Datasets:

MHGanainy

/

ecthr_clustering

like 0

FIRST SECTION CASE OF DZHURAYEV v. RUSSIA (Application no. 38124/07) JUDGMENT STRASBOURG 17 December 2009 FINAL 28/06/2010 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Dzhurayev v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Christos Rozakis, President,Nina Vajić,Anatoly Kovler,Elisabeth Steiner,Dean Spielmann,Giorgio Malinverni,George Nicolaou, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 26 November 2009, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 38124/07) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a national of Uzbekistan, Mr Yashin Yakubovich Dzhurayev (“the applicant”), on 3 September 2007. 2. The applicant was represented by Ms M. Morozova, a lawyer practising in Moscow. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights. 3. On 4 September 2007 the President of the Chamber decided to apply Rule 39 of the Rules of Court, indicating to the Government that the applicant should not be expelled to Uzbekistan until further notice. 4. On 24 April 2008 the Court decided to apply Rule 41 of the Rules of Court and to grant priority treatment to the application, as well as to give notice of the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility. 5. The Government objected to the joint examination of the admissibility and merits of the application. Having considered the Government's objection, the Court dismissed it. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6. The applicant was born in 1966 and lives in Tashkent, Uzbekistan. He is currently residing in Moscow. A. Proceedings in Uzbekistan 7. In January 2005, when the applicant was living in Uzbekistan, a district court in Tashkent convicted him of being a member of the Islamic religious organisation Tablighi Dzhamaat, prohibited in Uzbekistan. The court ordered him to pay a fine in an amount equal to sixty times the minimum monthly wage. 8. The applicant paid the fine and continued to reside in Uzbekistan. However, according to him, he felt constant pressure from the law‑enforcement agencies, which required him to report on all his actions and movements and, in case of delay or failure on his part, threatened to arrest his elder son. So as not to put his family in danger, on 6 December 2005 the applicant left Uzbekistan for Moscow. 9. In the meantime the Supreme Court of Uzbekistan quashed the decision of January 2005 on the ground that the sentence was too mild and remitted the case for fresh examination. 10. On 9 January 2006 the Sobir Rakhimovskiy District Court of Tashkent ordered the applicant to be remanded in custody. On that basis a cross-border search warrant for the applicant was issued. B. Proceedings in Russia 1. Extradition proceedings 11. On 26 January 2007 the applicant was arrested in Moscow on the basis of the cross-border search warrant. 12. On an unspecified date the Tashkent Department of the Interior sent the Meshchanskiy District Department of the Interior of Moscow a request to keep the applicant in custody and enclosed a copy of the Sobir Rakhimovskiy District Court's decision of 9 January 2006. 13. On 29 January 2007 the Meshchanskiy Inter-District Prosecutor's Office in Moscow issued a decision on application of a preventive measure and ordered that the applicant be placed in custody on the basis of the Uzbek court's decision of 9 January 2006. Article 61 of the Minsk Convention was cited as a legal source for application of the preventive measure. The decision indicated that the applicant should remain in custody until the Prosecutor General's Office decided on his extradition; the term of the detention was not

specified. It was not mentioned whether the decision could be appealed against. On the same day the applicant was placed in remand prison SIZO-77/4, Moscow. 14. On 12 February 2007 the applicant applied to the Russian Prosecutor General's Office. He asked it to refuse the request of the Uzbek Prosecutor General's Office for his extradition and to release him from custody since he was charged with a crime that did not constitute a criminal offence under Russian law. 15. On 28 February 2007 the Uzbek Prosecutor General's Office requested the Russian Prosecutor General's Office to extradite the applicant. 16. On 23 March 2007 the Russian Prosecutor General's Office informed the applicant that no final decision had been taken in respect of the extradition and there were therefore no grounds to change the preventive measure applied in his case. 17. On 29 June 2007 the Meshchanskiy Inter-District Prosecutor's Office issued a new decision to remand the applicant in custody pursuant to Article 466 § 2 of the CCP and Article 60 of the Minsk Convention. The decision indicated that the applicant should remain in custody until the Prosecutor General's Office decided on his extradition; the term of the detention was not specified. It was not mentioned whether the decision could be appealed against. Neither the applicant nor his counsel was provided with a copy of the decision. The applicant was not notified of it until 27 July 2007, in the remand prison, as confirmed by his signature on a copy of the decision. 18. On 23 August 2007 the Russian Prosecutor General's Office dismissed the request of the Uzbek Prosecutor General's Office for the applicant's extradition because the acts with which the applicant had been charged did not constitute a crime under Russian law. 19. On 28 August 2007 the Meshchanskiy Inter-District Prosecutor's Office received notification from the Russian Prosecutor General's Office that the Uzbek authorities' request for the applicant's extradition had been dismissed. 20. On 30 August 2007 the Meshchanskiy Inter-District Prosecutor's Office issued a decision authorising the applicant's release. The applicant was released from the remand prison. 2. Expulsion proceedings 21. On 30 August 2007, immediately after his release, the applicant was conveyed by policemen to the Meshchanskiy District Court of Moscow. At the hearing held on the same date, the court found the applicant guilty of an administrative offence: breach by a foreigner of the rules on entry and stay in the territory of the Russian Federation. The court imposed a fine of 5,000 Russian roubles on the applicant and ordered his expulsion. The court also ordered that pending his expulsion the applicant should be held in the centre for detention of foreign nationals of the Moscow Main Directorate of Internal Affairs. The applicant appealed. 22. On 4 September 2007 the Court indicated to the respondent Government that the applicant should not be expelled to Uzbekistan until further notice. 23. On 11 September 2007 the Moscow City Court quashed the decision of the Meshchanskiy District Court and the applicant was released. 3. Further developments 24. On 28 September 2007 policemen stopped the applicant in the Moscow underground in order to check his papers. It appeared that the applicant was still on the cross-border wanted list, and he was taken to a police station for a decision concerning his arrest. After his counsel arrived and clarified the applicant's situation, he was released. The applicant then applied to the Office of the Prosecutor General to be removed from the list. 25. On 1 October 2007 the Russian Prosecutor General's Office ordered the Ministry of the Interior to remove the applicant's name from the cross‑border wanted list owing to the refusal to extradite him. 4. Asylum proceedings 26. On 2 February 2007 the applicant applied to the Moscow Department of the Federal Migration Service for asylum. 27. On 16 March 2007 officials of the Moscow Department of the Federal Migration Service questioned the applicant in the presence of his counsel. 28. On 26 March 2007 the Moscow Department of the Federal Migration Service dismissed the applicant's application on the ground that he did not meet the requirements provided for in domestic law for granting asylum. The applicant lodged a complaint with a court. 29. On 23 August 2007 the Zamoskvoretskiy District Court of Moscow dismissed the applicant's complaint. The applicant appealed. 30. On 18 October 2007 the Moscow City Court dismissed the appeal in the final instance. 31. On 13 November 2007 the applicant was recognised as a mandate refugee by the United Nations High Commissioner for Refugees. II. RELEVANT DOMESTIC LAW AND PRACTICE 1. Constitution of the Russian Federation of 1993 32. Everyone has a right to liberty and security (Article 22 § 1). Arrest, placement in custody and custodial detention are permissible only on the basis of a court order. The term during which a person may be detained prior to obtaining such an order cannot exceed forty-

eight hours (Article 22 § 2). 2. Code of Criminal Procedure 33. The term “court” is defined by the Code of Criminal Procedure (CCP) of 2002 as “any court of general jurisdiction which examines a criminal case on the merits and delivers decisions provided for by this Code” (Article 5 § 48). The term “judge” is defined by the CCP as “an official empowered to administer justice” (Article 5 § 54). 34. A district court has the power to examine all criminal cases except for those falling within the respective jurisdictions of a justice of the peace, a regional court or the Supreme Court of Russia (Article 31 § 2). 35. Chapter 13 of the CCP governs the application of preventive measures. Placement in custody is a preventive measure applied on the basis of a court decision to a person suspected of or charged with a crime punishable with at least two years' imprisonment where it is impossible to apply a more lenient preventive measure (Article 108 § 1). A request for placement in custody should be examined by a judge of a district court or a military court of a corresponding level (Article 108 § 4). A judge's decision on placement in custody may be challenged before an appeal court within three days (Article 108 § 11). The period of detention pending investigation of a crime cannot exceed two months (Article 109 § 1) but may be extended up to six months by a judge of a district court or a military court of a corresponding level (Article 109 § 2). Further extensions may be granted only if the person is charged with serious or particularly serious criminal offences (Article 109 § 3). 36. Chapter 16 of the CCP lays down the procedure by which acts or decisions of a court or public official involved in criminal proceedings may be challenged. Acts or omissions of a police officer in charge of the inquiry, an investigator, a prosecutor or a court may be challenged by “parties to criminal proceedings” or by “other persons in so far as the acts and decisions [in question] touch upon those persons' interests” (Article 123). Those acts or omissions may be challenged before a prosecutor (Article 124). Decisions taken by police or prosecution investigators or prosecutors not to initiate criminal proceedings, or to discontinue them, or any other decision or inaction capable of impinging upon the rights of “parties to criminal proceedings” or of “hindering an individual's access to court” may be subject to judicial review (Article 125). 37. Extradition may be denied if the act that gave grounds for the extradition request does not constitute a crime under the Russian Criminal Code (Article 464 § 2 (1)). 38. Upon receipt of a request for extradition accompanied by an arrest warrant issued by a foreign judicial body, a prosecutor may place the person whose extradition is being sought under house arrest or in custodial detention without prior approval of his or her decision by a court of the Russian Federation (Article 466 § 2). 3. The CIS Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters (the 1993 Minsk Convention) 39. When performing actions requested under the Minsk Convention, a requested official body applies its country's domestic laws (Article 8 § 1). 40. Upon receipt of a request for extradition the requested country should immediately take measures to search for and arrest the person whose extradition is sought, except in cases where no extradition is possible (Article 60). 41. The person whose extradition is sought may be arrested before receipt of a request for extradition, if there is a related petition. The petition must contain a reference to a detention order and indicate that a request for extradition will follow (Article 61 § 1). If the person is arrested or placed in detention before receipt of the extradition request, the requesting country must be informed immediately (Article 61 § 3). 4. Decisions of the Constitutional Court (a) Decision of the Constitutional Court no. 101-O of 4 April 2006 42. Verifying the compatibility of Article 466 § 1 of the CCP with the Russian Constitution, the Constitutional Court reiterated its constant case‑law that excessive or arbitrary detention, unlimited in time and without appropriate review, was incompatible with Article 22 of the Constitution and Article 14 § 3 of the International Covenant on Civil and Political Rights in all cases, including extradition proceedings. 43. In the Constitutional Court's view, the guarantees of the right to liberty and personal integrity set out in Article 22 and Chapter 2 of the Constitution, as well as the legal norms of Chapter 13 of the CCP on preventive measures, were fully applicable to detention with a view to extradition. Accordingly, Article 466 of the CCP did not allow the authorities to apply a custodial measure without respecting the procedure established in the CCP, or in excess of the time-limits fixed therein. (b) Decision of the Constitutional Court no. 158

-O of 11 July 2006 on the Prosecutor General's request for clarification 44. The Prosecutor General asked the Constitutional Court for an official clarification of its decision no. 101-O of 4 April 2006 (see above), for the purpose, in particular, of elucidating the procedure for extending a person's detention with a view to extradition. 45. The Constitutional Court dismissed the request on the ground that it was not competent to indicate specific criminal-law provisions governing the procedure and time-limits for holding a person in custody with a view to extradition. That was a matter for the courts of general jurisdiction. (c) Decision of the Constitutional Court no. 333-O-P of 1 March 2007 46. In this decision the Constitutional Court reiterated that Article 466 of the CCP did not imply that detention of a person on the basis of an extradition request did not have to comply with the terms and time-limits provided for in the legislation on criminal procedure. THE LAW I. ALLEGED VIOLATION OF ARTICLE 5 §§ 1 (f) AND 4 OF THE CONVENTION 47. The applicant complained under Article 5 § 1 (f) of the Convention that his detention pending extradition had been unlawful. The relevant parts of Article 5 § 1 read as follows: “1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (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.” 48. He also complained under Article 5 § 4 and Article 13 of the Convention that he had been unable to challenge the lawfulness of his detention in Russia before a court. Considering that Article 5 § 4 is lex specialis to Article 13, the Court will examine this complaint under Article 5 § 4 of the Convention, which reads as follows: “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.” A. The parties' arguments 1. The Government 49. The Government contested the applicant's arguments. They insisted that he had not exhausted the domestic remedies available to him because he had not lodged complaints about unlawful actions of a prosecutor to either a higher prosecutor or a court as he was entitled to do under Articles 124 and 125 of the CCP. In particular, he had not appealed against the decisions of the Meshchanskiy Inter-District Prosecutor's Office of 29 January and 29 June 2007. The Government disagreed with the applicant's assertion that Article 125 of the CCP had been inapplicable in his situation as it concerned only “parties to criminal proceedings”. They referred in this respect to Article 123 of the CCP, under which not only “parties to criminal proceedings” but also “other persons” were entitled to complain about a prosecutor's actions. 50. The Government further submitted that the applicant's detention awaiting a decision on the extradition request was lawful under both Russian law and the Minsk Convention. The terms of detention pending extradition were regulated in part by the Minsk Convention and by Chapter 13 of the CCP, as had been clarified by the Ruling of the Russian Constitutional Court of 4 April 2006. The maximum term of detention could not exceed eighteen months. The applicant had spent about seven months in custody, which appeared to be a reasonable time. 2. The applicant 51. The applicant disagreed with the Government and emphasised that he had had no effective domestic remedies to exhaust in relation to his complaints. In fact on 12 February 2007 he had applied to the Prosecutor General's Office under Article 124 of the CCP, asking to be released from custody; on 26 March 2007 the Prosecutor General's Office had informed him that there were no grounds to change the preventive measure because the extradition request was still being examined. The applicant had not been notified of the ruling of 29 June 2007 until 27 July 2007 and had thus been deprived of an opportunity to challenge it before a higher prosecutor. The applicant further argued that he had been unable to complain to a court under Article 125 of the CCP because he had not been charged with any criminal offence in Russia. 52. The applicant asserted that Russian laws concerning detention pending extradition did not comply with the Convention criteria of quality of law. He also claimed that the length of his detention pending extradition had been excessive. 53. Lastly, the applicant asserted that his detention between 23 and 30 August 2007 had had no legal basis and had thus been arbitrary. B. The Court's assessment 1. Admissibility 54. Turning to the Government's plea of non-exhaustion

, the Court considers that the issue of exhaustion of domestic remedies is closely linked to the merits of the applicant's complaint under Article 5 § 4 of the Convention. Thus, the Court finds it necessary to join the Government's objection to the merits of this complaint. The Court further notes that the applicant's complaints under Article 5 §§ 1 and 4 are not manifestly ill‑founded within the meaning of Article 35 § 3 of the Convention and are not inadmissible on any other grounds. They must therefore be declared admissible. 2. Merits (a) Article 5 § 4 of the Convention 55. The Court will first examine the applicant's complaint under Article 5 § 4 of the Convention. 56. The Court reiterates that the purpose of Article 5 § 4 is to guarantee to persons who are arrested and detained the right to judicial supervision of the lawfulness of the measure to which they are thereby subjected (see, mutatis mutandis, De Wilde, Ooms and Versyp v. Belgium, 18 June 1971, § 76, Series A no. 12). A remedy must be made available during a person's detention to allow that person to obtain speedy judicial review of its lawfulness. That review should be capable of leading, where appropriate, to release. The existence of the remedy required by Article 5 § 4 must be sufficiently certain, failing which it will lack the accessibility and effectiveness required for the purposes of that provision (see Talat Tepe v. Turkey, no. 31247/96, § 72, 21 December 2004). 57. The Court first notes that the applicant was detained pending extradition on the basis of two decisions of the inter-district prosecutor's office. Neither decision indicated that it was open to appeal (see paragraphs 13 and 17 above). The first decision, of 29 January 2007, stated that the applicant was being detained under Article 61 of the Minsk Convention, while the second one, of 29 June 2007, cited Article 466 § 2 of the CCP and Article 60 of the Minsk Convention as legal grounds for the detention. 58. The Court points out in this respect that domestic legal provisions should be applicable where actions are performed under the Minsk Convention (see paragraph 39 above). The Minsk Convention does not contain any rules on procedure for challenging a decision on placement in custody pending extradition under its Articles 60 and 61. Accordingly, the applicant had no remedies deriving from that Convention to challenge the lawfulness of his detention pending extradition. 59. The Government emphasised that the inter-district prosecutor's office had based its decisions concerning the applicant's detention on the decision of the Sobir Rakhimovskiy District Court of Tashkent of 9 January 2006, pursuant to Article 466 § 2 of the CCP. The Court observes that it is clear that the applicant had no avenue to challenge the lawfulness of an arrest warrant issued by an Uzbek court before a Russian court and was thus unable to obtain a judicial review of the lawfulness of his detention on the basis of that warrant. 60. As to the Government's reference to Chapter 13 of the CCP, the Court points out that the only provision of this Chapter governing complaints about the lawfulness of custodial detention provides that a court's decision on placement in custody is appealable to a higher court (see paragraph 35 above). Chapter 13 remains silent when it comes to detention authorised by a prosecutor, not a court. Therefore, the applicant had no possibility to complain to a court about the inter-district prosecutor's office's decisions of 29 January and 29 June 2007 under the provisions of Chapter 13 of the CCP, as suggested by the Government. 61. As to the Government's assertion that the applicant could have complained about the unlawfulness of his detention to a prosecutor or a court under Articles 124 and 125 of the CCP, the Court observes that Chapter 16 of the CCP concerns the possibility for “parties to criminal proceedings” to challenge decisions taken in the course of a preliminary investigation, such as a decision not to initiate criminal proceedings or a decision to discontinue them. There is no indication that the applicant was a party to criminal proceedings within the meaning given to that phrase by the Russian courts (see Muminov v. Russia, no. 42502/06, § 115, 11 December 2008, and Nasrulloyev v. Russia, no. 656/06, § 89, 11 October 2007). Furthermore, the Government have provided no explanation as to how the applicant could have claimed to qualify as “other persons” within the meaning of Article 123 of the CCP to be able to challenge officials' acts and decisions “touching upon” his interests. Moreover, it is clear from the wording of Article 125 of the CCP that “other persons” within the meaning of Article 123 of the CCP do not have a right to complain before a court about officials' acts and decisions. Thus, the Court is not persuaded that the provisions of Chapter 16 of

the CCP could have been applied in the applicant's case as suggested by the Government. 62. In such circumstances the Court concludes that the Government failed to show that the existence of the remedies invoked was sufficiently certain both in theory and in practice and, accordingly, that these remedies lack the requisite accessibility and effectiveness (see A. and E. Riis v. Norway, no. 9042/04, § 41, 31 May 2007, and Vernillo v. France, 20 February 1991, § 27, Series A no. 198). The Government's objection concerning non-exhaustion of domestic remedies must therefore be dismissed. 63. It follows that throughout the term of the applicant's detention pending a decision on his extradition he did not have at his disposal any procedure for a judicial review of its lawfulness. There has therefore been a violation of Article 5 § 4 of the Convention. (b) Article 5 § 1 of the Convention 64. Article 5 enshrines a fundamental human right, namely the protection of the individual against arbitrary interference by the State with his or her right to liberty (see Aksoy v. Turkey, 18 December 1996, § 76, Reports of Judgments and Decisions 1996-VI). The text of Article 5 makes it clear that the guarantees it contains apply to “everyone” (see A. and Others v. the United Kingdom [GC], no. 3455/05, § 162, ECHR 2009‑...). Sub-paragraphs (a) to (f) of Article 5 § 1 contain an exhaustive list of permissible grounds on which persons may be deprived of their liberty and no deprivation of liberty will be lawful unless it falls within one of those grounds (see Saadi v. the United Kingdom [GC], no. 13229/03, § 43, ECHR 2008). 65. It is common ground between the parties that the applicant was detained as a person “against whom action is being taken with a view to deportation or extradition” and that his detention fell under Article 5 § 1 (f). The parties dispute, however, whether this detention was “lawful” within the meaning of Article 5 § 1 of the Convention, 66. Where the “lawfulness” of detention is in issue, including the question whether “a procedure prescribed by law” has been followed, the Convention refers essentially to national law and lays down the obligation to conform to the substantive and procedural rules thereof. Compliance with national law is not, however, sufficient: Article 5 § 1 requires in addition that any deprivation of liberty should be in keeping with the purpose of protecting the individual from arbitrariness (see Erkalo v. the Netherlands, 2 September 1998, § 52, Reports 1998-VI; Steel and Others v. the United Kingdom, 23 September 1998, § 54, Reports 1998-VII; and Saadi, cited above, § 67). 67. Although it is in the first place for the national authorities, notably the courts, to interpret and apply domestic law, under Article 5 § 1 failure to comply with domestic law entails a breach of the Convention and the Court can and should therefore review whether this law has been complied with (see Benham v. the United Kingdom, 10 June 1996, § 41, Reports 1996-III; Ječius v. Lithuania, no. 34578/97, § 68, ECHR 2000‑IX; and Ladent v. Poland, no. 11036/03, § 47, ECHR 2008-... (extracts)). 68. Turning to the circumstances of the present case, the Court observes that the applicant's initial placement in custody was ordered, on 29 January 2007, by the inter-district prosecutor's office on the basis of the provisions of the Minsk Convention. The Court also notes that, although the decision of 29 January 2007 contained no reference to Article 466 § 2 of the CCP, the prosecutor's authority under domestic law to decide on the applicant's placement in custody without a Russian court order must have derived from that provision (see paragraph 38 above). 69. The Court points out that neither Article 61 of the Minsk Convention nor Article 466 § 2 of the CCP stipulate any rules on procedure to be followed when choosing a preventive measure in respect of a person whose extradition is sought, or any time-limits for his or her detention pending extradition. 70. The Court observes in this respect that by the time of the applicant's placement in custody the Russian Constitutional Court had already proclaimed that in extradition proceedings the right to liberty should be attended by the same guarantees as in other types of criminal proceedings. It unambiguously indicated that the application of preventive measures with a view to extradition should be governed not only by Article 466 but also by the norms on preventive measures contained in Chapter 13 of the CCP (see paragraph 43 above). 71. Furthermore, the Government confirmed that the applicant's detention pending extradition had been governed

by Chapter 13 of the CCP, among other provisions. 72. In such circumstances the Court considers that, in order to be “lawful” within the meaning of Article 5 § 1 (f) of the Convention, the applicant's detention should be compatible not only with the requirements of Article 466 § 2 but also with the provisions governing application of a preventive measure in the form of placement in custody, namely Articles 108 and 109, which are included in Chapter 13 of the CCP. 73. Article 108 § 4 of the CCP expressly provides that an issue of placement in custody is to be decided upon by a judge of a district or military court in the presence of the person concerned. It follows from the wording of Article 5 § 48 and Article 31 § 2 of the CCP that a district court is a court authorised to act on the basis of the Russian Code of Criminal Procedure, which implies that the term “district court” refers to a court established and operating under Russian law. Accordingly, a judge of a district court is an official authorised to administer justice on the territory of the Russian Federation. Nothing in the wording of Article 108 § 4 of the CCP suggests that a foreign court may act as a substitute for a Russian district court when deciding on a person's placement in custody. 74. Accordingly, the fact that the applicant's placement in custody was not authorised by a Russian court is clearly in breach of Article 108 § 4 of the CCP. 75. Furthermore, even assuming that the applicant's initial placement in custody was compatible with domestic legal provisions, it would have ceased to be “lawful” after the lapse of the two-month period provided for by Article 109 § 1 of the CCP. Article 109 § 2 of the CCP unequivocally stipulates that the two-month term of custodial detention can be prolonged up to six months only on the basis of a decision by a judge of a district court or a military court of corresponding level. In the absence of any Russian court decision to extend the applicant's custodial detention, the Court is bound to conclude that after 27 March 2007, that is, past two months from the date of his placement in custody, the applicant was detained in breach of domestic law. 76. The Court thus finds that the applicant's detention pending extradition cannot be considered “lawful” for the purposes of Article 5 § 1 of the Convention. In these circumstances, the Court does not need to consider separately the applicant's additional arguments concerning the quality of domestic law, the length of his detention and his delayed release. 77. There has therefore been a violation of Article 5 § 1 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 78. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 79. The applicant claimed 20,000 euros (EUR) in respect of non‑pecuniary damage. 80. The Government considered the amount claimed to be excessive and observed that, should the Court find a violation of the Convention in respect of the applicant, the mere finding would suffice as just satisfaction. 81. The Court notes that it has found violations of two provisions of Article 5 in respect of the applicant. The Court thus accepts that he has suffered non-pecuniary damage which cannot be compensated for solely by the findings of violations and finds it appropriate to award the applicant EUR 10,000 in respect of non-pecuniary damage. B. Costs and expenses 82. The applicant also claimed EUR 900 for the costs and expenses incurred before the domestic authorities and EUR 850 for those incurred before the Court. In support of his claims he submitted a copy of an agreement with his lawyer. 83. The Government did not comment on the applicant's claims for costs and expenses. 84. According to the Court's case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 1,750 covering costs under all heads. C. Default interest 85. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Decides to join to the merits the Government's objection as to non‑exhaustion of criminal domestic remedies and rejects it; 2

. Declares the application admissible; 3. Holds that there has been a violation of Article 5 § 4 of the Convention; 4. Holds that there has been a violation of Article 5 § 1 of the Convention; 5. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 10,000 (ten thousand euros), in respect of non-pecuniary damage, and EUR 1,750 (one thousand seven hundred and fifty euros), in respect of costs and expenses, plus any tax that may be chargeable to the applicant on these amounts, to be converted into Russian roubles at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 6. Dismisses the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 17 December 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenChristos RozakisRegistrarPresident

