – Duty to cooperate with the Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rule 44B – Failure to comply with an order of the Court . . . . . . . . . . . . . . Rule 44C – Failure to participate effectively. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rule 44D – Inappropriate submissions by a party . . . . . . . . . . . . . . . . . . . . . . . Rule 44E – Failure to pursue an application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

499 499 500 500 500 501 502 502 502 503 503 503 503 503 504 504 505 506 506 506 506

Chapter II – Institution of Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rule 45 – Signatures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rule 46 – Contents of an inter-State application . . . . . . . . . . . . . . . . . . . . . . . . . Rule 47– Contents of an individual application . . . . . . . . . . . . . . . . . . . . . . . . .

506 506 507 507

Chapter III – Judge Rapporteurs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rule 48 – Inter-State applications. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rule 49 – Individual applications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rule 50 – Grand Chamber proceedings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

508 508 509 509

Chapter IV – Proceedings on Admissibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 509 Inter-State applications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 509 Rule 51 – Assignment of applications and subsequent procedure . . . . . 509

484

Individual applications. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rule 52 – Assignment of applications to the Sections . . . . . . . . . . . . . . . . . . . Rule 52A – Procedure before a single judge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rule 53 – Procedure before a Committee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rule 54 – Procedure before a Chamber. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rule 54A – Joint examination of admissibility and merits. . . . . . . . . . . . . .

510 510 510 510 511 512

Inter-State and individual applications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rule 55 – Pleas of inadmissibility. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rule 56 – Decision of a Chamber. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rule 57 – Language of the decision. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

512 512 512 512

Chapter V – Proceedings after the Admission of an Application. . . . . . . . Rule 58 – Inter-State applications. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rule 59 – Individual applications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rule 60 – Claims for just satisfaction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rule 61 – Pilot-judgment procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rule 62 – Friendly settlement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rule 62A – Unilateral declaration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

513 513 513 513 514 515 515

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Rules of Court Chapter VI – Hearings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rule 63 – Public character of hearings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rule 64 – Conduct of hearings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rule 65 – Failure to appear . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rule 70 – Verbatim record of a hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

516 516 516 516 516

Chapter VII – Proceedings before the Grand Chamber . . . . . . . . . . . . . . . . . . . Rule 71 – Applicability of procedural provisions. . . . . . . . . . . . . . . . . . . . . . . . . Rule 72 – Relinquishment of jurisdiction in favour of the Grand Chamber . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rule 73 – Request by a party for referral of a case to the Grand Chamber . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

517 517

517

Chapter VIII – Judgments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rule 74 – Contents of the judgment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rule 75 – Ruling on just satisfaction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rule 76 – Language of the judgment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rule 77 – Signature, delivery and notification of the judgment. . . . . . . . Rule 78 – Publication of judgments and other documents . . . . . . . . . . . . . Rule 79 – Request for interpretation of a judgment . . . . . . . . . . . . . . . . . . . . . Rule 80 – Request for revision of a judgment . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rule 81 – Rectification of errors in decisions and judgments . . . . . . . . . .

518 518 518 519 519 519 519 520 520

Chapter IX – Advisory Opinions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rule 82 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rule 83 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rule 84 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rule 85 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rule 86 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rule 87 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rule 88 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rule 89 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rule 90 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

520 520 521 521 521 521 521 521 522 522

517

Chapter X – Proceedings under Article 46 §§ 3, 4 and 5 of the Convention. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 522 Sub-chapter I – Proceedings under Article 46 § 3 of the Convention. . . Rule 91 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rule 92 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rule 93 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

522 522 522 522

Sub-chapter II – Proceedings under Article 46 §§ 4 and 5 of the Convention. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rule 94 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rule 95 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rule 96 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rule 97 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rule 98 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rule 99 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

523 523 523 523 523 523 523

Chapter XI – Legal Aid . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rule 100. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rule 101. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rule 102. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rule 103. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rule 104. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rule 105. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

524 524 524 524 524 525 525

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Rules of Court Rule 1 Title III – Transitional Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 525 Rule 106 – Relations between the Court and the Commission (former Rule 99) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 525 Rule 107 – Chamber and Grand Chamber proceedings (former Rule 100) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 525 Rule 108 – Grant of legal aid (former Rule 101) . . . . . . . . . . . . . . . . . . . . . . . . . 526 Rule 109 – Request for revision of a judgment (former Rule 102) . . . . 526 Title IV – Final Clauses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 526 Rule 110 – Amendment or suspension of a Rule (former Rule 103). . 526 Rule 111 – Entry into force of the Rules (former Rule 104). . . . . . . . . . . . 527 Annex to the Rules (concerning investigations). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 528 Rule A1 – Investigative measures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 528 Rule A2 – Obligations of the parties as regards investigative measures 528 Rule A3 – Failure to appear before a delegation . . . . . . . . . . . . . . . . . . . . . . . . . 529 Rule A4 – Conduct of proceedings before a delegation . . . . . . . . . . . . . . . . . 529 Rule A5 – Convocation of witnesses, experts and of other persons to proceedings before a delegation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 529 Rule A6 – Oath or solemn declaration by witnesses and experts heard by a delegation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 530 Rule A7 – Hearing of witnesses, experts and other persons by a delegation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 530 Rule A8 – Verbatim record of proceedings before a delegation. . . . . . . . 530 Practice Directions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 532 Requests for interim measures. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (Rule 39 of the Rules of Court) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Institution of proceedings (Individual applications under Article 34 of the Convention). . . . . . . . . . . . . . Written pleadings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Just satisfaction claims. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Secured electronic filing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Requests for anonymity (Rules 33 and 47 of the Rules of Court) . . . . . . . . .

532 532 534 535 538 541 542

The European Court of Human Rights, Having regard to the Convention for the Protection of Human Rights and Fundamental Freedoms and the Protocols thereto, Makes the present Rules:

Rule 11 – Definitions For the purposes of these Rules unless the context otherwise requires: (a) the term “Convention” means the Convention for the Protection of Human Rights and Fundamental Freedoms and the Protocols thereto; (b) the expression “plenary Court” means the European Court of Human Rights sitting in plenary session; (c) the expression “Grand Chamber” means the Grand Chamber of seventeen judges constituted in pursuance of Article 26 § 1 of the Convention;

1

486

As amended by the Court on 7 July 2003 and 13 November 2006.

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Rule 1

Rules of Court

(d) the term “Section” means a Chamber set up by the plenary Court for a fixed period in pursuance of Article 25 (b) of the Convention and the expression “President of the Section” means the judge elected by the plenary Court in pursuance of Article 25 (c) of the Convention as President of such a Section; (e) the term “Chamber” means any Chamber of seven judges constituted in pursuance of Article 26 § 1 of the Convention and the expression “President of the Chamber” means the judge presiding over such a “Chamber”; (f) the term “Committee” means a Committee of three judges set up in pursuance of Article 26 § 1 of the Convention and the expression “President of the Committee” means the judge presiding over such a “Committee”; (g) the expression “single-judge formation” means a single judge sitting in accordance with Article 26 § 1 of the Convention; (h) the term “Court” means either the plenary Court, the Grand Chamber, a Section, a Chamber, a Committee, a single judge or the panel of five judges referred to in Article 43 § 2 of the Convention; (i) the expression “ad hoc judge” means any person chosen in pursuance of Article 26 § 4 of the Convention and in accordance with Rule 29 to sit as a member of the Grand Chamber or as a member of a Chamber; (j) the terms “judge” and “judges” mean the judges elected by the Parliamentary Assembly of the Council of Europe or ad hoc judges; (k) the expression “Judge Rapporteur” means a judge appointed to carry out the tasks provided for in Rules 48 and 49; (l) the term “non-judicial rapporteur” means a member of the Registry charged with assisting the single-judge formations provided for in Article 24 § 2 of the Convention; (m) the term “delegate” means a judge who has been appointed to a delegation by the Chamber and the expression “head of the delegation” means the delegate appointed by the Chamber to lead its delegation; (n) the term “delegation” means a body composed of delegates, Registry members and any other person appointed by the Chamber to assist the delegation; (o) the term “Registrar” denotes the Registrar of the Court or the Registrar of a Section according to the context; (p) the terms “party” and “parties” mean the applicant or respondent Contracting Parties; the applicant (the person, non-governmental organisation or group of individuals) that lodged a complaint under Article 34 of the Convention; (q) the expression “third party” means any Contracting Party or any person concerned or the Council of Europe Commissioner for Human Rights who, as provided for in Article 36 §§ 1, 2 and 3 of the Convention, has exercised the right to submit written comments and take part in a hearing, or has been invited to do so; (r) the terms “hearing” and “hearings” mean oral proceedings held on the admissibility and/or merits of an application or in connection with a request for revision or an advisory opinion, a request for interpretation by a party or by the Committee of Ministers, or a question whether there has been a failure to fulfil an obligation which may be referred to the Court by virtue of Article 46 § 4 of the Convention; (s) the expression “Committee of Ministers” means the Committee of Ministers of the Council of Europe; * *

487

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Rules of Court Rules 1–4 (t) the terms “former Court” and “Commission” mean respectively the European Court and European Commission of Human Rights set up under former Article 19 of the Convention.

Title I – Organisation and Working of the Court Chapter I – Judges Rule 21 – Calculation of term of office 1. Where the seat is vacant on the date of the judge’s election, or where the election takes place less than three months before the seat becomes vacant, the term of office shall begin as from the date of taking up office which shall be no later than three months after the date of election. 2. Where the judge’s election takes place more than three months before the seat becomes vacant, the term of office shall begin on the date on which the seat becomes vacant. 3. In accordance with Article 23 § 3 of the Convention, an elected judge shall hold office until a successor has taken the oath or made the declaration provided for in Rule 3.

Rule 3 – Oath or solemn declaration 1. Before taking up office, each elected judge shall, at the first sitting of the plenary Court at which the judge is present or, in case of need, before the President of the Court, take the following oath or make the following solemn declaration: “I swear” – or “I solemnly declare” – “that I will exercise my functions as a judge honourably, independently and impartially and that I will keep secret all deliberations.” 2. This act shall be recorded in minutes.

Rule 42 – Incompatible activities 1. In accordance with Article 21 § 3 of the Convention, the judges shall not during their term of office engage in any political or administrative activity or any professional activity which is incompatible with their independence or impartiality or with the demands of a full-time office. Each judge shall declare to the President of the Court any additional activity. In the event of a disagreement between the President and the judge concerned, any question arising shall be decided by the plenary Court. 2. A former judge shall not represent a party or third party in any capacity in proceedings before the Court relating to an application lodged before the date on which he or she ceased to hold office. As regards applications lodged subsequently, a former judge may not represent a party or third party in any capacity in 1 2

488

As amended by the Court on 13 November 2006 and 2 April 2012. As amended by the Court on 29 March 2010.

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Rules 4–8

Rules of Court

proceedings before the Court until a period of two years from the date on which he or she ceased to hold office has elapsed.

Rule 51 – Precedence 1. Elected judges shall take precedence after the President and Vice-Presidents of the Court and the Presidents of the Sections, according to the date of their taking up office in accordance with Rule 2 §§ 1 and 2. 2. Vice-Presidents of the Court elected to office on the same date shall take precedence according to the length of time they have served as judges. If the length of time they have served as judges is the same, they shall take precedence according to age. The same rule shall apply to Presidents of Sections. 3. Judges who have served the same length of time shall take precedence according to age. 4. Ad hoc judges shall take precedence after the elected judges according to age.

Rule 6 – Resignation Resignation of a judge shall be notified to the President of the Court, who shall transmit it to the Secretary General of the Council of Europe. Subject to the provisions of Rules 24 § 4 in fine and 26 § 3, resignation shall constitute vacation of office.

Rule 7 – Dismissal from office No judge may be dismissed from his or her office unless the other judges, meeting in plenary session, decide by a majority of two-thirds of the elected judges in office that he or she has ceased to fulfil the required conditions. He or she must first be heard by the plenary Court. Any judge may set in motion the procedure for dismissal from office.

Chapter II2 – Presidency of the Court and the role of the Bureau Rule 83 – Election of the President and Vice-Presidents of the Court and the Presidents and Vice-Presidents of the Sections 1. The plenary Court shall elect its President, two Vice-Presidents and the Presidents of the Sections for a period of three years, provided that such period shall not exceed the duration of their terms of office as judges. 2. Each Section shall likewise elect for a period of three years a Vice-President, who shall replace the President of the Section if the latter is unable to carry out his or her duties. 3. A judge elected in accordance with paragraphs 1 or 2 above may be re-elected but only once to the same level of office. This limitation on the number of terms of office shall not prevent a judge holding an office as described above on the date of

1

As amended by the Court on 14 May 2007. As amended by the Court on 7 July 2003. 3 As amended by the Court on 7 November 2005, 20 February 2012 and 14 January 2013. 2

489

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Rules of Court Rules 8–9A the entry into force1 of the present amendment to Rule 8 from being re-elected once to the same level of office. 4. The Presidents and Vice-Presidents shall continue to hold office until the election of their successors. 5. The elections referred to in paragraph 1 of this Rule shall be by secret ballot. Only the elected judges who are present shall take part. If no candidate receives an absolute majority of the elected judges present, an additional round or rounds shall take place until one candidate has achieved an absolute majority. At each round, any candidate receiving less than five votes shall be eliminated. Of the remaining candidates, the one who has received the least number of votes shall also be eliminated. If there is more than one candidate in this position, only the candidate who is lowest in the order of precedence in accordance with Rule 5 shall be eliminated. In the event of a tie between two candidates in the final round, preference shall be given to the judge having precedence in accordance with Rule 5. 6. The rules set out in the preceding paragraph shall apply to the elections referred to in paragraph 2 of this Rule. However, where more than one round of voting is required until one candidate has achieved an absolute majority, only the candidate who has received the least number of votes shall be eliminated after each round.

Rule 9 – Functions of the President of the Court 1. The President of the Court shall direct the work and administration of the Court. The President shall represent the Court and, in particular, be responsible for its relations with the authorities of the Council of Europe. 2. The President shall preside at plenary meetings of the Court, meetings of the Grand Chamber and meetings of the panel of five judges. 3. The President shall not take part in the consideration of cases being heard by Chambers except where he or she is the judge elected in respect of a Contracting Party concerned.

Rule 9A2 – Role of the Bureau 1. (a) The Court shall have a Bureau, composed of the President of the Court, the Vice-Presidents of the Court and the Section Presidents. Where a Vice-President or a Section President is unable to attend a Bureau meeting, he or she shall be replaced by the Section Vice-President or, failing that, by the next most senior member of the Section according to the order of precedence established in Rule 5. (b) The Bureau may request the attendance of any other member of the Court or any other person whose presence it considers necessary. 2. The Bureau shall be assisted by the Registrar and the Deputy Registrars. 3. The Bureau’s task shall be to assist the President in carrying out his or her function in directing the work and administration of the Court. To this end the President may submit to the Bureau any administrative or extra-judicial matter which falls within his or her competence. 4. The Bureau shall also facilitate coordination between the Court’s Sections. 1 2

490

1 December 2005. Inserted by the Court on 7 July 2003.

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Rules 9A–14

Rules of Court

5. The President may consult the Bureau before issuing practice directions under Rule 32 and before approving general instructions drawn up by the Registrar under Rule 17 § 4. 6. The Bureau may report on any matter to the Plenary. It may also make proposals to the Plenary. 7. A record shall be kept of the Bureau’s meetings and distributed to the Judges in both the Court’s official languages. The secretary to the Bureau shall be designated by the Registrar in agreement with the President.

Rule 10 – Functions of the Vice-Presidents of the Court The Vice-Presidents of the Court shall assist the President of the Court. They shall take the place of the President if the latter is unable to carry out his or her duties or the office of President is vacant, or at the request of the President. They shall also act as Presidents of Sections.

Rule 11 – Replacement of the President and the Vice-Presidents of the Court If the President and the Vice-Presidents of the Court are at the same time unable to carry out their duties or if their offices are at the same time vacant, the office of President of the Court shall be assumed by a President of a Section or, if none is available, by another elected judge, in accordance with the order of precedence provided for in Rule 5.

Rule 121 – Presidency of Sections and Chambers The Presidents of the Sections shall preside at the sittings of the Section and Chambers of which they are members and shall direct the Sections’ work. The VicePresidents of the Sections shall take their place if they are unable to carry out their duties or if the office of President of the Section concerned is vacant, or at the request of the President of the Section. Failing that, the judges of the Section and the Chambers shall take their place, in the order of precedence provided for in Rule 5.

Rule 132 – Inability to preside Judges of the Court may not preside in cases in which the Contracting Party of which they are nationals or in respect of which they were elected is a party, or in cases where they sit as a judge appointed by virtue of Rule 29 § 1 (a) or Rule 30 § 1.

Rule 14 – Balanced representation of the sexes In relation to the making of appointments governed by this and the following chapter of the present Rules, the Court shall pursue a policy aimed at securing a balanced representation of the sexes.

1 2

As amended by the Court on 17 June and 8 July 2002. As amended by the Court on 4 July 2005.

491

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Rules of Court Rules 15–17 Chapter III – The Registry Rule 15 – Election of the Registrar 1. The plenary Court shall elect its Registrar. The candidates shall be of high moral character and must possess the legal, managerial and linguistic knowledge and experience necessary to carry out the functions attaching to the post. 2. The Registrar shall be elected for a term of five years and may be re-elected. The Registrar may not be dismissed from office, unless the judges, meeting in plenary session, decide by a majority of two-thirds of the elected judges in office that the person concerned has ceased to fulfil the required conditions. He or she must first be heard by the plenary Court. Any judge may set in motion the procedure for dismissal from office. 3. The elections referred to in this Rule shall be by secret ballot; only the elected judges who are present shall take part. If no candidate receives an absolute majority of the elected judges present, a ballot shall take place between the two candidates who have received most votes. In the event of a tie, preference shall be given, firstly, to the female candidate, if any, and, secondly, to the older candidate. 4. Before taking up office, the Registrar shall take the following oath or make the following solemn declaration before the plenary Court or, if need be, before the President of the Court: “I swear” – or “I solemnly declare” – “that I will exercise loyally, discreetly and conscientiously the functions conferred upon me as Registrar of the European Court of Human Rights.” This act shall be recorded in minutes.

Rule 16 – Election of the Deputy Registrars 1. The plenary Court shall also elect two Deputy Registrars on the conditions and in the manner and for the term prescribed in the preceding Rule. The procedure for dismissal from office provided for in respect of the Registrar shall likewise apply. The Court shall first consult the Registrar in both these matters. 2. Before taking up office, a Deputy Registrar shall take an oath or make a solemn declaration before the plenary Court or, if need be, before the President of the Court, in terms similar to those prescribed in respect of the Registrar. This act shall be recorded in minutes.

Rule 17 – Functions of the Registrar 1. The Registrar shall assist the Court in the performance of its functions and shall be responsible for the organisation and activities of the Registry under the authority of the President of the Court. 2. The Registrar shall have the custody of the archives of the Court and shall be the channel for all communications and notifications made by, or addressed to, the Court in connection with the cases brought or to be brought before it.

492

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Rules 17–20

Rules of Court

3. The Registrar shall, subject to the duty of discretion attaching to this office, reply to requests for information concerning the work of the Court, in particular to enquiries from the press. 4. General instructions drawn up by the Registrar, and approved by the President of the Court, shall regulate the working of the Registry.

Rule 181 – Organisation of the Registry 1. The Registry shall consist of Section Registries equal to the number of Sections set up by the Court and of the departments necessary to provide the legal and administrative services required by the Court. 2. The Section Registrar shall assist the Section in the performance of its functions and may be assisted by a Deputy Section Registrar. 3. The officials of the Registry shall be appointed by the Registrar under the authority of the President of the Court. The appointment of the Registrar and Deputy Registrars shall be governed by Rules 15 and 16 above.

Rule 18A2 – Non-judicial rapporteurs 1. When sitting in a single-judge formation, the Court shall be assisted by nonjudicial rapporteurs who shall function under the authority of the President of the Court. They shall form part of the Court’s Registry. 2. The non-judicial rapporteurs shall be appointed by the President of the Court on a proposal by the Registrar. Section Registrars and Deputy Section Registrars, as referred to in Rule 18 § 2, shall act ex officio as non-judicial rapporteurs.

Chapter IV – The Working of the Court Rule 19 – Seat of the Court 1. The seat of the Court shall be at the seat of the Council of Europe at Strasbourg. The Court may, however, if it considers it expedient, perform its functions elsewhere in the territories of the member States of the Council of Europe. 2. The Court may decide, at any stage of the examination of an application, that it is necessary that an investigation or any other function be carried out elsewhere by it or one or more of its members.