THIRD SECTION CASE OF TOPEKHIN v. RUSSIA (Application no. 78774/13) JUDGMENT STRASBOURG 10 May 2016 FINAL 17/10/2016 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Topekhin v. Russia, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: Luis López Guerra, President,Helena Jäderblom,Johannes Silvis,Dmitry Dedov,Branko Lubarda,Pere Pastor Vilanova,Alena Poláčková, judges,and Stephen Phillips, Section Registrar, Having deliberated in private on 19 April 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 78774/13) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Vladimir Aleksandrovich Topekhin (“the applicant”), on 14 December 2013. 2. The applicant was represented by Ms S. Sidorkina, a lawyer practising in Moscow. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights. 3. The applicant alleged that he had not received adequate medical care in detention, that the conditions of his detention and transport to a correctional colony had been inhuman and unsuitable for a partly-paralysed detainee such as himself, that the length of his detention on remand had been excessive, and that his appeal against detention orders had not been examined speedily. 4. On 2 April 2014 the Court granted priority to the application under Rule 41 of the Rules of Court and dismissed the applicant’s request for interim measures under Rule 39 of the Rules of Court. 5. On 18 November 2014 the application was communicated to the Government and the priority treatment was lifted. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6. The applicant was born in 1982 and until his arrest lived in Moscow. A. Criminal proceedings against the applicant 7. On 27 February 2012 the police opened a criminal investigation into large-scale fraud. According to investigators, an unknown person had convinced a businessman to hand over 10,000,000 Russian roubles (approximately EUR 248,000) on the pretext of selling some equipment. However, the person had had no intention of selling the equipment or returning the money. 8. On 24 January 2013 the applicant was accused of aggravated fraud. The police ordered him not to leave his place of residence, but he fled and was put on a wanted list by the police. 9. On 16 July 2013 he was arrested and taken to a police custody facility. The next day the Tverskoy District Court of Moscow (“the District Court”) authorised his pre-trial detention until 16 September 2013, having regard to the seriousness of the charges against him and the risk of his absconding, reoffending and interfering with justice. 10. The applicant appealed. He referred to, among other things, his poor health. 11. On 19 August 2013 the Moscow City Court (“the City Court”) upheld the detention order on appeal after examining his recent medical documents, stating that his health did not preclude his detention on remand. 12. On 13 September 2013 the District Court extended the applicant’s detention until 16 November 2013, citing the risk of his absconding given his previous attempt to evade prosecution and the seriousness of the charges against him. The District Court also linked that risk to the applicant’s lack of stable income or work. In the court’s view, no alternative measure, such as house arrest or bail, could have ensured that the criminal proceedings ran smoothly. Lastly, the court noted the complexity of the case and several steps in the investigation which had yet to be performed, including some which required the applicant’s presence and participation. 13. The applicant appealed. He applied to the City Court to be released on bail because of his worsening health. He insisted that he could no longer move without assistance. In the meantime, in October 2013 he was served with the final version of the bill of indictment and was committed to stand trial before the

District Court. 14. On 13 November 2013 the City Court upheld the detention order of 13 September 2013, endorsing the District Court’s reasoning. After examining medical evidence pertaining to the applicant’s health, it found that the illnesses he suffered from were not severe enough to warrant his release. 15. On an unspecified date the police searched the applicant’s flat and found a passport with his photograph but under another name. 16. On 14 November 2013 the District Court extended the applicant’s detention until 30 March 2014. It again cited his unemployment status and ability to abscond, in view of the seriousness of the charges and his having been on the run from January to July 2013. Noting that his state of health was compatible with the detention conditions, the court concluded that the extension of his detention was justified. 17. On 13 January 2014 the District Court dismissed the applicant’s request for release on bail or under a written undertaking not to leave Moscow. It reiterated the arguments contained in the preceding detention orders and noted the discovery of the forged passport in his flat during the police search, which for the court was a clear sign of his intention to flee. It also addressed his arguments that he had become paraplegic and thus no longer posed a flight risk. It noted that according to a recent conclusion of a medical panel (see paragraph 32 below), his health did not call for his release. 18. On the same day the District Court convicted the applicant of aggravated fraud and sentenced him to six years’ imprisonment in a correctional colony. 19. On 20 February 2014 the City Court upheld the conviction, but reduced the sentence to four years. B. The applicant’s detention, transfer conditions and medical treatment in detention 1. Police ward 20. For about a week after his arrest on 16 July 2013 the applicant was kept in a Moscow police ward. 21. His cell measured 12 square metres, had three sleeping places and usually housed two or three inmates. He did not complain about his health and was not seen by a doctor, save for a general check-up on admission. 2. Remand prisons 22. On 24 July 2013 the applicant was taken to remand prison no. IZ‑77/2 in Moscow. He underwent the usual general medical check-up on arrival. Informing the resident doctor about serious back injuries he had sustained in 2008 and 2010, he did not make any specific complaints, except about his hypertension. He was considered to be in good health. 23. According to the Government, he was placed in a cell which measured 26.96 square metres and housed four other inmates. Subsequently he was transferred between less spacious cells, which he shared with two or three inmates. The living space afforded to him varied between 3.8 and 5.7 square metres. Throughout his detention he slept on an individual prison bunk. The applicant did not dispute the above information submitted by the Government. 24. According to the applicant, in August 2013 he fell and hurt his back. Severe back pain was accompanied by numbness in the legs and resulted in him being unable to walk unaided. He spent the major part of his day in bed being assisted by his cellmates. They took him for walks in the prison yard, carried him to the toilet and washed him with wet towels, which was their way of showing that they were annoyed with his helplessness. 25. The applicant’s medical records show that on 8 October 2013 he complained to the resident doctor that he was suffering from a headache and back and abdomen pain. The doctor prescribed him drugs and a consultation with a neurologist. 26. On 19 October 2013 he was taken to a medical unit in the same remand prison for inpatient treatment. The attending doctor noted that, owing to a pain syndrome, he had been unable to move unaided. After blood tests and a CAT (computerized axial tomography) scan, he was injected with painkillers, muscle relaxants, nootropics and vitamins. 27. The applicant submitted that on 24 October 2013 during his transfer to a court hearing in a standard prison van, he had again severely hurt his back and head. 28. On 13 November 2013 the applicant was discharged from the medical ward to be transferred to the hospital in remand prison no. IZ-77/1 in Moscow for more comprehensive treatment. 29. The transfer occurred a week later. On admission to hospital the applicant complained of head and back pain and numbness in his legs. The hospital performed a number of medical tests, including blood and urine tests, a CAT scan and a cerebrospinal fluid analysis. As a result he was diagnosed with paraplegia of unknown origin, headaches and chronic inflammatory demyelinating polyneuropathy. He received antibiotics, muscle relaxants, vitamins and other medication. His health improved, but

not significantly. The paraplegia remained unchanged. He was discharged from hospital on 9 December 2013 to undergo treatment in a civilian hospital and to check whether his state of health called for his early release. 30. From 9 to 13 December 2013 the applicant stayed in Moscow City Hospital no. 20, where he underwent a medical expert examination and received treatment. He had an MRI (magnetic resonance imaging) scan of his spinal column and spinal cord, a scintigraphy and an X-ray of his pelvis. According to a medical report dated 13 December 2013, he suffered the consequences of a reduced blood supply to the Adamkiewicz artery, including lower limb spasticity, dysfunction of the pelvic organs and bedsores developed outside the hospital. In addition, he was diagnosed with hypertension, a small hydrothorax on the right side and some residual effects of pneumonia that did not call for any treatment. The conditions did not fall within the established list of illnesses warranting early release. 31. The applicant was taken to the intensive care unit of remand prison no. IZ-77/1, where he continued his drug regimen in line with the hospital’s recommendations. The doctors were, however, unable to ensure any improvement in his conditions. A week later he was sent back to Moscow City Hospital no. 20. 32. A report drawn up on 31 December 2013 by a medical panel from the hospital stated that, in addition to the previous diagnosis, the applicant suffered from neurogenic bladder and bowel dysfunction. However, his conditions still did not reach the level of severity to warrant his release. 33. The stay in hospital was followed by two weeks of detention in remand prison no. 77/1. There is nothing to suggest that his treatment was interrupted during that period. 34. On 15 January 2014 the applicant was again taken to Moscow City Hospital no. 20 for a month of treatment. The hospital staff changed his drug regimen, completing it with antioxidant and neutrophil treatment, muscle relaxants, painkillers, and introducing physiotherapy, which resulted in “certain positive changes in [his] state of health”. 35. Meanwhile, the applicant’s lawyer asked an independent medical specialist to provide an opinion on the quality of medical care afforded to the applicant in the remand prison. In a report dated 11 February 2014 the specialist stated that the applicant’s conditions required enhanced medical attention and inpatient treatment that could only be performed in a neurological medical facility. Remand prison no. 77/1 was not licensed to provide neurological treatment or perform neurosurgery. His bedsores were a sign of insufficient medical attention. The report ended with a recommendation that he be classified as disabled. 36. On 14 February 2014 the applicant was taken to remand prison no. 77/1, where he was detained until 1 March 2014. According to the Government, he shared his cell measuring around 11.4 square metres with another inmate. As he was unable to care for himself, medical staff and inmates assisted him with his daily needs. It is apparent from the case file that he continued to receive treatment as prescribed. 37. On 1 March 2014 he was sent to serve his sentence in a correctional colony in Kostroma, over 300 kilometres away. 3. Transfer to correctional colony 38. In the early hours of 1 March 2014 the applicant was taken in a Gazel minivan designed to transfer the seriously ill, to a Moscow train station. The trip took two hours. 39. At the train station he was placed on board a standard train carriage, where he had to stay for four hours awaiting departure. The journey to the destination, the town of Yaroslavl, took approximately five hours. The Government only stated that the applicant had shared his carriage with other detainees and had been accompanied by escort officers ready to assist him if necessary. 40. In Yaroslavl the applicant was taken from the train to a prison van. According to the written statements by escort officers submitted by the Government, he was put on a thin blanket on the floor of the van. In the next half hour he was taken to a remand prison, so that new escort officers could join the transfer team. The applicant had to wait for another hour, lying on the floor of the van, while the official procedure involving the escort officers was under way. He was then taken back to the train station in Yaroslavl. 41. At the station the applicant was taken to a prison train carriage, which he shared with other inmates. After another two hours the train departed for Kostroma. The trip took three hours. At around midnight the train arrived at the Kostroma train station. The Government did not provide any description of the conditions in which the applicant travelled. 42. Within the next hour a prison van took the applicant to a nearby remand prison, where he was detained from 2 to 6 March 2014. 43.

On the morning of 6 March 2014 the applicant was taken in the same prison van to correctional colony no. IK-15/1 (“the correctional colony”). The trip took around an hour. 44. The parties disagreed whether the vehicles used to transfer the applicant, with the exception of the Gazel minivan, were equipped to accommodate ill inmates. While the Government argued that all vehicles could transport bedridden patients, the applicant stated that they had had no special equipment on board. He had been forced to lie on the floor of the prison vans on a thin blanket used as a stretcher. During the entire journey he had been in severe pain, but had not received any painkillers. 4. Correctional colony 45. The applicant was placed in the medical unit of the colony. He continued receiving various drugs and injections, including nootropic drugs, muscle relaxants and antioxidants and vitamins, to improve the function of the central and peripheral nervous systems. He was regularly seen by doctors. His condition remained stable. 46. The applicant spent all his time in bed. Personal care workers provided him with bedside care, including basic nursing procedures. 47. The applicant was examined by a panel of doctors to check whether he should be released early on health grounds. In their report dated 15 April 2014 they concluded that his conditions, in particular his lower limb spasticity and bladder and bowel dysfunction called for his early release. 48. On the panel’s recommendation, the colony administration asked the court to authorise the applicant’s early release on health grounds. 49. The Sverdlovskiy District Court of Kostroma granted the request and on 3 July 2014 ordered his release. On 26 August 2014 the Kostroma Regional Court upheld the order on appeal. Two days later the applicant was released. II. RELEVANT DOMESTIC LAW A. Extension of detention 50. The Russian legal regulations in respect of detention during judicial proceedings are explained in the judgments of Pyatkov v. Russia (no. 61767/08, §§ 48-68, 13 November 2012) and Isayev v. Russia (no. 20756/04, §§ 67-80, 22 October 2009). B. Health care of detainees 51. The relevant provisions of domestic and international law on the general health care of detainees are set out in the judgments of Vasyukov v. Russia (no. 2974/05, §§ 36-50, 5 April 2011) and Khudobin v. Russia (no. 59696/00, § 56, 26 October 2006, ECHR 2006‑XII (extracts)). C. Detention of disabled detainees 52. The Russian Code on the Execution of Sentences sets out certain requirements for the detention of disabled detainees. While Article 99 § 1 provides for a minimum standard of 2 sq. m of personal space for male convicts in correctional colonies and 3 sq. m of personal space in prison health care facilities, Article 99 § 6 indicates that inmates with a category 1 or 2 disability are entitled to “improved accommodation and living conditions”. Article 88 § 6 provides that disabled detainees have a right to buy food and articles of primary necessity without any limitations. Article 90 allows ill or disabled inmates to receive additional parcels or packages, including ones containing medication, the content and quantity of which must be determined by medical specialists. Under Article 99 §§ 6 and 7 disabled inmates must be provided with food, clothing and toiletries free of charge. They are also entitled to an enriched diet. 53. Russian law does not contain specific rules or requirements regulating the detention of wheelchair-bound detainees. III. RELEVANT INTERNATIONAL MATERIAL 54. The United Nations Convention on the Rights of Persons with Disabilities and its Optional Protocol were adopted by the United Nations General Assembly on 13 December 2006. Russia ratified the Convention on 25 September 2012. It did not ratify the Optional Protocol. Article 1of the Convention provides: “The purpose of the present Convention is to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity. Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.” The relevant part of Article 14 provides: “2. States Parties shall ensure that if persons with disabilities are deprived of their liberty through any process, they are, on an equal basis with others, entitled to guarantees in accordance with international human rights law and shall be treated in compliance with the objectives and principles of this Convention, including by provision of reasonable accommodation.” The relevant part of Article 15 provides: “2. States Parties shall take all effective legislative

, administrative, judicial or other measures to prevent persons with disabilities, on an equal basis with others, from being subjected to torture or cruel, inhuman or degrading treatment or punishment.” The requirements regulating personal mobility are laid down in Article 20, which reads as follows: “States Parties shall take effective measures to ensure personal mobility with the greatest possible independence for persons with disabilities, including by: Facilitating the personal mobility of persons with disabilities in the manner and at the time of their choice, and at affordable cost; Facilitating access by persons with disabilities to quality mobility aids, devices, assistive technologies and forms of live assistance and intermediaries, including by making them available at affordable cost; Providing training in mobility skills to persons with disabilities and to specialist staff working with persons with disabilities; Encouraging entities that produce mobility aids, devices and assistive technologies to take into account all aspects of mobility for persons with disabilities.” 55. In Interim Report of 28 July 2008 (A/63/175), the then UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Mr Manfred Nowak, noted as follows: “50.... Persons with disabilities often find themselves in [situations of powerlessness], for instance when they are deprived of their liberty in prisons or other places... In a given context, the particular disability of an individual may render him or her more likely to be in a dependant situation and make him or her an easier target of abuse... ... 53. States have the further obligation to ensure that treatment or conditions in detention do not directly or indirectly discriminate against persons with disabilities. If such discriminatory treatment inflicts severe pain or suffering, it may constitute torture or other form of ill-treatment.... 54. The Special Rapporteur notes that under article 14, paragraph 2, of the CRPD, States have the obligation to ensure that persons deprived of their liberty are entitled to ‘provision of reasonable accommodation’. This implies an obligation to make appropriate modifications in the procedures and physical facilities of detention centres... to ensure that persons with disabilities enjoy the same rights and fundamental freedoms as others, when such adjustments do not impose disproportionate or undue burden. The denial or lack of reasonable accommodation for persons with disabilities may create detention... conditions that amount to ill-treatment and torture.” IV. RELEVANT COUNCIL OF EUROPE MATERIAL 56. The relevant extracts from the 3rd General Report (CPT/Inf (93) 12; 4 June 1993) by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) read as follows: e. Humanitarian assistance “64. Certain specific categories of particularly vulnerable prisoners can be identified. Prison health care services should pay especial attention to their needs.” ... iv) prisoners unsuited for continued detention “70. Typical examples of this kind of prisoner are those who are the subject of a short‑term fatal prognosis, who are suffering from a serious disease which cannot be properly treated in prison conditions, who are severely handicapped or of advanced age. The continued detention of such persons in a prison environment can create an intolerable situation. In cases of this type, it lies with the prison doctor to draw up a report for the responsible authority, with a view to suitable alternative arrangements being made.” ... g. Professional competence “76. To ensure the presence of an adequate number of staff, nurses are frequently assisted by medical orderlies, some of whom are recruited from among the prison officers. At the various levels, the necessary experience should be passed on by the qualified staff and periodically updated. Sometimes prisoners themselves are allowed to act as medical orderlies. No doubt, such an approach can have the advantage of providing a certain number of prisoners with a useful job. Nevertheless, it should be seen as a last resort. Further, prisoners should never be involved in the distribution of medicines. 77. Finally, the CPT would suggest that the specific features of the provision of health care in a prison environment may justify the introduction of a recognised professional speciality, both for doctors and for nurses, on the basis of postgraduate training and regular in-service training.” 57. Recommendation no. R (98) 7 of the Committee of Ministers of 8 April 1998 concerning the ethical and organisational aspects of health care in prison, provides, in so far as relevant: III. The organisation of health care in prison with specific reference to the management of certain common problems C. Persons unsuited to continued detention: serious physical handicap, advanced age, short term fatal prognosis “50. Prisoners with serious physical handicaps and those of advanced age should be accommodated in such a way as to allow as normal a life as possible and should not be segregated from the general prison

population. Structural alterations should be effected to assist the wheelchair-bound and handicapped on lines similar to those in the outside environment....” 58. Recommendation CM/Rec (2012) 5 of the Committee of Ministers of 12 April 2012 on the European Code of Ethics for Prison Staff, provides, in particular: IV. Guidelines for prison staff conduct D. Care and assistance “19. Prison staff shall be sensitive to the special needs of individuals, such... disabled prisoners, and any prisoner who might be vulnerable for other reasons, and make every effort to provide for their needs. 20. Prison staff shall ensure the full protection of the health of persons in their custody and, in particular, shall take immediate action to secure medical attention whenever required. 21. Prison staff shall provide for the safety, hygiene and appropriate nourishment of persons in the course of their custody. They shall make every effort to ensure that conditions in prison comply with the requirements of relevant international standards, in particular the European Prison Rules. 22. Prison staff shall work towards facilitating the social reintegration of prisoners through a programme of constructive activities, individual interaction and assistance.” THE LAW I. ALLEGED VIOLATIONS OF ARTICLE 3 OF THE CONVENTION 59. The applicant complained that he had not been afforded adequate medical treatment in detention, excluding the periods when he had been treated in Moscow City Hospital no. 20, and that the conditions of his detention and transfer to the correctional colony had been degrading. He relied on Article 3 of the Convention, which reads: “ No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. The parties’ submissions 1. The Governments’ submissions 60. The Government argued that their obligations under Article 3 of the Convention had been fully discharged. As regards the applicant’s medical treatment, they submitted that shortly after his very first complaint to the resident doctor in October 2013, he had been subjected to an in-depth medical examination and had received comprehensive medical treatment comprising injections, a drug regimen and physiotherapy. The authorities had used their utmost efforts to restore his health. In support of their arguments the Government submitted the applicant’s complete medical file. 61. As regards the conditions of his detention, the Government considered that they had been in line with the requirements of the Convention. The applicant had thus had an individual sleeping place and had been afforded sufficient living space. The authorities had ensured that he had been assisted with his daily needs by personal care workers and inmates after his health had deteriorated. 62. Lastly, the Government stated that the escort authorities had taken cognisance of the applicant’s illness when arranging for him to be transferred. The vehicles used had been suitable for transporting bedridden detainees. The Government submitted the applicant’s itinerary, the train schedule and a written statement by officers who had escorted the applicant in Yaroslavl (see paragraph 40 above). 2. The applicant’s submissions 63. The applicant maintained his complaints, arguing that in August 2013 he had lost movement in his legs and since then had been confined to bed, being assisted only by inmates. The remand prisons had not been equipped to detain seriously ill inmates, had not employed trained “assistive personnel” and had been unable to provide him with the required neurological treatment. He provided the Court with a copy of a written transcript of an interview given by an inmate to his lawyer on 17 March 2014. The inmate stated that the applicant had complained of headaches and back and leg pain from the first few days of his detention, but had still retained his ability to walk and had not required any assistance at that time. However, a fall from the upper bunk in August 2013 had resulted in the applicant’s leg becoming completely paralysed. The inmate noted that the applicant had become confined to his bed and had only received assistance from inmates who had volunteered to help. 64. Lastly, the applicant disputed the Government’s description of the vehicles used to transfer him. He indicated that the Gazel minivan had only been equipped to transport bedridden patients. B. The Court’s assessment 1. Admissibility 65. The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible. 2. Merits (a) Medical treatment (i) General principles 66. The Court reiterates that Article 3 of the Convention enshrines one of the most fundamental values of democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim’s behaviour (see, for example, Labita v. Italy [GC], no.

26772/95, § 119, ECHR 2000-IV). Ill‑treatment must, however, attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see, among other authorities, Verbinţ v. Romania, no. 7842/04, § 63, 3 April 2012, with further references). 67. Ill-treatment that attains such a minimum level of severity usually involves actual bodily injury or intense physical or mental suffering. However, even in the absence of these, where treatment humiliates or debases an individual, showing a lack of respect for or diminishing his or her human dignity, or arouses feelings of fear, anguish or inferiority capable of breaking an individual’s moral and physical resistance, it may be characterised as degrading and also fall within the prohibition of Article 3 (see Pretty v. the United Kingdom, no. 2346/02, § 52, ECHR 2002-III, with further references). 68. The State must ensure that a person is detained in conditions which are compatible with respect for human dignity, that the manner and method of the execution of the measure of deprivation of liberty do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured (see Kudła v. Poland [GC], no. 30210/96, §§ 92-94, ECHR 2000‑XI, and Popov v. Russia, no. 26853/04, § 208, 13 July 2006). In most of the cases concerning the detention of persons who were ill, the Court has examined whether or not the applicants received adequate medical assistance in prison. The Court reiterates in this regard that even though Article 3 does not entitle a detainee to be released “on compassionate grounds”, it has always interpreted the requirement to secure the health and well-being of detainees, among other things, as an obligation on the part of the State to provide detainees with the requisite medical assistance (see Kudła, cited above, § 94; Kalashnikov v. Russia, no. 47095/99, § 95, ECHR 2002-VI; and Khudobin v. Russia, no. 59696/00, § 96, ECHR 2006-XII (extracts)). 69. The “adequacy” of medical assistance remains the most difficult element to determine. The Court insists, in particular, that authorities must ensure that diagnosis and care are prompt and accurate (see Khatayev v. Russia, no. 56994/09, § 85, 11 October 2011; Yevgeniy Alekseyenko v. Russia, no. 41833/04, § 100, 27 January 2011; Gladkiy v. Russia, no. 3242/03, § 84, 21 December 2010; Hummatov v. Azerbaijan, nos. 9852/03 and 13413/04, § 115, 29 November 2007; Melnik v. Ukraine, no. 72286/01, §§ 104-106, 28 March 2006; and, mutatis mutandis, Holomiov v. Moldova, no. 30649/05, § 121, 7 November 2006), and that, where necessitated by the nature of a medical condition, supervision is regular and systematic and involves a comprehensive therapeutic strategy aimed at adequately treating the detainee’s health problems or preventing their aggravation (see Hummatov, cited above, §§ 109 and 114; Sarban v. Moldova, no. 3456/05, § 79, 4 October 2005; and Popov, cited above, § 211). The Court further reiterates that medical treatment within prison facilities must be appropriate and comparable to the quality of treatment the State authorities have committed themselves to providing to the entire population. Nevertheless, this does not mean that each detainee must be guaranteed the same level of treatment as is available in the best health establishments outside prison facilities (see Cara-Damiani v. Italy, no. 2447/05, § 66, 7 February 2012). 70. On the whole, the Court reserves sufficient flexibility in defining the required standard of health care, deciding it on a case-by-case basis. That standard should be “compatible with the human dignity” of a detainee, but should also take into account “the practical demands of imprisonment” (see Aleksanyan v. Russia, no. 46468/06, § 140, 22 December 2008). (ii) Application of the above principles to the present case 71. Turning to the facts of the present case, the Court

notes that the applicant, a seriously ill person suffering from paraplegia and a number of related conditions, including serious bowel and bladder dysfunctions, was detained from 16 July 2013 to 18 August 2014. He argued that his health had significantly deteriorated in detention, as a result of the authorities’ failure to comply with their obligations under Article 3 of the Convention and to provide him with the requisite medical care. 72. The Court has to undertake a first-hand evaluation of a significant quantity of medical evidence in order to determine whether the guarantees of Article 3 of the Convention have been respected in the present case. 73. At the outset it observes that the Government submitted extensive medical documents, including the applicant’s medical file drawn up in detention, treatment summaries, test results and medical opinions. The documents cover the entire period of the detention. The applicant did not dispute the authenticity or quality of those documents. The Court therefore has no reason to doubt their accuracy and reliability. 74. In the light of this, the Court is unable to accept the applicant’s allegations that although he had developed a pain syndrome and had lost the ability to move in August 2013, he had remained without any medical attention for two months, until October 2013. The medical record indicated that he had applied for medical assistance for the first time in October 2013, complaining of pain in his back, head and abdomen (see paragraph 25 above). That date will be accordingly taken by the Court as the date when the authorities became aware, for the first time, of the early signs of the applicant’s paraplegia. 75. The Court further observes that as soon as the authorities became aware of the applicant’s health problems they put him on a drug regimen, (see paragraph 25 above). Several days later he was admitted to the prison medical unit, where he underwent the necessary testing for the prompt and correct diagnoses. He was seen by various doctors, including a neurologist, and prescribed comprehensive treatment (see paragraph 26 above). Further complex examinations, such an analysis of the cerebrospinal fluid, followed. These were scheduled and performed in a timely and proper manner (see paragraph 29 above). The applicant’s drug regimen was amended when necessary and his treatment strategy went far beyond attempts aimed at mere pain relief. It was aimed at fully restoring the lost use of the applicant’s legs. There is nothing in the Court’s possession to show that the prescribed treatment was not administered properly or was interrupted. The detention authorities continued with the treatment, providing prescribed drugs and injections, irrespective of the place of the applicant’s detention, whether in hospital or a standard detention facility (see paragraphs 31, 33, 36 and 45 above). They also introduced physiotherapy for him, thus ensuring that the he had access to a key component of the rehabilitation process (see paragraph 34 above). 76. In these circumstances the Court finds no evidence to support the applicant’s assertion that the deterioration of his health had been brought about by insufficient or poor treatment. The Court cannot disregard others factors, which he himself did not exclude, such as the steady development of his back disorders rooted in the injuries sustained in 2008 and 2010 (see paragraph 22 above) and aggravated by a new injury received in detention (see paragraph 24 above). The Court also attributes particular weight to the fact that the independent medical specialist, who had assessed the quality of the applicant’s treatment at his lawyer’s request, did not identify any serious defects in the treatment, merely accentuating the general need to treat him in a neurological hospital (see paragraph 35 above). The specialist noted the applicant’s bedsores. However, the Court considers that they are not so much a matter of the quality of medical treatment but rather of the general care and conditions of the applicant’s detention, which will be addressed by the Court under a separate heading. 77. To sum up, the Court considers that the authorities provided the applicant with the requisite medical assistance in detention. Accordingly, there has been no violation of Article 3 of the Convention on that account. (b) Conditions of detention (i) General principles 78. The Court further reiterates that Article 3 of the Convention requires the State to ensure that prisoners are detained in conditions which are compatible with respect for human dignity, that the manner and method in which the measure is enforced do not subject them to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, their health and well-being are adequately secured (see Kudła, cited above, §§ 92-94, ECHR 2000‑XI, and Melnītis v. Latvia, no. 30779/05, § 69, 28 February 2012). 79. Moreover, the Court has considered that where the authorities decide to place and keep a disabled person in detention, they should demonstrate special care in guaranteeing such conditions as correspond to the