Rule 20 – Sessions of the plenary Court 1. The plenary sessions of the Court shall be convened by the President of the Court whenever the performance of its functions under the Convention and under these Rules so requires. The President of the Court shall convene a plenary session if at least one third of the members of the Court so request, and in any event once a year to consider administrative matters. 2. The quorum of the plenary Court shall be two-thirds of the elected judges in office. 3. If there is no quorum, the President shall adjourn the sitting. 1 2

As amended by the Court on 13 November 2006 and 2 April 2012. Inserted by the Court on 13 November 2006 and amended on 14 January 2013.

493

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Rules of Court Rules 21–24 Rule 21 – Other sessions of the Court 1. The Grand Chamber, the Chambers and the Committees shall sit full time. On a proposal by the President, however, the Court shall fix session periods each year. 2. Outside those periods the Grand Chamber and the Chambers shall be convened bytheir Presidents in cases of urgency.

Rule 22 – Deliberations 1. The Court shall deliberate in private. Its deliberations shall remain secret. 2. Only the judges shall take part in the deliberations. The Registrar or the designated substitute, as well as such other officials of the Registry and interpreters whose assistance is deemed necessary, shall be present. No other person may be admitted except by special decision of the Court. 3. Before a vote is taken on any matter in the Court, the President may request thejudges to state their opinions on it.

Rule 23 – Votes 1. The decisions of the Court shall be taken by a majority of the judges present. In the event of a tie, a fresh vote shall be taken and, if there is still a tie, the President shall have a casting vote. This paragraph shall apply unless otherwise provided for in these Rules. 2. The decisions and judgments of the Grand Chamber and the Chambers shall be adopted by a majority of the sitting judges. Abstentions shall not be allowed in final votes on the admissibility and merits of cases. 3. As a general rule, votes shall be taken by a show of hands. The President may take a roll-call vote, in reverse order of precedence. 4. Any matter that is to be voted upon shall be formulated in precise terms.

Rule 23A1 – Decision by tacit agreement Where it is necessary for the Court to decide a point of procedure or any other question other than at a scheduled meeting of the Court, the President may direct that a draft decision be circulated among the judges and that a deadline be set for their comments on the draft. In the absence of any objection from a judge, the proposal shall be deemed to have been adopted at the expiry of the deadline.

Chapter V – The Composition of the Court Rule 242 – Composition of the Grand Chamber 1. The Grand Chamber shall be composed of seventeen judges and at least three substitute judges. 2. (a) The Grand Chamber shall include the President and the Vice-Presidents of the Court and the Presidents of the Sections. Any Vice-President of the Court or 1

Inserted by the Court on 13 December 2004. As amended by the Court on 8 December 2000, 13 December 2004, 4 July and 7 November 2005, 29 May and 13 November 2006 and 6 May 2013. 2

494

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Rule 24

Rules of Court

President of a Section who is unable to sit as a member of the Grand Chamber shall be replaced by the Vice-President of the relevant Section. (b) The judge elected in respect of the Contracting Party concerned or, where appropriate, the judge designated by virtue of Rule 29 or Rule 30 shall sit as an ex officio member of the Grand Chamber in accordance with Article 26 §§ 4 and 5 of the Convention. (c) In cases referred to the Grand Chamber under Article 30 of the Convention, the Grand Chamber shall also include the members of the Chamber which relinquished jurisdiction. (d) In cases referred to it under Article 43 of the Convention, the Grand Chamber shall not include any judge who sat in the Chamber which rendered the judgment in the case so referred, with the exception of the President of that Chamber and the judge who sat in respect of the State Party concerned, or any judge who sat in the Chamber or Chambers which ruled on the admissibility of the application. (e) The judges and substitute judges who are to complete the Grand Chamber in each case referred to it shall be designated from among the remaining judges by a drawing of lots by the President of the Court in the presence of the Registrar. The modalities for the drawing of lots shall be laid down by the Plenary Court, having due regard to the need for a geographically balanced composition reflecting the different legal systems among the Contracting Parties. (f) In examining a request for an advisory opinion under Article 47 of the Convention, the Grand Chamber shall be constituted in accordance with the provisions of paragraph 2 (a) and (e) of this Rule. (g) In examining a request under Article 46 § 4 of the Convention, the Grand Chamber shall include, in addition to the judges referred to in paragraph 2 (a) and (b) of this Rule, the members of the Chamber or Committee which rendered the judgment in the case concerned. If the judgment was rendered by a Grand Chamber, the Grand Chamber shall be constituted as the original Grand Chamber. In all cases, including those where it is not possible to reconstitute the original Grand Chamber, the judges and substitute judges who are to complete the Grand Chamber shall be designated in accordance with paragraph 2 (e) of this Rule. 3. If any judges are prevented from sitting, they shall be replaced by the substitute judges in the order in which the latter were selected under paragraph 2 (e) of this Rule. 4. The judges and substitute judges designated in accordance with the above provisions shall continue to sit in the Grand Chamber for the consideration of the case until the proceedings have been completed. Even after the end of their terms of office, they shall continue to deal with the case if they have participated in the consideration of the merits. These provisions shall also apply to proceedings relating to advisory opinions. 5. (a) The panel of five judges of the Grand Chamber called upon to consider a request submitted under Article 43 of the Convention shall be composed of the President of the Court. If the President of the Court is prevented from sitting, he or she shall be replaced by the Vice-President of the Court taking precedence; two Presidents of Sections designated by rotation. If the Presidents of the Sections so designated are prevented from sitting, they shall be replaced by the VicePresidents of their Sections; *

*

495

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Rules of Court Rules 24–26 two judges designated by rotation from among the judges elected by the remaining Sections to sit on the panel for a period of six months; at least two substitute judges designated in rotation from among the judges elected by the Sections to serve on the panel for a period of six months. (b) When considering a referral request, the panel shall not include any judge who took part in the consideration of the admissibility or merits of the case in question. (c) No judge elected in respect of, or who is a national of, a Contracting Party concerned by a referral request may be a member of the panel when it examines that request. An elected judge appointed pursuant to Rules 29 or 30 shall likewise be excluded from consideration of any such request. (d) Any member of the panel unable to sit, for the reasons set out in (b) or (c) shall be replaced by a substitute judge designated in rotation from among the judges elected by the Sections to serve on the panel for a period of six months. *

*

Rule 25 – Setting-up of Sections 1. The Chambers provided for in Article 25 (b) of the Convention (referred to in these Rules as “Sections”) shall be set up by the plenary Court, on a proposal by its President, for a period of three years with effect from the election of the presidential office-holders of the Court under Rule 8. There shall be at least four Sections. 2. Each judge shall be a member of a Section. The composition of the Sections shall be geographically and gender balanced and shall reflect the different legal systems among the Contracting Parties. 3. Where a judge ceases to be a member of the Court before the expiry of the period for which the Section has been constituted, the judge’s place in the Section shall be taken by his or her successor as a member of the Court. 4. The President of the Court may exceptionally make modifications to the composition of the Sections if circumstances so require. 5. On a proposal by the President, the plenary Court may constitute an additional Section.

Rule 261 – Constitution of Chambers 1. The Chambers of seven judges provided for in Article 26 § 1 of the Convention for the consideration of cases brought before the Court shall be constituted from the Sections as follows. (a) Subject to paragraph 2 of this Rule and to Rule 28 § 4, last sentence, the Chamber shall in each case include the President of the Section and the judge elected in respect of any Contracting Party concerned. If the latter judge is not a member of the Section to which the application has been assigned under Rules 51 or 52, he or she shall sit as an ex officio member of the Chamber in accordance with Article 26 § 4 of the Convention. Rule 29 shall apply if that judge is unable to sit or withdraws. (b) The other members of the Chamber shall be designated by the President of the Section in rotation from among the members of the relevant Section. (c) The members of the Section who are not so designated shall sit in the case as substitute judges. 2. The judge elected in respect of any Contracting Party concerned or, where appropriate, another elected judge or ad hoc judge appointed in accordance with 1

496

As amended by the Court on 17 June and 8 July 2002 and 6 May 2013.

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Rules 26–28

Rules of Court

Rules 29 and 30 may be dispensed by the President of the Chamber from attending meetings devoted to preparatory or procedural matters. For the purposes of such meetings the first substitute judge shall sit. 3. Even after the end of their terms of office, judges shall continue to deal with cases in which they have participated in the consideration of the merits.

Rule 271 – Committees 1. Committees composed of three judges belonging to the same Section shall be set up under Article 26 § 1 of the Convention. After consulting the Presidents of the Sections, the President of the Court shall decide on the number of Committees to be set up. 2. The Committees shall be constituted for a period of twelve months by rotation among the members of each Section, excepting the President of the Section. 3. The judges of the Section, including the President of the Section, who are not members of a Committee may, as appropriate, be called upon to sit. They may also be called upon to take the place of members who are unable to sit. 4. The President of the Committee shall be the member having precedence in the Section.

Rule 27A2 – Single-judge formation 1. A single-judge formation shall be introduced in pursuance of Article 26 § 1 of the Convention. After consulting the Bureau, the President of the Court shall decide on the number of single judges to be appointed and shall appoint them. The President shall draw up in advance the list of Contracting Parties in respect of which each judge shall examine applications throughout the period for which that judge is appointed to sit as a single judge. 2. The following shall also sit as single judges (a) the Presidents of the Sections when exercising their competences under Rule 54 §§ 2 (b) and 3; (b) Vice-Presidents of Sections appointed to decide on requests for interim measures in accordance with Rule 39 § 4. 3. Single judges shall be appointed for a period of twelve months. They shall continue to carry out their other duties within the Sections of which they are members in accordance with Rule 25 § 2. 4. Pursuant to Article 24 § 2 of the Convention, when deciding, each single judge shall be assisted by a non-judicial rapporteur.

Rule 283 – Inability to sit, withdrawal or exemption 1. Any judge who is prevented from taking part in sittings which he or she has been called upon to attend shall, as soon as possible, give notice to the President of the Chamber. 2. A judge may not take part in the consideration of any case if 1

As amended by the Court on 13 November 2006 and 16 November 2009. Inserted by the Court on 13 November 2006 and amended on 14 January 2013. 3 As amended by the Court on 17 June and 8 July 2002, 13 December 2004, 13 November 2006 and 6 May 2013. 2

497

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Rules of Court Rules 28, 29 (a) he or she has a personal interest in the case, including a spousal, parental or other close family, personal or professional relationship, or a subordinate relationship, with any of the parties; (b) he or she has previously acted in the case, whether as the Agent, advocate or adviser of a party or of a person having an interest in the case, or as a member of another national or international tribunal or commission of inquiry, or in any other capacity; (c) he or she, being an ad hoc judge or a former elected judge continuing to sit by virtue of Rule 26 § 3, engages in any political or administrative activity or any professional activity which is incompatible with his or her independence or impartiality; (d) he or she has expressed opinions publicly, through the communications media, in writing, through his or her public actions or otherwise, that are objectively capable of adversely affecting his or her impartiality; (e) for any other reason, his or her independence or impartiality may legitimately be called into doubt. 3. If a judge withdraws for one of the said reasons, he or she shall notify the President of the Chamber, who shall exempt the judge from sitting. 4. In the event of any doubt on the part of the judge concerned or the President as to the existence of one of the grounds referred to in paragraph 2 of this Rule, that issue shall be decided by the Chamber. After hearing the views of the judge concerned, the Chamber shall deliberate and vote, without that judge being present. For the purposes of the Chamber’s deliberations and vote on this issue, he or she shall be replaced by the first substitute judge in the Chamber. The same shall apply if the judge sits in respect of any Contracting Party concerned in accordance with Rules 29 and 30. 5. The provisions above shall apply also to a judge’s acting as a single judge or participation in a Committee, save that the notice required under paragraphs 1 or 3 of this Rule shall be given to the President of the Section.

Rule 291 – Ad hoc judges 1. (a) If the judge elected in respect of a Contracting Party concerned is unable to sit in the Chamber, withdraws, or is exempted, or if there is none, the President of the Court shall choose an ad hoc judge, who is eligible to take part in the consideration of the case in accordance with Rule 28, from a list submitted in advance by the Contracting Party containing the names of three to five persons whom the Contracting Party has designated as eligible to serve as ad hoc judges for a renewable period of two years and as satisfying the conditions set out in paragraph 1 (c) of this Rule. The list shall include both sexes and shall be accompanied by biographical details of the persons whose names appear on the list. The persons whose names appear on the list may not represent a party or a third party in any capacity in proceedings before the Court. (b) The procedure set out in paragraph 1 (a) of this Rule shall apply if the person so appointed is unable to sit or withdraws. 1

As amended by the Court on 17 June and 8 July 2002, 13 November 2006, 29 March 2010 and 6 May 2013.

498

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Rules 29–31

Rules of Court

(c) An ad hoc judge shall possess the qualifications required by Article 21 § 1 of the Convention and must be in a position to meet the demands of availability and attendance provided for in paragraph 5 of this Rule. For the duration of their appointment, an ad hoc judge shall not represent any party or third party in any capacity in proceedings before the Court. 2. The President of the Court shall appoint another elected judge to sit as an ad hoc judge where (a) at the time of notice being given of the application under Rule 54 § 2 (b), the Contracting Party concerned has not supplied the Registrar with a list as described in paragraph 1 (a) of this Rule, or (b) the President of the Court finds that less than three of the persons indicated in the list satisfy the conditions laid down in paragraph 1 (c) of this Rule. 3. The President of the Court may decide not to appoint an ad hoc judge pursuant to paragraph 1 (a) or 2 of this Rule until notice of the application is given to the Contracting Party under Rule 54 § 2 (b). Pending the decision of the President of the Court, the first substitute judge shall sit. 4. An ad hoc judge shall, at the beginning of the first sitting held to consider the case after the judge has been appointed, take the oath or make the solemn declaration provided for in Rule 3. This act shall be recorded in minutes. 5. Ad hoc judges are required to make themselves available to the Court and, subject to Rule 26 § 2, to attend the meetings of the Chamber.

Rule 301 – Common interest 1. If two or more applicant or respondent Contracting Parties have a common interest, the President of the Chamber may invite them to agree to appoint a single judge elected in respect of one of the Contracting Parties concerned as commoninterest judge who will be called upon to sit ex officio. If the Parties are unable to agree, the President shall choose the common-interest judge by lot from the judges proposed by the Parties. 2. The President of the Chamber may decide not to invite the Contracting Parties concerned to make an appointment under paragraph 1 of this Rule until notice of the application has been given under Rule 54 § 2. 3. In the event of a dispute as to the existence of a common interest or as to any related matter, the Chamber shall decide, if necessary after obtaining written submissions from the Contracting Parties concerned.

Title II – Procedure Chapter I – General Rules Rule 31 – Possibility of particular derogations The provisions of this Title shall not prevent the Court from derogating from them for the consideration of a particular case after having consulted the parties where appropriate. 1

As amended by the Court on 7 July 2003.

499

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Rules of Court Rules 32–34 Rule 32 – Practice directions The President of the Court may issue practice directions, notably in relation to such matters as appearance at hearings and the filing of pleadings and other documents.

Rule 331 – Public character of documents 1. All documents deposited with the Registry by the parties or by any third party in connection with an application, except those deposited within the framework of friendly settlement negotiations as provided for in Rule 62, shall be accessible to the public in accordance with arrangements determined by the Registrar, unless the President of the Chamber, for the reasons set out in paragraph 2 of this Rule, decides otherwise, either of his or her own motion or at the request of a party or any other person concerned. 2. Public access to a document or to any part of it may be restricted in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties or of any person concerned so require, or to the extent strictly necessary in the opinion of the President of the Chamber in special circumstances where publicity would prejudice the interests of justice. 3. Any request for confidentiality made under paragraph 1 of this Rule must include reasons and specify whether it is requested that all or part of the documents be inaccessible to the public. 4. Decisions and judgments given by a Chamber shall be accessible to the public. Decisions and judgments given by a Committee, including decisions covered by the proviso to Rule 53 § 5, shall be accessible to the public. The Court shall periodically make accessible to the public general information about decisions taken by singlejudge formations pursuant to Rule 52A § 1 and by Committees in application of Rule 53 § 5.

Rule 342 – Use of languages 1. The official languages of the Court shall be English and French. 2. In connection with applications lodged under Article 34 of the Convention, and for aslong as no Contracting Party has been given notice of such an application in accordance with these Rules, all communications with and oral and written submissions by applicants or their representatives, if not in one of the Court’s official languages, shall be in one of the official languages of the Contracting Parties. If a Contracting Party is informed or given notice of an application in accordance with these Rules, the application and any accompanying documents shall be communicated to that State in the language in which they were lodged with the Registry by the applicant. 3. (a) All communications with and oral and written submissions by applicants or their representatives in respect of a hearing, or after notice of an application has been given to a Contracting Party, shall be in one of the Court’s official languages, 1 As amended by the Court on 17 June and 8 July 2002, 7 July 2003, 4 July 2005, 13 November 2006 and 14 May 2007. 2 As amended by the Court on 13 December 2004.

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Rules 34, 35

Rules of Court

unless the President of the Chamber grants leave for the continued use of the official language of a Contracting Party. (b) If such leave is granted, the Registrar shall make the necessary arrangements for the interpretation and translation into English or French of the applicant’s oral and written submissions respectively, in full or in part, where the President of the Chamber considers it to be in the interests of the proper conduct of the proceedings. (c) Exceptionally the President of the Chamber may make the grant of leave subject to the condition that the applicant bear all or part of the costs of making such arrangements. (d) Unless the President of the Chamber decides otherwise, any decision made under the foregoing provisions of this paragraph shall remain valid in all subsequent proceedings in the case, including those in respect of requests for referral of the case to the Grand Chamber and requests for interpretation or revision of a judgment under Rules 73, 79 and 80 respectively. 4. (a) All communications with and oral and written submissions by a Contracting Party which is a party to the case shall be in one of the Court’s official languages. The President of the Chamber may grant the Contracting Party concerned leave to use one of its official languages for its oral and written submissions. (b) If such leave is granted, it shall be the responsibility of the requesting Party (i) to file a translation of its written submissions into one of the official languages of the Court within a time-limit to be fixed by the President of the Chamber. Should that Party not file the translation within that time-limit, the Registrar may make the necessary arrangements for such translation, the expenses to be charged to the requesting Party; (ii) to bear the expenses of interpreting its oral submissions into English or French. The Registrar shall be responsible for making the necessary arrangements for such interpretation. (c) The President of the Chamber may direct that a Contracting Party which is a party to the case shall, within a specified time, provide a translation into, or a summary in, English or French of all or certain annexes to its written submissions or of any other relevant document, or of extracts therefrom. (d) The preceding sub-paragraphs of this paragraph shall also apply, mutatis mutandis, to third-party intervention under Rule 44 and to the use of a nonofficial language by a third party. 5. The President of the Chamber may invite the respondent Contracting Party to provide a translation of its written submissions in the or an official language of that Party in order to facilitate the applicant’s understanding of those submissions. 6. Any witness, expert or other person appearing before the Court may use his or her own language if he or she does not have sufficient knowledge of either of the two official languages. In that event the Registrar shall make the necessary arrangements for interpreting or translation.

Rule 35 – Representation of Contracting Parties The Contracting Parties shall be represented by Agents, who may have the assistance of advocates or advisers.

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Rules of Court Rules 36–38 Rule 361 – Representation of applicants 1. Persons, non-governmental organisations or groups of individuals may initially present applications under Article 34 of the Convention themselves or through a representative. 2. Following notification of the application to the respondent Contracting Party under Rule 54 § 2 (b), the applicant should be represented in accordance with paragraph 4 of this Rule, unless the President of the Chamber decides otherwise. 3. The applicant must be so represented at any hearing decided on by the Chamber, unless the President of the Chamber exceptionally grants leave to the applicant to present his or her own case, subject, if necessary, to being assisted by an advocate or other approved representative. 4. (a) The representative acting on behalf of the applicant pursuant to paragraphs 2 and 3 of this Rule shall be an advocate authorised to practise in any of the Contracting Parties and resident in the territory of one of them, or any other person approved by the President of the Chamber. (b) In exceptional circumstances and at any stage of the procedure, the President of the Chamber may, where he or she considers that the circumstances or the conduct of the advocate or other person appointed under the preceding subparagraph so warrant, direct that the latter may no longer represent or assist the applicant and that the applicant should seek alternative representation. 5. (a) The advocate or other approved representative, or the applicant in person who seeks leave to present his or her own case, must even if leave is granted under the following sub-paragraph have an adequate understanding of one of the Court’s official languages. (b) If he or she does not have sufficient proficiency to express himself or herself in one of the Court’s official languages, leave to use one of the official languages of the Contracting Parties may be given by the President of the Chamber under Rule 34 § 3.