special needs resulting from his disability (see Z.H. v. Hungary, no. 28937/11, § 29, 8 November 2012; Jasinskis v. Latvia, no. 45744/08, § 59, 21 December 2010; and Farbtuhs v. Latvia, no. 4672/02, § 56, 2 December 2004). 80. In the above-cited case of Farbtuhs, the Court noted that the prison authorities had permitted family members to stay with the applicant for twenty-four hours at a time and that this had taken place on a regular basis. In addition to being cared for by his family, the applicant, who had a physical disability, was assisted by the medical staff during working hours and was helped by other inmates outside working hours on a voluntary basis. The Court expressed its concerns in the following terms (§ 60): “ The Court doubts the appropriateness of such a solution, leaving as it did the bulk of responsibility for a man with such a severe disability in the hands of unqualified prisoners, even if only for a limited period. It is true that the applicant did not report having suffered any incident or particular difficulty as a result of the impugned situation; he merely stated that the prisoners in question sometimes ‘refused to cooperate’, without mentioning any specific case in which they had refused. However, the anxiety and unease which such a severely disabled person could be expected to feel, knowing that he would receive no professional assistance in the event of an emergency, in themselves raise a serious issue from the standpoint of Article 3 of the Convention.” 81. The Court has also held that detaining a disabled person in a prison where he cannot move around and, in particular, cannot leave his cell independently, amounts to degrading treatment (see Vincent v. France, no. 6253/03, § 103, 24 October 2006). Similarly, the Court has found that leaving a person with a serious physical disability to rely on his cellmates for assistance with using the toilet, bathing and getting dressed or undressed contributes to its finding that the conditions of detention amount to degrading treatment (see Engel v. Hungary, no. 46857/06, §§ 27 and 30, 20 May 2010). (ii) Application of the above principles to the present case 82. Turning to the facts of the present case, the Court observes that the parties submitted conflicting descriptions of the conditions of the applicant’s detention in remand prisons nos. 77/1 and 77/2 (see paragraphs 61 and 63). The Government argued that he had been assisted by personal care workers and detainees, while he stated that assistance had only been provided by inmates as the facilities had not employed staff to assist him with his daily needs. 83. The Court has previously held that in certain instances the respondent Government alone have access to information capable of firmly corroborating or refuting allegations under Article 3 of the Convention and that failure on a Government’s part to submit such information without a satisfactory explanation may give rise to the drawing of inferences as to the well-foundedness of the applicant’s allegations (see, for example, Ahmet Özkan and Others v. Turkey, no. 21689/93, § 426, 6 April 2004). 84. In this respect, the Court considers that it was for the Government in the present case to demonstrate that the detention authorities had arranged the necessary general care and assistance for the applicant, who had been clearly unable to care for himself independently owing to serious leg impairment. The Government however failed to submit any evidence, such as staff registration logs or employment certificates, statements by attending doctors, by the medical staff who had allegedly cared for him or, at least, by the applicant’s inmates, confirming that the detention facilities accommodating him had employed a sufficient number of personal care workers and that the staff had provided him with the necessary assistance with his daily needs. The applicant, on the other hand, not only gave a detailed and consistent description of the circumstances, but provided the Court with statements by his inmate confirming his allegations (see paragraph 63 above). In these circumstances the Court concludes that the applicant was left received no assistance from trained staff, but was forced to rely entirely on the help of his inmates. 85. The Court has already found a violation of Article 3 of the Convention in cases in which prison staff felt that they had been relieved of their duty to provide security and care to more vulnerable detainees by making their cellmates responsible for providing them with daily assistance or, if necessary, first aid (see, Semikhvostov v. Russia, no. 2689/12, § 85, 6 February 2014, and, mutatis mutandis, Kaprykowski v. Poland, no. 23052/05, § 74, 3 February 2009). The circumstances of the present case are even more acute because the applicant’s need for bedside assistance was exceptionally high. It

is evident that his inmates were unable to provide such enhanced assistance, which requires special skills and knowledge. This fact is accentuated by the presence of bedsores, developed outside the hospital, which were recorded by the resident doctor and noted by the independent medical expert as a sign of neglect on the part of the authorities (see paragraphs 30 and 35 above). The Court is prepared to conclude that the developed bedsores indicated that the applicant was not repositioned regularly, was forced to spend much time in bed in one position, and was not regularly bathed or his skin was not kept clean. The situation was further aggravated by the fact that the applicant suffered from bladder and bowel dysfunction (see paragraph 32 above). The absence of proper general care and assistance could have also contributed to development of the bedsores, through the delay in notifying the prison doctors of their appearance, given that the inmates assisting the applicant were not trained to duly recognise the early signs of bedsores or offer treatment to prevent them developing further. 86. In addition, the Court finds that the applicant’s inevitable dependence on his inmates and the need to ask for their help with intimate hygiene procedures put him in a very uncomfortable position and adversely affected his emotional well-being, impeding his communication with the cellmates who could have been dissatisfied with the burdensome work they had to perform involuntarily. 87. In addition, the conditions of the applicant’s detention were further exacerbated by the failure to provide him with, as is apparent from the documents submitted by the parties, a hospital bed or any other equipment, such as a special pressure-relieving mattress, which could have afforded him at the very least a minimum level of comfort during more than a year of detention. 88. To conclude, the Court finds that the conditions of the applicant’s detention in the remand prisons were such as to qualify as inhuman and degrading treatment. There has thus been a violation of Article 3 of the Convention on that account. (c) Conditions of transfer 89. The Court reiterates that the applicant complained about the conditions of his transfer to the correctional colony from the first train station to the final destination. He gave a sufficiently detailed and consistent description of the conditions in which he was transferred. The respondent Government provided the Court with an itinerary of the trip. They also contended that the conditions of the transfer corresponded to the needs of bedridden patients. They did not however submit any information as to the special adjustments made or equipment installed on the trains or prison van in which the applicant travelled. The only items of evidence lodged by the Government which could have shed at least some light on the conditions of the applicant’s transfer were the written statements by two escort officers. They noted that the applicant had spent about two hours lying on a thin blanket on the hard floor of the prison van while being taken to and from the remand prison in Yaroslavl the only reason being for, it appears, a change in the escort crew (see paragraph 40 above). The Court notes that the escort officers’ statements supported the applicant’s statements that in Yaroslavl he had been transported lying on the floor of a prison vehicle. 90. In these circumstances, the Court accepts the veracity of the applicant’s description of the conditions of his transfer and will base on it the examination of his complaint in this respect (see Yevgeniy Bogdanov v. Russia, no. 22405/04, § 103, 26 February 2015, and Igor Ivanov v. Russia, no. 34000/02, §§ 34‑35, 7 June 2007). 91. The Court observes that the applicant was transported to the correctional colony in standard train carriages and prison vans with no special equipment installed to meet the needs of a bedridden person suffering from a serious back condition and bladder problems. The first part of the trip took nine hours, during which he was confined to a bunk in the train carriage. The trip, which could have presented no serious issues for a healthy inmate, had an evident detrimental effect on the applicant. 92. The Court has established that during the following part of the trip he spent at least two hours being driven in a prison van to and from a detention facility in Yaroslavl. The Court is concerned that the authorities failed to take any corrective measures to meet the applicant’s needs during the transfer, treating with indifference his complaints of acute pain when he was lying on the hard floor of the prison van or being carried around on a blanket used as a stretcher. His being placed directly on the floor of the van exposed him to vibrations from the road during the journey and resulted in him suffering additional pain. Given his fragile condition, the Court is mindful of the possible negative impact such treatment could have had for his back and legs. 93. The applicant’s trip to the correctional colony was completed after a further five hours on a train and a journey in a prison van. The Court does not

find any evidence that the conditions on the train or in the van were in any way different from those during the first part of his trip. 94. In these circumstances, the Court takes the view that the cumulative effect of the material conditions of the applicant’s transfer, and the duration of the trip, were serious enough to qualify as inhuman and degrading treatment within the meaning of Article 3 of the Convention (see Tarariyeva v. Russia, no. 4353/03, §§ 112-117, ECHR 2006‑XV (extracts)). 95. There has therefore been a violation of Article 3 of the Convention on account of the conditions of the applicant’s transfer to the correctional colony. II. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION 96. The applicant complained of a violation of his right to trial within a reasonable time and alleged that the orders for his detention had not been based on sufficient reasons. He relied on Article 5 § 3 of the Convention, which provides: “Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.” A. The parties’ submissions 97. The Government argued that the Russian courts had authorised the applicant’s arrest because they had had sufficient reasons to believe that he had committed a serious criminal offence. When authorising or extending his detention, they had taken into account the seriousness of the charges, the nature of the criminal offences in question, and the risk of him absconding if released. Given that the applicant had been on the run from January to July 2013, and a forged passport had been discovered in his flat during a search, the courts had correctly considered this to be a real risk. Moreover, they had duly considered the applicant’s state of health and examined the possibility of applying other, less strict preventive measures, but had found them insufficient to offset the above-mentioned risks. 98. The applicant argued that the authorities had known of his serious illness, and that his state of health had warranted his release. His diagnosis had diminished the risk of him absconding or reoffending. However, the courts had continued extending his detention on far-fetched grounds. The detention orders had been issued as a mere formality. B. The Court’s assessment 1. Admissibility 99. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and that it is not inadmissible on any other grounds. The complaint must therefore be declared admissible. 2. Merits (a) General principles 100. The persistence of reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the lawfulness of his or her continued detention, whatever other grounds may exist. In such cases, the Court must establish whether the other grounds given by the judicial authorities continued to justify the deprivation of liberty. Where such grounds are found to have been “relevant” and “sufficient”, the Court must also ascertain whether the competent national authorities displayed “special diligence” in the conduct of the proceedings. The presumption is in favour of release. As the Court has consistently held, the second limb of Article 5 § 3 does not give judicial authorities a choice between either bringing an accused to trial within a reasonable time or granting him provisional release pending trial. Until his conviction, the accused must be presumed innocent, and the purpose of the provision under consideration is essentially to require his provisional release once his continued detention ceases to be reasonable. A person charged with an offence must always be released pending trial unless the State can show that there are “relevant and sufficient” reasons to justify his or her continued detention (see, among other authorities, Castravet v. Moldova, no. 23393/05, §§ 30 and 32, 13 March 2007; McKay v. the United Kingdom [GC], no. 543/03, § 41, ECHR 2006-X; Jabłoński v. Poland, no. 33492/96, § 83, 21 December 2000; and Neumeister v. Austria, 27 June 1968, § 4, Series A no. 8). Article 5 § 3 of the Convention cannot be seen as unconditionally authorising detention provided that it lasts no longer than a certain period. Justification for any period of detention, no matter how short, must be convincingly demonstrated by the authorities (see Shishkov v. Bulgaria, no. 38822/97, § 66, ECHR 2003-I). 101. It is incumbent on the domestic authorities to establish the existence of specific facts relevant to the grounds for continued detention. Shifting the burden of proof

to the detained person in such matters is tantamount to overturning the rule of Article 5 of the Convention, a provision which makes detention an exceptional departure from the right to liberty and one that is only permissible in exhaustively enumerated and strictly defined cases (see Rokhlina v. Russia, no. 54071/00, § 67, 7 April 2005, and Ilijkov v. Bulgaria, no. 33977/96, §§ 84-85, 26 July 2001). The national judicial authorities must examine all the facts arguing for or against the existence of a genuine requirement of public interest justifying, with due regard to the principle of the presumption of innocence, a departure from the rule of respect for individual liberty, and must set them out in their decisions dismissing the applications for release. It is not the Court’s task to establish such facts and take the place of the national authorities which ruled on the applicant’s detention. It is essentially on the basis of the reasons given in the domestic courts’ decisions and of the established facts mentioned by the applicant in his appeals that the Court is called upon to decide whether or not there has been a violation of Article 5 § 3 of the Convention (see Korchuganova v. Russia, no. 75039/01, § 72, 8 June 2006; Ilijkov, cited above, § 86; and Labita, cited above, § 152). When deciding whether a person should be released or detained, the authorities are obliged to consider alternative measures of ensuring his appearance at trial (see Idalov v. Russia [GC], no. 5826/03, § 140, 22 May 2012, and Suslov v. Russia, no. 2366/07, § 86, 29 May 2012, with further references). (b) Application to the present case 102. The applicant was arrested on 16 July 2013 and convicted on 13 January 2014. The period to be taken into consideration is therefore slightly less than six months. 103. It is not disputed by the parties that the applicant’s detention was initially warranted by a reasonable suspicion that he had committed large‑scale fraud and presented a flight risk. It remains to be ascertained whether the judicial authorities gave “relevant” and “sufficient” grounds to justify his continued detention and whether they displayed “special diligence” in the conduct of the proceedings. 104. The seriousness of the charges was one of the factors for assessing the applicant’s potential to abscond, reoffend or obstruct the course of justice (see paragraphs 9, 12, 16 and 17 above). However, the Court has repeatedly held that, although the severity of the sentence faced is a relevant element in assessing the risk of an accused absconding or reoffending, the need to continue the deprivation of liberty cannot be assessed from a purely abstract point of view, taking into consideration only the gravity of the offence. Nor can continuation of the detention be used to anticipate a custodial sentence (see Panchenko v. Russia, no. 45100/98, § 102, 8 February 2005; Goral v. Poland, no. 38654/97, § 68, 30 October 2003; Ilijkov, cited above, § 81; and Letellier v. France, 26 June 1991, § 51, Series A no. 207). The Court will therefore examine whether the other grounds referred to by the domestic courts were sufficient to justify the applicant’s detention. 105. The Court observes that while extending the applicant’s detention, the Russian court attached particular weight to the risk of him absconding. The evaluation of that risk was based on his previous behaviour, namely his attempt to abscond and his being on the run from January to July 2013; his being unemployed and thus having no ties with his place of residence in Moscow, and the discovery by the police of a forged passport (see paragraphs 9, 12, 16 and 17 above). 106. The Court accepts the reasonableness of the Russian courts’ concerns that the applicant was likely to abscond. The evidence before them convincingly demonstrated that such a risk existed. The applicant had previously attempted to escape (see paragraph 8 above) and had again demonstrated to the authorities his determination to go on the run when they discovered the false passport (see paragraph 15 above). His unemployment could not, on its own, warrant his detention, but was capable of adding weight to the Russian courts’ finding that he posed a flight risk. 107. The Court also finds it significant that when deciding whether it was necessary to continue the applicant’s detention, the Russian courts took into account his condition after hearing from the attending doctors or examining other medical evidence. The Court does not lose sight of the fact that the applicant’s state of health drastically changed in October 2013 when he lost the ability to move unaided. In November 2013 it appears he entirely lost the use of his legs. While

the Court accepts that those developments decreased the risk of him absconding, the risk was not entirely eliminated given his resourcefulness both when it came to his financial situation and his ability to organise his escape, including through the forgery of official documents. The Court therefore accepts that the Russian courts thoroughly evaluated and balanced the risk in question (see Amirov v. Russia, no. 51857/13, § 108, 27 November 2014, in which no violation of Article 5 § 3 of the Convention was found on account of the continued detention on remand of a wheelchair-bound inmate with a need for constant medical supervision). 108. The Court concludes that there were relevant and sufficient grounds for the applicant’s detention pending investigation and trial. The assessment of these reasons, however, cannot be detached from the actual length of detention on remand. Accordingly, it remains to be ascertained whether the judicial authorities displayed “special diligence” in the conduct of the proceedings. 109. In the present case, the applicant was held in detention on remand for less than six months. The domestic courts assessed the diligence of the investigative authorities and concluded that the length of the investigation was justified by the complex nature of the case. The Court notes that there is nothing in the material submitted to show any significant period of inactivity on the part of the prosecution or the court (see, for similar reasoning, Amirov, cited above; Mkhitaryan v. Russia, no. 46108/11, 5 February 2013; Sopin v. Russia, no. 57319/10, 18 December 2012; Arutyunyan v. Russia, no. 48977/09, 10 January 2012; and Buldashev v. Russia, no. 46793/06, 18 October 2011). In such circumstances, the competent domestic authorities cannot be said to have not displayed special diligence in handling the applicant’s case. 110. There has accordingly been no violation of Article 5 § 3 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION 111. The applicant complained that his appeals against the detention orders of 17 July and 13 September 2013 had not been examined speedily. He relied on Article 5 § 4 of the Convention, which reads as follows: “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.” A. Submissions by the parties 112. The Government acknowledged that there had been a violation of the applicant’s rights under Article 5 § 4 of the Convention, since his appeals against the detention orders of 17 July and 13 September 2013 had not been examined speedily. 113. The applicant maintained his complaint and took note of the Government’s admission. B. The Court’s assessment 1. Admissibility 114. The Court notes that this complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. 2. Merits 115. The Court takes note of the Government’s acknowledgment of the violation of Article 5 § 4 of the Convention. It notes that the applicant’s appeals against the detention orders dated 16 July and 13 September 2013 were examined by the domestic courts in thirty-four and sixty days respectively (see paragraphs 11 and 14 above). In these circumstances, and having regard to its case-law (see, for example, Idalov, cited above, §§ 154‑158), the Court finds no reason to hold otherwise. It therefore concludes that there has been a violation of that provision. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 116. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 117. The applicant claimed 35,000 euros (EUR) in respect of non‑pecuniary damage. 118. The Government argued that the amount claimed was excessive. 119. The Court, making its assessment on an equitable basis, considers it reasonable to award EUR 19,500 in compensation for non-pecuniary damage, plus any tax that may be chargeable. B. Costs and expenses 120. The applicant also claimed EUR 500 for legal services. 121. The Government argued that the applicant had not provided any evidence in support of his claim to show

that those expenses had indeed been incurred. 122. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the lack of relevant documents and the above criteria, the Court rejects the applicant’s claim for costs and expenses. C. Default interest 123. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the application admissible; 2. Holds that there has been no violation of Article 3 of the Convention on account of the quality of medical treatment provided to the applicant in detention; 3. Holds that there has been a violation of Article 3 of the Convention on account of the conditions of the applicant’s detention in the remand prisons; 4. Holds that there has been a violation of Article 3 of the Convention on account of the conditions of the applicant’s transfer to the correctional colony; 5. Holds that there has been no violation of Article 5 § 3 of the Convention; 6. Holds that there has been a violation of Article 5 § 4 of the Convention; 7. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amount, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement: EUR 19,500 (nineteen thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 8. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 10 May 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stephen PhillipsLuis López GuerraRegistrarPresident

FOURTH SECTION CASE OF RUPA AND ŢOMPI v. ROMANIA (Application no. 60272/09) JUDGMENT STRASBOURG 2 May 2017 This judgment is final but it may be subject to editorial revision. In the case of Rupa and Ţompi v. Romania, The European Court of Human Rights (Fourth Section), sitting as a Committee composed of: Paulo Pinto de Albuquerque, President,Iulia Motoc,Marko Bošnjak, judges,and Andrea Tamietti, Deputy Section Registrar, Having deliberated in private on 4 April 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 60272/09) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Romanian nationals, Mr Iosif Gabriel Rupa (“the first applicant”) and Mrs Rita Țompi (“the second applicant”), on 4 November 2009. 2. The applicants were represented by Mr I. Lazăr, a lawyer practising in Alba‑Iulia. The Romanian Government (“the Government”) were represented by their co-agent, Ms I. Cambrea, and their Agent, Ms C. Brumar, from the Ministry of Foreign Affairs. 3. On 23 January 2012 the application was communicated to the Government. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The first applicant was born in 1992 and is currently serving a prison sentence in Aiud Prison, while the second applicant is his mother and lives in Aiud. 5. The first applicant was arrested on 24 October 2008 on suspicion of multiple thefts, together with several other accused. He was 15 years old at the time. The prosecutor ordered that he be remanded in custody for ten hours and applied for him to be placed in pre-trial detention for fifteen days. 6. The Alba-Iulia District Court (“the District Court”) allowed the prosecutor’s office’s application the same day. The reasons adduced by the court to justify the first applicant’s detention were the strong suspicion that the offences had been committed, as well as the repeated nature and the gravity of the offences. 7. In assessing the impact on the public the first applicant’s release from detention would have, the court stressed that the acts had allegedly been committed by a significant number of perpetrators over a long period of time. It noted that prior measures against the first applicant, such as a warning and two administrative fines, had been unable to prevent him from committing further thefts. 8. In an indictment dated 18 November 2008 the prosecutor’s office attached to the District Court charged the first applicant and six other defendants with thirteen counts of theft allegedly committed between 25 April and 9 September 2008. 9. The first applicant’s pre-trial detention was regularly extended by interlocutory judgments of the District Court. 10. The reasons adduced by the court were that, although he was a minor, there was a reasonable suspicion that he was guilty of the thefts and would pose a danger to public order, given that he had developed a habit of stealing. His age was not considered to be an argument in favour of his release pending trial. Furthermore, in one of the interlocutory judgments it was mentioned that he did not have an occupation or place of work and thus would be unable to support himself by honest means – there was therefore a risk that he would continue to commit theft. 11. The first applicant lodged appeals on points of law against the extension of his detention. He claimed, inter alia, that he was a minor, that he had committed the offences under the influence of his co‑defendants, who were adults with a criminal record, and that his detention among adults without access to education had had a negative impact on him. He also stated that, under national law and the Court’s case-law, detention of a minor should be a preventive measure of last resort. 12. The Alba County Court consistently dismissed the first applicant’s appeals, endorsing the reasoning of the lower court for keeping him in detention. 13. The first applicant lodged a request for his pre-trial detention to be replaced with alternative measures, such as a ban

on him leaving town. He said that he had already been detained for 180 days and therefore the initial reasons for extending his detention no longer applied. He also submitted that he had had time to understand the consequences of his criminal behaviour and had changed. The second applicant and the first applicant’s uncle made written statements promising to take responsibility for supervising him if released, and presented to the court a job offer that he could take up if released. 14. On 15 June 2009 the District Court dismissed the first applicant’s request. It had regard to the gravity of the offences allegedly committed by him, the severity of the sentence that could be applied to him and the risk of him reoffending. The judgment was upheld by the Alba County Court, which dismissed the first applicant’s appeal on points of law for the same reasons. 15. On 23 November 2009 the first applicant was eventually convicted of theft and sentenced to five years’ imprisonment by the District Court. On 17 May 2010 an appeal on points of law by him against this judgment was dismissed by the Alba Court of Appeal. 16. According to information submitted by the Government, the first applicant was detained in prisons for adults between 24 October 2008 and 9 March 2010, but did not share his cells with adult prisoners. Moreover, between 24 October and 24 November 2008 he occupied an individual cell. His contact with adult prisoners was very limited. II. RELEVANT DOMESTIC LAW AND INTERNATIONAL MATERIALS 17. Article 160h of the Romanian Code of Criminal Procedure, as in force at the time of the events, provided that for minors between 14 and 16 years of age pre-trial detention could only be extended on an exceptional basis. 18. Relevant international materials concerning the deprivation of liberty of juveniles are set out in the cases of Nart v. Turkey (no. 20817/04, §§ 17‑19, 6 May 2008) and Blokhin v. Russia ([GC], no. 47152/06, §§ 79, 82, 86 and 87, ECHR 2016). THE LAW I. PRELIMINARY ISSUE 19. The Government noted that the application had been lodged by the first applicant, a minor at the time, and his mother, the second applicant. The first applicant had since reached the age of majority and had been represented before the Court by a lawyer of his choice. They submitted that since the second applicant had not claimed to be victim of a violation of her rights set forth in the Convention, the part of the application concerning her should be dismissed as inadmissible ratione personae with the provisions of the Convention. 20. The applicants did not file any submissions in this connection. 21. The Court notes that the application form was lodged jointly by the first and second applicants, at a time when the first applicant was still a minor. The second applicant was his legal representative in the domestic proceedings, but did not bring any complaints of her own before the Court. 22. That being so, the Court considers that the second applicant cannot claim to be a victim within the meaning of Article 34 of the Convention and that the application, in so far as it concerns her, must be declared inadmissible as being incompatible ratione personae with the provisions of the Convention pursuant to Article 35 §§ 3 and 4 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION 23. The first applicant complained that his pre-trial detention had been unreasonably long and that the domestic courts had provided stereotyped reasoning for keeping him in detention, without taking into account the fact that he was a minor. He relied on Article 5 § 3 of the Convention, which, in so far as relevant, reads as follows: “Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.” A. Admissibility 24. The Court notes that this complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The Government’s submissions 25. The Government submitted that the first applicant’s pre‑trial detention had been justified by the evidence against him and the gravity of the offences. The District Court had only ordered the first applicant’s pre‑trial detention after noting that other more lenient measures, such as a warning and two administrative fines, had been unable to prevent him from committing further thefts. It had also noted that he had been a minor at the time. The domestic courts’ decisions extending the first applicant’

s pre‑trial detention had been duly reasoned, providing replies to all the arguments raised by the first applicant and his lawyer. 26. The Government also contended that the domestic authorities had handled the case with diligence. A bill of indictment had been issued four months after the first applicant had been remanded in custody, and the criminal proceedings against him had lasted less than two years. 2. The Court’s assessment 27. The Court will examine the first applicant’s complaint in the light of the general principles emerging from its case-law concerning the reasonableness of detention within the meaning of Article 5 § 3 of the Convention (see Buzadji v. the Republic of Moldova [GC], no. 23755/07, §§ 84-91, ECHR 2016). 28. The Court notes from the outset that the applicant was taken into custody on 24 October 2008 (see paragraph 5 above) and sentenced by the first‑instance court on 23 November 2009 (see paragraph 15 above). Consequently, the total duration of his pre-trial detention amounted to one year and one month. 29. The Court also notes that under the important international texts referred to above (see paragraph 18 above) the pre-trial detention of minors should only be used as a measure of last resort; it should be as short as possible and, where detention is strictly necessary, minors should be kept apart from adults (see Nart v. Turkey no. 20817/04, § 31, 6 May 2008). 30. Moreover, under the Romanian Code of Criminal Procedure, in force at the relevant time, minors should only be remanded in pre-trial detention on an exceptional basis (see paragraph 17 above). 31. The Court has already found violations of Article 5 § 3 of the Convention where children have been held in pre-trial detention for considerably shorter periods than that spent by the applicant in the present case (see Selçuk v. Turkey, no. 21768/02, §§ 30-37, 10 January 2006; and Nart, cited above, §§ 29-35). For example, in Selçuk the applicant spent four months in pre-trial detention when he was 16 years old and in Nart the applicant spent forty-eight days in detention when he was 17 years old. In the present case, the first applicant was detained from the age of 15 and kept in pre‑trial detention for a period of one year and one month. 32. Furthermore, the case file reveals that, during his detention, the first applicant was kept in a prison together with adults (paragraph 16 above). However, the Court notes that he did not raise any complaint about this in his initial application and therefore this issue is not within the scope of the present case before the Court. 33. The Court notes that, although the domestic courts repeatedly relied on the validity of the initial grounds justifying the first applicant’s detention – the fact that he posed a danger to public order, the severity of the sentence if convicted, the fact that he was a repeat offender and the risk of him committing further offences – they failed, with the passage of time, to give specific reasons why terminating his pre-trial detention would have a negative impact on society or on the investigation (see paragraphs 10 and 14 above). 34. The Court accepts that the first applicant’s detention may initially have been warranted by a reasonable suspicion that he had committed serious repeated offences. However, with the passage of time, those grounds inevitably became less and less relevant. Accordingly, the domestic authorities were under an obligation to examine his personal situation in greater detail and give specific reasons for holding him in custody (see Tiron v. Romania, no. 17689/03, § 40, 7 April 2009, and Leontiuc v. Romania, no. 44302/10, § 77, 4 December 2012). 35. In the light of the foregoing, the Court considers that in the circumstances of the present case the domestic authorities failed to give comprehensive reasoning for applying a custodial measure to a 15 years old applicant for almost a year and one month which, under both international and domestic law, should have only been used as a measure of last resort. 36. There has therefore been a violation of Article 5 § 3 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 37. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 38. The first applicant claimed 1,664 euros (EUR) in respect of pecuniary damage for loss of the salary that he could have earned from the company which had offered him a

job between 1 October 2009 and 17 June 2010 (when his conviction was upheld by the appellate court). He also claimed EUR 71,336 in respect of non-pecuniary damage. 39. The Government argued that there was no causal link between the alleged violation and the loss of salary claimed by the first applicant. Moreover, they considered the sum claimed in respect of non‑pecuniary damage excessive and argued that a finding of a violation would constitute sufficient just satisfaction. 40. The Court shares the Government’s view that there is no causal link between the violation found and the pecuniary damage claimed (see, mutatis mutandis, Khudoyorov v. Russia, no. 6847/02, § 221, ECHR 2005‑X (extracts)), and therefore rejects this claim. On the other hand, it considers that the first applicant’s suffering and frustration cannot be compensated for by a mere finding of a violation. Making its assessment on an equitable basis, the Court awards the first applicant EUR 660 in respect of non-pecuniary damage, plus any tax that may be chargeable. B. Costs and expenses 41. The first applicant did not ask for a reimbursement of any costs and expenses. The Court therefore makes no award under this head. C. Default interest 42. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the complaint under Article 5 § 3 of the Convention in respect of the first applicant admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 5 § 3 of the Convention; 3. Holds (a) that the respondent State is to pay the first applicant, within three months, EUR 660 (six hundred sixty euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 2 May 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Andrea TamiettiPaulo Pinto de AlbuquerqueDeputy RegistrarPresident

SECOND SECTION CASE OF DİRİ v. TURKEY (Application no. 68351/01) JUDGMENT STRASBOURG 31 July 2007 FINAL 31/10/2007 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Diri v. Turkey, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: MrsF. Tulkens, President,MrA.B. Baka,MrR. Türmen,MrM. Ugrekhelidze,MrV. Zagrebelsky,MrsA. Mularoni,MrD. Popović, judges,and Mrs F. Elens-passos, Deputy Section Registrar, Having deliberated in private on 10 July 2007, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 68351/01) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Sabri Diri (“the applicant”), on 2 March 2001. 2. The applicant, who had been granted legal aid, was represented by Mr Elban and Mr Kırdök, lawyers practising in Istanbul. The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Court. 3. The applicant alleged in particular that he had been ill-treated during his detention in the Tekirdağ F-Type Prison and that the authorities had failed to conduct an effective investigation into his allegations. He invoked Articles 3 and 13 of the Convention. 4. On 15 April 2001 the applicant asked the Court to request the Turkish Government, under Rule 39 of the Rules of Court, to order a medical examination of the applicant, with a view to establishing the traces of falaka. 5. On 31 May 2001 the President of the Third Section of the Court decided to apply Rule 39 of the Rules of Court and informed the respondent Government that it was desirable, in the interests of the parties and the proper conduct of the proceedings before the Court, to conduct a medical examination of the applicant, in particular a Magnetic Resonance Imaging (MRI) scan and/or a bone scintigraphy. 6. On 20 January 2006 the Court decided to give notice of the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 7. The applicant was born in 1969 and currently lives in Switzerland. Background to the case 8. The applicant, convicted of membership of an illegal organisation, was serving his prison sentence in the Ümraniye E-Type Prison in Istanbul at the time of the events. 9. In December 2000 a large number of prisoners, including the applicant, started a hunger strike to protest against the F-Type prisons. On 19 December 2000 the security forces conducted an operation in several prisons to stop the protests. In the course of these operations, numerous prisoners and members of the security forces were wounded and 32 persons died. Following these events, on 22 December 2000 the applicant was transferred from Ümraniye E-Type Prison to the Kocaeli Kandıra F-Type Prison, together with several other prisoners. The Government stated that the applicant showed resistance to the security forces during the operation in the Ümraniye E-Type Prison. In a medical report issued by the Kocaeli Kandıra F-Type Prison doctors on 22 December 2000, it was noted that the applicant had scars on the right side of his jaw and nose; bruises on his eye lids, a round hyperaemic oedema on his head measuring 3 cm and sensitivity on his abdomen. The report concluded that the applicant was unfit to work for one week. The applicant maintained that he was beaten on admission to the Kandıra F-Type Prison. The applicant's detention in the Tekirdağ F-Type Prison 10. On 23 February 2001 the applicant was transferred to the Tekirdağ F‑Type Prison. On admission to the prison, he was allegedly strip searched and beaten and his hair and moustache forcibly cut. He also stated that he was put in a cell alone and was forced to listen to loud music.

According to the applicant, as he refused to stand up and shout his name during the daily headcounts, he was subjected to ill-treatment by the prison guards, in particular falaka (beating on the soles of the feet). 11. On 24 February 2001 and 3 March 2001, respectively, the applicant was examined by the prison doctor, who did not find any signs of ill-treatment on the applicant's body. 12. On 4 March 2001 the applicant's lawyer filed a petition with the Tekirdağ public prosecutor's office and complained about the ill-treatment which the applicant had suffered in the Tekirdağ prison. He also requested that the applicant be examined by a forensic doctor. 13. The Tekirdağ public prosecutor initiated an investigation into the applicant's allegations. Upon the order of the public prosecutor, on 8 March 2001 the applicant was examined once again by the prison doctor, who reported that there were no signs of ill-treatment on his body. On the same day, the Tekirdağ public prosecutor took a statement from the applicant. Before the prosecutor, the applicant explained that, on admission to the Tekirdağ Prison, the prison personnel had shaved his hair and moustache by force and that he had been stripped naked. He further maintained that he had been placed in a single cell and subjected to falaka twice. 14. On 14 March 2001 the public prosecutor issued a decision of non‑prosecution relying on the medical reports dated 24 February, 3 March and 8 March 2001, according to which there was no sign of ill-treatment on the applicant's body. 15. On 6 April 2001 the applicant filed an appeal against the decision of the public prosecutor. 16. On 19 April 2001 the Kırklareli Assize Court rejected the applicant's appeal. 17. Following the introduction of the present application, on 31 May 2001 the Court requested the Government to conduct further medical examinations on the applicant, namely a bone scintigraphy and a Magnetic Resonance Imaging scan (MRI). 18. On 26 June 2001 the Government submitted two medical reports dated 13 and 14 June 2001 which had been drawn up as a result of the MRI scan and the bone scintigraphy respectively. The MRI report dated 13 June 2001 stated the following: “Bone signal intensity was normal. Bone contours were regular. Achilles tendon signal characteristics and thickness were normal. No pathology in the soft tissues was detected. Result: Normal Note: An increased intensity observed in the fat suppression sequences in the medial regions of both feet is attributed to the coil artefact.” The bone scintigraphy report dated 14 June 2001 read as follows: “Examination of dynamic, blood flow and blood pool images of both feet taken following intravenous injection of 20mCi Tc-99m MDP and of delayed static and anterior/posterior images of the whole body taken four hours later revealed the following: In both feet, blood flow was normal; increased activity uptake was observed in the blood pool phase in the areas of the lower extremity of the left tibia and the ankle. The delayed static images revealed increased radiopharmaceutical uptake in the lower extremities of both tibias and in the bones of the big toe (more noticeable in the right foot). Increased radiopharmaceutical uptake was also observed in the left-tibia joint and the upper fibula. Apart from in the regions indicated above, radiopharmaceutical distribution and uptake in the skeletal system fell within normal limits. Both kidneys were visualised slightly. Conclusion: The increased radiopharmaceutical uptake in the regions described above is indicative of traumatism.” 19. On 19 July 2001, taking into account the applicant's poor health due to the hunger strike, the authorities released him from prison for six months. 20. On 25 September 2001 the Tekirdağ public prosecutor requested the Forensic Medicine Institute to make an assessment of the applicant's bone scintigraphy result, in particular to indicate the cause of the findings mentioned in the report. 21. In the meantime, on 16 October 2001 having regard to the findings indicated in the bone scintigraphy, the International Law Department of the Ministry of Justice consulted the Directorate General of Criminal Law Issues as to whether a writ of mandamus (yazılı emir) should be issued to restart the investigation into the applicant's allegations of ill-treatment. On 17 October 2001 the General Directorate of Criminal Law Issues wrote to the Tekirdağ public prosecutor, requesting his opinion on the matter. In his reply dated 28 December 2001, the public prosecutor argued that, as the bone scintigraphy test did not reveal the exact cause or the timing of the injuries, a writ of mandamus to quash the decision of the Kırklare

li Assize Court could not be issued in the circumstances of the present case. 22. On 30 November 2001 the Forensic Medicine Institute replied that the findings mentioned in the bone scintigraphy report could not have resulted from rheumatism or the hunger strike, but were caused by a trauma. 23. On 7 December 2001 the Tekirdağ public prosecutor asked the Forensic Medicine Institute to clarify whether it was possible to determine the date when these injuries had been sustained. 24. On 12 December 2001 the Forensic Medicine Institute replied that it was not possible to make such an assessment. 25. The applicant returned to the Tekirdağ F-Type Prison on 5 April 2002, but was released once again on 12 April 2002 for another six months. 26. On 2 September 2006 the applicant's lawyer requested an additional expert report from Dr Şebnem Korur Fincancı, a forensic expert. Dr Fincancı was asked to evaluate the findings of the bone scintigraphy test dated 14 June 2001 and to assess whether the findings indicated in the report matched the applicant's allegation of falaka. In this connection, Dr Fincancı was provided with a written statement by the applicant, in which he gave a detailed description of the ill-treatment to which he had been subjected in the Tekirdağ F-Type Prison. In this statement, the applicant explained that, as a protest against the F-Type prison system, he had refused to stand up and shout his name out during the daily headcounts. When he did not obey the warnings of the prison guards, a large group of guards entered his cell and started beating him, while two guards held his arms and another two secured his feet. Then one guard sat on the applicant's abdomen and another placed his hand over the applicant's mouth. After they had tied his feet with a belt, several guards struck his feet with their belts. 27. In her report dated 11 September 2006, Dr Fincancı concluded that when the static and dynamic images of the bone scintigraphy test were examined together, the findings in the report corresponded to the applicant's allegation of falaka. She further opined that the trauma complained of was inflicted on the applicant about three months prior to the test. While drafting her report, Dr Fincancı had regard to the applicant's previous medical reports dated 22 December 2000, 24 February 2001, 3 March 2001 and 8 March 2001. 28. In response to the report of Dr Fincancı, the Government submitted another report issued by the Forensic Medicine Institute dated 9 January 2007 which contradicted Dr Fincancı, stating that the findings in the bone scintigraphy test did not reveal the cause of the injuries on the applicant's feet and that it was not possible to make an evaluation as to when these injuries could have been sustained. THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 29. The applicant complained in the first place that the prison conditions in the Tekirdağ F-Type Prison breached Article 3. He maintained in particular that on admission to the prison he had been strip searched and his hair and moustache forcibly cut. He also maintained that he had been kept alone in a cell and forced to listen to loud music. Secondly, the applicant complained that he had been beaten and subjected twice to falaka, when he refused to participate in the daily headcounts. Article 3 reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 30. The Government contested those arguments. A. Concerning the conditions of detention 31. The applicant complained under Article 3 that, on admission to the Tekirdağ F-Type Prison, he had been strip searched and his hair and moustache forcibly shaved; he had been kept in a cell alone and subjected to loud music. 32. The Court recalls that it has in the past examined similar complaints and declared them inadmissible (see, Gündoğan v. Turkey (dec.), no. 29/02, 13 December 2005; Yılmaz Karakaş v. Turkey (dec.), no. 68909/01, 9 November 2004). It finds no particular circumstances in the instant case, nor any elements apt to disclose treatment of the prohibited severity, which would require it to depart from this jurisprudence. 33. In view of the above, the Court concludes that the applicant has not laid the basis of an arguable claim and that this part of the application should therefore be declared inadmissible as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention. B. Concerning the alleged ill-treatment 1. Admissibility 34. The Court notes that this complaint is not manifestly ill-founded within the

meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. 2. Merits a) The alleged ill-treatment i. General principles 35. The Court reiterates that Article 3 of the Convention ranks as one of the most fundamental provisions in the Convention, from which no derogation is permitted. It also enshrines one of the basic values of the democratic societies making up the Council of Europe. The object and purpose of the Convention as an instrument for the protection of individual human rights requires that these provisions be interpreted and applied so as to make its safeguards practical and effective (see Avşar v. Turkey, no. 25657/94, § 390, ECHR 2001-VII (extracts)). 36. Furthermore, the Court reiterates that, in respect of a person deprived of liberty, recourse to physical force which has not been made strictly necessary by the individual's own conduct diminishes human dignity and is in principle an infringement of the right set forth in Article 3 (see Ribitsch v. Austria, judgment of 4 December 1995, Series A no. 336, p. 26, § 38; Krastanov v. Bulgaria, no. 50222/99, § 53, 30 September 2004). 37. Where allegations are made under Article 3 of the Convention, the Court must conduct a particularly thorough scrutiny (see Ülkü Ekinci v. Turkey, no. 27602/95, § 135, 16 July 2002) and will do so on the basis of all the material submitted by the parties. 38. In assessing evidence, the Court has adopted the standard of proof “beyond reasonable doubt” (see Orhan v. Turkey, no. 25656/94, § 264, 18 June 2002; Avşar, cited above, § 282). Such proof may, however, follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Ülkü Ekinci, cited above, § 142). 39. Furthermore, where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in custody, strong presumptions of fact will arise in respect of injuries occurring during detention. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII). ii. Submissions of the parties 40. In the present case, the applicant complained that he had been subjected to falaka twice, when he resisted standing up and shouting his name out during the daily headcounts. 41. The Government denied that the applicant had been ill-treated. They stated that the applicant must have sustained these injuries in the course of the incidents that took place in December 2000 in the Ümraniye E-Type Prison. They also stated that the applicant's allegation that he had been subjected to falaka in the Tekirdag F-Type Prison was unsubstantiated since there was twenty-four hour video surveillance in that prison. The Government further explained that the applicant had been examined three times by the prison doctor who had found no traces of ill-treatment on his body. They argued that, since there were no traces on his body, the doctor was not required to transfer the applicant to a hospital for further tests. Any such obligation in that regard would, in the Government's opinion, impose an excessive burden on the authorities. They also maintained that, although the bone scintigraphy results revealed that the applicant's feet had been exposed to trauma, in their view this did not necessarily mean that the applicant had been subjected to falaka as alleged. A trauma could have been caused by stress or insufficiency fractures. In this connection, the Government referred to the fact that the applicant had been on a hunger strike for a long time and that his bones had been weakened due to improper nourishment and a lack of physical exercise. In the absence of any concrete evidence proving the origin and the timing of the injuries, the Government maintained that the applicant's ill-treatment allegations should be considered as unsubstantiated. iii. The assessment of the Court 42. In line with the above-mentioned case-law, the Court remains free to make its own assessment in the light of all the material before it (see, mutatis mutandis, Selmouni v. France [GC], no. 25803/94, § 86, ECHR 1999‑V). 43. The Court notes that the findings indicated in the bone scintigraphy report dated 14 June 2001 and the medical report issued by the Forensic Medicine Institute on 30 November 2001 are consistent with the applicant's allegation

that he had been subjected to falaka in the Tekirdağ F-Type Prison. As clearly indicated in these reports, the injuries to the applicant's feet could not have been caused by rheumatism or the result of his hunger strike. They could only have been sustained by trauma. The Court takes note of the Government's observations that these injuries must have been caused during the incidents which took place in the Ümraniye E-Type Prison in December 2000. In this connection, it refers to the medical report dated 22 December 2000, which noted several injuries on the applicant's body. The Court does not see any reason why the doctors who examined the applicant on 22 December 2000 would not have reported the injuries to the applicant's feet if they had been sustained on that occasion. It further notes that the Government maintained that the trauma could have been caused by stress fractures or insufficiency fractures; however these submissions are not supported by any convincing evidence. As a result, the Court concludes that the injuries to the applicant's feet must be attributable to a form of ill-treatment for which the authorities at Tekirdağ bore responsibility. 44. As to the seriousness of the treatment in question, the Court reiterates that, under its case-law in this sphere (see, among other authorities, Selmouni, cited above, §§ 96-97), in order to determine whether a particular form of ill-treatment should be qualified as torture, it must have regard to the distinction, embodied in Article 3, between this notion and that of inhuman or degrading treatment. It appears that it was the intention that the Convention should, by means of this distinction, attach a special stigma to deliberate inhuman treatment causing very serious and cruel suffering. 45. In this connection, the Court considers that the treatment complained of was inflicted on the applicant intentionally by the prison guards with the purpose of punishing him and of breaking his physical and moral resistance to the prison administration. In these circumstances, the Court finds that this act was particularly serious and cruel and capable of causing severe pain and suffering. It is therefore concludes that this sort of ill-treatment amounted to torture within the meaning of Article 3 of the Convention. 46. There has consequently been a violation of Article 3 on that account. b) The alleged inadequacy of the investigation 47. The applicant further maintained, under Article 3, that the authorities had not conducted an adequate investigation into his complaints of ill-treatment. 48. The Government denied this allegation. They stated that the domestic authorities had conducted a serious investigation into the applicant's allegations. 49. The Court recalls that where an individual makes a credible assertion that he has suffered treatment infringing Article 3 at the hands of the police or other similar agents of the State, that provision, read in conjunction with the State's general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in... [the] Convention”, requires by implication that there should be an effective official investigation. As with an investigation under Article 2, such investigation should be capable of leading to the identification and punishment of those responsible. Otherwise, the general legal prohibition of torture and inhuman and degrading treatment and punishment would, despite its fundamental importance, be ineffective in practice and it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity (see, among other authorities, Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000-IV). 50. Turning to the facts of the present case, the Court observes that the applicant brought his complaints of ill-treatment to the attention of the authorities by filing a complaint with the Tekirdağ public prosecutor on 4 March 2001 (paragraph 12 above). In his petition, the applicant also requested to be examined by a forensic doctor. On 8 March 2001, upon the order of the public prosecutor, the applicant was once again examined by the same prison doctor, who did not report any signs of ill-treatment on the applicant's body. The same day, a short statement was taken from the applicant, who repeated his allegations of ill-treatment. At this point, the Court notes with regret that the public prosecutor omitted to request any further medical examination, to take statements from the accused prison guards or to question witnesses and the prison doctor who had drafted the three medical reports dated 24 February 2001, 3 March 2001 and 8 March 2001, before delivering his decision of non-prosecution. In delivering his decision, the prosecutor limited himself to the three medical reports which merely stated that there was no sign of ill-treatment on the applicant's body. The Court recalls in this connection that proper medical examinations are an essential safeguard against ill-treatment. The forensic doctor must enjoy formal and de facto independence, have been provided with specialised training and been allocated a mandate which is sufficiently broad in scope (see, Akkoç v. Turkey, nos. 22947/93

and 22948/93, § 55 and § 118, ECHR 2000‑X). In the instant case, the medical reports dated 3 and 8 March 2001, which were drafted by the prison's own doctor, provided limited medical information and did not include any explanation by the applicant as regards his complaints. 51. The Court also finds it noteworthy that, after the bone scintigraphy results dated 14 June 2001 and the subsequent report of the Forensic Medicine Institute dated 30 November 2001, which confirmed that the injuries to the applicant's feet could only have been sustained by a trauma, the public prosecutor, who had the authority under Article 167 of the Criminal Code to restart the domestic investigation into the applicant's allegations of ill-treatment, took no further action. It is further noted that, although the International Law Department of the Ministry of Justice consulted the Directorate General of Criminal Law Issues as to whether a writ of mandamus should be issued to restart the investigation into the applicant's allegations of ill-treatment, the public prosecutor gave a negative opinion on this proposal, stating that the bone scintigraphy results did not indicate the cause or the timing of these injuries. The Court considers that, had the public prosecutor restarted the domestic investigation on the basis of this new evidence, he could have collected valuable information as to how and when these injuries might have been sustained. 52. In the light of the above, the Court concludes that the applicant's claim that he was subjected to falaka during his detention in the Tekirdağ F-Type Prison was not subject to an effective investigation by the domestic authorities as required by Article 3 of the Convention. 53. There has therefore been a procedural violation of Article 3 in this regard. II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 54The applicant alleged under Article 13 that the domestic authorities failed to conduct an effective investigation into his allegations of ill-treatment. 55. The Government contested that argument. 56. The Court notes that this complaint is linked to the one examined above and must likewise be declared admissible. 57. However, having regard to the finding relating to Article 3 (see paragraphs 49-53 above), the Court considers that it is not necessary to examine separately whether, in this case, there has been a violation of Article 13. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 58. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 59. The applicant claimed 30,000 euros (EUR) in respect of non-pecuniary damage. 60. The Government contested the claim. 61. The Court finds that the applicant must have suffered pain and distress which cannot be compensated solely by the Court's finding of a violation. Having regard to the nature of the violation found and ruling on an equitable basis, it awards the applicant EUR 15,000 in respect of non-pecuniary damage. B. Costs and expenses 62. The applicant also claimed a total of EUR 9,826.18 for the costs and expenses incurred before the domestic courts and for those incurred before the Strasbourg Court. 63. The Government contested this claim. 64. The Court may make an award in respect of costs and expenses in so far that they were actually and necessarily incurred and were reasonable as to quantum (see Sawicka v. Poland, no. 37645/97, § 54, 1 October 2002). Making its own estimate based on the information available, and ruling on an equitable basis, the Court awards the applicant a global sum of EUR 2,500 in respect of costs and expenses less the sum of EUR 850 received in legal aid from the Council of Europe. C. Default interest 65. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaint concerning the prison conditions inadmissible and the remainder of the application admissible; 2. Holds that there has been a substantive violation of Article 3 of the Convention on account of the applicant's torture in the Tekirdağ F-Type Prison; 3. Holds that there has been a procedural violation of Article 3 of the Convention on account of the failure of the authorities to conduct an effective investigation into the applicant's allegations that he was tortured in the Tekirdağ F-Type Prison; 4. Holds that there is no need to

examine separately the complaint under Article 13 of the Convention; 5. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts to be converted into New Turkish liras at the rate applicable at the date of settlement and free of any taxes or charges that may be payable: (i) EUR 15,000 (fifteen thousand euros) in respect of non-pecuniary damage; (ii) EUR 2,500 (two thousand five hundred euros) in respect of costs and expenses, less the EUR 850 (eight hundred and fifty euros) received in legal aid; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 6. Dismisses the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 31 July 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. F. Elens-passosF. TulkensDeputy RegistrarPresident