Rule 372 – Communications, notifications and summonses 1. Communications or notifications addressed to the Agents or advocates of the parties shall be deemed to have been addressed to the parties. 2. If, for any communication, notification or summons addressed to persons other than the Agents or advocates of the parties, the Court considers it necessary to have the assistance of the Government of the State on whose territory such communication, notification or summons is to have effect, the President of the Court shall apply directly to that Government in order to obtain the necessary facilities.

Rule 38 – Written pleadings 1. No written observations or other documents may be filed after the time-limit set by the President of the Chamber or the Judge Rapporteur, as the case may be, in accordance with these Rules. No written observations or other documents filed outside that time-limit or contrary to any practice direction issued under Rule 32 1 2

502

As amended by the Court on 7 July 2003. As amended by the Court on 7 July 2003.

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Rules 38–42

Rules of Court

shall be included in the case file unless the President of the Chamber decides otherwise. 2. For the purposes of observing the time-limit referred to in paragraph 1 of this Rule, the material date is the certified date of dispatch of the document or, if there is none, the actual date of receipt at the Registry.

Rule 38A1 – Examination of matters of procedure Questions of procedure requiring a decision by the Chamber shall be considered simultaneously with the examination of the case, unless the President of the Chamber decides otherwise.

Rule 392 – Interim measures 1. The Chamber or, where appropriate, the President of the Section or a duty judge appointed pursuant to paragraph 4 of this Rule may, at the request of a party or of any other person concerned, or of their own motion, indicate to the parties any interim measure which they consider should be adopted in the interests of the parties or of the proper conduct of the proceedings. 2. Where it is considered appropriate, immediate notice of the measure adopted in a particular case may be given to the Committee of Ministers. 3. The Chamber or, where appropriate, the President of the Section or a duty judge appointed pursuant to paragraph 4 of this Rule may request information from the parties on any matter connected with the implementation of any interim measure indicated. 4. The President of the Court may appoint Vice-Presidents of Sections as duty judges to decide on requests for interim measures.

Rule 40 – Urgent notification of an application In any case of urgency the Registrar, with the authorisation of the President of the Chamber, may, without prejudice to the taking of any other procedural steps and by any available means, inform a Contracting Party concerned in an application of the introduction of the application and of a summary of its objects.

Rule 413 – Order of dealing with cases In determining the order in which cases are to be dealt with, the Court shall have regard to the importance and urgency of the issues raised on the basis of criteria fixed by it. The Chamber, or its President, may, however, derogate from these criteria so as to give priority to a particular application.

Rule 42 – Joinder and simultaneous examination of applications (former Rule 43) 1. The Chamber may, either at the request of the parties or of its own motion, order the joinder of two or more applications. 1

Inserted by the Court on 17 June and 8 July 2002. As amended by the Court on 4 July 2005, 16 January 2012 and 14 January 2013. 3 As amended by the Court on 17 June and 8 July 2002 and 29 June 2009. 2

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Rules of Court Rules 42–44 2. The President of the Chamber may, after consulting the parties, order that the proceedings in applications assigned to the same Chamber be conducted simultaneously, without prejudice to the decision of the Chamber on the joinder of the applications.

Rule 431 – Striking out and restoration to the list (former Rule 44) 1. The Court may at any stage of the proceedings decide to strike an application out of its list of cases in accordance with Article 37 of the Convention. 2. When an applicant Contracting Party notifies the Registrar of its intention not to proceed with the case, the Chamber may strike the application out of the Court’s list under Article 37 of the Convention if the other Contracting Party or Parties concerned in the case agree to such discontinuance. 3. If a friendly settlement is effected in accordance with Article 39 of the Convention, the application shall be struck out of the Court’s list of cases by means of a decision. In accordance with Article 39 § 4 of the Convention, this decision shall be transmitted to the Committee of Ministers, which shall supervise the execution of the terms of the friendly settlement as set out in the decision. In other cases provided for in Article 37 of the Convention, the application shall be struck out by means of a judgment if it has been declared admissible or, if not declared admissible, by means of a decision. Where the application has been struck out by means of a judgment, the President of the Chamber shall forward that judgment, once it has become final, to the Committee of Ministers in order to allow the latter to supervise, in accordance with Article 46 § 2 of the Convention, the execution of any undertakings which may have been attached to the discontinuance or solution of the matter. 4. When an application has been struck out in accordance with Article 37 of the Convention, the costs shall be at the discretion of the Court. If an award of costs is made in a decision striking out an application which has not been declared admissible, the President of the Chamber shall forward the decision to the Committee of Ministers. 5. Where an application has been struck out in accordance with Article 37 of the Convention, the Court may restore it to its list if it considers that exceptional circumstances so justify.

Rule 442 – Third-party intervention 1. (a) When notice of an application lodged under Article 33 or 34 of the Convention is given to the respondent Contracting Party under Rules 51 § 1 or 54 § 2 (b), a copy of the application shall at the same time be transmitted by the Registrar to any other Contracting Party one of whose nationals is an applicant in the case. The Registrar shall similarly notify any such Contracting Party of a decision to hold an oral hearing in the case. (b) If a Contracting Party wishes to exercise its right under Article 36 § 1 of the Convention to submit written comments or to take part in a hearing, it shall so advise the Registrar in writing not later than twelve weeks after the transmission or 1 As amended by the Court on 17 June and 8 July 2002, 7 July 2003, 13 November 2006 and 2 April 2012. 2 As amended by the Court on 7 July 2003 and 13 November 2006.

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Rules 44, 44A

Rules of Court

notification referred to in the preceding sub-paragraph. Another time-limit may be fixed by the President of the Chamber for exceptional reasons. 2. If the Council of Europe Commissioner for Human Rights wishes to exercise the right under Article 36 § 3 of the Convention to submit written observations or take part in a hearing, he or she shall so advise the Registrar in writing not later than twelve weeks after transmission of the application to the respondent Contracting Party or notification to it of the decision to hold an oral hearing. Another timelimit may be fixed by the President of the Chamber for exceptional reasons. Should the Commissioner for Human Rights be unable to take part in the proceedings before the Court himself, he or she shall indicate the name of the person or persons from his or her Office whom he or she has appointed to represent him. He or she may be assisted by an advocate. 3. (a) Once notice of an application has been given to the respondent Contracting Party under Rules 51 § 1 or 54 § 2 (b), the President of the Chamber may, in the interests of the proper administration of justice, as provided in Article 36 § 2 of the Convention, invite, or grant leave to, any Contracting Party which is not a party to the proceedings, or any person concerned who is not the applicant, to submit written comments or, in exceptional cases, to take part in a hearing. (b) Requests for leave for this purpose must be duly reasoned and submitted in writing in one of the official languages as provided in Rule 34 § 4 not later than twelve weeks after notice of the application has been given to the respondent Contracting Party. Another time-limit may be fixed by the President of the Chamber for exceptional reasons. 4. (a) In cases to be considered by the Grand Chamber, the periods of time prescribed in the preceding paragraphs shall run from the notification to the parties of the decision of the Chamber under Rule 72 § 1 to relinquish jurisdiction in favour of the Grand Chamber or of the decision of the panel of the Grand Chamber under Rule 73 § 2 to accept a request by a party for referral of the case to the Grand Chamber. (b) The time-limits laid down in this Rule may exceptionally be extended by the President of the Chamber if sufficient cause is shown. 5. Any invitation or grant of leave referred to in paragraph 3 (a) of this Rule shall be subject to any conditions, including time-limits, set by the President of the Chamber. Where such conditions are not complied with, the President may decide not to include the comments in the case file or to limit participation in the hearing to the extent that he or she considers appropriate. 6. Written comments submitted under this Rule shall be drafted in one of the official languages as provided in Rule 34 § 4. They shall be forwarded by the Registrar to the parties to the case, who shall be entitled, subject to any conditions, including time-limits, set by the President of the Chamber, to file written observations in reply or, where appropriate, to reply at the hearing.

Rule 44A1 – Duty to cooperate with the Court The parties have a duty to cooperate fully in the conduct of the proceedings and, in particular, to take such action within their power as the Court considers 1

Inserted by the Court on 13 December 2004.

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Rules of Court Rules 44A–45 necessary for the proper administration of justice. This duty shall also apply to a Contracting Party not party to the proceedings where such cooperation is necessary.

Rule 44B1 – Failure to comply with an order of the Court Where a party fails to comply with an order of the Court concerning the conduct of the proceedings, the President of the Chamber may take any steps which he or she considers appropriate.

Rule 44C2 – Failure to participate effectively 1. Where a party fails to adduce evidence or provide information requested by the Court or to divulge relevant information of its own motion or otherwise fails to participate effectively in the proceedings, the Court may draw such inferences as it deems appropriate. 2. Failure or refusal by a respondent Contracting Party to participate effectively in the proceedings shall not, in itself, be a reason for the Chamber to discontinue the examination of the application.

Rule 44D3 – Inappropriate submissions by a party If the representative of a party makes abusive, frivolous, vexatious, misleading or prolix submissions, the President of the Chamber may exclude that representative from the proceedings, refuse to accept all or part of the submissions or make any other order which he or she considers it appropriate to make, without prejudice to Article 35 § 3 of the Convention.

Rule 44E4 – Failure to pursue an application In accordance with Article 37 § 1 (a) of the Convention, if an applicant Contracting Party or an individual applicant fails to pursue the application, the Chamber may strike the application out of the Court’s list under Rule 43.

Chapter II – Institution of Proceedings Rule 45 – Signatures 1. Any application made under Articles 33 or 34 of the Convention shall be submitted in writing and shall be signed by the applicant or by the applicant’s representative. 2. Where an application is made by a non-governmental organisation or by a group of individuals, it shall be signed by those persons competent to represent that organisation or group. The Chamber or Committee concerned shall determine any question as to whether the persons who have signed an application are competent to do so.

1

Inserted Inserted 3 Inserted 4 Inserted 2

506

by by by by

the Court the Court the Court the Court

on 13 on 13 on 13 on 13

December December December December

2004. 2004. 2004. 2004.

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Rules 45–47

Rules of Court

3. Where applicants are represented in accordance with Rule 36, a power of attorney or written authority to act shall be supplied by their representative or representatives.

Rule 46 – Contents of an inter-State application Any Contracting Party or Parties intending to bring a case before the Court under Article 33 of the Convention shall file with the Registry an application setting out (a) the name of the Contracting Party against which the application is made; (b) a statement of the facts; (c) a statement of the alleged violation(s) of the Convention and the relevant arguments; (d) a statement on compliance with the admissibility criteria (exhaustion of domestic remedies and the six-month rule) laid down in Article 35 § 1 of the Convention; (e) the object of the application and a general indication of any claims for just satisfaction made under Article 41 of the Convention on behalf of the alleged injured party or parties; and (f) the name and address of the person or persons appointed as Agent; and accompanied by (g) copies of any relevant documents and in particular the decisions, whether judicial or not, relating to the object of the application.

Rule 471 – Contents of an individual application 1. An application under Article 34 of the Convention shall be made on the application form provided by the Registry, unless the Court decides otherwise. It shall contain all of the information requested in the relevant parts of the application form and set out (a) the name, date of birth, nationality and address of the applicant and, where the applicant is a legal person, the full name, date of incorporation or registration, the official registration number (if any) and the official address; (b) the name, occupation, address, telephone and fax numbers and e-mail address of the representative, if any; (c) the name of the Contracting Party or Parties against which the application is made; (d) a concise and legible statement of the facts; (e) a concise and legible statement of the alleged violation(s) of the Convention and the relevant arguments; and (f) a concise and legible statement confirming the applicant’s compliance with the admissibility criteria laid down in Article 35 § 1 of the Convention. 2. (a) All of the information referred to in paragraph 1 (d) to (f) above that is set out in the relevant part of the application form should be sufficient to enable the Court to determine the nature and scope of the application without recourse to any other document. 1

As amended by the Court on 17 June and 8 July 2002, 11 December 2007, 22 September 2008 and 6 May 2013.

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Rules of Court Rules 47, 48 (b) The applicant may however supplement the information by appending to the application form further details on the facts, alleged violations of the Convention and the relevant arguments. Such information shall not exceed 20 pages. 3.1. The application form shall be signed by the applicant or the applicant’s representative and shall be accompanied by (a) copies of documents relating to the decisions or measures complained of, judicial or otherwise; (b) copies of documents and decisions showing that the applicant has complied with the exhaustion of domestic remedies requirement and the time-limit contained in Article 35 § 1 of the Convention; (c) where appropriate, copies of documents relating to any other procedure of international investigation or settlement; (d) where represented, the original of the power of attorney or form of authority signed by the applicant. 3.2. Documents submitted in support of the application shall be listed in order by date, numbered consecutively and be identified clearly. 4. Applicants who do not wish their identity to be disclosed to the public shall so indicate and shall submit a statement of the reasons justifying such a departure from the normal rule of public access to information in proceedings before the Court. The Court may authorise anonymity or grant it of its own motion. 5.1. Failure to comply with the requirements set out in paragraphs 1 to 3 of this Rule will result in the application not being examined by the Court, unless (a) the applicant has provided an adequate explanation for the failure to comply; (b) the application concerns a request for an interim measure; (c) the Court otherwise directs of its own motion or at the request of an applicant. 5.2. The Court may in any case request an applicant to provide information or documents in any form or manner which may be appropriate within a fixed timelimit. 6. (a) The date of introduction of the application for the purposes of Article 35 § 1 of the Convention shall be the date on which an application form satisfying the requirements of this Rule is sent to the Court. The date of dispatch shall be the date of the postmark. (b) Where it finds it justified, the Court may nevertheless decide that a different date shall be considered to be the date of introduction. 7. Applicants shall keep the Court informed of any change of address and of all circumstances relevant to the application.

Chapter III – Judge Rapporteurs Rule 481 – Inter-State applications 1. Where an application is made under Article 33 of the Convention, the Chamber constituted to consider the case shall designate one or more of its judges as Judge Rapporteur(s), who shall submit a report on admissibility when the written observations of the Contracting Parties concerned have been received. 1

508

As amended by the Court on 17 June and 8 July 2002.

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Rules 48–51

Rules of Court

2. The Judge Rapporteur(s) shall submit such reports, drafts and other documents as may assist the Chamber and its President in carrying out their functions.

Rule 491 – Individual applications 1. Where the material submitted by the applicant is on its own sufficient to disclose that the application is inadmissible or should be struck out of the list, the application shall be considered by a single-judge formation unless there is some special reason to the contrary. 2. Where an application is made under Article 34 of the Convention and its examination by a Chamber or a Committee exercising the functions attributed to it under Rule 53 § 2 seems justified, the President of the Section to which the case has been assigned shall designate a judge as Judge Rapporteur, who shall examine the application. 3. In their examination of applications, Judge Rapporteurs (a) may request the parties to submit, within a specified time, any factual information, documents or other material which they consider to be relevant; (b) shall, subject to the President of the Section directing that the case be considered by a Chamber or a Committee, decide whether the application is to be considered by a single-judge formation, by a Committee or by a Chamber; (c) shall submit such reports, drafts and other documents as may assist the Chamber or the Committee or the respective President in carrying out their functions.

Rule 50 – Grand Chamber proceedings Where a case has been submitted to the Grand Chamber either under Article 30 or under Article 43 of the Convention, the President of the Grand Chamber shall designate as Judge Rapporteur(s) one or, in the case of an inter-State application, one or more of its members.

Chapter IV – Proceedings on Admissibility Inter-State applications Rule 512 – Assignment of applications and subsequent procedure 1. When an application is made under Article 33 of the Convention, the President of the Court shall immediately give notice of the application to the respondent Contracting Party and shall assign the application to one of the Sections. 2. In accordance with Rule 26 § 1 (a), the judges elected in respect of the applicant and respondent Contracting Parties shall sit as ex officio members of the Chamber constituted to consider the case. Rule 30 shall apply if the application has

1 As amended by the Court on 17 June and 8 July 2002, 4 July 2005, 13 November 2006 and 14 May 2007. 2 As amended by the Court on 17 June and 8 July 2002.

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Rules of Court Rules 51–53 been brought by several Contracting Parties or if applications with the same object brought by several Contracting Parties are being examined jointly under Rule 42. 3. On assignment of the case to a Section, the President of the Section shall constitute the Chamber in accordance with Rule 26 § 1 and shall invite the respondent Contracting Party to submit its observations in writing on the admissibility of the application. The observations so obtained shall be communicated by the Registrar to the applicant Contracting Party, which may submit written observations in reply. 4. Before the ruling on the admissibility of the application is given, the Chamber or its President may decide to invite the Parties to submit further observations in writing. 5. A hearing on the admissibility shall be held if one or more of the Contracting Parties concerned so requests or if the Chamber so decides of its own motion. 6. Before fixing the written and, where appropriate, oral procedure, the President of the Chamber shall consult

Individual applications Rule 521 – Assignment of applications to the Sections 1. Any application made under Article 34 of the Convention shall be assigned to a Section by the President of the Court, who in so doing shall endeavour to ensure a fair distribution of cases between the Sections. 2. The Chamber of seven judges provided for in Article 26 § 1 of the Convention shall be constituted by the President of the Section concerned in accordance with Rule 26 § 1. 3. Pending the constitution of a Chamber in accordance with paragraph 2 of this Rule, the President of the Section shall exercise any powers conferred on the President of the Chamber by these Rules.

Rule 52A2 – Procedure before a single judge 1. In accordance with Article 27 of the Convention, a single judge may declare inadmissible or strike out of the Court’s list of cases an application submitted under Article 34, where such a decision can be taken without further examination. The decision shall be final. The applicant shall be informed of the decision by letter. 2. In accordance with Article 26 § 3 of the Convention, a single judge may not examine any application against the Contracting Party in respect of which that judge has been elected. 3. If the single judge does not take a decision of the kind provided for in the first paragraph of the present Rule, that judge shall forward the application to a Committee or to a Chamber for further examination.

Rule 533 – Procedure before a Committee 1. In accordance with Article 28 § 1 (a) of the Convention, the Committee may, by a unanimous vote and at any stage of the proceedings, declare an application 1

As amended by the Court on 17 June and 8 July 2002. Inserted by the Court on 13 November 2006. 3 As amended by the Court on 17 June and 8 July 2002, 4 July 2005, 14 May 2007 and 16 January 2012. 2

510

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Rules 53, 54

Rules of Court

inadmissible or strike it out of the Court’s list of cases where such a decision can be taken without further examination. 2. If the Committee is satisfied, in the light of the parties’ observations received pursuant to Rule 54 § 2 (b), that the case falls to be examined in accordance with the procedure under Article 28 § 1 (b) of the Convention, it shall, by a unanimous vote, adopt a judgment including its decision on admissibility and, as appropriate, on just satisfaction. 3. If the judge elected in respect of the Contracting Party concerned is not a member of the Committee, the Committee may at any stage of the proceedings before it, by a unanimous vote, invite that judge to take the place of one of its members, having regard to all relevant factors, including whether that Party has contested the application of the procedure under Article 28 § 1 (b) of the Convention. 4. Decisions and judgments under Article 28 § 1 of the Convention shall be final. 5. The applicant, as well as the Contracting Parties concerned where these have previously been involved in the application in accordance with the present Rules, shall be informed of the decision of the Committee pursuant to Article 28 § 1 (a) of the Convention by letter, unless the Committee decides otherwise. 6. If no decision or judgment is adopted by the Committee, the application shall be forwarded to the Chamber constituted under Rule 52 § 2 to examine the case. 7. The provisions of Rule 42 § 1 and Rules 79 to 81 shall apply, mutatis mutandis, to proceedings before a Committee.

Rule 541 – Procedure before a Chamber 1. The Chamber may at once declare the application inadmissible or strike it out of the Court’s list of cases. The decision of the Chamber may relate to all or part of the application. 2. Alternatively, the Chamber or the President of the Section may decide to (a) request the parties to submit any factual information, documents or other material considered by the Chamber or its President to be relevant; (b) give notice of the application or part of the application to the respondent Contracting Party and invite that Party to submit written observations thereon and, upon receipt thereof, invite the applicant to submit observations in reply; (c) invite the parties to submit further observations in writing. 3. In the exercise of the competences under paragraph 2 (b) of this Rule, the President of the Section, acting as a single judge, may at once declare part of the application inadmissible or strike part of the application out of the Court’s list of cases. The decision shall be final. The applicant shall be informed of the decision by letter. 4. Paragraphs 2 and 3 of this Rule shall also apply to Vice-Presidents of Sections appointed as duty judges in accordance with Rule 39 § 4 to decide on requests for interim measures. 5. Before taking a decision on admissibility, the Chamber may decide, either at the request of a party or of its own motion, to hold a hearing if it considers that the discharge of its functions under the Convention so requires. In that event, unless 1

As amended by the Court on 17 June and 8 July 2002 and 14 January 2013.