SECOND SECTION CASE OF ERDŐS v. HUNGARY (Application no. 38937/97) JUDGMENT STRASBOURG 9 April 2002 FINAL 09/07/2002 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Erdős v. Hungary, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: MrJ.-P. Costa, President,MrA.B. Baka,MrGaukur Jörundsson,MrL. Loucaides,MrC. Bîrsan,MrM. Ugrekhelidze,MrsA. Mularoni, judges,and Mrs S. Dollé, Section Registrar, Having deliberated in private on 3 May 2001 and 12 March 2002, Delivers the following judgment, which was adopted on that last-mentioned date: PROCEDURE 1. The case originated in an application (no. 38937/97) against the Republic of Hungary lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Hungarian national, Mr Zoltán Erdős, on 16 August 1993. Following Mr Erdős’s death, on 15 February 1999 his son and successor in the domestic proceedings, Mr Zoltán Erdős (“the applicant”) stated that he wished to pursue the application. 2. The Hungarian Government (“the Government”) were represented by their Agent, Mr L. Höltzl, Deputy State-Secretary of the Ministry of Justice. 3. The applicant alleged, in particular, that the civil proceedings, which began in 1984 before the Buda Central District Court were excessively long. 4. The application was transmitted to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11). 5. The application was allocated to the Second Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1 of the Rules of Court. 6. By a decision of 3 May 2001 the Court declared the application partly admissible. 7. On 1 November 2001 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed Second Section. 8. The applicant and the Government each filed observations on the merits (Rule 59 § 1). THE FACTS 9. In October 1984 the applicant’s father (“the plaintiff”) brought an action against an upholstery workshop. He claimed some outstanding royalty fees on account of the workshop’s manufacture and sale of a series of foldable beds based on his invention. 10. In September 1986 the Buda Central District Court informed the plaintiff that the upholstery workshop as such had no capacity to conduct legal proceedings and that its members were personally required to enter the proceedings as defendants. 11. On 28 April 1987 the District Court, for reasons of competence, discontinued the proceedings and transferred the case to the Budapest Regional Court. On 4 February 1988 the Regional Court held that it had no competence in the case either, and requested the Supreme Court to designate the competent court. 12. On 5 May 1988 the Supreme Court designated the Buda Central District Court to hear the case. On 10 November 1988, 16 February, 26 April, 21 June and 20 October 1989, 20 March and 29 June 1990, the District Court held hearings. Meanwhile, on 13 February 1989 and 15 June 1990 the plaintiff extended his claims. 13. In its judgment of 6 July 1990 the District Court awarded the plaintiff 714,070 Hungarian forints (HUF), plus accrued interest. 14. On appeal, on 22 May 1991 the Budapest Regional Court held a hearing, quashed the first-instance judgment and instructed its own competent bench to re-hear the case. It pointed out that, due to the plaintiff’s repeated extensions of his claims, the case was no longer within the District Court’s competence. 15. On 20 December 1991, 17 June, 15 July and 4 November 1992 the Regional Court held hearings. On the latter date it ordered the plaintiff to elaborate his claims within thirty days. 16. On

7 December 1992 the plaintiff again extended his action and, on 27 January 1993, he filed a memorandum with the Regional Court submitting the precise figures of his claims. 17. On 17 February and 28 April 1993 the Regional Court held hearings. The hearings scheduled for 1 September and 10 December 1993 and 9 March 1994 were adjourned. 18. On 4 May 1994 the Regional Court decided to obtain a technical expert opinion. On 28 September 1994 it put concrete questions to an expert institution, which on 27 October 1994 renounced the request. On 7 November 1994 another expert was appointed who presented his opinion on 19 December 1994. 19. On 1 March 1995 the Regional Court held a hearing. On this occasion the plaintiff again modified his claims. A hearing scheduled for 17 May 1995 was adjourned. On 16 June 1995 the plaintiff further extended his claims. 20. On 27 September 1995, 26 January and 3 July 1996 the Regional Court held further hearings. On the latter date the plaintiff was granted a 15-day time-limit to elaborate further the quantification of claims. His memorandum on that subject was returned for supplementation on 1 August 1996. The revised memorandum reached the Regional Court on 9 September 1996. 21. On 20 November 1996 the Regional Court held a further hearing and appointed an expert accountant. On 24 January 1997 the Regional Court ordered the plaintiff to advance payment for the expert. 22. On 6 June 1997 the Regional Court declared that the proceedings were interrupted on account of the death of one of the defendants. On 12 December 1997 the proceedings were resumed and a hearing was held. 23. On 13 February 1998 the Regional Court discontinued, on account of the plaintiff’s partial waiver, the proceedings in respect of some of the defendants. 24. On 25 February 1998 the Regional Court gave a partial judgment and awarded the plaintiff HUF 858,200 plus accrued interest. On 18 March 1998 the plaintiff appealed to the Supreme Court. 25. On 27 December 1998 the plaintiff died. On 20 October 1999 the applicant and his late father’s widow entered the domestic proceedings as the plaintiff’s successors. 26. On 10 November 1999 the Supreme Court held a hearing. 27. On 22 February 2000 the Supreme Court gave a second instance judgment, partly amending the decision of 25 February 1998. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 28. The applicant submitted that the civil action brought by his late father was not heard within a “reasonable time” as required by Article 6 § 1 of the Convention, which provides: “In the determination of his civil rights and obligations..., everyone is entitled to a... hearing within a reasonable time by [a]... tribunal....” The Government rejected this submission. A. Period to be considered 29. The period to be considered began in October 1984, when the applicant’s father brought an action before the Buda Central District Court, and ended on 22 February 2000 when the Supreme Court gave its judgment. They therefore lasted about fifteen years and four months before three levels of jurisdiction. The Court observes that, when examining the length of the proceedings, the period to be considered only begins on 5 November 1992, the date of the Convention’s entry into force in respect of Hungary. However, in assessing the reasonableness of the time that elapsed after this date, account must be taken of the then state of proceedings (see the Foti and others v. Italy judgment of 10 December 1982, Series A no. 56, p. 18, § 53). After this date, the proceedings were pending for another seven years and four months during which period two court instances dealt with the case. B. Reasonableness of the length of the proceedings 30. The Court recalls that the reasonableness of the length of proceedings must be assessed in the light of the particular circumstances of the case and having regard to the criteria laid down in the Court’s case-law, in particular the complexity of the case, the conduct of the applicant and of the relevant authorities, and the importance of what was at stake for the applicant in the litigation (see, as a recent authority, Humen v. Poland, [GC], no. 26614/95, § 60, 15 October 1999). 1. Complexity of the case 31. In the Government’s submission, the case, although simple in nature, became rather complicated on account of the plaintiff’s repeated extensions and modifications of his claims and an increase in the number of defendants. 32. Like the applicant, the Court considers that in fact the case was not very complex. 2. Conduct of the parties 33. The Government argued that the delays were largely imputable to the plaintiff’s conduct – in particular, he was repeatedly ordered to

supplement his claims – which contributed decisively to the slowing down of the proceedings. The applicant maintained, on the contrary, that his father had shown due diligence. 34. The Court points out that only delays attributable to the State may justify a finding of a failure to comply with the “reasonable time” requirement (see, among other authorities, the H. v. France judgment of 24 October 1989, Series A no. 162, pp. 21-22, § 55). In the instant case, the Court observes that the plaintiff extended or modified his claims three times, which clearly caused some delay. The time required for him to supplement his claims (a 30-day period following 4 November 1992 and a further period between 3 July and 9 September 1996) amounted to some three months altogether. Moreover, some ten months elapsed before the applicant resumed the proceedings after his father’s death (27 December 1998 - 20 October 1999). These delays cannot, therefore, be imputed to the State. 3. Conduct of the judicial authorities 35. The Government submitted that the Hungarian courts had acted without procrastination. The applicant contested this. 36. In requiring cases to be heard within a “reasonable time”, the Convention underlines the importance of administering justice without delays which might jeopardise its effectiveness and credibility (see, among other authorities, the H. v. France judgment previously cited, § 58). 37. At least two periods of unexplained delay are apparent in the instant case: between 28 April 1993 and 1 March 1995, and 20 November 1996 and 6 June 1997 – periods amounting to some 28 months altogether – the Regional Court’s activity being mostly limited to obtaining expert opinions. 38. Having regard to all the circumstances of the case and, more particularly its overall length, the Court considers that the total duration of the proceedings was excessive. The Court concludes therefore that the case of the applicant’s father was not heard within a “reasonable time”. Consequently, there has been a violation of Article 6 § 1 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 39. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 40. The applicant claimed 9 million Hungarian forints (HUF) (approximately EUR 37,043) for non-pecuniary damage. 41. The Government found the applicant’s claim excessive. 42. Having regard to the overall length of the proceedings and ruling on an equitable basis, the Court awards the sum of EUR 5,500 in respect of non-pecuniary damage. B. Costs and expenses 43. The applicant claimed HUF 161,749 (approximately EUR 666) for costs and expenses incurred in the domestic proceedings and before the Convention institutions. 44. The Government noted that the applicant was not represented by a lawyer before the Court and submitted that the costs and expenses claimed were mainly incurred in the domestic proceedings. 45. Although it is true that only those costs incurred in domestic proceedings in an attempt to prevent or redress the violation found by the Court may be reimbursed, nevertheless unreasonable delays in proceedings necessarily involve an increase in an applicant’s costs (see Bouilly v. France, no. 38952/97, § 33, 7 December 1999). Therefore the Court, making an assessment on an equitable basis, awards the applicant EUR 500. C. Default interest 46. According to the information available to the Court, the statutory rate of interest applicable in Hungary at the date of adoption of the present judgment is 11% per annum. FOR THESE REASONS, THE COURT 1. Holds by 6 votes to 1 that there has been a violation of Article 6 § 1 of the Convention; 2. Holds by 6 votes to 1 (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, (i) EUR 5,500 (five thousand five hundred euros) in respect of non-pecuniary damage, and (ii) EUR 500 (five hundred euros) for costs and expenses; (b) that simple interest at an annual rate of 11% shall be payable from the expiry of the above-mentioned three months until settlement; 3. Dismisses unanimously the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 9 April 2002, pursuant to Rule 77 §§

2 and 3 of the Rules of Court. S. DolléJ.-P. CostaRegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following opinions are annexed to this judgment: (a) Concurring opinion of Judge Loucaides; (b) Dissenting opinion of Judge Mularoni. J.-P.C.S.D.CONCURRING OPINION OF JUDGE LOUCAIDES I agree with the finding that there has been a violation of Article 6 in this case because of unexplained delays in the proceedings attributable to the judicial authorities of the respondent State. However, my approach differs from that of the majority in two respects: a) On the basis of the material before the Court, I confine my finding only to the periods 28 April 1993 until 28 September 1994 and 20 November 1996 until 6 June 1997, amounting to some 23 months altogether, which, I believe, are excessive. I do not find any other unexplained delays in this case attributable to the State. The nature of the proceedings and, in particular, the conduct of the applicant were basically responsible for the duration of the proceedings. b) The majority took into account expressly the “overall length” of the proceedings. In my opinion it is wrong to rely on the “overall length” of any proceedings as being by itself a ground or factor for finding a breach of the obligation under Article 6 of the Convention for a hearing “within a reasonable time”. Such a breach can only be established if there are unreasonable delays in the proceedings attributable to the State. Proceedings may be protracted by the conduct of the applicant or by the complexity and general nature of the case. In such cases, even if the “overall length” of the proceedings is excessive, no responsibility should be borne by any State organ so long as the latter did not contribute in any way to the prolongation of the duration of the proceedings. I reiterate here what I have said in the case of Maczynski v. Poland (application no. 43779/98, judgment, 15 January 2002). “It is true that according to the case-law of the Court, the reasonableness of the length of proceedings is to be determined by reference to the particular circumstances of the case. But there is no absolute or objective limit to the length of time that can be taken. The question whether there has been a delay contrary to the requirements of Article 6 § 1 cannot be decided in abstracto with reference only to the total length of the proceedings. Whether there has been an unreasonable delay is a matter that must be assessed in the light of the particular facts of the case and having regard to the criteria laid down in the Court’s case-law, in particular the complexity of the case and the conduct of the applicant and of the relevant authorities (see, among other authorities, the Vernillo v. France judgment of 20 February 1991, Series A no. 198, p. 12, § 30).” A breach of Article 6 § 1 can only be found where it is established that there have been delays attributable to the State regardless of the total length of proceedings. Thus, in the case of Ciricosta and Viola v. Italy (judgment of 4 December 1995, Series A no. 337-A), in which the period in issue was more than 15 years for civil proceedings that were still pending at the time of the judgment, the Court held: “even though a period of more than fifteen years for civil proceedings that are still pending may, on the face of it, seem unreasonable, the conduct of the applicants... leads the Court to declare Mr Ciricosta’s and Mrs Viola’s complaint unfounded” (p. 11, § 32). In the same case the Court stated the following: “The Court reiterates in the first place that only delays attributable to the State may justify a finding of failure to comply with the ‘reasonable time’ requirement” (p. 10, § 28). DISSENTING OPINION OF JUDGE MULARONI I disagree with the majority that the length of the proceedings was unreasonable. It is true that the proceedings lasted 15 years and 4 months, but apart from the fact that only about 7 years and 3 months are covered by the Convention (since Hungary ratified it on 5 November 1992), I emphasise that “only delays attributable to the State may justify a finding of a failure to comply with the ‘reasonable time’ requirement” (see, among other authorities, the H. v. France judgment of 24 October 1989, Series A no. 162, pp. 21-22, § 55). Even if, according to the Court case-law, “in assessing the reasonableness of the

time elapsed after this date, account must be taken of the then state of the proceedings” (see, among other authorities, Foti and others v. Italy judgment of 10 December 1982, Series A no. 56, p. 18, § 53), it seems to me that the delays were largely attributable to the plaintiff’s conduct. We know from the facts that: 1) in October 1984 the applicant’s father (“the plaintiff”) brought an action against an upholstery workshop. In September 1986 the Buda Central District Court informed him that the upholstery workshop as such had no capacity to conduct legal proceedings and that its members were personally required to enter the proceedings as defendants (hence, as far as I understand, about two years were lost due to the plaintiff’s mistake); 2) on 13 February 1989 and 15 June 1990 the plaintiff extended his claims. On 22 May 1991 the Budapest Regional Court, quashing the first-instance judgment, pointed out that “due to the plaintiff’s repeated extensions of his claims, the case was no longer within the District Court’s competence” (hence, as far as I understand, more than two years were again lost due to the plaintiff’s fault); 3) on 7 December 1992 the plaintiff again extended his action and, on 27 January 1993, he filed a memorandum with the Regional Court submitting the precise figures of his claims; 4) on 1 March 1995 the plaintiff again modified his claims; 5) on 16 June 1995 the plaintiff further extended his claims; we know from the Government’s observations that, at the hearing of 3 July 1996, the applicant again extended his claims; as a consequence the plaintiff was granted a term to elaborate further quantification of his claims; his memorandum was returned for supplementation on 1 August 1996 and the revised memorandum reached the Regional Court on 9 September 1996; 6) on 6 June 1997 the Regional Court declared that the proceedings were interrupted on account of the death of one of the defendants. The proceedings were resumed as early as 12 December 1997 (as far as I understand, the plaintiff waited about 6 months before resuming the proceedings and the judicial authorities cannot be held responsible for this delay); 7) due to the plaintiff’s partial waiver, on 13 February 1998 the Regional Court discontinued the proceedings in respect of some of the defendants; 8) after the plaintiff’s death (27 December 1998), the applicant and his late father’s widow entered the proceedings as the plaintiff’s successors on 20 October 1999 (i.e., about 10 months later). We also know from the Government’s observations that: 1) on 28 April 1993 the court granted the plaintiff a respite till 1 June to enable him to elaborate his legal opinion on the defendant’s submissions lodged in the meantime; 2) on 1 September 1993 the plaintiff requested the court for a respite as a new legal representative had entered the suit. Therefore the court adjourned the hearing till 10 December, pointing out the claims the plaintiff was expected to specify within 45 days. On 10 December 1993 some of the defendants requested the court to adjourn the hearing on account of the new claims raised; 3) the new hearing was held on 9 March 1994; the court had to adjourn it again due to new documents submitted at the hearing; 4) on 4 May 1994 the Budapest Regional Court appointed a technical expert from the Institute of Forensic Technical Expertise. On 28 September 1994 the court specified the questions to be answered by the expert and it fixed 60 days from the delivery of its decision for the presentation of the expert opinion. On 27 October 1994 the Institute indicated to the court that owing to lack of competence it was not able to present the expert opinion. Therefore, on 7 November, the Budapest Regional Court appointed another expert, who presented his opinion on 17 December 1994; 5) at the hearing of 26 January 1996 the plaintiff requested the court to transfer the case to the Prosecutor’s Office concerning his allegations of abuses by the defendants. The court adjourned the hearing, transferred the case-file to the Prosecutor’s Office (which found that the documents did not contain anything in particular which might call for the institution of criminal proceedings) and, after receiving the file back, fixed the date of the next hearing; 6) on 20 November 1997 the plaintiff again extended his claims. In consideration of the above, I disagree that “at least two periods of unexplained delay are apparent in this case: between 28 April 1993 and 1 March 1995, and 20 November 1996 and 6 June 1997 - periods amounting to some 28 months altogether - the Regional Court’s activity being mostly limited to obtaining expert opinions” (§ 37 of the judgment). Even if the proceedings could have been dealt with faster at times, I believe that these delays did not exceed a reasonable time and that the length of the proceedings was mostly due to the plaintiff’

s conduct. For all these reasons, I conclude that the length of the proceedings did not exceed the “reasonable time” requirement and that the applicant’s rights under Article 6 § 1 of the Convention have not been violated.

FIRST SECTION CASE OF EMMER-REISSIG v. AUSTRIA (Application no. 11032/04) JUDGMENT STRASBOURG 10 May 2007 FINAL 10/08/2007 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Emmer-Reissig v. Austria, The European Court of Human Rights (First Section), sitting as a Chamber composed of: MrC.L. Rozakis, President,MrL. Loucaides,MrA. Kovler,MrsE. Steiner,MrK. Hajiyev,MrD. Spielmann,MrG. Malinverni, judges,and Mr S. Nielsen, Section Registrar, Having deliberated in private on 5 April 2007, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 11032/04) against the Republic of Austria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Austrian national, Mr Herwig C. Emmer-Reissig (“the applicant”), on 11 March 2004. 2. The Austrian Government (“the Government”) were represented by their Agent, Ambassador Mr F. Trauttmannsdorff, Head of the International Law Department at the Federal Ministry for Foreign Affairs. 3. The applicant alleged, in particular, that the Administrative Court failed to hold an oral hearing, which was in breach of Article 6. 4. On 30 November 2005 the Court decided to communicate the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility. THE FACTS THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1921 and lives in Klosterneuburg. 6. He is a lawyer practising in Klosterneuburg and the owner of a parcel of land in the municipality of Königstetten, which is designated as “forest” land in the zoning plan. On parts of this parcel – approximately 1,500 square meters – he runs an organic farm on a part-time basis, breeding sheep and goats. Besides that, he keeps bees and grows herbs. 7. On 18 August 1998 the applicant applied to the mayor of Königstetten for a building permit for a shed, to be used as a shelter for sheep and goats in summer and beehives in winter. It is also designed as a refuge for farm workers. He therefore submitted construction plans for the planned shed and a map of the land in question. 8. The mayor rejected the applicant's request on 16 February 2000. Relying on a report by an agricultural expert at the Lower Austria Regional Government, he stated that, in view of its shape, size and design, it would not qualify as a farm building and that even if it was an agricultural construction, it could not be erected on the land in question, as the latter had been designated as forest and grassland. 9. The applicant lodged an appeal with the municipality of Königstetten on 10 April 2000. On 3 July 2000 the municipality dismissed his appeal on the same grounds. 10. Subsequently, on 13 September 2000, the applicant filed an objection (Vorstellung) with the Lower Austria Regional Government and requested it to hear representatives of the District Farmer's Association (DFA, Bezirksbauernkammer) and the Austrian beekeeper association (ABA, Österreichischer Imkerbund) as experts who would prove that the building he intended to erect was necessary for the intended agricultural enterprise. 11. The Regional Government quashed the municipality's decision on 10 January 2001 and referred the case back to the municipal council. It stated that the municipality had failed to address all the points of appeal. 12. The applicant lodged further grounds in support of his appeal on 19 March, 4 and 24 April 2001. In addition to his comments on the decision of 3 July 2000, he filed requests for the taking of evidence. He also submitted a statement by the Tulln Administrative District Authority and a document he referred to as a business plan. 13. On 23 November 2001 the Königstetten Municipality requested the applicant to comment on an expert opinion it had obtained from the Planning Office at the Lower Austria Regional Government (

Gebiets-bauamt) on 31 October 2001. It stated that by far the largest part of the land was covered by forest, which would impede serious agricultural activities. With reference to the earlier decisions, it repeated that, judging by its design and shape, the building at issue would be untypical of an agricultural shed and that the applicant could be assumed never to have intended to carry on agricultural activities, but rather to use it for different purposes. 14. The applicant commented on the expert opinion on 10 December 2001. Claiming that the authorities had incorrectly established the relevant facts, he contended that the expert opinion was in breach of Austrian law and European Community law. Besides that, the applicant repeated his request to obtain opinions from the DFA, the ABA and a certain organic farming association (Biobauernverband Ernte) in order to prove the feasibility of the business plan and its compliance with the relevant legal criteria. He also filed an application for an on-site inspection of the land at issue. 15. On 29 January 2002 the municipal council also rejected the applicant's appeal. It held that the planned construction would conflict with the zoning plan and that the building would not resemble a shed for agricultural use. 16. The applicant filed an objection (Vorstellung) with the Lower Austria Regional Government again on 11 February 2002, submitting that the municipality had relied solely on an incorrect expert opinion without carrying out investigations of its own. In addition, he claimed that the decision was in breach of European Community law. 17. Subsequently, on 12 March 2002, the applicant lodged a complaint with the Administrative Court and requested an oral hearing. 18. On 30 July 2002, without holding an oral hearing, the Administrative Court rejected the complaint as inadmissible for non-exhaustion of administrative remedies, as the applicant had failed to file an objection against the decision of 29 January 2002. 19. The applicant's objection of 12 March 2002 was dismissed by the Lower Austria Regional Government on 22 July 2002. 20. The applicant lodged a further complaint with the Administrative Court on 22 August 2002 and repeated his request for an oral hearing. 21. On 16 September 2003 the Administrative Court dismissed the applicant's complaint and rejected his request for an oral hearing. It found that, despite its request for a detailed business plan, the applicant had failed to provide one. Accordingly, the alleged need for a shed for the so-called agricultural enterprise had not been made out. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION ON ACCOUNT OF THE LACK OF AN ORAL HEARING BEFORE THE ADMINISTRATIVE COURT 22. The applicant complained under Article 6 § 1 of the Convention about the Administrative Court's refusal to hold an oral hearing. A. Admissibility 23. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 24. The applicant submitted that the Administrative Court had unlawfully dismissed his request to hold an oral hearing, thereby depriving him of the opportunity to discuss the expert opinions in the context of a public hearing. Since an oral hearing could have elucidated the facts of the case, the Court's refusal to hold one was in breach of Article 6 of the Convention. 25. The Government, referring to the Court's case-law, argued that under exceptional circumstances the domestic courts, for reasons of efficiency, could refrain from holding a public and oral hearing where only questions of law or highly-technical questions were to be determined or where questions of fact or law raised by the applicant did not require such a hearing. Since both the facts and the question of law had been determined in the light of the Administrative Court's constant case-law, it could abstain from holding a public hearing, thus avoiding further procedural delays. Furthermore, the applicant had failed to indicate why he considered a public hearing necessary. 26. The Court notes that the applicant's case was heard by the mayor, the municipal council and the Regional Government, that is, purely administrative authorities, and then by the Administrative Court, which dismissed the applicant's complaint. Although the applicant argued that the Administrative Court did not qualify as a tribunal, there is no indication in the file that the Administrative Court's scope of review was insufficient in the circumstances of the case (see, for instance, Fischer v. Austria, judgment of 26 April 1995, Series A no. 312, pp. 17-18, §§ 30-34, with further references). Thus, the Administrative Court was the first and only tribunal which examined the applicant's case. 27. As the Austrian reservation in respect of Article 6 § 1 concerning the requirement that hearings be public has been found to be invalid (

see Eisenstecken v. Austria, no. 29477/95, § 29, ECHR 2000-X), the applicant was in principle entitled to a public hearing before the first and only tribunal examining his case, unless there were exceptional circumstances which justified dispensing with such a hearing (see, for instance, Stojakovic v. Austria, no. 30003/02, § 53, 9 November 2006, with further references). 28. The Court has accepted such exceptional circumstances in cases where the proceedings concerned exclusively legal or highly technical questions (see Schuler-Zgraggen v. Switzerland, judgment of 24 June 1993, Series A no. 263, pp. 19-20, § 58; Varela Assalino v. Portugal (dec.), no. 64336/01, 25 April 2002; and Speil v. Austria (dec.) no. 42057/98, 5 September 2002). In particular, the Court has had regard to the rather technical nature of disputes over benefits under social-security schemes and has repeatedly held that in this sphere the national authorities, having regard to the demands of efficiency and economy, could abstain from holding a hearing if the case could be adequately resolved on the basis of the case file and the parties' written observations (see, among other authorities, Döry v. Sweden, no. 28394/95, 12 November 2002, and Pitkänen v. Sweden (dec.), no. 52793/99, 26 August 2003). 29. Turning to the circumstances of the present case, the Court notes that the dispute, as presented by the applicant to the Administrative Court, concerned the issue whether the plot of land in question could be used as an agricultural estate. 30. The Court cannot find that the subject matter of the dispute was of such a nature – namely, highly technical or exclusively legal – as to dispense the national authorities from their obligation to hold a hearing. 31. There has accordingly been a violation of Article 6 § 1 of the Convention. II. OTHER ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 32. The applicant further complained about the authorities' refusal to hear evidence from certain experts on agriculture and organic farming. 33. The Court notes that this complaint is closely linked to the complaint examined above. It must therefore be declared admissible as well. However, in view of its findings in paragraph 31 above the Court does not find it necessary to examine these complaints separately under Article 6 § 1 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 34. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 35. The applicant did not submit any claim for just satisfaction. Accordingly, the Court considers it unnecessary to award him a sum under that head. FOR THESE REASONS, THE COURT 1. Declares unanimously the application admissible; 2. Holds unanimously that there has been a violation of Article 6 § 1 of the Convention as regards the lack of an oral hearing before the Administrative Court; 3. Holds by four votes against three that it is unnecessary to examine the applicant's further complaint under Article 6 § 1 of the Convention. Done in English, and notified in writing on 10 May 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenChristos RozakisRegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following is annexed to this judgment: - dissenting opinion of Mr Loucaides joined by Mr. Spielmann, and Mr. Malinverni. C.L.R.S.N. DISSENTING OPINION OF JUDGE LOUCAIDES JOINED BY JUDGES SPIELMAN AND MALINVERNI I am unable to agree with the view of the majority according to which having found a violation of Article 6 § 1of the Convention because of the lack of an oral hearing before the Administrative Court it is unnecessary to examine the applicant's further complaint under the same Article about unfairness of the proceedings in this case. This additional complaint, relates, in my view, to a separate and autonomous breach which if it is established needs a different remedy than the one relating to the oral hearing. And, conversely, if the oral hearing breach is remedied that does not automatically give a solution to the other complaint.The two complaints being completely unconnected a separate examination of them was necessary.