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Rules of Court Rules 54–57 the Chamber shall exceptionally decide otherwise, the parties shall also be invited to address the issues arising in relation to the merits of the application.

Rule 54A1 – Joint examination of admissibility and merits 1. When giving notice of the application to the respondent Contracting Party pursuant to Rule 54 § 2 (b), the Chamber may also decide to examine the admissibility and merits at the same time in accordance with Article 29 § 1 of the Convention. The parties shall be invited to include in their observations any submissions concerning just satisfaction and any proposals for a friendly settlement. The conditions laid down in Rules 60 and 62 shall apply, mutatis mutandis. The Court may, however, decide at any stage, if necessary, to take a separate decision on admissibility. 2. If no friendly settlement or other solution is reached and the Chamber is satisfied, in the light of the parties’ arguments, that the case is admissible and ready for a determination on the merits, it shall immediately adopt a judgment including the Chamber’s decision on admissibility, save in cases where it decides to take such a decision separately.

Inter-State and individual applications Rule 55 – Pleas of inadmissibility Any plea of inadmissibility must, in so far as its character and the circumstances permit, be raised by the respondent Contracting Party in its written or oral observations on the admissibility of the application submitted as provided in Rule 51 or 54, as the case may be.

Rule 562 – Decision of a Chamber 1. The decision of the Chamber shall state whether it was taken unanimously or by a majority and shall be accompanied or followed by reasons. 2. The decision of the Chamber shall be communicated by the Registrar to the applicant. It shall also be communicated to the Contracting Party or Parties concerned and to any third party, including the Council of Europe Commissioner for Human Rights, where these have previously been informed of the application in accordance with the present Rules. If a friendly settlement is effected, the decision to strike an application out of the list of cases shall be forwarded to the Committee of Ministers in accordance with Rule 43 § 3.

Rule 573 – Language of the decision 1. Unless the Court decides that a decision shall be given in both official languages, all decisions of Chambers shall be given either in English or in French. 2. Publication of such decisions in the official reports of the Court, as provided for in Rule 78, shall be in both official languages of the Court. 1 Inserted by the Court on 17 June and 8 July 2002 and amended on 13 December 2004 and 13 November 2006. 2 As amended by the Court on 17 June and 8 July 2002 and 13 November 2006. 3 As amended by the Court on 17 June and 8 July 2002.

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Rules 58–60

Rules of Court

Chapter V – Proceedings after the Admission of an Application Rule 581 – Inter-State applications 1. Once the Chamber has decided to admit an application made under Article 33 of the Convention, the President of the Chamber shall, after consulting the Contracting Parties concerned, lay down the time-limits for the filing of written observations on the merits and for the production of any further evidence. The President may however, with the agreement of the Contracting Parties concerned, direct that a written procedure is to be dispensed with. 2. A hearing on the merits shall be held if one or more of the Contracting Parties concerned so requests or if the Chamber so decides of its own motion. The President of the Chamber shall fix the oral procedure.

Rule 592 – Individual applications 1. Once an application made under Article 34 of the Convention has been declared admissible, the Chamber or its President may invite the parties to submit further evidence and written observations. 2. Unless decided otherwise, the parties shall be allowed the same time for submission of their observations. 3. The Chamber may decide, either at the request of a party or of its own motion, to hold a hearing on the merits if it considers that the discharge of its functions under the Convention so requires. 4. The President of the Chamber shall, where appropriate, fix the written and oral procedure.

Rule 603 – Claims for just satisfaction 1. An applicant who wishes to obtain an award of just satisfaction under Article 41 of the Convention in the event of the Court finding a violation of his or her Convention rights must make a specific claim to that effect. 2. The applicant must submit itemised particulars of all claims, together with any relevant supporting documents, within the time-limit fixed for the submission of the applicant’s observations on the merits unless the President of the Chamber directs otherwise. 3. If the applicant fails to comply with the requirements set out in the preceding paragraphs the Chamber may reject the claims in whole or in part. 4. The applicant’s claims shall be transmitted to the respondent Contracting Party for comment.

1

As amended by the Court on 17 June and 8 July 2002. As amended by the Court on 17 June and 8 July 2002. 3 As amended by the Court on 134 December 2004. 2

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Rules of Court Rule 61 Rule 611 – Pilot-judgment procedure 1. The Court may initiate a pilot-judgment procedure and adopt a pilot judgment where the facts of an application reveal in the Contracting Party concerned the existence of a structural or systemic problem or other similar dysfunction which has given rise or may give rise to similar applications. 2. (a) Before initiating a pilot-judgment procedure, the Court shall first seek the views of the parties on whether the application under examination results from the existence of such a problem or dysfunction in the Contracting Party concerned and on the suitability of processing the application in accordance with that procedure. (b) A pilot-judgment procedure may be initiated by the Court of its own motion or at the request of one or both parties. (c) Any application selected for pilot-judgment treatment shall be processed as a matter of priority in accordance with Rule 41 of the Rules of Court. 3. The Court shall in its pilot judgment identify both the nature of the structural or systemic problem or other dysfunction as established as well as the type of remedial measures which the Contracting Party concerned is required to take at the domestic level by virtue of the operative provisions of the judgment. 4. The Court may direct in the operative provisions of the pilot judgment that the remedial measures referred to in paragraph 3 above be adopted within a specified time, bearing in mind the nature of the measures required and the speed with which the problem which it has identified can be remedied at the domestic level. 5. When adopting a pilot judgment, the Court may reserve the question of just satisfaction either in whole or in part pending the adoption by the respondent Contracting Party of the individual and general measures specified in the pilot judgment. 6. (a) As appropriate, the Court may adjourn the examination of all similar applications pending the adoption of the remedial measures required by virtue of the operative provisions of the pilot judgment. (b) The applicants concerned shall be informed in a suitable manner of the decision to adjourn. They shall be notified as appropriate of all relevant developments affecting their cases. (c) The Court may at any time examine an adjourned application where the interests of the proper administration of justice so require. 7. Where the parties to the pilot case reach a friendly-settlement agreement, such agreement shall comprise a declaration by the respondent Contracting Party on the implementation of the general measures identified in the pilot judgment as well as the redress to be afforded to other actual or potential applicants. 8. Subject to any decision to the contrary, in the event of the failure of the Contracting Party concerned to comply with the operative provisions of a pilot judgment, the Court shall resume its examination of the applications which have been adjourned in accordance with paragraph 6 above. 9. The Committee of Ministers, the Parliamentary Assembly of the Council of Europe, the Secretary General of the Council of Europe, and the Council of Europe Commissioner for Human Rights shall be informed of the adoption of a pilot

1

514

Inserted by the Court on 21 February 2011.

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Rules 61–62A

Rules of Court

judgment as well as of any other judgment in which the Court draws attention to the existence of a structural or systemic problem in a Contracting Party. 10. Information about the initiation of pilot-judgment procedures, the adoption of pilot judgments and their execution as well as the closure of such procedures shall be published on the Court’s website.

Rule 621 – Friendly settlement 1. Once an application has been declared admissible, the Registrar, acting on the instructions of the Chamber or its President, shall enter into contact with the parties with a view to securing a friendly settlement of the matter in accordance with Article 39 § 1 of the Convention. The Chamber shall take any steps that appear appropriate to facilitate such a settlement. 2. In accordance with Article 39 § 2 of the Convention, the friendly-settlement negotiations shall be confidential and without prejudice to the parties’ arguments in the contentious proceedings. No written or oral communication and no offer or concession made in the framework of the attempt to secure a friendly settlement may be referred to or relied on in the contentious proceedings. 3. If the Chamber is informed by the Registrar that the parties have agreed to a friendly settlement, it shall, after verifying that the settlement has been reached on the basis of respect for human rights as defined in the Convention and the Protocols thereto, strike the case out of the Court’s list in accordance with Rule 43 § 3. 4. Paragraphs 2 and 3 apply, mutatis mutandis, to the procedure under Rule 54A.

Rule 62A2 – Unilateral declaration 1. (a) Where an applicant has refused the terms of a friendly-settlement proposal made pursuant to Rule 62, the Contracting Party concerned may file with the Court a request to strike the application out of the list in accordance with Article 37 § 1 of the Convention. (b) Such request shall be accompanied by a declaration clearly acknowledging that there has been a violation of the Convention in the applicant’s case together with an undertaking to provide adequate redress and, as appropriate, to take necessary remedial measures. (c) The filing of a declaration under paragraph 1 (b) of this Rule must be made in public and adversarial proceedings conducted separately from and with due respect for the confidentiality of any friendly-settlement proceedings referred to in Article 39 § 2 of the Convention and Rule 62 § 2. 2. Where exceptional circumstances so justify, a request and accompanying declaration may be filed with the Court even in the absence of a prior attempt to reach a friendly settlement. 3. If it is satisfied that the declaration offers a sufficient basis for finding that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue its examination of the application, the Court may

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As amended by the Court on 17 June and 8 July 2002 and 13 November 2006. Inserted by the Court on 2 April 2012.

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Rules of Court Rules 62A–70 strike it out of the list, either in whole or in part, even if the applicant wishes the examination of the application to be continued. 4. This Rule applies, mutatis mutandis, to the procedure under Rule 54A.

Chapter VI – Hearings Rule 631 – Public character of hearings 1. Hearings shall be public unless, in accordance with paragraph 2 of this Rule, the Chamber in exceptional circumstances decides otherwise, either of its own motion or at the request of a party or any other person concerned. 2. The press and the public may be excluded from all or part of a hearing in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the Chamber in special circumstances where publicity would prejudice the interests of justice. 3. Any request for a hearing to be held in camera made under paragraph 1 of this Rule must include reasons and specify whether it concerns all or only part of the hearing.

Rule 642 – Conduct of hearings 1. The President of the Chamber shall organise and direct hearings and shall prescribe the order in which those appearing before the Chamber shall be called upon to speak. 2. Any judge may put questions to any person appearing before the Chamber.

Rule 653 – Failure to appear Where a party or any other person due to appear fails or declines to do so, the Chamber may, provided that it is satisfied that such a course is consistent with the proper administration of justice, nonetheless proceed with the hearing. Rules 66 to 69 deleted

Rule 704 – Verbatim record of a hearing 1. If the President of the Chamber so directs, the Registrar shall be responsible for the making of a verbatim record of the hearing. Any such record shall include: (a) the composition of the Chamber; (b) a list of those appearing before the Chamber; (c) the text of the submissions made, questions put and replies given; (d) the text of any ruling delivered during the hearing. 2. If all or part of the verbatim record is in a non-official language, the Registrar shall arrange for its translation into one of the official languages.

1

As amended As amended 3 As amended 4 As amended 2

516

by the Court by the Court by the Court by the Court

on on on on

7 July 2003. 7 July 2003. 7 July 2003. 17 June and 8 July 2002.

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Rules 70–73

Rules of Court

3. The representatives of the parties shall receive a copy of the verbatim record in order that they may, subject to the control of the Registrar or the President of the Chamber, make corrections, but in no case may such corrections affect the sense and bearing of what was said. The Registrar shall lay down, in accordance with the instructions of the President of the Chamber, the time-limits granted for this purpose. 4. The verbatim record, once so corrected, shall be signed by the President of the Chamber and the Registrar and shall then constitute certified matters of record.

Chapter VII – Proceedings before the Grand Chamber Rule 711 – Applicability of procedural provisions 1. Any provisions governing proceedings before the Chambers shall apply, mutatis mutandis, to proceedings before the Grand Chamber. 2. The powers conferred on a Chamber by Rules 54 § 3 and 59 § 3 in relation to the holding of a hearing may, in proceedings before the Grand Chamber, also be exercised by the President of the Grand Chamber.

Rule 722 – Relinquishment of jurisdiction in favour of the Grand Chamber 1. Where a case pending before a Chamber raises a serious question affecting the interpretation of the Convention or the Protocols thereto, the Chamber may relinquish jurisdiction in favour of the Grand Chamber, unless one of the parties to the case has objected in accordance with paragraph 4 of this Rule. 2. Where the resolution of a question raised in a case before the Chamber might have a result inconsistent with the Court’s case-law, the Chamber shall relinquish jurisdiction in favour of the Grand Chamber, unless one of the parties to the case has objected in accordance with paragraph 4 of this Rule. 3. Reasons need not be given for the decision to relinquish. 4. The Registrar shall notify the parties of the Chamber’s intention to relinquish jurisdiction. The parties shall have one month from the date of that notification within which to file at the Registry a duly reasoned objection. An objection which does not fulfil these conditions shall be considered invalid by the Chamber.

Rule 73 – Request by a party for referral of a case to the Grand Chamber 1. In accordance with Article 43 of the Convention, any party to a case may exceptionally, within a period of three months from the date of delivery of the judgment of a Chamber, file in writing at the Registry a request that the case be referred to the Grand Chamber. The party shall specify in its request the serious question affecting the interpretation or application of the Convention or the Protocols thereto, or the serious issue of general importance, which in its view warrants consideration by the Grand Chamber. 2. A panel of five judges of the Grand Chamber constituted in accordance with Rule 24 § 5 shall examine the request solely on the basis of the existing case file. It 1 2

As amended by the Court on 17 June and 8 July 2002. As amended by the Court on 6 February 2013.

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Rules of Court Rules 73–75 shall accept the request only if it considers that the case does raise such a question or issue. Reasons need not be given for a refusal of the request. 3. If the panel accepts the request, the Grand Chamber shall decide the case by means of a judgment.

Chapter VIII – Judgments Rule 741 – Contents of the judgment 1. A judgment as referred to in Articles 28, 42 and 44 of the Convention shall contain (a) the names of the President and the other judges constituting the Chamber or the Committee concerned, and the name of the Registrar or the Deputy Registrar; (b) the dates on which it was adopted and delivered; (c) a description of the parties; (d) the names of the Agents, advocates or advisers of the parties; (e) an account of the procedure followed; (f) the facts of the case; (g) a summary of the submissions of the parties; (h) the reasons in point of law; (i) the operative provisions; (j) the decision, if any, in respect of costs; (k) the number of judges constituting the majority; (l) where appropriate, a statement as to which text is authentic. 2. Any judge who has taken part in the consideration of the case by a Chamber or by the Grand Chamber shall be entitled to annex to the judgment either a separate opinion, concurring with or dissenting from that judgment, or a bare statement of dissent.

Rule 752 – Ruling on just satisfaction 1. Where the Chamber or the Committee finds that there has been a violation of the Convention or the Protocols thereto, it shall give in the same judgment a ruling on the application of Article 41 of the Convention if a specific claim has been submitted in accordance with Rule 60 and the question is ready for decision; if the question is not ready for decision, the Chamber or the Committee shall reserve it in whole or in part and shall fix the further procedure. 2. For the purposes of ruling on the application of Article 41 of the Convention, the Chamber or the Committee shall, as far as possible, be composed of those judges who sat to consider the merits of the case. Where it is not possible to constitute the original Chamber or Committee, the President of the Section shall complete or compose the Chamber or Committee by drawing lots. 3. The Chamber or the Committee may, when affording just satisfaction under Article 41 of the Convention, direct that if settlement is not made within a specified time, interest is to be payable on any sums awarded.

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518

As amended by the Court on 13 November 2006. As amended by the Court on 13 December 2004 and 13 November 2006.

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Rules 75–79

Rules of Court

4. If the Court is informed that an agreement has been reached between the injured party and the Contracting Party liable, it shall verify the equitable nature of the agreement and, where it finds the agreement to be equitable, strike the case out of the list in accordance with Rule 43 § 3.

Rule 761 – Language of the judgment 1. Unless the Court decides that a judgment shall be given in both official languages, all judgments shall be given either in English or in French. 2. Publication of such judgments in the official reports of the Court, as provided for in Rule 78, shall be in both official languages of the Court.

Rule 772 – Signature, delivery and notification of the judgment 1. Judgments shall be signed by the President of the Chamber or the Committee and the Registrar. 2. The judgment adopted by a Chamber may be read out at a public hearing by the President of the Chamber or by another judge delegated by him or her. The Agents and representatives of the parties shall be informed in due time of the date of the hearing. Otherwise, and in respect of judgments adopted by Committees, the notification provided for in paragraph 3 of this Rule shall constitute delivery of the judgment. 3. The judgment shall be transmitted to the Committee of Ministers. The Registrar shall send copies to the parties, to the Secretary General of the Council of Europe, to any third party, including the Council of Europe Commissioner for Human Rights, and to any other person directly concerned. The original copy, duly signed and sealed, shall beplaced in the archives of the Court.

Rule 78 – Publication of judgments and other documents In accordance with Article 44 § 3 of the Convention, final judgments of the Court shall be published, under the responsibility of the Registrar, in an appropriate form. The Registrar shall in addition be responsible for the publication of official reports of selected judgments and decisions and of any document which the President of the Court considers it useful to publish.

Rule 79 – Request for interpretation of a judgment 1. A party may request the interpretation of a judgment within a period of one year following the delivery of that judgment. 2. The request shall be filed with the Registry. It shall state precisely the point or pointsin the operative provisions of the judgment on which interpretation is required. 3. The original Chamber may decide of its own motion to refuse the request on the ground that there is no reason to warrant considering it. Where it is not possible to constitute the original Chamber, the President of the Court shall complete or compose the Chamber by drawing lots.

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As amended by the Court on 17 June and 8 July 2002. As amended by the Court on 13 November 2006 and 1 December 2008.

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Rules of Court Rules 79–82 4. If the Chamber does not refuse the request, the Registrar shall communicate it to the other party or parties and shall invite them to submit any written comments within a time-limit laid down by the President of the Chamber. The President of the Chamber shall also fix the date of the hearing should the Chamber decide to hold one. The Chamber shall decide by means of a judgment.

Rule 80 – Request for revision of a judgment 1. A party may, in the event of the discovery of a fact which might by its nature have a decisive influence and which, when a judgment was delivered, was unknown to the Court and could not reasonably have been known to that party, request the Court, within a period of six months after that party acquired knowledge of the fact, to revise that judgment. 2. The request shall mention the judgment of which revision is requested and shall contain the information necessary to show that the conditions laid down in paragraph 1 of this Rule have been complied with. It shall be accompanied by a copy of all supporting documents. The request and supporting documents shall be filed with the Registry. 3. The original Chamber may decide of its own motion to refuse the request on the ground that there is no reason to warrant considering it. Where it is not possible to constitute the original Chamber, the President of the Court shall complete or compose the Chamber by drawing lots. 4. If the Chamber does not refuse the request, the Registrar shall communicate it to the other party or parties and shall invite them to submit any written comments within a time-limit laid down by the President of the Chamber. The President of the Chamber shall also fix the date of the hearing should the Chamber decide to hold one. The Chamber shall decide by means of a judgment.

Rule 81 – Rectification of errors in decisions and judgments Without prejudice to the provisions on revision of judgments and on restoration to the list of applications, the Court may, of its own motion or at the request of a party made within one month of the delivery of a decision or a judgment, rectify clerical errors, errors in calculation or obvious mistakes.

Chapter IX – Advisory Opinions Rule 82 In proceedings relating to advisory opinions the Court shall apply, in addition to the provisions of Articles 47, 48 and 49 of the Convention, the provisions which follow. It shall also apply the other provisions of these Rules to the extent to which it considers this to be appropriate.

520

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Rules 83–88

Rules of Court

Rule 831 The request for an advisory opinion shall be filed with the Registrar. It shall state fully and precisely the question on which the opinion of the Court is sought, and also (a) the date on which the Committee of Ministers adopted the decision referred to in Article 47 § 3 of the Convention; (b) the name and address of the person or persons appointed by the Committee of Ministers to give the Court any explanations which it may require. The request shall be accompanied by all documents likely to elucidate the question.

Rule 842 1. On receipt of a request, the Registrar shall transmit a copy of it and of the accompanying documents to all members of the Court. 2. The Registrar shall inform the Contracting Parties that they may submit written comments on the request.

Rule 853 1. The President of the Court shall lay down the time-limits for filing written comments or other documents. 2. Written comments or other documents shall be filed with the Registrar. The Registrar shall transmit copies of them to all the members of the Court, to the Committee of Ministers and to each of the Contracting Parties.