THIRD SECTION CASE OF DORAN v. IRELAND (Application no. 50389/99) JUDGMENT STRASBOURG 31 July 2003 FINAL 31/10/2003 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Terence and Maureen Doran v. Ireland, The European Court of Human Rights (Third Section), sitting as a Chamber composed of MrG. Ress, President,MrI. Cabral Barreto,MrL. Caflisch,MrP. Kūris,MrB. Zupančič,MrJ. Hedigan,MrK. Traja, judges,and Mr V. Berger, Section Registrar, Having deliberated in private on 28 February 2002 and 8 July 2003, Delivers the following judgment, which was adopted on the last‑mentioned date: PROCEDURE 1. The case originated in an application (no. 50389/99) against Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Irish nationals, Terence and Maureen Doran (“the first and second applicants”), on 21 May 1999. 2. The Irish Government (“the Government”) were represented by their Agent, Dr A. Connolly and, subsequently, by Ms D. McQuade, of the Department of Foreign Affairs. 3. The applicants mainly complained under Articles 6 and 13 of the Convention about the length of civil proceedings issued by them and about the lack of an effective domestic remedy in that respect. 4. The application was allocated to the Fourth Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1. 5. By decision dated 30 March 2000 the Court found certain complaints inadmissible. 6. On 1 November 2001 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed Third Section (Rule 52 § 1). 7. By decision dated 28 February 2002 the Court declared the applicants' complaints concerning the length of the proceedings and an effective remedy in that respect admissible and found their remaining complaints inadmissible. 8. The Chamber decided, after consulting the parties, that no hearing on the merits was required (Rule 59 § 3 in fine) and observations on the merits were not submitted by the parties. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 9. The applicants are Irish citizens, born in 1958 and 1957, respectively, and they both live in County Wicklow, Ireland. 10. On 12 September 1990 they agreed to buy a site with planning permission from “the vendors” on which they intended to build a house. The sale was completed in October 1990. It subsequently emerged that, because of discrepancies in the relevant site maps on which they relied during the sale, they did not have access to the site from the road. They were obliged to discontinue building and to sell the site. 11. On 31 May 1991 the Minister for Agriculture and Food established the Tribunal of Enquiry into the Beef Processing Industry (“Beef Tribunal”) and nominated the President of the High Court to be the sole member of the Tribunal. While conducting the Beef Tribunal, the President continued, when possible, to sit in cases in the High Court. 12. On 17 July 1991 the applicants instituted High Court proceedings for negligence, negligent misstatement, breach of contract, misrepresentation and breach of warranty against their own solicitors (“the applicants' solicitors”), the vendors and “the vendors' solicitors”. On 10 March 1992 the High Court ordered discovery on a consent basis. Pursuant to the applicants' motion and the defendants' consent, on 4 May 1992 the High Court ordered the defendants to file their defence within 4 weeks. Further motions of the applicants were struck out on 22 and 24 June and on 19 October 1992. On 18 May 1993 the case was certified ready for hearing by the applicants' senior counsel. 13. The case was originally listed for hearing on 8 July 1993 but it was adjourned (the applicants objected) due to the illness of one of the defendants to 15 July 1993 when another hearing date would be fixed. On 15 July 1993 a hearing date was fixed for 6 October

1993. On that date there was no judge available and the matter was heard on 7 October 1993 when the President of the High Court (“the trial judge”) made himself available. The Government maintained that the trial judge was advised by counsel present that the hearing required two days, that the judge had notified the parties that his tribunal commitments meant that he had only two days for their case so that, if the case took longer, he would be obliged to adjourn until after the Beef Tribunal, that he would only deal with issues of liability and that the applicants agreed to this. The applicants denied that their counsel so advised the trial judge, that the trial judge had informed them that the trial would be so adjourned, that their counsel would have agreed to an indefinite adjournment (given the second applicant's psychological state) or that they agreed to the separation of issues of liability and damages. 14. The applicants' case was heard on 7 and 8 October 1993 and, since it was unfinished, the trial judge adjourned it. On 2 November 1993 and 8 February 1994 the applicants wrote to the Chief Registrar of the High Court asking for enquiries to be made as to when the action would be resumed. On 16 March 1994 they wrote to the Registrar asking him to intervene with the trial judge to fix a date and enclosing a medical report of the second applicant's doctor dated 12 March 1994 (see paragraph 32 below). The Registrar was also contacted by telephone on numerous occasions by the applicants regarding a hearing date. In March 1994 the Registrar informed the applicants by telephone that the trial judge had confirmed a hearing date in July 1994. A letter to the Registrar of 9 June 1994 requested that a hearing date be fixed. 15. During this period, the applicants wrote also wrote to, inter alia, numerous members of Dáil Eireann (the House of Representatives) including to the Minister for Justice. The Deputy Chair of Dáil Eireann indicated, in a letter dated 25 March 1994, that he had contacted the Acting President of the High Court asking the latter to intercede on the applicants' behalf. On 7 April 1994 the Acting President responded that the case would be taken in July 1994. 16. On 29 July 1994 the trial judge completed his report on the Beef Tribunal. On 19 September 1994 he was appointed Chief Justice of the Supreme Court. The trial judge resumed the hearing of the applicants' case on 5 October 1994. He heard the last two witnesses and requested legal argument in writing. He reserved judgment, indicating that he would deliver it approximately one week after receipt of the written submissions. Those submissions were made by the end of October 1994 17. On 29 November 1994, 2 February, 12 April and 22 May 1995 the applicants wrote to certain Registrars of the High Court requesting information as to when the judgment would be delivered. A response, dated 26 May 1995, stated that the trial judge could not confirm when he could deliver his judgment given his heavy commitments. Further to the applicants' letter, the Minister for Justice indicated in a letter of 10 July 1995 that, while she could not intervene, she had brought the matter to the attention of a Registrar of the High Court. The applicants also wrote to a Registrar on 12 July 1995 again requesting an early delivery date. A Registrar's letter of 13 July 1995 indicated a delivery date before the end of the month. By letter dated 25 July 1995 the Minister for Justice responded to a further letter from the applicants indicating that she had forwarded a copy of the applicants' correspondence to the trial judge. Further to another letter from the applicants, a Registrar subsequently confirmed delivery of the judgment on 12 September 1995. 18. Judgment was orally delivered on that date. Both the vendors and the applicants' solicitors were found liable in damages and the claim against the vendors' solicitors was dismissed. On 21 September 1995 the Court made various orders concerning damages (adjournment of the assessment of damages) and costs to be paid by the unsuccessful parties. Pending finalisation by the trial judge of the written judgment, the form of order was not to be perfected in order to allow the applicants time to consider the text of that judgment prior to the expiration of the time-limit for appealing any orders of the High Court. The applicants wrote two letters to a Registrar of the High Court (dated 6 and 13 October 1995) and the text of the judgment became available in mid-October 1995. The order of the High Court was perfected on 17 October 1995 and on 3 November 1995 the applicants appealed the findings in favour of the vendors' solicitors to the Supreme Court. The vendors also appealed the High Court findings against them. 19. Since a stenographer had not been present during the High Court hearings, it was necessary to prepare and agree a record of the evidence given during those hearings for the purposes of the appeal. By 9 February 1996 the applicants had completed a substantial note of evidence and on 29 March 1996 they submitted it to the vendors and to the vendors' solicitors for their agreement.

On 17 July 1996 the applicants issued two motions. The first sought the comments of the vendors' solicitors on the note of evidence and the second requested that the vendors' appeal be struck out for “want of prosecution” since the vendors had not filed documents in their appeal. 20. On 26 July 1996 the Supreme Court heard both motions with the trial judge (then Chief Justice) presiding. The court requested the vendors and the vendors' solicitors to submit their comments on the note of evidence within two weeks, in default of which the trial judge would finalise the note. On the second motion, the vendors were given until 7 October 1996 to file the relevant appeal documents, in default of which the Supreme Court envisaged striking out the vendors' appeal. Both motions were adjourned until 11 October 1996. The vendors' appeal and the related motion were later dropped. 21. Following further letters from the applicants in August 1996, on 17 September 1996 the vendors' solicitors indicated that they disagreed with 16 items in the note of evidence. On 11 October 1996 the applicants' motion concerning the note of evidence was adjourned to 18 October 1996. Three days later the vendors' solicitors confirmed that agreement would not be reached on the note. On 18 October 1996 three judges of the Supreme Court (not including the trial judge) directed the trial judge to settle the note of evidence. On 24 October 1996 the applicants submitted the note of evidence together with a note of the 16 disputed points to the trial judge. 22. In or around November 1996 the President of the High Court gave directions that all complaints about delays in proceedings should be forwarded to him. A memorandum of the President of the High Court published in the Bar Review of January/February 1997 noted the delays in delivering reserved judgments due to the shortage of judges and requested legal practitioners formally to notify the President of the High Court of their concerns about such delays. 23. Subsequently, the applicants wrote to a Registrar of the High Court on a number of occasions (including on 14 January, 12 March and 25 June 1997) requesting the early settlement of the note of evidence. On 8 July 1997 the applicants wrote to the President of the High Court requesting him to intervene given the delay in their proceedings. In July 1997 a Registrar of the High Court indicated orally that the trial judge would deal with the matter after 20 August 1997. The applicants sent a further reminder to that Registrar on 18 September 1997. On 10 October 1997 the Department of Justice, Equality and Law Reform (“the Department of Justice”) requested the Chief Registrar's comments on the alleged undue delay in the case. On 16 October 1997 a Registrar indicated to the Department of Justice that the note of evidence matter would be resolved in one week. 24. By letter dated 22 October 1997 the trial judge forwarded a report (six pages) he had prepared on the evidence and on the points disputed by the relevant parties and he apologised to the applicants for the delay. By letter dated 24 October 1997 a Registrar assured the Department of Justice that the note of evidence matter had been resolved and that an early date for a hearing of the appeal would be made available. 25. Further to the applicants' complaints to their member of Dáil Eireann and to the Tánaiste (the deputy Prime Minister), the Attorney General expressed, by letter dated 30 October 1997 to the applicants, his concern at the delay in their case. While he was constitutionally obliged not to interfere in judicial matters, he had mentioned the matter informally to the trial judge and the latter assured him that all outstanding matters had been dealt with. In a letter dated 4 November 1997 the Attorney General confirmed to the Tánaiste that he was concerned about the delays which the applicants had experienced in their case and that he had raised these matters in a private and informal manner with the trial judge who had assured him that all outstanding matters had been dealt with. Following an invitation, the applicants met with a member of the Attorney General's Office in late November 1997, although the advice was that that office could not interfere in judicial processes. 26. By motion dated 9 December 1997 the applicants amended their appeal. By letter dated 21 January 1998 the Minister for Justice responded to queries of the Taoiseach (Prime Minister) concerning the applicant's case pointing out that on 21 November 1997 the appeal hearing had been fixed for 2 February 1998. 27. The Supreme Court delivered its reserved judgment on the applicants' appeal on 9 March 1998 and found in the applicants' favour, considering that the vendors' solicitors were also liable in negligence to the applicants. 28. The case was remitted to the High Court for the assessment and apportionment of damages. By letter dated 7 May 1998 the Attorney General responded to queries raised by the applicants' member of Dáil Eireann: he indicated that their case was “concerning” and that it was hoped that the recently established system for monitoring judicial delays would ensure that their experience would not be repeated.

29. The vendors' solicitors filed an amended defence in May 1998 and the applicants filed further particulars of damage in June 1998. On 26 June 1998 the vendors' solicitors made a late lodgement into court in the sum of 85,000 Irish pounds (IR£). The applicants objected. A letter dated 13 July 1998 from the Attorney General's office to the applicants explained that his previous intervention related to an administrative act by the trial judge (the note of evidence) but that the outstanding matters were judicial in which he could not interfere. By letter dated 22 July 1998 the Attorney General's office confirmed that it had been informed that a hearing date had been fixed by the High Court for 13 October 1998. A letter dated 6 August 1998 from the Taoiseach's office to the applicants confirmed that increased resources to the courts meant that it was hoped that their experiences would not be repeated. On 9 October 1998 the applicants also met with the Tánaiste to discuss the length of their ongoing proceedings. 30. On 13-16 October 1998 an assessment hearing took place in the High Court. On 25 November 1998 the High Court awarded the applicants approximately IR£200,000 in respect of pecuniary loss and IR£10,000 in respect of non-pecuniary damage (the High Court finding that both applicants had been put through “a high degree of anxiety and upset” as a consequence of the defendants' negligence). The applicants were also awarded their costs when taxed and ascertained. On 11 December 1998 the High Court dealt with matters concerning the attribution of liability between the defendants. The order of the High Court was perfected in early February 1999. There was no appeal on these matters to the Supreme Court. 31. The Taxing Master abridged the time for service of the applicants' bill of costs (Order 99, Rule 28(1) of the Rules of the Superior Courts) and fixed a hearing for 29 July 1999. The bill of costs contained 519 items and comprised 172 pages. This hearing was then adjourned on the application of the vendors' solicitors until 20 October 1999. The hearing took place on that date and, since it did not finish, it was adjourned to and continued on 20 November 1999. It was again adjourned and concluded on 22 November 1999, when the Taxing Master delivered his reserved ruling. The Certificate on Taxation (approximately IR£300,000) was signed by the Taxing Master on 15 December 1999. 32. The applicants submitted a number of medical certificates to the Court. A certificate prepared by the second applicant's doctor on 26 May 1993 attested to her severe symptoms of anxiety since the legal problems had arisen. She had required repeated courses of medication and she was, at that stage, depressed and on medication. Her anxiety symptoms were likely to continue until the legal situation was resolved. The same doctor confirmed, in a certificate dated 12 March 1994, a deterioration of the second applicant's condition into “frank depression”. Medication had initially helped but the delay in the proceedings was worsening her condition. A psychiatric report on the second applicant dated July 1998 recorded her significant clinical depression since the start of the proceedings which warranted anti-depressants and tranquillisers on many occasions. It was considered that the proceedings continually threatened to bring about a relapse, in spite of certain periods of recovery following appropriate treatment. It was also considered that a full recovery was foreseeable only after the proceedings terminated. A psychiatric report on the first applicant dated August 1998 attested to the great strain the proceedings had caused him. II. RELEVANT DOMESTIC LAW AND PRACTICE 33. Article 40(3)(1) of the Constitution provide: “The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen. “ Certain of the personal rights of the citizen are explicitly guaranteed by provisions of the Constitution. In addition, in interpreting and applying Article 40(3)(1) of the Constitution, the Irish courts have identified other “unenumerated” rights protected by virtue of that Article. These include the principle of “constitutional justice” (inter alia, no one should be a judge in their own cause (nemo iudex in sua causa), anyone who may be adversely affected by a decision should be afforded the opportunity to put their side of the case (audi alteram partem) and the right to fair procedures). The other relevant unenumerated right derived from Article 40(3)(1) is the right to litigate or the right of access to court. 34. Order 60 of the Rules of the Superior Courts provides as follows: “1. If any question as to the validity of any law, having regard to the provisions of the Constitution, shall arise in any action or matter the party having carriage of the proceedings shall forthwith serve notice upon the Attorney General

, if he is not already a party. 2. If any question as to the interpretation of the Constitution, other than a question referred to in rule 1, shall arise in any action or matter, the party having carriage of the proceedings shall, if the Court so directs, serve notice upon the Attorney General. 3. Such notice shall state concisely the nature of the proceedings in which the question or dispute arises and the contention or respective contentions of the party or parties to the proceedings. 4. The Attorney General shall thereupon be entitled to appear in the act ion or matter and become a party thereto as regards the question which arises.” 35. Order 123 of the Rules of the Superior Courts provides, in so far as relevant, as follows: “1. At the trial or hearing of any cause or matter with oral evidence, any party may apply to the Judge for an order that the proceedings be reported by a shorthand writer and thereupon the Judge shall appoint a shorthand writer.... 3. The party applying for an order under rule 1... shall pay the remuneration of the shorthand writer and said payment shall be borne by said party unless the Judge or the Master (as the case may be) shall after the trial or hearing certify that in his opinion it was expedient that the proceedings or any part thereof should have been so reported. If such certificate is given the remuneration of the shorthand writer for reporting the proceedings or part thereof to which the certificate relates shall be part of the costs in the cause. 4. The Judge shall have power, during the course or at the conclusion of the trial or hearing, to direct that copies of the shorthand writer's transcript of the evidence or any part thereof be furnished to him at the public expense or be furnished to any party applying therefor at the expense of that party.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 36. According to the applicants, the length of the proceedings constituted a breach of the “reasonable time” requirement laid down in Article 6 § 1 of the Convention. The Government rejected the allegation. Article 6 § 1, in so far as relevant, reads as follows: “In the determination of his civil rights and obligations..., everyone is entitled to a... hearing within a reasonable time by [a]... tribunal...” A. The parties' submissions 1. The Government 37. The Government maintained that the proceedings were complex involving as they did the liability of the vendors, the vendors' solicitors and of the applicants' solicitors and concerning, inter alia, a novel issue as to the duty of care owed by the solicitor for a vendor to a legally represented purchaser. 38. They also contended that the applicants were responsible for the delay in the proceedings. The Government maintained that, in October 1993, the applicants had agreed that the trial judge would hear their case despite his Tribunal commitments and even though that hearing would involve only issues of liability. On 5 October 1994 they failed to object to the order to make additional written submissions. Their appeal to the Supreme Court on liability led to the postponement of the assessment of damages. It was “essentially the responsibility” of the applicants to provide a transcript for the purposes of their appeal to the Supreme Court and they should have been more prudent and engaged a stenographer: their failure to do this led to the necessity for the parties to agree the note of evidence and no agreement was ever reached. The trial judge subsequently produced a comprehensive note of evidence in October 1997 which was followed quickly by the Supreme Court's hearing on the appeal. 39. As to the conduct of the authorities, the Government pointed to the trial judge's Tribunal commitments, indicated that any delay in delivering the written judgment until October 1995 was explained by the fact that it had been orally delivered during court vacation time and by the need to perfect the text. In any event, the Government suggested that the applicants could have arranged for a note or other record to be taken of the oral delivery of the judgment A stay had to be granted in September 1995 pending any appeals. The Government further maintained that there had been no delay in the taxation of the applicants' costs. 2. The applicants 40. The applicants did not accept that the complexity of the case was responsible for the length of the proceedings. 41. They strongly disputed the Government's suggestion that they were responsible for any delay. They argued that, on the contrary, they were more than diligent in attempting to ensure the timely hearing of their case. They disputed the Government's suggestion that they had agreed certain matters with the trial judge in October 1993 (see paragraph 14 above), they had trusted the trial court that additional written submissions were required and it was plain to the applicants that the assessment of damages could not proceed until the liability of all defendants (including the vendors' solicit

ors) had been definitively established by the Supreme Court (and, in the end, their appeal to the Supreme Court was successful). They believed that it was the defendants' responsibility to ensure the presence of a stenographer and, in any event, the finalising of the note of evidence thereafter by the trial judge was unacceptably long. 42. As to the conduct of the authorities, the applicants maintained that the courts inadequately responded to their attempts to speed up the proceedings, facilitated the delaying tactics of the defence and were themselves the source of significant delay. They noted that the courts and authorities were fully aware of and acknowledged the delay, but took no steps to remedy the problem despite the applicants numerous and continuous requests. In particular, they pointed to the delay in fixing a first hearing date, the delay between the beginning of the High Court hearing and its completion, the trial judge's delay in finalising the note of evidence and the lapse of time between the referral of the case to the High Court for an assessment of damages and the final judgment on damages. The applicants agreed that they did not find that the taxation of costs' element of the proceedings was responsible for the delay. B. The Court's assessment 43. The proceedings issued by the applicants began on 17 July 1991 and ended on 15 December 1999 with the signature of the taxation certificate by the Taxing Master of the High Court (Robins v. the United Kingdom judgment of 23 September 1997, Reports of Judgments and Decisions 1997-V, §§ 28-29). They therefore lasted 8 years and 5 months approximately. The proceedings were not before a significant number of instances, the Court observing that the High Court was seized as a court of first instance on the liability issue and, later, on the assessment and apportionment of damages with the Supreme Court examining the applicants' appeal on one liability matter. 44. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and having regard to the criteria laid down in the Court's case-law, in particular the complexity of the case, the conduct of the applicants and of the relevant authorities, and the importance of what was at stake for the applicants in the litigation (see, for example, Comingersoll v. Portugal [GC], no. 35382/97, § 19, ECHR 2000-IV). 45. The Court notes that the proceedings concerned, inter alia, allegations of negligence and misrepresentation against two firms of solicitors and the vendors of the relevant property. It considers that the case was not significantly complex from an administrative or factual point of view. While the proceedings may have established a novel duty of care by a vendor's solicitor to a legally represented purchaser, the Court does not find that any such legal novelty can explain the length of the applicants' proceedings. 46. As to the conduct of the applicants, the Court does not accept the Government's suggestion that their conduct accounts for the delay in their proceedings. In particular, the adjournment of the High Court hearing (from July to October 1993) was due to the illness of one of the defendants. Even assuming that the applicants accepted on 7 October 1993 that the judge chairing the Beef Tribunal hear their case in the circumstances suggested by the Government (which the applicants firmly contested – see paragraph 13 above), no other High Court judge was, in any event, free to hear the case in October 1993 and the Government did not indicate when another would have been available. Once the case had begun with one judge, efficiency and logic dictated that it remain with him and, in any event, the trial judge had completed his report on the Beef Tribunal by July 1994. Even if the applicants did not object to the order of 5 October 1994 allowing further written submissions, those submissions had been made by the end of that same month. As to the adjournment of the damages' assessment until after the applicants' appeal to the Supreme Court, the Court observes that applicants were entitled to appeal, they were in fact successful and it would have been irrational to assess and apportion damages to be paid by the defendants before the liability of each had been established. As to the presence of a stenographer at trial, the Court observes that the applicants would have been required to decide prior to knowing the result of the first instance hearing whether to risk the not insignificant costs of a stenographer for the purposes of any appeal (see Order 123, Rule 3 of the Rules of the Superior Courts). It is further noted that the Government did not claim that seeking agreement of the parties on a note of the evidence, when the nature and ambit of the appeal was clearer, was a novel manner of proceeding. Furthermore, the applicants had completed a substantial note of the evidence by February 1996 and subsequently carefully pursued the vendors' solicitors agreement through letters and an application to court (see paragraphs 19-21 above). They responded within two weeks to the 16 points of disagreement then submitted by the vendors' solicitors.