Rule 86 After the close of the written procedure, the President of the Court shall decide whether the Contracting Parties which have submitted written comments are to be given an opportunity to develop them at an oral hearing held for the purpose.

Rule 874 1. A Grand Chamber shall be constituted to consider the request for an advisory opinion. 2. If the Grand Chamber considers that the request is not within its competence as defined in Article 47 of the Convention, it shall so declare in a reasoned decision.

Rule 885 1. Reasoned decisions and advisory opinions shall be given by a majority vote of the Grand Chamber. They shall mention the number of judges constituting the majority. 2. Any judge may, if he or she so desires, attach to the reasoned decision or advisory opinion of the Court either a separate opinion, concurring with or dissenting from the reasoned decision or advisory opinion, or a bare statement of dissent. 1

As amended As amended 3 As amended 4 As amended 5 As amended 2

by the Court by the Court by the Court by the Court by the Court

on on on on on

4 July 4 July 4 July 4 July 4 July

2005. 2005. 2005. 2005. 2005.

521

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Rules of Court Rules 89–93 Rule 891 The reasoned decision or advisory opinion may be read out in one of the two official languages by the President of the Grand Chamber, or by another judge delegated by the President, at a public hearing, prior notice having been given to the Committee of Ministers and to each of the Contracting Parties. Otherwise the notification provided for in Rule 90 shall constitute delivery of the opinion or reasoned decision.

Rule 902 The advisory opinion or reasoned decision shall be signed by the President of the Grand Chamber and by the Registrar. The original copy, duly signed and sealed, shall be placed in the archives of the Court. The Registrar shall send certified copies to the Committee of Ministers, to the Contracting Parties and to the Secretary General of the Council of Europe.

Chapter X – Proceedings under Article 46 §§ 3, 4 and 5 of the Convention Sub-chapter I – Proceedings under Article 46 § 3 of the Convention Rule 91 Any request for interpretation under Article 46 § 3 of the Convention shall be filed with the Registrar. The request shall state fully and precisely the nature and source of the question of interpretation that has hindered execution of the judgment mentioned in the request and shall be accompanied by (a) information about the execution proceedings, if any, before the Committee of Ministers in respect of the judgment; (b) a copy of the decision referred to in Article 46 § 3 of the Convention; (c) the name and address of the person or persons appointed by the Committee of Ministers to give the Court any explanations which it may require.

Rule 92 1. The request shall be examined by the Grand Chamber, Chamber or Committee which rendered the judgment in question. 2. Where it is not possible to constitute the original Grand Chamber, Chamber or Committee, the President of the Court shall complete or compose it by drawing lots.

Rule 93 The decision of the Court on the question of interpretation referred to it by the Committee of Ministers is final. No separate opinion of the judges may be delivered thereto. Copies of the ruling shall be transmitted to the Committee of Ministers and

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522

As amended by the Court on 4 July 2005. As amended by the Court on 4 July 2005.

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Rules 93–99

Rules of Court

to the parties concerned as well as to any third party, including the Council of Europe Commissioner for Human Rights.

Sub-chapter II – Proceedings under Article 46 §§ 4 and 5 of the Convention Rule 94 In proceedings relating to a referral to the Court of a question whether a Contracting Party has failed to fulfil its obligation under Article 46 § 1 of the Convention the Court shall apply, in addition to the provisions of Article 31 (b) and Article 46 §§ 4 and 5 of the Convention, the provisions which follow. It shall also apply the other provisions of these Rules to the extent to which it considers this to be appropriate.

Rule 95 Any request made pursuant to Article 46 § 4 of the Convention shall be reasoned and shall be filed with the Registrar. It shall be accompanied by (a) the judgment concerned; (b) information about the execution proceedings before the Committee of Ministers in respect of the judgment concerned, including, if any, the views expressed in writing by the parties concerned and communications submitted in those proceedings; (c) copies of the formal notice served on the respondent Contracting Party or Parties and the decision referred to in Article 46 § 4 of the Convention; (d) the name and address of the person or persons appointed by the Committee of Ministers to give the Court any explanations which it may require; (e) copies of all other documents likely to elucidate the question.

Rule 96 A Grand Chamber shall be constituted, in accordance with Rule 24 § 2 (g), to consider the question referred to the Court.

Rule 97 The President of the Grand Chamber shall inform the Committee of Ministers and the parties concerned that they may submit written comments on the question referred.

Rule 98 1. The President of the Grand Chamber shall lay down the time-limits for filing written comments or other documents. 2. The Grand Chamber may decide to hold a hearing.

Rule 99 The Grand Chamber shall decide by means of a judgment. Copies of the judgment shall be transmitted to the Committee of Ministers and to the parties

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Rules of Court Rules 99–103 concerned as well as to any third party, including the Council of Europe Commissioner for Human Rights.

Chapter XI – Legal Aid Rule 100 (former Rule 91) 1. The President of the Chamber may, either at the request of an applicant having lodged an application under Article 34 of the Convention or of his or her own motion, grant free legal aid to the applicant in connection with the presentation of the case from the moment when observations in writing on the admissibility of that application are received from the respondent Contracting Party in accordance with Rule 54 § 2 b, or where the time-limit for their submission has expired. 2. Subject to Rule 105, where the applicant has been granted legal aid in connection with the presentation of his or her case before the Chamber, that grant shall continue in force for the purposes of his or her representation before the Grand Chamber.

Rule 101 (former Rule 92) Legal aid shall be granted only where the President of the Chamber is satisfied (a) that it is necessary for the proper conduct of the case before the Chamber; (b) that the applicant has insufficient means to meet all or part of the costs entailed.

Rule 102 (former Rule 931) 1. In order to determine whether or not applicants have sufficient means to meet all or part of the costs entailed, they shall be required to complete a form of declaration stating their income, capital assets and any financial commitments in respect of dependants, or any other financial obligations. The declaration shall be certified by the appropriate domestic authority or authorities. 2. The President of the Chamber may invite the Contracting Party concerned to submit its comments in writing. 3. After receiving the information mentioned in paragraph 1 of this Rule, the President of the Chamber shall decide whether or not to grant legal aid. The Registrar shall inform the parties accordingly.

Rule 103 (former Rule 94) 1. Fees shall be payable to the advocates or other persons appointed in accordance with Rule 36 § 4. Fees may, where appropriate, be paid to more than one such representative. 2. Legal aid may be granted to cover not only representatives’ fees but also travelling and subsistence expenses and other necessary expenses incurred by the applicant or appointed representative.

1

524

As amended by the Court on 29 May 2006.

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Rules 104–107

Rules of Court

Rule 104 (former Rule 95) On a decision to grant legal aid, the Registrar shall fix (a) the rate of fees to be paid in accordance with the legal-aid scales in force; (b) the level of expenses to be paid.

Rule 105 (former Rule 96) The President of the Chamber may, if satisfied that the conditions stated in Rule 101 are no longer fulfilled, revoke or vary a grant of legal aid at any time.

Title III – Transitional Rules Former rules 97 and 98 deleted

Rule 106 – Relations between the Court and the Commission (former Rule 99) 1. In cases brought before the Court under Article 5 §§ 4 and 5 of Protocol No. 11 to the Convention, the Court may invite the Commission to delegate one or more of its members to take part in the consideration of the case before the Court. 2. In cases referred to in paragraph 1 of this Rule, the Court shall take into consideration the report of the Commission adopted pursuant to former Article 31 of the Convention. 3. Unless the President of the Chamber decides otherwise, the said report shall be made available to the public through the Registrar as soon as possible after the case has been brought before the Court. 4. The remainder of the case file of the Commission, including all pleadings, in cases brought before the Court under Article 5 §§ 2 to 5 of Protocol No. 11 shall remain confidential unless the President of the Chamber decides otherwise. 5. In cases where the Commission has taken evidence but has been unable to adopt a report in accordance with former Article 31 of the Convention, the Court shall take into consideration the verbatim records, documentation and opinion of the Commission’s delegations arising from such investigations.

Rule 107 – Chamber and Grand Chamber proceedings (former Rule 100) 1. In cases referred to the Court under Article 5 § 4 of Protocol No. 11 to the Convention, a panel of the Grand Chamber constituted in accordance with Rule 24 § 5 shall determine, solely on the basis of the existing case file, whether a Chamber or the Grand Chamber is to decide the case. 2. If the case is decided by a Chamber, the judgment of the Chamber shall, in accordance with Article 5 § 4 of Protocol No. 11, be final and Rule 73 shall be inapplicable. 3. Cases transmitted to the Court under Article 5 § 5 of Protocol No. 11 shall be forwarded by the President of the Court to the Grand Chamber. 4. For each case transmitted to the Grand Chamber under Article 5 § 5 of Protocol No. 11, the Grand Chamber shall be completed by judges designated by

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Rules of Court Rules 107–110 rotation within one of the groups mentioned in Rule 24 § 31, the cases being allocated to the groups on an alternate basis.

Rule 108 – Grant of legal aid (former Rule 101) Subject to Rule 96, in cases brought before the Court under Article 5 §§ 2 to 5 of Protocol No. 11 to the Convention, a grant of legal aid made to an applicant in the proceedings before the Commission or the former Court shall continue in force for the purposes of his or her representation before the Court.

Rule 109 – Request for revision of a judgment (former Rule 1022) 1. Where a party requests revision of a judgment delivered by the former Court, the President of the Court shall assign the request to one of the Sections in accordance with the conditions laid down in Rule 51 or 52, as the case may be. 2. The President of the relevant Section shall, notwithstanding Rule 80 § 3, constitute a new Chamber to consider the request. 3. The Chamber to be constituted shall include as ex officio members (a) the President of the Section; and, whether or not they are members of the relevant Section, (b) the judge elected in respect of any Contracting Party concerned or, if he or she is unable to sit, any judge appointed under Rule 29; (c) any judge of the Court who was a member of the original Chamber that delivered the judgment in the former Court. 4. (a) The other members of the Chamber shall be designated by the President of the Section by means of a drawing of lots from among the members of the relevant Section. (b) The members of the Section who are not so designated shall sit in the case as substitute judges.

Title IV – Final Clauses Rule 110 – Amendment or suspension of a Rule (former Rule 103) 1. Any Rule may be amended upon a motion made after notice where such a motion is carried at the next session of the plenary Court by a majority of all the members of the Court. Notice of such a motion shall be delivered in writing to the Registrar at least one month before the session at which it is to be discussed. On receipt of such a notice of motion, the Registrar shall inform all members of the Court at the earliest possible moment. 2. A Rule relating to the internal working of the Court may be suspended upon a motion made without notice, provided that this decision is taken unanimously by the Chamber concerned. The suspension of a Rule shall in this case be limited in its operation to the particular purpose for which it was sought.

1 2

526

As amended by the Court on 13 December 2004. As amended by the Court on 13 December 2004.

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Rule 111

Rules of Court

Rule 111 – Entry into force of the Rules (former Rule 1041) The present Rules shall enter into force on 1 November 1998. 1

The amendments adopted on 8 December 2000 entered into force immediately. The amendments adopted on 17 June 2002 and 8 July 2002 entered into force on 1 October 2002. The amendments adopted on 7 July 2003 entered into force on 1 November 2003. The amendments adopted on 13 December 2004 entered into force on 1 March 2005. The amendments adopted on 4 July 2005 entered into force on 3 October 2005. The amendments adopted on 7 November 2005 entered into force on 1 December 2005. The amendments adopted on 29 May 2006 entered into force on 1 July 2006. The amendments adopted on 14 May 2007 entered into force on 1 July 2007. The amendments adopted on 11 December 2007, 22 September and 1 December 2008 entered into force on 1 January 2009. The amendments adopted on 29 June 2009 entered into force on 1 July 2009. The amendments relating to Protocol No. 14 to the Convention, adopted on 13 November 2006 and 14 May 2007, entered into force on 1 June 2010. The amendments adopted on 21 February 2011 entered into force on 1 April 2011. The amendments adopted on 16 January 2012 entered into force on 1 February 2012. The amendments adopted on 20 February 2012 entered into force on 1 May 2012. The amendments adopted on 2 April 2012 entered into force on 1 September 2012. The amendments adopted on 14 January and 6 February 2013 entered into force on 1 May 2013. The amendments adopted on 6 May 2013 entered into force on 1 July 2013 and 1 January 2014.

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Rules of Court Rules A1, A2 Annex to the Rules1 (concerning investigations) Rule A1 – Investigative measures 1. The Chamber may, at the request of a party or of its own motion, adopt any investigative measure which it considers capable of clarifying the facts of the case. The Chamber may, inter alia, invite the parties to produce documentary evidence and decide to hear as a witness or expert or in any other capacity any person whose evidence or statements seem likely to assist it in carrying out its tasks. 2. The Chamber may also ask any person or institution of its choice to express an opinion or make a written report on any matter considered by it to be relevant to the case. 3. After a case has been declared admissible or, exceptionally, before the decision on admissibility, the Chamber may appoint one or more of its members or of the other judges of the Court, as its delegate or delegates, to conduct an inquiry, carry out an onsite investigation or take evidence in some other manner. The Chamber may also appoint any person or institution of its choice to assist the delegation in such manner as it sees fit. 4. The provisions of this Chapter concerning investigative measures by a delegation shall apply, mutatis mutandis, to any such proceedings conducted by the Chamber itself. 5. Proceedings forming part of any investigation by a Chamber or its delegation shall be held in camera, save in so far as the President of the Chamber or the head of the delegation decides otherwise. 6. The President of the Chamber may, as he or she considers appropriate, invite, or grant leave to, any third party to participate in an investigative measure. The President shall lay down the conditions of any such participation and may limit that participation if those conditions are not complied with.

Rule A2 – Obligations of the parties as regards investigative measures 1. The applicant and any Contracting Party concerned shall assist the Court as necessary in implementing any investigative measures. 2. The Contracting Party on whose territory on-site proceedings before a delegation take place shall extend to the delegation the facilities and cooperation necessary for the proper conduct of the proceedings. These shall include, to the full extent necessary, freedom of movement within the territory and all adequate security arrangements for the delegation, for the applicant and for all witnesses, experts and others who may be heard by the delegation. It shall be the responsibility of the Contracting Party concerned to take steps to ensure that no adverse consequences are suffered by any person or organisation on account of any evidence given, or of any assistance provided, to the delegation.

1

528

Inserted by the Court on 7 July 2003.

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Rules A3–A5

Rules of Court

Rule A3 – Failure to appear before a delegation Where a party or any other person due to appear fails or declines to do so, the delegation may, provided that it is satisfied that such a course is consistent with the proper administration of justice, nonetheless continue with the proceedings.

Rule A4 – Conduct of proceedings before a delegation 1. The delegates shall exercise any relevant power conferred on the Chamber by the Convention or these Rules and shall have control of the proceedings before them. 2. The head of the delegation may decide to hold a preparatory meeting with the parties or their representatives prior to any proceedings taking place before the delegation.

Rule A5 – Convocation of witnesses, experts and of other persons to proceedings before a delegation 1. Witnesses, experts and other persons to be heard by the delegation shall be summoned by the Registrar. 2. The summons shall indicate (a) the case in connection with which it has been issued; (b) the object of the inquiry, expert opinion or other investigative measure ordered by the Chamber or the President of the Chamber; (c) any provisions for the payment of sums due to the person summoned. 3. The parties shall provide, in so far as possible, sufficient information to establish the identity and addresses of witnesses, experts or other persons to be summoned. 4. In accordance with Rule 37 § 2, the Contracting Party in whose territory the witness resides shall be responsible for servicing any summons sent to it by the Chamber forservice. In the event of such service not being possible, the Contracting Party shall give reasons in writing. The Contracting Party shall further take all reasonable steps to ensure the attendance of persons summoned who are under its authority or control. 5. The head of the delegation may request the attendance of witnesses, experts and other persons during on-site proceedings before a delegation. The Contracting Party on whose territory such proceedings are held shall, if so requested, take all reasonable steps to facilitate that attendance. 6. Where a witness, expert or other person is summoned at the request or on behalf of a Contracting Party, the costs of their appearance shall be borne by that Party unless the Chamber decides otherwise. The costs of the appearance of any such person who is in detention in the Contracting Party on whose territory on-site proceedings before a delegation take place shall be borne by that Party unless the Chamber decides otherwise. In all other cases, the Chamber shall decide whether such costs are to be borne by the Council of Europe or awarded against the applicant or third party at whose request or on whose behalf the person appears. In all cases, such costs shall be taxed by the President of the Chamber.

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Rules of Court Rules A6–A8 Rule A6 – Oath or solemn declaration by witnesses and experts heard by a delegation 1. After the establishment of the identity of a witness and before testifying, each witness shall take the oath or make the following solemn declaration: “I swear” – or “I solemnly declare upon my honour and conscience” – “that I shall speak the truth, the whole truth and nothing but the truth.” This act shall be recorded in minutes. 2. After the establishment of the identity of the expert and before carrying out his or her task for the delegation, every expert shall take the oath or make the following solemn declaration: “I swear” – or “I solemnly declare” – “that I will discharge my duty as an expert honourably and conscientiously.” This act shall be recorded in minutes.

Rule A7 – Hearing of witnesses, experts and other persons by a delegation 1. Any delegate may put questions to the Agents, advocates or advisers of the parties, to the applicant, witnesses and experts, and to any other persons appearing before the delegation. 2. Witnesses, experts and other persons appearing before the delegation may, subject to the control of the head of the delegation, be examined by the Agents and advocates or advisers of the parties. In the event of an objection to a question put, the head of the delegation shall decide. 3. Save in exceptional circumstances and with the consent of the head of the delegation, witnesses, experts and other persons to be heard by a delegation will not be admitted to the hearing room before they give evidence. 4. The head of the delegation may make special arrangements for witnesses, experts or other persons to be heard in the absence of the parties where that is required for the proper administration of justice. 5. The head of the delegation shall decide in the event of any dispute arising from an objection to a witness or expert. The delegation may hear for information purposes a person who is not qualified to be heard as a witness or expert.

Rule A8 – Verbatim record of proceedings before a delegation 1. A verbatim record shall be prepared by the Registrar of any proceedings concerning an investigative measure by a delegation. The verbatim record shall include: (a) the composition of the delegation; (b) a list of those appearing before the delegation, that is to say Agents, advocates and advisers of the parties taking part; (c) the surname, forenames, description and address of each witness, expert or other person heard; (d) the text of statements made, questions put and replies given;

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Rule A8

Rules of Court

(e) the text of any ruling delivered during the proceedings before the delegation or by the head of the delegation. 2. If all or part of the verbatim record is in a non-official language, the Registrar shall arrange for its translation into one of the official languages. 3. The representatives of the parties shall receive a copy of the verbatim record in orderthat they may, subject to the control of the Registrar or the head of the delegation, make corrections, but in no case may such corrections affect the sense and bearing of what was said. The Registrar shall lay down, in accordance with the instructions of the head of the delegation, the time-limits granted for this purpose. 4. The verbatim record, once so corrected, shall be signed by the head of the delegation and the Registrar and shall then constitute certified matters of record.

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Rules of Court Practice Directions: Requests for interim measures Practice Directions Requests for interim measures1 (Rule 39 of the Rules of Court) By virtue of Rule 39 of the Rules of Court, the Court may issue interim measures which are binding on the State concerned. Interim measures are only applied in exceptional cases. The Court will only issue an interim measure against a Member State where, having reviewed all the relevant information, it considers that the applicant faces a real risk of serious, irreversible harm if the measure is not applied. Applicants or their legal representatives2 who make a request for an interim measure pursuant to Rule 39 of the Rules of Court should comply with the requirements set out below. I. Accompanying information Any request lodged with the Court must state reasons. The applicant must in particular specify in detail the grounds on which his or her particular fears are based, the nature of the alleged risks and the Convention provisions alleged to have been violated. A mere reference to submissions in other documents or domestic proceedings is not sufficient. It is essential that requests be accompanied by all necessary supporting documents, in particular relevant domestic court, tribunal or other decisions, together with any other material which is considered to substantiate the applicant’s allegations. The Court will not necessarily contact applicants whose request for interim measures is incomplete, and requests which do not include the information necessary to make a decision will not normally be submitted for a decision. Where the case is already pending before the Court, reference should be made to the application number allocated to it. In cases concerning extradition or deportation, details should be provided of the expected date and time of the removal, the applicant’s address or place of detention and his or her official case-reference number. The Court must be notified of any change to those details (date and time of removal, address etc.) as soon as possible. The Court may decide to take a decision on the admissibility of the case at the same time as considering the request for interim measures. II. Requests to be made by facsimile or letter3 Requests for interim measures under Rule 39 should be sent by facsimile or by post. The Court will not deal with requests sent by e-mail. The request should, where

1 Practice direction issued by the President of the Court in accordance with Rule 32 of the Rules of Court on 5 March 2003 and amended on 16 October 2009 and on 7 July 2011. 2 It is essential that full contact details be provided. 3 According to the degree of urgency and bearing in mind that requests by letter must not be sent by standard post.

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Practice Directions: Requests for interim measures

Rules of Court

possible, be in one of the official languages of the Contracting Parties. All requests should be marked as follows in bold on the face of the request: “Rule 39 – Urgent Person to contact (name and contact details): … [In deportation or extradition cases] Date and time of removal and destination: …” III. Making requests in good time Requests for interim measures should normally be received as soon as possible after the final domestic decision has been taken, in order to enable the Court and its Registry to have sufficient time to examine the matter. The Court may not be able to deal with requests in removal cases received less than a working day before the planned time of removal1. Where the final domestic decision is imminent and there is a risk of immediate enforcement, especially in extradition or deportation cases, applicants and their representatives should submit the request for interim measures without waiting for that decision, indicating clearly the date on which it will be taken and that the request is subject to the final domestic decision being negative. IV. Domestic measures with suspensive effect The Court is not an appeal tribunal from domestic tribunals, and applicants in extradition and expulsion cases should pursue domestic avenues which are capable of suspending removal before applying to the Court for interim measures. Where it remains open to an applicant to pursue domestic remedies which have suspensive effect, the Court will not apply Rule 39 to prevent removal. V. Follow-up Applicants who apply for an interim measure under Rule 39 should ensure that they reply to correspondence from the Court’s Registry. In particular, where a measure has been refused, they should inform the Court whether they wish to pursue the application. Where a measure has been applied, they must keep the Court regularly and promptly informed about the state of any continuing domestic proceedings. Failure to do so may lead to the case being struck out of the Court’s list of cases. 1 The list of public and other holidays when the Court’s Registry is closed can be consulted on the Court’s internet site: http://www.echr.coe.int/ECHR/EN/Bottom/Contact/Holidays.htm

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Rules of Court Practice Directions: Institution of proceedings Institution of proceedings1 (Individual applications under Article 34 of the Convention) I. General 1. An application under Article 34 of the Convention must be submitted in writing. No application may be made by telephone. 2. An application must be sent to the following address: The Registrar European Court of Human Rights Council of Europe F-67075 Strasbourg Cedex. 3. An application should normally be made on the form2 referred to in Rule 47 § 1 of the Rules of Court and be accompanied by the documents and decisions mentioned in Rule 47 § 1 (h). Where an applicant introduces his or her application in a letter, such letter must set out, at least in summary form, the subject matter of the application in order to interrupt the running of the six-month rule contained in Article 35 § 1 of the Convention. 4. If an application has not been submitted on the official form or an introductory letter does not contain all the information referred to in Rule 47, the applicant may be required to submit a duly completed form. It must be despatched within eight weeks from the date of the Registry’s letter requesting the applicant to complete and return the form. Failure to comply with this time-limit will have implications for the date of introduction of the application and may therefore affect the applicant’s compliance with the six-month rule contained in Article 35 § 1 of the Convention. 5. Applicants may file an application by sending it by fax3. However, they must despatch the signed original by post within eight weeks from the date of the Registry’s letter referred to in paragraph 4 above. 6. Where, within six months of being asked to do so, an applicant has not returned a duly completed application form, the file will be destroyed. 7. On receipt of the first communication setting out the subject-matter of the case, the Registry will open a file, whose number must be mentioned in all subsequent correspondence. Applicants will be informed thereof by letter. They may also be asked for further information or documents. 8. (a) An applicant should be diligent in conducting correspondence with the Court’s Registry. 1 Practice direction issued by the President of the Court in accordance with Rule 32 of the Rules of Court on 1 November 2003 and amended on 22 September 2008 and on 24 June 2009. This practice direction supplements Rules 45 and 47. 2 The relevant form can be downloaded from the Court’s website (www.echr.coe.int). 3 Fax no. +33 (0)3 88 41 27 30; other fax numbers can be found on the Court’s website (www.echr.coe.int).

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Practice Directions: Written pleadings

Rules of Court

(b) A delay in replying or failure to reply may be regarded as a sign that the applicant is no longer interested in pursuing his or her application. 9. Failure to provide further information or documents at the Registry’s request (see paragraph 7) may result in the application not being examined by the Court or being declared inadmissible or struck out of the Court’s list of cases. II. Form and contents 10. An application should be written legibly and, preferably, typed. 11. Where, exceptionally, an application exceeds ten pages (excluding annexes listing documents), an applicant must also file a short summary. 12. Where applicants produce documents in support of the application, they should not submit original copies. The documents should be listed in order by date, numbered consecutively and given a concise description (e.g., letter, order, judgment, appeal, etc.). 13. An applicant who already has an application pending before the Court must inform the Registry accordingly, stating the application number. 14. (a) Where an applicant does not wish to have his or her identity disclosed, he or she should state the reasons for his or her request in writing, pursuant to Rule 47 § 3. (b) The applicant should also state whether, in the event of anonymity being authorised by the President of the Chamber, he or she wishes to be designated by his or her initials or by a single letter (e.g., “X”, “Y”, “Z”, etc.)

Written pleadings1 I. Filing of pleadings General 1. A pleading must be filed with the Registry within the time-limit fixed in accordance with Rule 38 and in the manner described in paragraph 2 of that Rule. 2. The date on which a pleading or other document is received at the Court’s Registry will be recorded on that document by a receipt stamp. 3. With the exception of pleadings and documents for which a system of secured electronic filing has been set up, all other pleadings, as well as all documents annexed thereto, should be submitted to the Court’s Registry in three copies sent by post or in one copy by fax2, followed by three copies sent by post. 4. Pleadings or other documents submitted by electronic mail shall not be accepted. 5. Secret documents should be filed by registered post. 6. Unsolicited pleadings shall not be admitted to the case file unless the President of the Chamber decides otherwise (see Rule 38 § 1). Filing by fax 7. A party may file pleadings or other documents with the Court by sending them by fax. 1

Practice direction issued by the President of the Court in accordance with Rule 32 of the Rules of Court on 1 November 2003 and amended on 22 September 2008.

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Rules of Court Practice Directions: Written pleadings 8. The name of the person signing a pleading must also be printed on it so that he or she can be identified. Secured electronic filing 9. The Court may authorise the Government of a Contracting Party to file pleadings and other documents electronically through a secured server. In such cases, the practice directions on written pleadings shall apply in conjunction with the practice directions on secured electronic filing. II. Form and contents Form 10. A pleading should include: (a) the application number and the name of the case; (b) a title indicating the nature of the content (e.g., observations on admissibility [and the merits]; reply to the Government’s/the applicant’s observations on admissibility [and the merits]; observations on the merits; additional observations on admissibility [and the merits]; memorial etc.). 11. A pleading should normally in addition (a) be in an A4 page format having a margin of not less than 3.5 cm wide; (b) be typed and wholly legible, the text appearing in at least 12 pt in the body and 10 pt in the footnotes, with one-and-a-half line spacing; (c) have all numbers expressed as figures; (d) have pages numbered consecutively; (e) e divided into numbered paragraphs; (f) e divided into chapters and/or headings corresponding to the form and style of the Court’s decisions and judgments (“Facts”/“Domestic law [and practice]”/ “Complaints”/“Law”; the latter chapter should be followed by headings entitled “Preliminary objection on …”, “Alleged violation of Article …”, as the case may be); (g) lace any answer to a question by the Court or to the other party’s arguments under a separate heading; (h) ive a reference to every document or piece of evidence mentioned in the pleading and annexed thereto; (i) f sent by post, the text of a pleading must appear on one side of the page only and pages and attachments must be placed together in such a way as to enable them to be easily separated (they must not be glued or stapled). 12. If a pleading exceptionally exceeds thirty pages, a short summary should also be filed with it. 13. Where a party produces documents and/or other exhibits together with a pleading, every piece of evidence should be listed in a separate annex. Contents 14. The parties’ pleadings following communication of the application should include (a) any comments they wish to make on the facts of the case; however, (i) if a party does not contest the facts as set out in the statement of facts prepared by the Registry, it should limit its observations to a brief statement to that effect;

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Practice Directions: Written pleadings

Rules of Court

(ii) if a party contests only part of the facts as set out by the Registry, or wishes to supplement them, it should limit its observations to those specific points; (iii) if a party objects to the facts or part of the facts as presented by the other party, it should state clearly which facts are uncontested and limit its observations to the points in dispute; (b) legal arguments relating first to admissibility and, secondly, to the merits of the case; however, (i) if specific questions on a factual or legal point were put to a party, it should, without prejudice to Rule 55, limit its arguments to such questions; (ii) if a pleading replies to arguments of the other party, submissions should refer to the specific arguments in the order prescribed above. 15. (a) The parties’ pleadings following the admission of the application should include: (i) a short statement confirming a party’s position on the facts of the case as established in the decision on admissibility; (ii) legal arguments relating to the merits of the case; (iii) a reply to any specific questions on a factual or legal point put by the Court. (b) An applicant party submitting claims for just satisfaction at the same time should do so in the manner described in the practice direction on filing just satisfaction claims. 16. In view of the confidentiality of friendly-settlement proceedings (see Article 39 § 2 of the Convention and Rule 62 § 2), all submissions and documents filed within the framework of the attempt to secure a friendly settlement should be submitted separately from the written pleadings. 17. No reference to offers, concessions or other statements submitted in connection with the friendly settlement may be made in the pleadings filed in the contentious proceedings. III. Time-limits General 18. It is the responsibility of each party to ensure that pleadings and any accompanying documents or evidence are delivered to the Court’s Registry in time. Extension of time-limits 19. A time-limit set under Rule 38 may be extended on request from a party. 20. A party seeking an extension of the time allowed for submission of a pleading must make a request as soon as it has become aware of the circumstances justifying such an extension and, in any event, before the expiry of the time-limit. It should state the reason for the delay. 21. If an extension is granted, it shall apply to all parties for which the relevant timelimit is running, including those which have not asked for it. IV. Failure to comply with requirements for pleadings 22. Where a pleading has not been filed in accordance with the requirements set out in paragraphs 8–15 of this practice direction, the President of the Chamber may request the party concerned to resubmit the pleading in compliance with those requirements.

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Rules of Court Practice Directions: Just satisfaction claims 23. A failure to satisfy the conditions listed above may result in the pleading being considered not to have been properly lodged (see Rule 38 § 1).

Just satisfaction claims1 I. Introduction 1. The award of just satisfaction is not an automatic consequence of a finding by the European Court of Human Rights that there has been a violation of a right guaranteed by the European Convention on Human Rights or its Protocols. The wording of Article 41, which provides that the Court shall award just satisfaction only if domestic law does not allow complete reparation to be made, and even then only “if necessary” (s’il y a lieu in the French text), makes this clear. 2. Furthermore, the Court will only award such satisfaction as is considered to be “just” (e´quitable in the French text) in the circumstances. Consequently, regard will be had to the particular features of each case. The Court may decide that for some heads of alleged prejudice the finding of violation constitutes in itself sufficient just satisfaction, without there being any call to afford financial compensation. It may also find reasons of equity to award less than the value of the actual damage sustained or the costs and expenses actually incurred, or even not to make any award at all. This may be the case, for example, if the situation complained of, the amount of damage or the level of the costs is due to the applicant’s own fault. In setting the amount of an award, the Court may also consider the respective positions of the applicant as the party injured by a violation and the Contracting Party as responsible for the public interest. Finally, the Court will normally take into account the local economic circumstances. 3. When it makes an award under Article 41, the Court may decide to take guidance from domestic standards. It is, however, never bound by them. 4. Claimants are warned that compliance with the formal and substantive requirements deriving from the Convention and the Rules of Court is a condition for the award of just satisfaction. II. Submitting claims for just satisfaction: formal requirements 5. Time-limits and other formal requirements for submitting claims for just satisfaction are laid down in Rule 60 of the Rules of Court, the relevant part of which provides as follows: “1. An applicant who wishes to obtain an award of just satisfaction under Article 41 of the Convention in the event of the Court finding a violation of his or her Convention rights must make a specific claim to that effect. 2. The applicant must submit itemised particulars of all claims, together with any relevant supporting documents, within the time-limit fixed for the submission of the applicant’s observations on the merits unless the President of the Chamber directs otherwise. 3. If the applicant fails to comply with the requirements set out in the preceding paragraphs, the Chamber may reject the claims in whole or in part. …”

1

Practice direction issued by the President of the Court in accordance with Rule 32 of the Rules of Court on 28 March 2007.

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Practice Directions: Just satisfaction claims

Rules of Court

Thus, the Court requires specific claims supported by appropriate documentary evidence, failing which it may make no award. The Court will also reject claims set out on the application form but not resubmitted at the appropriate stage of the proceedings and claims lodged out of time. III. Submitting claims for just satisfaction: substantive requirements 6. Just satisfaction may be afforded under Article 41 of the Convention in respect of: (a) pecuniary damage; (b) non-pecuniary damage; and (c) costs and expenses. 1. Damage in general 7. A clear causal link must be established between the damage claimed and the violation alleged. The Court will not be satisfied by a merely tenuous connection between the alleged violation and the damage, nor by mere speculation as to what might have been. 8. Compensation for damage can be awarded in so far as the damage is the result of a violation found. No award can be made for damage caused by events or situations that have not been found to constitute a violation of the Convention, or for damage related to complaints declared inadmissible at an earlier stage of the proceedings. 9. The purpose of the Court’s award in respect of damage is to compensate the applicant for the actual harmful consequences of a violation. It is not intended to punish the Contracting Party responsible. The Court has therefore, until now, considered it inappropriate to accept claims for damages with labels such as “punitive”, “aggravated” or “exemplary”. 2. Pecuniary damage 10. The principle with regard to pecuniary damage is that the applicant should be placed, as far as possible, in the position in which he or she would have been had the violation found not taken place, in other words, restitutio in integrum. This can involve compensation for both loss actually suffered (damnum emergens) and loss, or diminished gain, to be expected in the future (lucrum cessans). 11. It is for the applicant to show that pecuniary damage has resulted from the violation or violations alleged. The applicant should submit relevant documents to prove, as far as possible, not only the existence but also the amount or value of the damage. 12. Normally, the Court’s award will reflect the full calculated amount of the damage. However, if the actual damage cannot be precisely calculated, the Court will make an estimate based on the facts at its disposal. As pointed out in paragraph 2 above, it is also possible that the Court may find reasons in equity to award less than the full amount of the loss. 3. Non-pecuniary damage 13. The Court’s award in respect of non-pecuniary damage is intended to provide financial compensation for non-material harm, for example mental or physical suffering. 539

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Rules of Court Practice Directions: Just satisfaction claims 14. It is in the nature of non-pecuniary damage that it does not lend itself to precise calculation. If the existence of such damage is established, and if the Court considers that a monetary award is necessary, it will make an assessment on an equitable basis, having regard to the standards which emerge from its case-law. 15. Applicants who wish to be compensated for non-pecuniary damage are invited to specify a sum which in their view would be equitable. Applicants who consider themselves victims of more than one violation may claim either a single lump sum covering all alleged violations or a separate sum in respect of each alleged violation. 4. Costs and expenses 16. The Court can order the reimbursement to the applicant of costs and expenses which he or she has incurred – first at the domestic level, and subsequently in the proceedings before the Court itself – in trying to prevent the violation from occurring, or in trying to obtain redress therefor. Such costs and expenses will typically include the cost of legal assistance, court registration fees and suchlike. They may also include travel and subsistence expenses, in particular if these have been incurred by attendance at a hearing of the Court. 17. The Court will uphold claims for costs and expenses only in so far as they are referable to the violations it has found. It will reject them in so far as they relate to complaints that have not led to the finding of a violation, or to complaints declared inadmissible. This being so, applicants may wish to link separate claim items to particular complaints. 18. Costs and expenses must have been actually incurred. That is, the applicant must have paid them, or be bound to pay them, pursuant to a legal or contractual obligation. Any sums paid or payable by domestic authorities or by the Council of Europe by way of legal aid will be deducted. 19. Costs and expenses must have been necessarily incurred. That is, they must have become unavoidable in order to prevent the violation or obtain redress therefor. 20. They must be reasonable as to quantum. If the Court finds them to be excessive, it will award a sum which, on its own estimate, is reasonable. 21. The Court requires evidence, such as itemised bills and invoices. These must be sufficiently detailed to enable the Court to determine to what extent the above requirements have been met. 5. Payment information 22. Applicants are invited to identify a bank account into which they wish any sums awarded to be paid. If they wish particular amounts, for example the sums awarded in respect of costs and expenses, to be paid separately, for example directly into the bank account of their representative, they should so specify. IV. The form of the Court’s awards 23. The Court’s awards, if any, will normally be in the form of a sum of money to be paid by the respondent Contracting Party to the victim or victims of the violations found. Only in extremely rare cases can the Court consider a consequential order aimed at putting an end or remedying the violation in question. The 540

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Practice Directions: Secured electronic filing

Rules of Court

Court may, however, decide at its discretion to offer guidance for the execution of its judgment (Article 46 of the Convention). 24. Any monetary award under Article 41 will normally be in euros (EUR, E) irrespective of the currency in which the applicant expresses his or her claims. If the applicant is to receive payment in a currency other than the euro, the Court will order the sums awarded to be converted into that other currency at the exchange rate applicable on the date of payment. When formulating their claims applicants should, where appropriate, consider the implications of this policy in the light of the effects of converting sums expressed in a different currency into euros or contrariwise. 25. The Court will of its own motion set a time-limit for any payments that may need to be made, which will normally be three months from the date on which its judgment becomes final and binding. The Court will also order default interest to be paid in the event that that time-limit is exceeded, normally at a simple rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

Secured electronic filing1 I. Scope of application 1. The Governments of the Contracting Parties which have opted for the Court’s system of secured electronic filing shall send all their written communications with the Court by uploading them on the secured website set up for that purpose and shall accept written communications sent to them by the Registry of the Court by downloading them from that site, with the following exceptions: (a) all written communications in relation to a request for interim measures under Rule 39 of the Rules of Court shall be sent simultaneously by two means: through the secured website and by fax; (b) attachments, such as plans, manuals, etc., which may not be comprehensively viewed in an electronic format may be filed by post; (c) the Court’s Registry may request that a paper document or attachment be submitted by post. 2. If the Government have filed a document by post or fax, they shall, as soon as possible, file electronically a notice of filing by post or fax, describing the document sent, stating the date of dispatch and setting forth the reasons why electronic filing was not possible. II. Technical requirements 3. The Government shall possess the necessary technical equipment and follow the user manual sent to them by the Court’s Registry.

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Practice direction issued by the President of the Court in accordance with Rule 32 of the Rules of Court on 22 September 2008.

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Rules of Court Practice Directions: Requests for anonymity III. Format and naming convention 4. A document filed electronically shall be in PDF format, preferably in searchable PDF. 5. Unsigned letters and written pleadings shall not be accepted. Signed documents to be filed electronically shall be generated by scanning the original paper copy. The Government shall keep the original paper copy in their files. 6. The name of a document filed electronically shall be prefixed by the application number, followed by the name of the applicant as spelled in the Latin alphabet by the Registry of the Court, and contain an indication of the contents of the document1. IV. Relevant date with regard to time-limits 7. The date on which the Government have successfully uploaded a document on the secured website shall be considered as the date of dispatch within the meaning of Rule 38 § 2 or the date of filing for the purposes of Rule 73 § 1. 8. To facilitate keeping track of the correspondence exchanged, every day shortly before midnight the secured server generates automatically an electronic mail message listing the documents that have been filed electronically within the past twenty-four hours. V. Different versions of one and the same document 9. The secured website shall not permit the modification, replacement or deletion of an uploaded document. If the need arises for the Government to modify a document they have uploaded, they shall create a new document named differently (for example, by adding the word “modified” in the document name). This opportunity should only be used where genuinely necessary and should not be used to correct minor errors. 10. Where the Government have filed more than one version of the same document, only the document filed in time shall be taken into consideration. Where more than one version has been filed in time, the latest version shall be taken into consideration, unless the President of the Chamber decides otherwise.

Requests for anonymity2 (Rules 33 and 47 of the Rules of Court) General principles The parties are reminded that, unless a derogation has been obtained pursuant to Rules 33 or 47 of the Rules of Court, documents in proceedings before the Court are public. Thus, all information that is submitted in connection with an application in both written and oral proceedings, including information about the applicant or third parties, will be accessible to the public.