Once the Supreme Court directed the trial judge to settle the note of evidence, they vigorously pursued the trial judge's settlement of the note (see paragraphs 21-24 above). The Court has also had regard to the applicants' timely completion of their submissions and their numerous motions to the court to ensure the defendants' adherence to their procedural obligations. They were also tenacious in their pursuit of informal means of speeding up their proceedings, which steps resulted in the informal intercession on the applicants behalf by, inter alia, the Taoiseach, the Tánaiste, the Attorney General and the Department of Justice, such authorities on certain occasions acknowledging the unacceptability of the delay in the applicants proceedings (see, for example, paragraphs 23, 25 and 29 above). The Court finds that the applicants diligently pursued the timely resolution of the proceedings issued by them. 47. As to the conduct of the competent authorities, the Court recalls that, whether or not a system allows a party to apply to expedite proceedings, the courts are not exempted from ensuring that the reasonable time requirement of Article 6 is complied with, as the duty to administer justice expeditiously is incumbent in the first place on the relevant authorities (Philis v. Greece (no. 2), judgment of 27 June 1997, Reports 1997-IV, § 49). The Court notes that one year (from 8 October 1993 to 5 October 1994) elapsed between the beginning and end of the hearing at first instance. In addition, there was a further delay of almost one year between the end of the hearing and the delivery of judgment at first instance (from 5 October 1994 to 12 September 1995). Although the trial judge had commitments to the Beef Tribunal, he had completed his report for that tribunal by July 1994 and, in any event, it is for the State to organise its legal system as to ensure the reasonably timely determination of legal proceedings (see, for example, Salesi v. Italy, judgment of 26 February 1993, Series A no. 257-E, § 24). Furthermore, almost a further year passed between the date when the Supreme Court directed the trial judge to settle the note of evidence and his finalising a six-page report on that note (from 24 October 1996 to 22 October 1997). The trial judge apologised to the applicants for this delay. The Court considers that these periods of delay, amounting to approximately three years, were attributable to the authorities. Moreover, the Court observes that, when the Supreme Court gave judgment on the applicants' appeal in March 1998, the proceedings had already been in being for over six and a half years, which period included the above-described delays attributable to the authorities. In such circumstances, the Court considers particular diligence was required of the judicial authorities subsequently concerned with the proceedings to ensure the speedy determination of the outstanding issues namely, the assessment and apportionment of damages by the High Court and the applicants' costs. However, the assessment and attribution of damages was not completed by the High Court until nine months later (December 1998), with a further year elapsing before the costs' aspect of the case was finalised. The Court considers that the above-described delays attributable to the competent authorities are not justified by the submissions of the Government. 48. Accordingly, and having regard to what was at stake for the applicants (see, for example, Hentrich v. France, judgment of 22 September 1994, Series A no. 296‑A, § 61), the Court concludes that the applicants' proceedings were not determined within a reasonable period of time as required by Article 6 § 1 of the Convention and that there has therefore been a violation of that provision. II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 49. The applicants also maintained, invoking Article 13 of the Convention, that they had no effective remedy as regards the length of their proceedings. This Article reads as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A. The parties' submissions 1. The Government 50. The Government maintained that the applicants did have an effective domestic remedy. They submitted that it had been open to them to contend that they had a right to a decision within a reasonable time on two constitutional grounds drawn from the unenumerated rights guaranteed by Article 40(3)(1) of the Constitution. Such grounds could have been invoked by the applicants at any stage of the proceedings (The State (Shatter, Gallagher & Co.) v. de Valera (No. 2) [1987] IR 55, at 59-60). While the Constitution and other law did not prescribe any particular remedy for the infringement of an individual's constitutional rights, the appropriate remedy would depend on the facts of a particular case and “may” include an award of damages against the State (Healy v. Minister for Defence

, High Court, 7 July 1994, at p. 10, and Kennedy v. Ireland [1987] IR 587, at 593). 51. The first constitutional ground which the applicants could have invoked was the principle of “constitutional justice”. The Government submitted that the courts have recognised that the unenumerated rights guaranteed by Article 40(3)(1) of the Constitution include principles of constitutional justice and that the latter includes various procedural guarantees including a right to a reasonably prompt decision. In this respect, the Government cited a number of domestic cases (In Re Haughey [1971] IR 217; Garvey v. Ireland [1981] IR 75; O'Keefe v. Commissioners of Public Works, Supreme Court, 24 March 1980; The State (McFadden) v. Governor of Mountjoy Prison (No. 1) [1981] ILRM 113; Cannon v. Minister for the Marine [1991] 1 IR 82; Twomey v. Minister for Tourism and Transport, Supreme Court, 12 February 1993; Bosphorous Hava Yollari Turizm ve Ticaret Anonim Sirketi v. Minister for Transport (No. 2) [1997] 2 IR 1; In Re Gallagher (No. 2) [1996] 3 IR 10; and McNeill v. Garda Commissioner [1997] 1 IR 469). The Government submitted that constitutional justice had successfully been invoked to augment the specialised code of procedural and evidential law regulating judicial function where the passage of time could have resulted in injustice (O'Domhaill v. Merrick [1984] IR 151 and Toal v. Duignan (No. 1) [1991] ILRM 135). 52. The second constitutional ground which the Government suggested the applicants could have invoked was their constitutional right to litigate or their right of access to court to assert and vindicate legal rights (Macauley v. Minister for Posts and Telegraphs [1966] IR 345, at 357-358). They maintained that the applicants could therefore have argued before the High and Supreme Courts that they had a constitutional right to a decision within a reasonable period of time in order for their right to litigate to be effective, based on the maxim that justice delayed is justice denied and, in particular, they could have argued that their right to litigate extended to the more prompt processing of their case by the courts. They could have requested the courts to give effect to this right or, in default, to award them damages for its infringement. 53. Furthermore, the Government submitted that the domestic courts had a positive duty to protect persons against invasion of their constitutional rights. They pointed out that judges take an oath to uphold the Constitution and are therefore under a duty to preserve the individual's constitutional rights. They further argued that the applicants could also have pleaded the judgments of the European Court of Human Rights as persuasive authority in support of their constitutional contentions. 2. The applicants 54. The applicants contended that they were more than diligent in ensuring the speedy conclusion of the proceedings, including issuing numerous motions and otherwise corresponding with the authorities. While various branches of the State had consequently recognised the delays in their case, the response of the judiciary was inadequate and it would have been the same judges who would have had to consider any constitutional proceedings suggested by the Government. They also maintained that they could not have been reasonably expected to pursue additional and substantial proceedings before the High and Supreme Courts in order to speed up the proceedings. As to the case-law to which the Government referred, the applicants noted that not one case related to delay attributable to a judge. B. The Court's assessment 55. Article 13 of the Convention guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they may happen to be secured in the domestic legal order. The effect of Article 13 is thus to require the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief (see, among many other authorities, Kudła v. Poland [GC], no. 30210/96, § 157, ECHR 2000‑XI). 56. The scope of the Contracting States' obligations under Article 13 varies depending on the nature of the applicant's complaint; however, the remedy required by Article 13 must be “effective” in practice as well as in law (see, for example, İlhan v. Turkey [GC], no. 22277/93, § 97, ECHR 2000-VII). The term “effective” is also considered to mean that the remedy must be adequate and accessible (Paulino Tomás v. Portugal (dec.), no. 58698/00, ECHR 2003-...). 57. In addition, particular attention should be paid to, inter alia, the speediness of the remedial action itself, it not being excluded that the

adequate nature of the remedy can be undermined by its excessive duration (Tomé Mota v. Portugal (dec.), no. 32082/96, ECHR 1999‑IX, and Paulino Tomás, cited above). 58. The effectiveness of a remedy within the meaning of Article 13 does not depend on the certainty of a favourable outcome for the applicant. Nor does the “authority” referred to in that provision necessarily have to be a judicial authority; but if it is not, its powers and the guarantees are relevant in determining whether the remedy before it is effective. In addition, 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, in principle, do so (see, among many other authorities, Silver and Others v. the United Kingdom, judgment of 25 March 1983, Series A no. 61, § 113, and Chahal v. the United Kingdom, judgment of 15 November 1996, Reports 1996-V, § 145). 59. It is further recalled that remedies available to a litigant at domestic level for raising a complaint about the length of proceedings are “effective”, within the meaning of Article 13, if they “[prevent] the alleged violation or its continuation, or [provide] adequate redress for any violation that [has] already occurred” (Kudła, cited above, § 158). In the context of excessive length of proceedings, Article 13 therefore offers an alternative: a remedy will be considered “effective” if it can be used either to expedite a decision by the courts dealing with the case, or to provide the litigant with adequate redress for delays that have already occurred (Mifsud v. France (dec.), no. 57220/00, ECHR 2002–VIII). 60. Finally, it is recalled that, in the case of Mc Mullen v. Ireland ((dec.), no. 42297/98, 4 July 2002), the applicant also complained about the length of civil proceedings instituted by him. The Government argued that he had failed to exhaust domestic remedies as he had not brought an action based on his unenumerated right to litigate and to have access to court. The Court found that the Government had not discharged the onus on them to show that he had available to him an effective domestic remedy in respect of the length of his proceedings. 61. It remains for the Court to determine whether the means available to the present applicants in Irish law for complaining about the length of their proceedings can be considered “effective” within the meaning of Article 13 of the Convention (which Article has a close affinity with Article 35 § 1 of the Convention – the above-cited Kudła judgment, § 152) in the sense either of preventing the alleged violation or its continuation, or of providing adequate redress for any violation that had already occurred. 62. The Court notes that the Government did not claim that there was any specific legal avenue conceived of as a separate remedy whereby an individual could complain about the length of proceedings. Nevertheless, they argued that effective constitutional remedies were available. Referring generally to a number of domestic cases, they argued that the applicants could have, at any stage of the proceedings, commenced an action in pursuit of their right to a decision within a reasonable time based on two unenumerated constitutional rights (the principle of constitutional justice and the right to litigate). 63. The Court notes that, of the domestic judgments generally relied upon by the Government, none states that either of the two unenumerated constitutional rights include a right to complain about delay during court proceedings attributable to the judicial authorities. As to the case-law cited in respect of the right to constitutional justice, certain cases concerned the customary legal limitations on plaintiffs commencing proceedings once there has been a substantial lapse of time after the impugned event (the above-cited cases of O'Keefe, O'Domhaill and Toal), delays by Ministers in granting relevant licences and certification (Cannon and Twomey, cited above), a Minister's duty to act with expedition under European law (Bosphorous Hava Yollari Turizm ve Ticaret Anonim Sirketi, also cited above) and the application of general principles of constitutional justice and fair procedures which did not concern delay (the above-cited cases of In Re Haughey, Garvey, The State (McFadden) and In Re Gallagher (No. 2)). As regards the right to litigate, the above-cited Macauley judgment relied on by the Government applied the right to have recourse to the High Court to vindicate constitutional rights in a context not concerning delay. 64. However, and even if it could be assumed that a right to a determination of proceedings within a reasonable period of time could be considered to be one of the guarantees flowing from Article 40 (3

)(1) of the Constitution (as referred to but not applied in the above-cited McNeill case) and even assuming that such a complaint could be raised at any time (The State (Shatter, Gallagher & Co. v. de Valera cited above), the Court does not consider that it has been demonstrated that the remedy to which the Government referred can be considered to be “effective, adequate or accessible” within the meaning of Article 13 of the Convention for the following reasons. 65. In the first place, the Government did not address the question of how the constitutional action proposed by them could constitute a remedy preventative of future delay. The Government relied on the above-cited case of The State (Shatter, Gallagher & Co.) v. de Valera to demonstrate that such a procedure could be commenced during the applicants' substantive proceedings, but that case itself took over a year and a half to complete, a period which the remaining domestic cases cited by the Government demonstrate is relatively quick for the determination of a constitutional action. The requirement that the remedy itself be sufficiently swift is particularly important if the remedy is proposed to be one preventative of future delay (see paragraph 57 above). In addition, neither the Government nor the case-law cited by them clarify whether the applicants could have made these constitutional arguments as part of their substantive proceedings, namely, without issuing separate proceedings. Even if separate proceedings were not necessary, it is not explained whether the applicants would have been obliged to complain about delay before a court to that same court or, if complaining to a different court, how the latter's decision in their favour could in practice be relied upon to speed up substantive proceedings before a different court. 66. Secondly, and as to the alternative remedy of an award of damages for delay which had already occurred, the Government accepted that there was no domestic legal provision for an award of damages following a successful constitutional action and limited their submissions to suggesting that damages “may” be available (Kudła, cited above, § 159, and Matthies-Lenzen v. Luxembourg (dec.) no. 45165/99, 14 June 2001). In addition, even if the applicants could have incorporated a constitutional complaint about delay already experienced into their substantive proceedings (although again this is not addressed by the Government), the Government did not clarify the basis for the State's liability to pay damages (O'Reilly v. Ireland (dec.) no. 24196/94, Decisions and Reports (DR), 84-A, p. 72) and how such damages would be calculated or the level of damages which could be expected, the Court noting that the adequacy of a remedy is also determined by reference to this latter factor (Scordino v. Italy (dec.), no. 36813/97, ECHR 2003-...). While the Government relied on two cases (the above-cited cases of Kennedy and Healy) as demonstrating the availability of damages following a successful constitutional claim, the Court notes that the proceedings in one case lasted over two years, and substantially longer in the other, before the relevant order for damages: such a lapse of time is not reconcilable with the requirement (see paragraph 57 above) that the remedy must itself be sufficiently swift. 67. Finally, and more generally, the Court observes that the applicants would have been required to join the Attorney General to proceedings in order validly to raise any relevant constitutional arguments (Order 60 Rule 2 of the Rules of the Superior Courts 1986). The Attorney General would have been consequently entitled to appear and make submissions as regards the constitutional questions arising. The Government's submissions concerning the positive obligation on the domestic courts to protect persons against an invasion of their constitutional rights is noted: however, such an obligation applied when the above-established unreasonable delays took place. Moreover, while the Government relied on the “persuasive authority” domestically of the judgments of this Court, the Convention has not been incorporated into domestic law and, consistently, no case was cited by the Government where the domestic courts relied on this Court's judgments to recognise a further unenumerated constitutional right and to develop a domestic remedy for its breach. 68. In sum, while there may be some constitutional basis for the recognition of the right to a determination of a civil right within a reasonable period of time, the Government have not referred to one domestic case where any individual complained to a domestic tribunal about delay of the nature at issue in the present case and which resulted in the prevention of excessive delay or its continuation, or in damages for delay which had already occurred. 69. In such circumstances, and since the remedy must be effective both in law and in practice, the Court does not consider that a claim based on the constitutional right to justice and to litigate has been shown to constitute an effective domestic remedy for excessively long proceedings for the purposes of Article 13 of the Convention. There has therefore been a violation of this provision. III. APPLICATION OF ARTICLE 41 OF THE

CONVENTION 70. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 71. The applicants claimed IR£65,545 in damages for the pecuniary loss suffered as a result of the incorrect assessment of the High Court of damages in their case. They further claimed 100,000 euros (EUR) in non-pecuniary damages, the applicants referring to the suffering and distress caused, particularly to the second applicant, by the excessive delay in the proceedings. The second applicant continues to be vulnerable to depression and to take medication. 72. The Government maintained that the applicants' claims were exorbitant. They submitted that the Court should take into account that the delays in the proceedings were not especially excessive and that the nature of proceedings is such that certain delays are inevitable and unavoidable. In addition, they pointed to the level of damages awarded by the High Court to the applicants (IR£202,198.56) which included a claim for general damages of IR£10,000: they argued that the applicants had already been compensated for any losses that may have arisen from the delays of which they complain. They also submitted that the applicants' claim as to the inadequacy of the award of damages by the High Court is not related to the matter at issue in this case namely, the length of their proceedings. 73. As regards the applicants' claims for pecuniary loss based on an allegedly incorrect assessment of damages by the High Court, the Court's case-law establishes that there must be a clear causal connection between the violation of the Convention established and the damage claimed by the applicant (see, amongst other authorities, Barberà, Messegué and Jabardo v. Spain (Article 50), judgment of 13 June 1994, Series A no. 285-C, §§ 16-20; Cakıcı v. Turkey [GC], no. 23657/94, § 127, ECHR 1999-IV). The Court has already declared inadmissible the applicants' complaints concerning the assessment of damages by the High Court in this case (see Doran v. Ireland (dec.), no. 50389/99, 30 March 1998 and 28 February 2002). There is therefore no causal connection between the violations of the Convention established in this case and the pecuniary damage claimed. No award is accordingly made for pecuniary damage. 74. Turning to non-pecuniary loss, the Court does not accept that the applicants have already been compensated domestically for the Convention violations found. Damages were awarded by the High Court to compensate the pecuniary and non-pecuniary loss of the applicants caused by their former solicitors, the vendors and the vendors' solicitors and arising from the sale of the site. They did not therefore concern the excessive length of the applicants' proceedings or their lack of an effective domestic remedy in that respect. 75. The Court considers that the applicants must have certainly suffered some non-pecuniary damage, such as distress and frustration resulting from the protracted length of the proceedings and the lack of an effective remedy for this, which cannot sufficiently be compensated by the finding of a violation (see, for example, Mitchell and Holloway v. the United Kingdom, no. 44808/98, § 69, 17 December 2002). In addition, the Court finds it substantiated that the second applicant suffered, as a result of the breaches of the Convention established in this case, some concrete injury to her mental health. Although it is clear that certain symptoms emerged relatively early in the proceedings and can be considered to relate to the problematic purchase of the relevant site and the necessary consequent domestic proceedings, the Court considers that the subsequent medical reports are demonstrative of a significant deterioration in her mental health as a result of the ongoing proceedings and it notes the medical view that a full recovery was foreseeable only once the proceedings terminated. In such circumstances, the Court finds that there is a causal connection between the violations established in this case and the duration of the second applicant's mental health problems. The Court has also taken into account the consequent and inevitable additional burden on the second applicant's husband, the first applicant, which is consistent with the medical report submitted in his respect dated August 1998. 76. Accordingly, and taking into account all of the circumstances of the case, in particular the considerable distress of the applicants, and making its assessment on an equitable basis, the Court awards the applicants a total sum of EUR 25,000 under this head. B. Costs and expenses 77. The applicants also claimed EUR 1,000 compensation for the costs and expenses of the Convention proceedings in relation to matters such as postage, telephone and stationary, together with

EUR 500 in respect of time lost by them in preparing their extensive submissions to the Court. 78. The Government indicated that they had no comments on this claim of the applicants. 79. The Court finds that the sum claimed in respect of the actual expenses incurred by the applicants in pursuing their Convention complaint (EUR 1,000) is recoverable and appears reasonable, but that the sum claimed in respect of time spent drafting submissions to the Court cannot be taken into consideration, as the applicants presented their own case (Brincat v. Italy, judgment of 26 November 1992, Series A no. 249‑A, § 29). C. Default interest 80. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Holds that there has been a violation of Article 6 § 1 of the Convention; 2. Holds that there has been a violation of Article 13 of the Convention; 3. Holds (a) that the respondent State is to pay the applicants jointly, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, the sums of EUR 25,000 (twenty-five thousand euros) in respect of their non-pecuniary damage and EUR 1,000 (one thousand euros) in respect of their costs and expenses. (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicants' claim for just satisfaction. Done in English, and notified in writing on 31 July 2003, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Vincent BergerGeorg RessRegistrarPresident

FIFTH SECTION CASE OF PETERMANN v. GERMANY (Application no. 901/05) JUDGMENT STRASBOURG 25 March 2010 This judgment is final but it may be subject to editorial revision In the case of Petermann v. Germany, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: Karel Jungwiert, President,Renate Jaeger,Mark Villiger, judges,and Stephen Phillips, Deputy Section Registrar, Having deliberated in private on 2 March 2010, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 901/05) against the Federal Republic of Germany lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a German national, Mr Hans Petermann (“the applicant”), on 18 December 2004. 2. The applicant was represented by Mr K. Dammann, a lawyer practising in Hamburg. The German Government (“the Government”) were represented by their Deputy Agent, Mr H.-J. Behrens, Ministerialrat, of the Federal Ministry of Justice. 3. On 5 February 2009 the President of the Fifth Section decided to give notice of the application to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 3). The Federal Republic of Germany having accepted the provisional application of the provisions of Protocol no. 14 governing the power of three judge Committees to rule on cases in which there is a well-established case-law, it was further decided to assign the application to a Committee after consultation of both parties, who did not object. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1947 and lives in Hamburg. A. Background to the case 5. On 30 March 1985 the applicant was attacked in an urban train by one or two men and his right leg and his back were seriously injured. 6. By a decision of 24 April 1986, as amended by an acknowledgement (Anerkenntnis) before the Hamburg Social Court on 21 November 1988, the Hamburg Pension Office (Versorgungsamt) granted the applicant a pension under the Victims Compensation Act (Opferentschädigungsgesetz) because of a reduction in his earning capacity of 50 per cent for four months and of 30 per cent for another six months covering the period from 30 March 1985 until 31 January 1986. It found that as of 1 February 1986, the loss of earning capacity amounted to less than 25 per cent, so that no pension was payable. 7. On 21 November 1988 the Hamburg Social Court dismissed the applicant's claim for a higher pension. B. The proceedings before the Hamburg Pension Office 8. On 20 March 1990 the applicant, represented by counsel, lodged a request to amend the Pension Office's decision of 24 April 1986. He argued that the damage to his health suffered as a result of the attack on 30 March 1985 had increased following the Hamburg Social Court's judgment of 21 November 1988. He claimed the payment of a pension under the Victims Compensation Act from March 1990 onwards as the loss of his earning capacity now amounted to at least 50 per cent. 9. On 26 September 1990 the Hamburg Pension Office, having consulted its surgical expert, refused to amend its decision, arguing that there had not been an essential change in the damage caused by the attack. C. The proceedings before the Hamburg Social Court 10. On 17 October 1990 the applicant brought an action in the Hamburg Social Court against the decision of the Hamburg Pension Office dated 26 September 1990. 11. Between 22 April and 6 June 1991 the statements of three doctors treating the applicant were submitted to the Social Court. 12. On 25 July 1991 surgical expert K., who had been appointed by the Social Court on 13 June 1991, submitted his report. He found that the applicant's loss of earning capacity since March 1990 for surgical reasons alone was below 25 per cent. 13. On 13 December 1991 Bo., a neurological and psychiatric expert appointed by the court on 9 August 1991, submitted his report. He found that the applicant had not suffered any damage to his mental health as a result of the attack in 1985. 14. On 15 April 1992 expert Bo. further commented on his report dated 3 December 1991 at the court's request. 15. On 5 January 1993

the Social Court granted the applicant legal aid. 16. On 13 January 1994 Bi., a neurological and psychiatric expert appointed by the court on 23 July 1993, submitted his report. He diagnosed the applicant as suffering from post-traumatic stress caused by the attack in 1985 and estimated the total loss of his earning capacity (including surgical and psychological aspects) at 30 per cent. 17. By a statement dated 16 March 1994 a neurological and psychiatric doctor working for the Pension Office contested expert Bi.'s findings. 18. On 26 June 1995 W., a neurological and psychiatric expert appointed by the court on 17 August 1994 at the applicant's request under section 109 of the Social Courts Act (see paragraph 48 below), submitted his report at the court's repeated requests. He found that the applicant had also suffered mental damage due to the constant pain in his right knee and assessed the total loss of his earning capacity (including surgical and psychological aspects) since March 1990 at 30 per cent. 19. In a statement dated 27 October 1995 a neurological and psychiatric expert working for the Pension Office contested expert W.'s findings. 20. On 15 May 1996 D., an orthopaedic expert appointed by the court on 2 October 1995 at the applicant's request under section 109 of the Social Courts Act, submitted his report. He found that the reduction of the applicant's earning capacity for orthopaedic reasons alone amounted to 30 per cent. 21. On 28 August 1996 and on 17 December 1996 the applicant requested the court to expedite the proceedings. 22. On 8 January 1997 surgical expert St., and, on 22 January 1997, the neurological and psychiatric expert Br., who were both working for the Pension Office, submitted statements on the latter's behalf. 23. On 18 February 1997 the Hamburg Social Court held a hearing. It consulted expert Bi., who partly modified the findings he had made in his report of 1994 and found that in fact it was not sure that the impairment to the applicant's psychological well-being was caused by the attack in 1985. 24. Following the acknowledgment of the court's proposal on 4 February 1997, the Hamburg Pension Office, by a decision of 4 April 1997, amended its decision of 26 September 1990. It found that the applicant's total earning capacity has been reduced by 30 per cent since 1 March 1990, granted him a pension under section 1 of the Victims Compensation Act (see paragraph 50 below) and ordered the payment of pension arrears of some 19,000 Deutschmarks (DEM). 25. On 15 May 1997 and on 20 August 1997 the applicant requested the Social Court to set a date for a hearing and to deliver a judgment. 26. On 22 September 1997 neurological and psychiatric expert Bi. submitted an additional report at the Social Court's request. 27. On 30 September 1997 the Hamburg Social Court, having held a hearing in which it had also consulted expert Bi., dismissed the applicant's action (file no. 30 VG 11/90). It found that, having regard to the opinions of the experts it had consulted, the Hamburg Social Office's decision of 4 April 1997 was lawful, as the applicant had been suffering a reduction in his earning capacity of 30 per cent due to orthopaedic damage since March 1990, whereas no psychological damage caused by the attack had been proved. 28. The judgment was served on 20 October 1997. D. The proceedings before the Hamburg Social Court of Appeal 29. On 20 November 1997 the applicant, represented by counsel, lodged an appeal with the Hamburg Social Court of Appeal. He claimed that the reduction of his earning capacity caused by the attack in 1985 amounted to 50 per cent in view of the psychological consequences of that attack in addition to the acknowledged physical damage. 30. On 19 July 1999 the applicant's counsel, having consulted the case-file in February 1998, gave reasons for his appeal at the court's repeated requests. 31. Between 22 November 1999 and May 2000 the applicant requested on five occasions that the Social Court of Appeal expedite the proceedings. 32. On 3 May 2000 the Social Court of Appeal granted the applicant legal aid. 33. On 12 and 25 October 2000 the applicant requested the court to expedite the proceedings. The court replied on 6 November 2000 stating that it was currently unable to deal with the case as it had sent the files to the Social Court at the latter's request for consultation in different proceedings. 34. On 21 November 2001 N., a neurological and psychiatric expert appointed by the Social Court of Appeal on 19 September 2001, submitted his report. He found that no psychological damage had been caused to the applicant as a result of the attack in 1985. 35. On 19 December 2001 the Social Court of Appeal held a hearing in which it heard the parties and consulted expert N. It granted the applicant's request under section 109 of the Social Courts Act to consult another psychiatric expert, Ke., on condition that the applicant paid for the

cost of the report. 36. On 6 February 2002 the applicant informed the court that he now had the money needed and that he could make a bank transfer covering costs. 37. On 6 June 2002 the Social Court of Appeal appointed expert Ke. 38. On 16 July 2002 the applicant made an additional payment of costs at the expert's and the court's request. 39. On 3 February 2003 expert Ke. submitted his report. He found that the applicant suffered from post-traumatic stress disorder as a result of the attack in 1985 and estimated the reduction of the applicant's earning capacity caused by psychological damage alone to be 20 per cent. 40. On 26 February 2003 expert Ke. further explained his report at the court's request. On 22 May 2003 the Social Court of Appeal again sent the case-file to the Social Court for a calculation of costs; the file was returned on 7 July 2003. 41. On 27 August 2003 the applicant asked the court to expedite the proceedings. 42. On 6 January 2004 a further neurological expert (L.) consulted by the Social Court of Appeal submitted his report in which he found that it was not proved that the applicant had suffered post-traumatic stress disorder as a result of the attack in 1985. 43. On 27 January 2004 the Hamburg Social Court of Appeal, having held a hearing, dismissed the applicant's appeal as ill-founded and did not grant him leave to appeal on points of law (file no. IV VGBf 1/97). Having regard to the expert reports before it, it considered that it had not been proved that the applicant had suffered psychological damage as a result of the attack in 1985 as, in particular, the report of expert Ke. was not convincing. The Social Court of Appeal further rejected the applicant's case alleging bias on the part of neurological and psychiatric expert L. as having been lodged out of time, arguing that the applicant's counsel had been obliged to lodge that application on receipt of the applicant's comments on the expert report at the latest (18 January 2004). 44. The judgment was served on the applicant's counsel on 22 June 2004. E. The proceedings before the Federal Social Court 45. On 12 July 2004 the applicant, represented by an association for the protection of social rights, lodged a complaint about the refusal to be granted leave to appeal (Nichtzulassungsbeschwerde) with the Federal Social Court. In his reasoning submitted on 19 August 2004 he claimed that the Social Court of Appeal had deviated from the case-law of the Federal Social Court. Moreover, there had been a procedural error in that the length of the proceedings from 1990 until 2004 had breached his right to a fair trial within a reasonable time under the Basic Law and under Article 6 § 1 of the Convention. 46. On 25 August 2004 the Federal Social Court dismissed the applicant's complaint. It considered the complaint inadmissible as the applicant had failed to substantiate that there had been a procedural error or a deviation from the case-law of the Federal Social Court. In particular, he had failed to demonstrate that the judgment dismissing his action was based on the (undue) length of the proceedings. In any event, the applicant could lodge an application under Article 34 of the Convention with the European Court of Human Rights, whereby he could obtain compensation. 47. On 3 September 2004 the decision of the Federal Social Court was served on the applicant's representative. II. RELEVANT DOMESTIC LAW AND PRACTICE A. The Social Courts Act 48. Section 109 of the Social Courts Act, in the version in force at the relevant time, reads as follows: “(1) On request by... the person entitled to benefits..., a particular physician has to be heard as an expert. The hearing of this expert may be made dependant on the person who is making the request advancing the costs and, unless the court decides otherwise, the person making the request bearing the costs in the end. (2) The court may reject a request if its admission would delay the settlement of the legal dispute and if the court is convinced that the request was submitted in an attempt to delay the proceedings or was not submitted earlier due to gross negligence.” 49. In view of the requirements of § 2 of this provision, domestic courts in practice rarely reject a request to hear another expert. B. The Victims Compensation Act 50. The relevant part of section 1 § 1 of the Victims Compensation Act, in its version in force at the relevant time, reads as follows: “(1) A person who... has sustained damage to his health attributable to an intentional and unlawful attack upon himself... shall, on application, be granted benefits in accordance with the provisions of the Federal War Victims Relief Act in respect of resulting health impairments and financial loss.“ THE LAW I. ALLEGED VI