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For example, 65051/01 Karagyozov Observ Adm Merits. Practice direction issued by the President of the Court in accordance with Rule 32 of the Rules of Court on 14 January 2010. 2

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Practice Directions: Requests for anonymity

Rules of Court

The parties should also be aware that the statement of facts, decisions and judgments of the Court are usually published in HUDOC1 on the Court’s website (Rule 78). Requests in pending cases Any request for anonymity should be made when completing the application form or as soon as possible thereafter. In both cases the applicant should provide reasons for the request and specify the impact that publication may have for him or her. Retroactive requests If an applicant wishes to request anonymity in respect of a case or cases published on HUDOC before 1 January 2010, he or she should send a letter to the Registry setting out the reasons for the request and specifying the impact that this publication has had or may have for him or her. The applicant should also provide an explanation as to why anonymity was not requested while the case was pending before the Court. In deciding on the request the President shall take into account the explanations provided by the applicant, the level of publicity that the decision or judgment has already received and whether or not it is appropriate or practical to grant the request. When the President grants the request, he or she shall also decide on the most appropriate steps to be taken to protect the applicant from being identified. For example, the decision or judgment could, inter alia, be removed from the Court’s website or the personal data deleted from the published document. Other measures The President may also take any other measure he or she considers necessary or desirable in respect of any material published by the Court in order to ensure respect for private life. 1

www.echr.coe.int/echr/en/hudoc

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Index A Abortion 2, 3; 3, 6; 8, 8, 56 Absconding – risk of 5, 21 – prevention of 5, 16, 21 Absolute rights/prohibitions 3, 7; 4, 2, 3; 6, 67 Abuse of right of complaint 6, 69 Access to court 6, 66; 8, 83 – formalities 6, 69 – immunities,, see Immunity – legal representation 6, 76 – limitation periods 6, 69 Access to the file 6, 84, 129 Accessory right 13, 2, 5; 14, 2, 4; P12-1, 3 Accusation, prompt information of the nature and cause of the 6, 125 Acquittal 6, 154, 158, 162; P7-2, 8; P7-4, 2 Administration of justice, protection of the 6, 69, 81, 90 Administrative proceedings 6, 93, 5, 10, 17, 22, 38, 50, 78 Adoption 8, 21, 33, 63 80, 90; 12, 5; 14, 8, 29, 30 Age – discrimination 14, 10, 29 – marriageable 12, 4, 6 Agent provocateur 6, 83 AIDS 14, 27; 3, 15 Aircraft noise 8, 18 Airport, transit zone 5, 3, 27 Alcoholism 5, 23, 25 Alien 3, 13; 5, 27; P1-2, 9 – political activities 10, 62; 11, 33 – expulsion 8, 92; 11, 6, 20; P7-1, 3 Alternative national service 4, 8; 6, 11 Analogy, prohibition of 7, 5 Ancillary right 13, 2, 5; 14, 2, 4; P12-1, 3 Appeal 6, 69 – constitutional court, to a 13, 8, 14; 6, 93 – fair trial 6, 85; 5, 21 – proceedings 6, 62, 66, 96, 118, 130, 134, 139, 142, 154 – public hearing 5, 41; 6, 118 – right of 6, 75; P7-2, 1 Arbitrariness 5, 7, 10; 8, 44; 6, 77, 80, 90; 11, 18 Arbitration 6, 86 Armed forces 1, 14, 16 Artificial procreation, see In-vitro fertilisation Artistic expression, freedom of 10, 14, 60–62

Assembly 11, 5 – counter-demonstration 11, 6 – peaceful assemblies 11, 6 – prohibition 11, 12, 20 – notification 11, 13, 21 – sit-ins 11, 6, 20 – spontaneous assemblies 11, 21 Association 11, 5 – negative freedom of 11, 16 – registration 11, 15 Asylum 3, 8, 11, 13; 6, 11 – right to 5, 3, 26 – church asylum 11, 20, 6 Authority – administrative 6, 38, 50 – competent 7, 14; 5, 15, 20; 6, 70 – judicial 6, 36, 62 – prosecution 6, 49 Autonomous interpretation 1, 13; 6, 3, 18, 29, 34, 40, 115, 144; 11, 5, 8 Autonomy, personal 8, 7, 11, 13, 26, 29 Award of compensation 6, 5 B Bail 5, 35, 37; 7, 22 Ban on publications 10, 42, 43 Best interest of the child 6, 68; 8, 64 Bias 6, 52, 56, see Judge, bias Birth control 12, 7 Blasphemy 10, 60 Blood samples 5, 5, 14; 6, 152; 8, 29 Body search 3, 6 Broadcasting – cable 10, 57 – license fee 10, 25 – freedom of 10, 13, 66 – licensing procedure 10, 16, 24, 25 – monopoly 10, 56, 57 – pluralism 10, 58, 66 – private broadcasting 10, 56–58 – public broadcasting 10, 56, 58, 66 Burden of proof, shift of 2, 25; 3, 12; 6, 156, 162; 10, 65 Business premises 8, 25; 10, 53 C Care, public 3, 11, 15, 18; 8, 64, 20 Censorship 8, 39; 10, 17, 18 Census, national 8, 30, 57 Charges, criminal 6, 18, 125, 127, 161 Checks and balances 7, 1

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Index Child – custody 3, 18; 6, 94, 134; 8, 33, 62, 64, 84 – illegitimate 3, 6; 8, 20, 64, 80 – right of access to 8, 20, 65; 14, 13, 20 – welfare 8, 90 Chilling effect doctrine 10, 30, 44, 45, 54, 55 Church – asylum 11, 6, 20 – tax 9, 6, 21 – recognition by the State 9, 22, 32, 36 – autonomy 9, 16 – state church 9, 2 Cinema 10, 1, 14, 56 Citizens – expulsion of P4-3, 1 – residence P4-3, 1 – right to vote P1-3, 2, 11 Citizenship 14, 18, 31; P4-3, 1, 2 Civic obligations 4, 10 Civil claims – criminal proceedings, in 6, 32; 13, 19 – property rights 6, 10 Civil rights and obligations 6, 3-17 Civil servants, service, see State officials Civilian service 9, 32 Claim under public law P1-1, 5; 6, 6 Clientele P1-1, 4 Closed shop system 11, 35 Clothing, religious 9, 34, 43 Cohabitation 8, 20 Collective agreements 11, 10 Collective expulsion P4-4, 1 Colour 14, 10, 18 Commercials 10, 42 Communication – freedom of 8, 2, 27; 10, 1, 2, 4, 5 – individual 8, 10 – legal counsel 6, 128, 134, 137 – prisoner 8, 28, 69 Compensation 13, 19 – award of 6, 3 – expropriation P1-1, 18, 19, 21 – unlawful detention 5, 43 – wrongful conviction P7-3, 1 Complexity of the case 5, 36; 6, 94, 142 Conclusion of marriage, see Marriage Confidential information, disclosure of 8, 57, 59; 10, 10, 12, 34, 35, 54, 55 Confiscation – of documents 8, 30; 10, 18, 54 – of unlawfully used items P1-1, 11, 20 – of passport P4-2, 9, 11, 13 Conjugal life 8, 35 Conscientious objection 4, 8; 6, 48; 9, 6, 32 Conscription 4, 8 Constitutional court 6, 17; 8, 77; 9, 32, 39; 11, 30 – appeal to, 13, 8, 14 – equality of arms 6, 81

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– length of proceedings 6, 96; 7, 8 – public hearing 6, 115, 119 Contempt of court 6, 61; 10, 35 Conviction – ideological 9, 4, 15; P1-2, 13, 22 – religious 9, 9, 41; P1-2, 13, 22 Conviction, criminal 5, 12; 8, 32, 60, 64, 97; P7-4, 2 – wrongful P7-3, 1 Copyright P1-1, 4 Corporal punishment 3, 6; P1-2, 15, 17, 22 Corpse 8, 20, 34; 10, 4 Correspondence 8, 27 – censoring letters 8, 39 – correspondence with counsel 6, 128; 8, 70 – phone tapping 8, 30, 40, 45, 61, see also Phone tapping – prisoners 8, 28, 69 – right to respect for 8, 27 – interference 8, 39 – with the Convention bodies 8, 70 Costs and expenses of proceedings 6, 161; P11, 5, 21 – reimbursement 6, 81 Counsel in court 6, 134, 136, 139 Counter-demonstration 11, 6 Couple, homosexual 14, 8, 30; 8, 80, see also Sexual orientation Court – fees 6, 69 – martial 6, 41, 48, 63 – special 6, 41 Crimes, international 7, 8; P7-4, 7 – crimes against humanity P7-4, 7 Criminal charge – determination of a 6, 18 – offence 7, 3; P7-4, 2, 4, 5 – offence under international law 7, 8; P7-4, 7 Criminal law – criminal charge 6, 18 – criminal proceedings 6, 124 – indictment 6, 125 – penalty 6, 23; 10, 45 – private complaint 6, 32 – sufficiently clear 7, 10 Criminal offence 6, 29, 124 – term 7, 3; P7-4, 2, 4, 5 Criminal proceedings – applicability of Article 6, 6, 2 – civil claim 6, 3–17, 22 – fairness 6, 60, 77, 80, 81, 83 – nulla poena sine lege 7, 1 – private complaint, proceedings instituted by means of a 6, 32 – review of conviction and sentence P7-2, 1 – rights of defence 6, 127, 132 – rights to information 6, 125 Criticism 10, 36, 38, 40, 46, 47, 48, 61

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Index Cross and crucifixes 9, 13; P1-2, 22 Curfew, nocturnal 5, 6 Custody 8, 33, 62, 84; 14, 13, 23 – joint 8, 64 – proceedings 8, 85 D Damages – compensation for 7, 16; 8, 78 – pecuniary 5, 43; 7, 16 – non-pecuniary 5, 43; 7, 16 Data processing 8, 10, 60 Data protection 8, 2, 10, 58, 78 Data retention 8, 10, 60 De facto expropriation P1-1, 10 Death penalty 2, 6–10; 3, 5, 15 Death row phenomenon 3, 5, 15 Debt, imprisonment for 5, 7, 13; P4-1, 1 Defamation, protection against 8, 11, 77; 10, 31, 32, 47, 65 Defence – access to files 6, 129 – defend oneself in person 6, 132 – equality of arms 6, 143 – examination of witnesses 6, 144 – free legal assistance 6, 142 – interpreter 6, 129 – legal counsel of one’s choice 6, 137 – mandatory legal assistance 6, 136 – preparation of 6, 128 – right to question 6, 144 Defendant, see Fair trial, rights of Degrading treatment or punishment 3, 6; 6, 83; 8, 7 Democracy 11, 3, 8, 28; 12, 1; P1-2, 9, 18 Demonstration, see Assembly Denial of justice 5, 12; 6, 91 Denominational schools P1-2, 12 Deportation 5, 26; 3, 13 – detention pending 5, 26 Deprivation of liberty, see Detention – airport, transit zone 5, 3, 27 – arbitrariness, freedom from 5, 10 – bail 5, 35, 37 – compliance with a procedure prescribed by law 5, 9 – consent 5, 6 – conviction 5, 12 – crowd control measures 5, 5 – curfew, nocturnal 5, 6 – disease 5, 23 – electronic shackle 5, 6 – extradition 5, 26, 27; 3, 15 – disease 5, 23 – length of 5, 31, 33, 39 – medical reasons 5, 23 – mental illness 5, 23 – minors 5, 22

– obligations, enforcement of legal 5, 13 – police discretion 5, 8 – prison work 4, 7 – proceedings on 6, 11 – review of lawfulness 5, 38 – right to be brought before a judge 5, 31 – short-term restrictions 5, 5 – social reasons 5, 23 – sufficiently clear 5, 8 – release 5, 33 – term 5, 3 Derogation 2, 1 Detainee 5, 41, see Prisoner Detention, see also Deprivation of liberty – compensation 5, 43 – conclusion of marriage 12, 15 – conditions of 3, 11, 15 – conviction, after 5, 12, see also Conviction – correspondence 6, 138, see also Prisoner; Correspondence – debt, imprisonment for 5, 7, 13; P4-1, 1 – equal treatment 14, 8, 24, 26, 31 – expulsion, pending 5, 26 – extradition, pending 5, 26 – freedom of religion 9, 29, 43 – grounds for 5, 11, see also Grounds for detention – information 5, 30 – inhuman and degrading treatment 3, 10–12, 15 – judge, right to be brought before a 5, 31 – judicial review 5, 31, 38 – legal basis 5, 8 – length of 5, 31, 33, 39 – marriage 12, 15 – medical treatment 5, 24 – obligations, enforcement of legal 5, 13 – of aliens 3, 11; 5, 26 – of mentally ill 5, 12, 23 – on remand 5, 15 – preventive 5, 15, 20, 23 – positive obligations 3, 11; 5, 44 – prison work 4, 7 – rehabilitative treatment 5, 12 – release 5, 33 – review of lawfulness 5, 38 – right to vote P1-3, 7, 11 – solitary confinement 3, 11 – torture 3, 11 – treatment of detainees during 2, 20; 3, 11 – unacknowledged 5, 10 Detention after conviction 5, 12, see also Deprivation of liberty – judicial review 5, 38 – nulla poena sine lege 7, 1 Detention on remand 5, 15, see also Deprivation of liberty; Detention – bail 5, 35, 37

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Index – grounds for detention 5, 19, 21 – judicial review 5, 31, 38 – length of 5, 33–35 – preventive 5, 15, 20, 23 – right to be informed 5, 6; 6, 126 – risk of absconding 5, 21 – risk of recurrence 5, 19, 20, 34 – security provided by detainee 5, 37 – suspicion, reasonable 5, 17 Determination – of civil rights 6, 3 – of a criminal charge 6, 18 Difference in treatment 14, 8 Dignity, human 2, 20; 3, 6, 11; 4, 11; P1-2, 3; 8, 75 Diplomatic protection 1, 15, see Immunity Disability – prohibition of discrimination 14, 28 – school P1-2, 7 Disciplinary – measures in school 3, 6; P1-2, 9, 22 – penalties, legal basis 7, 3, 10, 11 – procedural guarantees 6, 97 – retrospective application, prohibition of 7, 6 – proceedings 6, 22, 26 – public proceedings 6, 104 Disclosure of confidential information 8, 57, 59 Discrimination, see also Equal treatment; Equality – age 14, 10, 29 – disability 14, 28 – legal status 14, 24 – name 14, 7, 13, 16 – nationality 14, 18, 31 – ethnic origin 14, 10, 18, 32 – prohibition of 14, 4 – race, colour 14, 10, 14, 32 – religion 14, 20, 33 – residence 14, 18 – sex 14, 15, 16, 31 – sexual orientation 14, 10, 27, 30 Dismissal 8, 17, 82; 10, 35 Disorderly conduct in proceedings 6, 22, 61 Dissemination of information 10, 9, 41, 53, 67 Dissolution of marriage 12, 3 Divorce 8, 20, 24, 33, 86; 12, 3, 11 Doctor – medical errors with lethal consequence 10, 53 – duties 4, 5; 10, 34 – free choice of 8, 13 – freedom of expression 10, 34 Domestic violence 3, 18; 8, 74 Double jeopardy P7-4, 1 Drug addict 5, 23; 10, 48

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E Economic interest P1-1, 4 Editorial confidentiality 10, 53 Education P1-2, 4 – access to P1-2, 5, 9, 10 – compulsory P1-2, 11 – curriculum P1-2, 18 – discrimination in 14, 18 – educational institution, see Educational institution – elementary P1-2, 9 – fees P1-2, 9, 11 – higher P1-2, 5, 9–11 – language P1-2, 6, 11 – positive obligations P1-2, 11, 22 – religious 9, 2, 5, 10, 13, 43; P1-2, 13 – right to P1-2, 1 Educational institution – access to P1-2, 5, 9, 10 – disciplinary measures 3, 6; P1-2, 9 – obligation to establish P1-2, 11 – private school P1-2, 10, 22 Educational supervision 5, 22 Elections P1-3, 1 – citizens P1-3, 2, 11 – electoral system P1-3, 3, 6, 14 – equal suffrage P1-3, 5 – free P1-3, 5 – mandate, loss of P1-3, 13 – secret ballot P1-3, 5 – universal suffrage P1-3, 5 Electronic media 10, 13, 56, see Broadcasting Electronic shackle 5, 6 Embryo 2, 3; 8, 8 Emergency, public 3, 7 – emergency services, obligation to provide 2, 17; 4, 9 – non-derogable rights 2, 15; 3, 7; 7, 1 Entry into a country, right of 3, 13; 8, 92, 98; P4-3, 2, 6 Environmental protection 8, 18, 79 – right to be informed 8, 91; 10, 10, 30 Equal treatment, discrimination; equality 14, 8 Equality, see also Discrimination – between spouses P7-5, 1 – children, legitimate and illegitimate 8, 80; 14, 10, 13, 22 – of arms 6, 81 – of women 14, 15, 16, 31 EU citizens 10, 62 European Union 1, 9 – legal remedies 6, 93 Euthanasia 2, 17; 8, 14 Evidence, see Proof Evolutive interpretation 6, 90 Exhaustion of domestic remedies 13, 3 Expert – evidence 6, 129, 144

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Index – medical/psychiatric assessment 5, 24; 6, 80; 8, 85 – report 5, 23, 24; 6, 65 Expropriation – compensation P1-1, 18, 19, – de facto P1-1, 10 – formal P1-1, 10 Expulsion 2, 10; 3, 13; 6, 91; 8, 48, 95; P4-3, 1, 2; P4-4, 1, 2; P7-1, 2 – collective P4-4, 1 – detention pending 5, 26; 6, 153 – marriage 12, 13 – procedural guarantees P7-1, 1; 6, 153 – prohibition of P4-3, 2 – separation of family members 8, 36, 93 Extradition 2, 10; 3, 13, 15; 6, 91; P4-3, 2 – detention pending 5, 26; 6, 153 Extraterritorial acts 1, 12, 13; 5, 9 F Fairness, see Trial Family – founding a 12, 1 – law 6, 94; 8, 83, 90 – term 8, 19; 12, 2 Family life – adoption 8, 21, 33, 63, 80, 90; 12, 5; 14, 8, 29, 30 – ‘Boultif criteria’ 8, 84, see Immigrants – cohabitation 8, 20, see Marriage; Relationship, same-sex – dissolution of marriage 12, 3, 11 – expulsion 8, 36, 93; 12, 13 – family reunion 8, 80, 84 – foster family 3, 18; 8, 20, 33, 64, 84 – founding a family 12, 1 – grandchildren 8, 8 – in-vitro fertilisation 12, 5 – length of dissolution proceedings 12, 11 – length of proceedings 6, 94; 8, 83, 86; 12, 11 – parental rights P1-2, 13 – paternity 14, 20 – spouses P7-5, 1 Fees – broadcasting, see Broadcasting – court, see Court Files, access to 6, 80, 127, 129 Film 10, 20, 42, 60 Finger print 8, 30, 60 Fire service levy 4, 10; 14, 5 Foetus 2, 3; 8, 29 Forced and compulsory labour, prohibition of 4, 4, 5 Foreigners, see Alienns Foreseeability 5, 8; 8, 44, 48, 93; 9, 38; 10, 24; 11, 18; P1-1, 14 Forum internum 9, 9 Foster family 3, 18; 8, 33, 64, 84

Founding a family 12, 1 Free access to education P1-2, 9, 11 Free assistance of an interpreter 6, 151 Free legal assistance 6, 66, 137, 142 Freemason 11, 15, 24 G Gender discrimination 14, 15, 16, 31 Gender reassignment 6, 80; 8, 7, 19, 87; 12, 12; 14, 30 Genuine and serious nature of a claim 6, 3 Good faith 10, 38 Grounds for detention 5, 11, 19, 35 – detention pending expulsion 5, 26; 6, 153 – detention pending extradition 5, 26; 6, 153 – disease 5, 23 – medical reasons 5, 23 – minors 5, 22 – risk of absconding 5, 21 – risk of collusion 5, 19, 34 – risk of recurrence 5, 19, 20, 34 – suspicion, reasonable 5, 17 H Habeas corpus doctrine 5, 38 Hate speech 10, 7, 17, 39, 45, 52, 53 Headscarf, Islamic 8, 17, 19, 34; P1-2, 10 Health 2, 18, 19; 3, 3, 4, 6; 8, 7; 9, 30 Hearing – appeal proceedings 6, 118 – exceptions 6, 106 – oral 6, 100, 115 – public 6, 98 – waiver 6, 116 Higher education P1-2, 5, 9–11 Home-schooling P1-2, 16 Homosexuality 12, 2; 14, 10, 27, 30, see also Sexual orientation Human trafficking, prohibition of 4, 11–13 Humiliation 3, 6 Hunger strike 2, 20; 11, 20 Hunting 8, 6; 10, 8; P1-1, 20 – association 8, 15; 11, 5, 8, 16, 25; P1-1, 20 I Identity, establishment of 5, 5, 13 Illegitimate child 14, 10, 13, 22 Illness, detention for reasons of 5, 23 Ill-treatment – of detainees 3, 11, 12; 7, 5 – legislation 3, 6 – by private persons 3, 18 Immigrants 14, 14 – ‘Boultif criteria’ 8, 94 – second generation immigrants 8, 95 Immunity – authorities 6, 71 – international organisations 6, 73 – parliamentarian 6, 72

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Index – state immunity 6, 74 Impartial tribunal 6, 52–65 Imprisonment 2, 8, 18, see Deprivation of liberty; Detention Independent tribunal 6, 42–51 Indoctrination 9, 5; P1-2, 18, 22; P1-3, 5 Infectious disease 5, 23; 8, 59 Information – dissemination of 10, 9, 53 – freedom of 10, 9 – right to be informed 5, 6; 8, 89; 10, 10 Inheritance P1-1, 6; 14, 22 Inhuman and degrading treatment/punishment 2, 24; 3, 4-6 Insurrection 2, 15 Integrity – physical 3, 4; 8, 7, 29, 49, 74 – psychological 3, 4; 8, 7, 12, 74 – sexual 8, 7 Intellectual property P1-1, 4 International crimes 7, 8; P7-4, 7, see also Crimes International Labour Organisation (ILO) 4, 1 Internet 8, 41, 73; 10, 59; P1-1, 11, 20 Interpretation, autonomous 1, 13; 6, 3, 18, 29; 11, 5, 8 Interpreter, see Free assistance of an interpreter Investigation 2, 22; 8, 9, 30, 44; 10, 63 In-vitro fertilisation 8, 8; 12, 5 Islam 10, 30, 39; P1-2, 21 J Jehovah’s Witness 9, 8, 21, 29, 36; 14, 20 Journalists – duties and responsibilities of 10, 52 – editorial confidentiality 10, 55 – positive obligations 10, 63 – protection of journalistic sources 10, 12, 54, 55 Judge – bias 6, 55, 57, 58 – freedom from instructions 3, 46 – freedom of expression 10, 32, 35, 40 – impartiality 3, 52–65 – independence 3, 42–51 – lay 6, 37, 58, 60, 61 – military judge 6, 48 – right to be brought before a judge 5, 31 – term of office 6, 44 Judicial authorities – control 6, 38 – decision 6, 36 – organ 6, 34 Judicial review – automatic 5, 9 – of administrative decisions 6, 38; P4-2, 14 Jurors 6, 58

550

K Killing – execution of death sentence 2, 7, see also Death penalty – intentional 2, 1, 5, 11, 15, see also Euthanasia – obligation to investigate 2, 22, 25 L Labour – forced and compulsory 4, 4, 5 – disputes 10, 45, 64; 11, 10 – law 6, 12, 74; 8, 82; 11, 10 Language – discrimination 14, 18 – right to vote P1-3, 7 – school P1-2, 6, 11 Law – accessibility 9, 26 – detention 5, 7 – detention on remand 5, 15 – foreseeability 5, 8; 8, 44, 93; 10, 23; P1-1, 14 – penalty 7, 1 – sufficiently clear 5, 8; 7, 10; 8, 44; 10, 24 – tribunal established by law 6, 39, 40 Lawyer 10, 34, see Legal counsel Lay judge 6, 37, 58, 60, 61 Leaflet 10, 30 Leave of appeal P7-2, 4 Legal aid 6, 66, 142 Legal assistance 6, 1, 66, 137–142 – mandatory 6, 136 Legal basis, sufficiently clear, see Sufficiently clear legal basis Legal capacity 11, 15 – mentally disabled/ill 8, 88 – to conclude a marriage 12, 4, 6 Legal counsel – accused, contact 6, 138 – clientele P1-1, 4 – communication with 8, 70 – confidential contacts with 6, 128, 138 – correspondence with 8, 70; 6, 128 – duties 4, 5 – effective defence 6, 138 – free legal assistance 6, 142 – freedom of expression 10, 34, 35 – in court – in training 4, 5; 14, 8 – mandatory legal assistance 6, 136 – preparation of defence 6, 128 Legal person 1, 5; 8, 4; P1-1, 2 Legal protection, effective – effective remedy 13, 1 – length of proceedings 6, 92; 13, 19 Legislative bodies P1-3, 4 Legitimate expectation P1-1, 3 Length of detention 5, 31, 33, 39

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Index Length of proceedings 5, 31; 6, 92–97 – organisation of tribunals 6, 97 Liberal professions 10, 34; 11, 8 Liberty, right to, see also Deprivation of liberty – conflicting international obligations 5, 4 – liberty of movement 5, 6 – term 5, 3 License P1-1, 4, 20 Life, right to – abortion 8, 8, 56 – death penalty 2, 6–10 – fatal shot, targeted 2, 5 Life, unborn 2, 1, 3; 8, 8, 56 Life imprisonment 7, 10 Life sentence – discretionary 5, 12 – mandatory 5, 12 Lifestyle 8, 15, 24, 26 M Mandate, loss of P1-3, 13 Mandatory legal assistance 6, 136 Marriage 12, 1 – capacity to enter a 12, 4, 6 – conclusion of 12, 1 – dissolution of see divorce 12, 3, 11 – expulsion 8, 94; 12, 13 – fictitious 12, 14 – gender reassignment, after 5, 30; 8, 87; 12, 12 – impediment to 12, 6, 10 – marriageable age 12, 4, 6 – opposite-sex 12, 2 – prisoner 12, 15 – religious 14, 25 – remarriage 12, 6, 9 – right to marry 12, 1 – same-sex 8, 87; 12, 2; 14, 8, 30 Media, see Press; Broadcasting Medical care 3, 11, 15 Mental illness 5, 23 Military, freedom of expression 10, 17, 35, 36, 67 Minor 2, 3; 5, 2, 22; 8, 3 Minorities, protection of 2, 24; 10, 25; ; P1-2, 6 Monopoly on broadcasting services 10, 56, 57, 66 Morals, protection of 8, 50; 10, 60 Movement, liberty of 5, 6; P4-3, 4; P4-2, 1 N Name 8, 53; 14, 7, 13, 16 Naming laws 8, 53 National security 8, 50; 9, 28 – right to 5, 3; 10, 25 Nationality 1, 3; 14, 18, 31; 8, 95; P4-3, 1, 2 Ne bis in idem P7-4, 1 Neutrality – obligation to be neutral 9, 36 Noise protection 8, 18, 38, 79

Non-retroactivity, principle of 7, 6, 12 Nulla poena sine lege 7, 1 Nullum crimen, nulla poena sine lege 7, 1 O Oath, taking an 9, 20 Obligation to investigate 2, 22 Obligations, civic 4, 10 Offence – administrative 7, 3 – criminal 7, 3, 6; P7-4, 2, 4, 5, see also Criminal offence – disciplinary 7, 3 Opinion, expert 10, 38, see Expert Oral hearing 6, 100, 115–121 – appeal proceedings 6, 118–121 – civil proceedings 6, 116 – constitutional courts 6, 115 – criminal proceedings 6, 115 – dispensation 6, 115 – waiver 6, 116 Ordre public 6, 109; 12, 9, 10; P4-2, 11, 12 Origin 14, 10 – ethnic 14, 10, 18, 32 – national 14, 18, 32 – social 14, 22 Other interferences with the right to property P1-1, 13, 21 – catch-all clause P1-1, 13 P Pacifism 9, 15 Parental rights 8, 3, 64; P1-2, 13 Parliament P1-3, 4 – European P1-3, 4 – parliamentary immunity 6, 72 Party, political 10, 35, 49; 11, 9, 29; P1-3, 2, 6, 12 Patent P1-1, 4 Paternity 14, 20, 24 – right of access to child 14, 13, 20 – proceedings 8, 83, 86; 14, 23 Peace, religious 9, 14 Penalty – determination of the 6, 18–29 – fine 6, 27 – imprisonment 6, 25, see Deprivation of liberty – nature and severity 6, 23–26 – term 7, 3 Pension – affiliation of prisoners to the old-age 4, 7; 14, 8, 31; P1-1, 21 – claims P1-1, 5, 21 – rights 6, 9, 94 – system 14, 8, 31; P1-1, 5, 21 Person, legal, see legal person Personality, development of one’s 8, 13 Phone tapping 8, 40, 45, 61

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Index – review 13, 5 Photographic report 10, 46, 51 Physical violence 3, 3, 4 Pluralism 10, 66; P1-2, 9, 14, 21, 221, 33, 41; 11, 29 Police operation 2, 5, 21 Political parties, see Party, political Political rights – aliens 10, 62; 11, 33; P1-3, 2 – state official 10, 33; 11, 31; P1-3, 9, 14 Politicians 10, 16, 32, 33, 36, 46 Positive obligations – access to court 8, 83 – against private parties 8, 73 – best interests of the child 8, 80 – freedom of assembly 11, 34 – freedom of expression 10, 63–67 – freedom of opinion 10, 1 – freedom of religion 9, 40 – ill- treatment by private persons 3, 18 – legal assistance 6, 140 – operational measures 2, 18 – presence of an accused 6, 133 – presumption of innocence 6, 160 – preventive measures 2, 18 – procedural requirements 8, 81 – procedural safeguards P1-1, 26 – protection of property P1-1, 23 – right to life 2, 17–20 Possessions, see Property Postal secrecy 8, 24, 68 Practice of impunity 7, 6, 11 Presence at the hearing 6, 132 Press – function, see Public watchdog – presumption of innocence 6, 160 – public hearing 6, 102, 105, 112, 114 Press freedom – limited distribution 10, 2, 12, 17, 25 – trial, report on 10, 40 Presumption of innocence – burden of proof 6, 156, 157 – press reports 6, 160; 10, 40, 53 Preventive detention 5, 15, 20, 23 – prohibition of retroactive application 7, 6 Principle of equal treatment – general 14, 10; P12-1, 1 – particular, equality between spouses P7-5, 1 Prison work 4, 7 Prisoner – correspondence 8, 28, 69 – equal treatment 14, 8, 24, 26, 31 – marriage 8, 35; 12, 15 – presumption of innocence 6, 158 – public hearing 6, 104 – right to vote P1-3, 7, 11 Private complaint, proceedings instituted by means of a 6, 32

552

Private school P1-2, 10, 22 – funding P1-2, 12 Private sphere 8, 26, 30 Procedural safeguards in case of expulsion of aliens P7-1, 3 Procedure, protection of fundamental rights by means of 2, 21; 10, 65; P1-1, 26 Proceedings – administrative 6, 1, 17, 39, 50, 78 – costs of 6, 81, 161; P1-1, 5, 21 – criminal, see Criminal proceedings Professional relationship, see Relationship, professional Proof 10, 48, 53, 65 – of ill-treatment in custody 3, 10, 12 – of ill-treatment in the home country 3, 17 – impartiality of judges 6, 57 Property – assets P1-1, 3 – claim P1-1, 3 – companies P1-1, 4 – control of the use of property P1-1, 11, 20 – de facto expropriation P1-1, 10 – deprivation of P1-1, 10, 14 – economic interest P1-1, 4 – formal expropriation P1-1, 10 – intellectual P1-1, 4 – legitimate expectation P1-1, 3 – other interferences P1-1, 13 – peaceful enjoyment of possessions P1-1, 3, 22 – procedural costs P1-1, 5, 21 – protection of P1-1, 1 – term P1-1, 4 Prosecution 2, 18; 6, 85, 125, 142, 156, 159; 10, 35 Proselytism 9, 10, 17, 30, 41; P1-2, 22 Protection – of morals 10, 25, 60 – of property 10, 10, 63 Public care 8, 22 Public figure 8, 77; 10, 48, 49, 50, 51 Public pronouncement 6, 122, 123 Public service P1-2, 9; 11, 31 Public watchdog 10, 46, 53 Publishing of decisions 6, 122, 123 Punishment – degrading 3, 2 – double P7-4, 1 – multiple P7-4, 1 Q Quarantine 5, 23 R Racial discrimination 2, 24; 14, 10, 14, 32 Racist statements – freedom of expression 10, 39, 53 – of judges 6, 58

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Index – on television 10, 53, 57 Radio and television, see Broadcasting, Freedom of Reasoning of judgments 10, 65 Refugees in orbit 3, 17 Refusal of access 10, 63 Registration as an association, see Association Regular intervals, review at 5, 23 Reimbursement of costs and expenses 6, 155 Relationship – between the parents 8, 19 – between the parents and the child 8, 20 – family 8, 19 – interpersonal 8, 6 – professional 8, 17 – same-sex 8, 19; 12, 2; 14, 8, 30 – release on bail 5, 35, 37 Religion – change of religion or conviction 9, 2, 14 – discrimination 9, 2; 14, 20 – practice of 9, 3, 8, 11 Religious and philosophical convictions 9, 15; P1-2, 13 Religious communities 9, 16 – internal affairs 9, 22 – recognition, legal 9, 32 – self-determination 9, 2 Religious education P1-2, 13, see Education Religious peace 10, 60, see Peace, religious Remarriage 12, 6, 9 Remedy 13, 1, see also Detention; Judicial review – effectiveness 13, 14 – limitation period 6, 69 – criminal proceedings P7-2, 1 – right to an effective 13, 1; 6, 97 Report, expert 10, 38, see Expert, report Representation, legal 6, 76, 142 Reproductive medicine, see In-vitro fertilisation Reputation 6, 121; 8, 11, 77; 10, 26 Research, scientific 10, 10 Residence – choice of P4-2, 3 – permit 6, 11; P4-2, 3 – right of 3, 13; P4-2, 3 Restitution P1-1, 17 Retirement – age 14, 16 – pension claims 6, 12; P1-1, 5, 21 Retrospective application, prohibition of 7, 6 Retrospective imposition of heavier penalty 7, 12 Review, judicial, see Judicial review Rights, political 10, 35, 62, see also Political rights Riot 2, 15; 3, 10; 10, 39 Risk – of absconding 5, 21

– of collusion 6, 137; 5, 19, 34 – of ill-treatment 3, 14 – of recurrence 5, 19, 20, 34 Ritual 9, 10, 13 – slaughtering 9, 10, 17 S Same-sex couples 8, 19; 12, 2; 14, 8, 30 Same offence P7-4, 2, 5 School – access to P1-2, 9 – compulsory education P1-2, 11 – cross and crucifix 9, 13; P1-2, 22 – denominational P1-2, 12 – elementary education P1-2, 9 – headscarf 8, 17, 19, 34; P1-2, 10 – higher education P1-2, 5, 9–11 – home-schooling P1-2, 16 – private P1-2, 10, 22 – religious 9, 2, 5, 10, 13, 43; P1-2, 12 – sex education P1-2, 17 – special school/classes P1-2, 6, 7 Science – research 10, 10 Search – office of legal counsel 8, 66 – journalists 10, 54 Secrecy of correspondence, see Correspondence Sect 9, 39 Security, right to 5, 3 – term 5, 3 Self-determination – informational 8, 57 – religious communities 9, 2 – sexual 4, 12; 8, 7, 73 Self-presentation 8, 11 Separation of powers 6, 1; 7, 1 Service, religious 9, 29, 43 Servitude, prohibition of 4, 2 Sex work, see Human trafficking Sexual orientation 14, 10, 27, 30 – prohibition of discrimination 8, 54; 14, 10, 27, 30 Sharia 10, 7, 39; 11, 30 Sit-ins 11, 6, 20 Skin colour 14, 10, 18 Slaughter, ritual, see Ritual slaughtering Slavery, prohibition of 4, 2, see Servitude Social – care 3, 15 – security scheme 3, 6; 6, 9 Social benefits 5, 31; 8, 24 Social security system 14, 8, 31 – contributions 4, 10 – pension system 14, 8, 31 – social insurance 6, 9, 47 Society, democratic 10, 28; P1-2, 9, 14, 151 Soldier

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Index – conscript 2, 20 – freedom of expression 10, 35 Solicitor, see Legal counsel Special court 6, 41 Spontaneous assemblies, see Assembly, spontaneous Spouses, equality between P7-5, 1 Stand for election 10, 16, 33, 42; 14, 19; P1-3, 6, 13 State church 9, 2 State officials – disciplinary law 6, 26 – freedom of assembly 11, 31 – freedom of association 11, 31 – freedom of expression 10, 33, 35 State secret 6, 108 Sterilisation 3, 6; 8, 29 Subsidiary character of the Convention machinery 13, 2, 8 Sufficiently clear legal basis – criminal provisions 7, 10 – deprivation of liberty 5, 8 – offence 7, 10 – penalty 7, 10 Suicide 2, 4, 17, 20; 8, 14 Surrogate mother 12, 5 Surveillance, secret 7, 5; 10, 54; 13, 5, see also Phone tapping; Wire tapping Suspicion, reasonable 5, 17 Symbols, religious 9, 13; 10, 8 T Tax or other contributions 6, 11; 14, 8, 23, 28; P1-1, 5 – church tax 9, 21 – tax duties 4, 10; 9, 6, 12; P1-1, 5, 21 – tax proceedings 6, 27, 155; P4-2, 12 Teaching P1-2, 3, 10, 13, 20; 9, 2 Telephone, see Phone tapping Television, see Broadcasting Terrorism 2, 21; 3, 7; 5, 18, 32, 35; 8, 61; 10, 39; 11, 30 Third parties 2, 16; 6, 81; 10, 27 Time, reasonable 5, 31, 33, 39; 6, 79, 92, 93, 94, 97 Torture – fair trial 3, 5; 6, 74, 83, 152 – prohibition of 3, 1 – term 3, 3 – UN Convention against Torture and Other Cruel, Inhuman or degrading treatment or punishment 3, 3 Trade union 11, 10 – compulsory membership 11, 16 – positive obligation 11, 35 – right to be heard 11, 10 – right to form a 11, 10 Trademark P1-1, 4, 20

554

Trafficking, human, see Human trafficking, prohibition of Transition of the state system P1-1, 3, 17 Translation 6, 126 Transsexual 12, 12, see also Gender reassignment Treatment – degrading 3, 4, 5 – inhuman 3, 6 – medical 2, 17; 3, 11, 15, see Medical care Trial – accusation, prompt information of the nature and cause of 6, 125 – appeal proceedings 6, 96, 118, 127, 129, 134, 142, 154 – costs and expenses 6, 69, 81, 161 – double P7-4, 1 – equality of arms 6, 80, 81, 87, 117, 143, 150 – evidence 6, 82-85 – disorderly conduct in proceedings 6, 22 – inspection of files 6, 80 – interpreter 6, 126, 151 – oral hearing 6, 115, 116, 118, 120 – participation in proceedings 6, 81, 132, 134 – presence in person 6, 84, 131, 132, 134 – prosecution, see Criminal trial – right to be heard 6, 80, 84, 86, 88 – waiver of the right to a fair 6, 54, 116, 117, 135 – witnesses 6, 143–150 Tribunal – arbitration 6, 41, 86 – court martial 6, 41, 48, 63 – legal basis 6, 40, 53, 64 – length of proceedings, see Length of proceedings – hearing, public, see Trial – impartiality 6, 43, 52–64 – independence 6, 42–53 – jury court 6, 88 – mandatory legal assistance, see Mandatory legal assistance – public trial, see Trial – special courts 6, 41 – term of office 6, 42, 44, 45 – tribunal of appeal 6, 118, see Appeal proceedings U Unborn life 2, 3, see Life, unborn University P1-2, 5, 9 – academic freedom 10, 15, 61 – freedom of opinion 10, 10, 16 – professor 8, 17; 10, 10 – research 10, 10 Unmarried couples 8, 19 V Vagrant 4, 7; 5, 23

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Index Value judgments 10, 31, 32, 48 Violence, domestic 3, 18; 8, 74 Voting P1-3, 1, see also Elections Vulnerable persons 2, 19, 20, 25; 10, 38 – ill-treatment by private persons 3, 18 – pregnancy 3, 6 W Waiver 6, 41, 54, 116, 117, 135, 141 Way of living, see Lifestyle Wedlock 8, 20, 64, 80; 14, 10, 13, 22

Welfare of the child 8, 90 Wire tapping 8, 45, 61 – review 3, 5 Withdrawal of driving licence P7-4, 2 Witness 2, 23; 6, 143-150 Women, prohibition of discrimination 14, 15, 16, 31 Worship 9, 10, 29 Y Youth protection 2, 19; 10, 42