OLATION OF ARTICLE 6 § 1 OF THE CONVENTION 51. The applicant complained that the length of the proceedings before the Social Courts concerning his pension claim had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which reads as follows: “In the determination of his civil rights and obligations..., everyone is entitled to a... hearing within a reasonable time by [a]... tribunal...” 52. The Government left open whether the length of the proceedings complied with the “reasonable time” requirement under Article 6. They argued that the proceedings at issue had been complex because it had been necessary to obtain neurological and surgical expert advice. The applicant had delayed the proceedings for one year and four months by belatedly submitting his reasons for appeal. Moreover, the period of some three years it had taken to obtain the three expert reports requested by the applicant under section 109 of the Social Courts Act could not be attributed to the courts, which could only refuse to take expert evidence under that provision if they were convinced that the applicant attempted to delay the proceedings. The subject-matter of the proceedings had also not called for particular diligence. The Government conceded, however, that there was no convincing explanation for certain delays, in particular, for those caused by the Social Court of Appeal by sending the original files to the Social Court for questions concerning costs when the proceedings were still pending before the appeal court. 53. The period to be taken into consideration began on 17 October 1990 when the applicant brought his action in the Social Court and ended on 3 September 2004 when the decision of the Federal Social Court was served on his counsel. The proceedings thus lasted more than thirteen years and ten months for three levels of jurisdiction. A. Admissibility 54. The Court notes that the proceedings at issue for payment of an additional pension under the Victims Compensation Act concern the determination of the applicant's “civil rights” within the meaning of Article 6 § 1, which is therefore applicable (see, in particular, Glüsen v. Germany, no. 1679/03, §§ 60-62, 10 January 2008). The applicant also exhausted domestic remedies as, in particular, a complaint to the Federal Constitutional Court would not have been a remedy capable of affording him adequate redress for the length of the civil proceedings brought by him (see Sürmeli v. Germany [GC], no. 75529/01, §§ 103-108, ECHR 2006‑..., and Herbst v. Germany, no. 20027/02, §§ 63-66 and 68, 11 January 2007). His complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. The Court further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 55. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII). 56. The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see Frydlender, cited above). 57. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. It notes, in particular, that the proceedings, which were of some complexity and necessitated the consultation of medical experts, were pending before the Social Court for some seven years and before the Social Court of Appeal for some six years and seven months. It considers that the applicant delayed the proceedings in that he did not submit reasons for his appeal until July 1999 after having consulted the case-file in February 1998. Moreover, his requests for consultation of three additional medical experts under section 109 of the Social Courts Act (see paragraphs 18, 20 and 35 above) contributed to the length of the proceedings. However, the fact that the applicant availed himself of the possibility to request the consultation of further experts under the said provision does not warrant the conclusion that the time elapsed for obtaining these reports will be attributed only to him. The courts remained under a duty to obtain the necessary expert advice in an efficient and speedy manner, a duty which they did not comply with in the present case. The Court further reiterates in that connection that a legal provision which provides for the possibility to request a further expert opinion even though the expert advice considered necessary by the court to take its decision has already been obtained will contribute, as in the present case, to the length of the proceedings (see,

mutatis mutandis, Glüsen, cited above, § 83). The said provision also does not exempt the domestic courts from the obligation to ensure compliance with the “reasonable time” requirement (see, inter alia, Vaas v. Germany, no. 20271/05, § 68, 26 March 2009). 58. Furthermore, the Court observes that in the proceedings the applicant's claims for a pension for loss of his earning capacity following an attack on him was at stake, which must be considered as involving an issue of importance for him. However, it also notes that the Social Courts decided on his first claim for a higher pension already in 1988 and that he received a payment of pension arrears in 1997. 59. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement. There has accordingly been a breach of Article 6 § 1. II. THE APPLICANT'S REMAINING COMPLAINT 60. The applicant further claimed that the proceedings had not been fair in that the Social Court of Appeal had arbitrarily dismissed his claim of bias against expert L., whose report the applicant had received only fourteen days before lodging the request, as having been lodged out of time and had thus failed to hear his arguments on the merits of the request. 61. The Court has examined the applicant's remaining complaint, which falls to be examined under Article 6, as submitted by him. However, having regard to all material in its possession, the Court finds that the applicant did not exhaust domestic remedies in this respect because, in any event, he failed to obtain a decision by the Federal Constitutional Court. 62. It follows that the remainder of the application must be rejected for non-exhaustion of domestic remedies, pursuant to Article 35 §§ 1 and 4 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 63. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 64. The applicant claimed EUR 15,000 in respect of non-pecuniary damage. He argued that he had suffered and his health had deteriorated because of the length of the proceedings. 65. The Government left the matter to the Court's discretion, but considered the applicant's claim to be excessive. 66. The Court considers that the applicant must have sustained non-pecuniary damage. Ruling on an equitable basis, it awards him EUR 9,800 under that head, plus any tax that may be chargeable. B. Costs and expenses 67. The applicant also claimed EUR 3,954.39 for the costs and expenses incurred before the domestic courts. These included costs for a medical examination by an expert, train, taxi and hotel costs to visit experts and further costs for expert evidence taken in the proceedings. 68. Submitting documentary evidence, the applicant further claimed EUR 2,887.94 for the costs and expenses incurred before the Court. These included EUR 384.60 for costs for photocopying the case-file, EUR 54,20 for taxi costs to meet with his counsel and EUR 2,449.14 (including VAT) for counsel's fees, which, as had been agreed upon between counsel and an association for the protection of victims of offences (Weisser Ring e.V.) as a condition for counsel to represent the applicant, were borne by the said association. 69. The Government contested these claims for lack of a causal connection between these costs and the duration of the proceedings. 70. According to the Court's case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court rejects the claim for costs and expenses in the domestic proceedings as it does not discern any causal link between the violation found and the specific costs claimed. As to counsel's fees, the Court notes that the applicant was not, in the event, liable to pay them and did not pay them (see, mutatis mutandis, Dudgeon v. the United Kingdom (Article 50), 24 February 1983, §§ 21-22, Series A no. 59) and they were thus not actually incurred by him. As to the further costs and expenses claimed by the applicant, the Court considers that they were actually incurred and considers it reasonable to award the applicant EUR 200 in this respect, plus any tax that may be chargeable to him. C

. Default interest 71. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaint concerning the excessive length of the proceedings admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds (a) that the respondent State is to pay the applicant, within three months, (i) EUR 9,800 (nine thousand eight hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 200 (two hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 25 March 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stephen PhillipsKarel JungwiertDeputy RegistrarPresident

THIRD SECTION CASE OF MOMČILOVIĆ AND OTHERS v. SERBIA (Applications nos. 16254/08 and 2 others – see appended list) JUDGMENT STRASBOURG 5 December 2017 This judgment is final but it may be subject to editorial revision. In the case of Momčilović and Others v. Serbia, The European Court of Human Rights (Third Section), sitting as a Committee composed of: Pere Pastor Vilanova, President,Branko Lubarda,Georgios A. Serghides, judges,and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 14 November 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in three applications (nos. 16254/08, 53679/13 and 22243/14) against Serbia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by three Serbian nationals, Mr Radosav Momčilović (“the first applicant”), Mr Livius Lapadat (“the second applicant”) and Mr Dragan Radin (“the third applicant”). Their further personal and other relevant details are set out in the appended table. 2. The Serbian Government (“the Government”) were initially represented by their former Agent, Ms V. Rodić, who was subsequently substituted by their current Agent, Ms N. Plavšić. 3. On 20 October 2015 the second applicant’s representative informed the Court that the applicant had died on 25 May 2014, and on 14 January 2016 that his heirs were his wife, Ms Dojnica Lapadat, and son, Mr Livius Lapadat. On 30 January 2016 designated heirs expressed their wish to pursue the proceedings on behalf of the second applicant and submitted powers of attorney for the same lawyer. For practical reasons, Mr Livius Lapadat will continue to be referred to as the second applicant in this judgment, although his heirs are now to be regarded as such (see Tomašević v. Montenegro, no. 7096/08, §§ 13-16, 13 June 2017). 4. On 20 October 2015 the applications were communicated under Article 6 § 1 and 13 to the Government and the remainder of the applications was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicants complained about the failure of the domestic courts to enforce final court judgments rendered in their favour. 6. All applicants obtained decisions of the Constitutional Court, which found a violation of their right to a hearing within a reasonable time and awarded them certain sums in respect of the non-pecuniary damage suffered (see the appended table). 7. The Court further notes that the proceedings in question are still pending before domestic courts as regards the first applicant. With respect to the second applicant, the Court will consider that the proceedings have been terminated on 30 November 2015. Namely, on that day the Zrenjanin Court of First Instance informed the Government that on an unspecified date the second applicant’s heirs had transferred their claim to their attorney and that they were therefore no longer parties to the domestic proceedings. Lastly, regarding the third applicant, the proceedings were terminated on 8 May 2013. THE LAW I. JOINDER OF THE APPLICATIONS 8. The Court considers that, in accordance with Rule 42 § 1 of the Rules of the Court, the applications should be joined, given their common factual and legal background. II. ALLEGED VIOLATION OF ARTICLES 6 § 1 and 13 OF THE CONVENTION 9. The applicants complained under Article 6 § 1 and Article 13 of the Convention about the non-enforcement of the final court decisions. In so far as relevant, these Articles read as follows: Article 6 § 1 “In the determination of his civil rights and obligations... everyone is entitled to a... hearing within a reasonable time by [a]... tribunal...” Article 13 “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A. Admissibility 1.

The Government’s objection concerning the alleged abuse of the right of petition 10. The Government submitted that the second applicant’s lawyer intentionally hid from the Court that the applicant had passed away during the proceedings, amounting to an abuse of the right of petition, within the meaning of Article 35 § 3 of the Convention. 11. The Court recalls that an application may only be rejected as abusive within the meaning of Article 35 § 3 of the Convention in extraordinary circumstances, such as if an application was deliberately grounded on a description of facts omitting or distorting events of central importance (see, for example, Akdivar and Others v. Turkey, 16 September 1996, §§ 53-54, Reports of Judgments and Decisions 1996-IV; Varbanov v. Bulgaria, no. 31365/96, § 36, ECHR 2000-X; and Assenov and Others v. Bulgaria, Commission decision of 27 June 1996, Decisions and Reports (DR) 86-B, p. 54). Furthermore, the applicant is not expected to present all possible information on a case. It is, however, his duty to present at least those essential facts which are at his disposal and which he must be aware are of significant bearing for the Court to be able to properly assess the case (see, for example, Milosavljev v. Serbia, no. 15112/07, § 36, 12 June, Al-Nashif and Others v. Bulgaria, (dec.) no. 50963/99, 25 January 2001). 12. Turning to the present case, the Court notes that the second applicant’s lawyer informed the Court of the applicant’s death by letter of 20 October 2015. By letter of 14 January 2016 he also submitted the final decision of the Zrenjanin Court of First Instance regarding the determination of the applicant’s successors, whereas by his letter of 30 January 2015 he informed the Court that the applicant’s successors wish to pursue the proceedings with the Court and supplied the Court with powers of attorney signed by them. 13. It follows that the Government’s objection must be dismissed. 2. The Government’s objection concerning the loss of victim status 14. The Government submitted that the applicants could no longer claim to be victims within the meaning of Article 34 of the Convention since the Constitutional Court had found that their right to a hearing within a reasonable time had been violated and had awarded them adequate redress. The violation complained of had therefore been remedied before the domestic authorities and the applicants had lost their victim status. 15. The Court considers that this objection is closely linked to the substance of the applicants’ complaints and must therefore be joined to the merits. 3. Conclusion 16. The Court further notes that the applications are not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. It is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 17. The Government submitted that since all applicants obtained decisions from the Constitutional Court they had therefore lost their victim status. In the Government’ s opinion, the finding of a violation and the awarding of compensation for the non-pecuniary damage suffered constituted sufficient redress for the breach of the applicants’ right to a hearing within a reasonable time. 18. The applicants disagreed. They submitted that, in spite of the Constitutional Court’s decisions, they were still “victims” within the meaning of Article 34 of the Convention. They argued that the amounts of compensation awarded to them were insufficient. Additionally, the first applicant maintained that his proceedings were still pending and that he could not enforce his significant monetary claim against the debtor who had died in the meantime, an allegation which the Government did not contest in their observations. 19. The Court recalls that an applicant’s status as a “victim” within the meaning of Article 34 of the Convention depends on the fact whether the domestic authorities acknowledged, either expressly or in substance, the alleged infringement of the Convention and, if necessary, provided appropriate redress in relation thereto. Only when these conditions are satisfied does the subsidiary nature of the protective mechanism of the Convention preclude examination of an application (see Vidaković v. Serbia (dec.) no. 16231/07, § 24 May 2011; Cocchiarella v. Italy [GC], no. 64886/01, § 71, ECHR 2006‑V; and Cataldo v. Italy (dec.), no. 45656/99, 3 June 2004). 20. In this respect, the Court notes that the Constitutional Court had indeed found that the applicants’ right to a hearing within a reasonable time had been violated, thereby acknowledging the breach complained of and, effectively, satisfying the first condition laid down in the Court’s case law. 21

. The applicants’ victim status then depends on whether the redress afforded to them was adequate and sufficient having regard to just satisfaction as provided for under Article 41 of the Convention (see Dubjaková v. Slovakia (dec.), no. 67299/01, 19 October 2004). 22. In this connection, the Court recalls that in non-enforcement cases one of the characteristics of sufficient redress which may remove a litigant’s victim status relates to the amount awarded. This amount depends, in particular, on the characteristics and effectiveness of the remedy. Thus, States which, like Serbia, have opted for a remedy designed both to expedite proceedings and afford compensation are free to award amounts which – while being lower than those awarded by the Court – are not unreasonable (see Cocchiarella v. Italy [GC], cited above, §§ 96, 97). 23. Turning to the amounts of redress awarded to the applicants, the Court notes that those amounts are significantly lower compared with the sums awarded for comparable delays in the Court’s case-law. It would emphasize, in this respect, the importance of a reasonable amount of just satisfaction being awarded in the domestic system for the remedy in question to be considered as effective under the Convention. Whether the amount awarded may be regarded as reasonable, however, falls to be assessed in the light of all the circumstances of the case. These include not merely the duration of the proceedings in the specific case but the value of the award judged in the light of the standard of living in the State concerned, and the fact that under the national system compensation will in general be awarded and paid more promptly than would be the case if the matter fell to be decided by the Court under Article 41 of the Convention. 24. In view of the material in the files and having regard to the particular circumstances of the proceedings in question, the Court considers that the sums awarded to the applicants cannot be considered sufficient and therefore do not amount to appropriate redress for the violations suffered. Additionally, the Court notes that the enforcement proceedings are still pending in the case of the first applicant. The Court therefore concludes that none of the applicants can be deemed to have lost his status as a victim within the meaning of Article 34 of the Convention. 25. In view of the above the Court concludes that in the present case the length of the enforcement proceedings was excessive and failed to meet the “reasonable time” requirement. 26. The Court accordingly considers that there has been a violation of Article 6 § 1 of the Convention and rejects the Government’s preliminary objection as regards the applicants’ victim status. 27. Having reached this conclusion, the Court also does not find it necessary to examine essentially the same complaint under Article 13 of the Convention (see mutatis mutandis, Kin-Stib and Majkić v. Serbia, no. 12312/05, § 90, 20 April 2010). III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 28. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage, costs and expenses 29. The applicants claimed various amounts in respect of the non-pecuniary damage suffered by each of them, as well as the costs and expenses. The first applicant also requested to be awarded pecuniary damages, which is the amount awarded by the final domestic judgment which remained unenforced. All sums are indicated in the appended table. 30. The Government found the applicants’ claims concerning non-pecuniary damage excessive and emphasized that all applicants had already been paid the sums awarded by the Constitutional Court, whereas the third applicant was also paid 8,810 Serbian dinars in respect of costs of enforcement proceedings. 31. Regard being had to the documents in its possession and to its case‑law the Court considers it reasonable to award the sums indicated in the appended table in respect of non-pecuniary damage and costs and expenses, less any and all amounts which may have already been paid in that regard at the domestic level. 32. As regards the request of the first applicant, the Court notes that the Government did not comment on this request, but finds that there is no causal link between the violation found and the pecuniary damage alleged. It therefore rejects the first applicant’s claim for pecuniary damage. B. Default interest 33. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Decides to join

the applications; 2. Decides to join to the merits the Government’s preliminary objection as to the applicants’ victim status, and dismisses it; 3. Declares the applications admissible; 4. Holds that there has been a violation of Article 6 § 1 of the Convention in respect of each applicant; 5. Holds that there is no need to examine separately their complaints under Article 13 of the Convention; 6. Holds (a) that the respondent State shall ensure that all necessary steps are taken to allow the domestic proceedings in the case of the first applicant to be concluded as speedily as possible, taking into account the requirements of the proper administration of justice; (b) that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table in respect of non-pecuniary damage and costs and expenses, plus any tax that may be chargeable on these amounts, which are to be converted into the currency of the respondent State at the rate applicable at the date of settlement, after the deduction of any amounts which may have already been paid on this basis; (c) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 7. Dismisses the remainder of the applicants’ claims for just satisfaction. Done in English, and notified in writing on 5 December 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Fatoş AracıPere Pastor VilanovaDeputy RegistrarPresident No. Application no. and date of introduction Applicant name date of birth nationality Represented by Final domestic decision details Start of proceedings End of Proceedings Length of enforcement proceedings Constitutional Court decision details; just satisfaction awarded (if any) Amounts of non-pecuniary and pecuniary damages, and costs and expenses requested in euros Amounts awarded for non-pecuniary damage and costs and expenses per applicant in euros (Plus any tax that may be chargeable to the applicants.)[1] 16254/08 19/03/2008 Radosav MOMČILOVIĆ 11/11/1951 Serbian - Fifth Municipal Court in Belgrade XXI P. 630/97 of 13 June 1997 25 March 2002 pending 11 years and 5 months Už 2694/2009 of 7 July 2011 70,000 RSD (580 Euros) Non-pecuniary damage + costs: 3,500+500 Pecuniary damage: 59,476.38 Non-pecuniary damage: 3,600 Costs and expenses: 100 53679/13 04/07/2013 Livius LAPADAT 06/01/1934 Serbian Dragan RADIN Municipal Court in Zrenjanin P. 1691/05 of 22 January 2007 28 December 2007 30 November 2015 7 years and 7 months Už 2888/2011 of 23 May 2013 400 Euros Non-pecuniary damage + costs: 3,600 + 500 Non-pecuniary damage: 3,600 Costs and expenses: 500 22243/14 27/11/2013 Dragan RADIN 30/10/1949 Serbian - Municipal Court in Novi Bečej P. 115/08 of 26 June 2008 29 October 2008 8 May 2013 6 years and 9 months Už 246/2011 of 30 October 2013 200 Euros Non-pecuniary damage + costs: 3,600+100 Non-pecuniary damage: 3,000 Costs and expenses: 100 APPENDIX [1]. Less any amounts which may have already been paid on this basis at the domestic level.

SECOND SECTION CASE OF MEHMET AND SUNA YİĞİT v. TURKEY (Application no. 52658/99) JUDGMENT STRASBOURG 17 July 2007 FINAL 17/10/2007 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Mehmet and Suna Yiğit v. Turkey, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: MrsF. Tulkens, President,MrA.B. Baka,MrR. Türmen,MrM. Ugrekhelidze,MrV. Zagrebelsky,MrsD. Jočienė,MrD. Popović, judges,and Mrs S. Dollé, Section Registrar, Having deliberated in private on 26 June 2007, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 52658/99) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Turkish nationals, Mr Mehmet Yiğit and Mrs Suna Yiğit (“the applicants”), on 4 August 1999. 2. The applicants were represented by Mr Tanrıkulu, a lawyer practising in Diyarbakır. The Turkish Government (“the Government”) did not designate an Agent for the purpose of the proceedings before the Court. 3. On 24 November 2004 the Court decided to give notice of the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 3. The applicants were born in 1970 and 1969 respectively and live in the District of Ergani, in Diyarbakır. 4. On 27 June 1997 the applicants' daughter, Esra Yiğit, then aged seven months, underwent surgery at the Dicle University Medical Faculty Hospital for a congenital hip dislocation. During the operation, she had a cardiac arrest and lapsed into a coma. On 13 July 1997 Esra Yiğit came out of the coma, but she was unable to move her arms and legs. On 15 July 1997 she was admitted to the neurosurgery department and was diagnosed as suffering from “hypoxic brain syndrome”. On 21 July 1997 she was discharged from the hospital. 5. On 13 May 1998 the applicants filed a compensation claim with the Rectorate of the Dicle University for the pecuniary and non-pecuniary damage caused by the alleged negligence of the medical staff who performed the operation. No response was given to the applicants within the sixty day period prescribed in the Code of Administrative Procedure. 6. On 11 August 1998 the applicants filed an action with the Diyarbakır Administrative Court, requesting compensation. They also requested legal aid for the court fees. 7. On an unspecified date Mehmet Yiğit obtained a certificate from the office of the headman (muhtarlık) attesting to his indigence. 8. On 26 August 1998 Mehmet Yiğit further applied to the Office of the District Governor in Ergani, requesting an official certificate as to whether he owned property in Ergani. 9. On the same day, the Office of the District Governor, the Directorate of Land Registration and the Ergani Municipality drafted attestations stating that Mehmet Yiğit did not own any immovable property in Ergani. 10. On 27 August 1998 the Ergani Revenue Department informed the District Governor's Office that it had no records indicating that Mehmet Yiğit paid tax. 11. On an unspecified date the Diyarbakır Administrative Court dismissed the case on procedural grounds. The domestic court stated that the applicants could lodge a new case within one month following the rectification of the defects in their application. 12. On 19 October 1998 the applicants applied to the Diyarbakır Civil Court of General Jurisdiction, requesting exemption from paying the court fees. The court granted their request. 13. On 23 October 1998, after rectifying the procedural shortcomings in their first petition, the applicants lodged another case with the Diyarbakır

Administrative Court. In their petition, they repeated their request for legal aid for the court fees. 14. On 17 November 1998 the Diyarbakır Administrative Court dismissed the applicants' request for legal aid. The court held that, since the applicants were represented by a lawyer, they could not be considered to be in need of legal aid. (The applicants had had a contingency fee arrangement with their lawyer.) In its decision, the court referred to the case-law of the Supreme Administrative Court and the provisions of the Civil Procedure Code. 15. On 1 December 1998 and 4 February 1999, the Diyarbakır Administrative Court notified the applicants that they were required to pay 180,000,000 Turkish liras (TRL)[1] in respect of the court fees. 16. On 8 March 1999 the applicants lodged a petition with the administrative court requesting the annulment of the decision dated 17 November 1998. In their petition, they stated, inter alia, that they did not have sufficient means to pay the court fees and that the rejection of their request for legal aid was in violation of their right of access to a court. 17. On 16 April 1999 the Diyarbakır Administrative Court discontinued the proceedings because the applicants had not paid the necessary legal fees. 18. On 16 October 2001 the Supreme Administrative Court upheld the decision of 16 April 1999. II. RELEVANT DOMESTIC LAW AND PRACTICE A. Code of Administrative Procedure 19. Article 31 of the Code of Administrative Procedure provides that when administrative court judges determine a legal aid request, they should apply the relevant provisions of the Code of Civil Procedure (Articles 465-472, below). B. Code of Civil Procedure 20. Article 465 states that a request for legal aid may only be granted if the claimant submits evidence in support of his/her request. 21. According to Article 468, in order to determine whether or not the person applying for legal aid has sufficient means, he/she shall be required to submit a certificate attesting to his/her indigence; another certificate indicating whether or not the individual owns any property and an attestation regarding how much, if any, tax he/she had paid. These certificates should be obtained from the appropriate domestic authorities. 22. Article 469 provides that decisions regarding legal aid are binding. C. Relevant economic data 23. In November 1998, the minimum wage in force was 47,839,500 Turkish liras (approximately 158 US Dollars) a month. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 24. The applicants complained that they had been denied access to a court, invoking Article 6 §1 of the Convention which, in so far as relevant, reads as follows: “In the determination of his civil rights and obligations..., everyone is entitled to a fair... hearing... by [a]... tribunal...” 25. The Government contested that argument. A. Admissibility 26. In their observations, the Government submitted two preliminary objections. In the first place, they maintained that the applicants have not exhausted the domestic remedies and argued that they could have initiated criminal proceedings against the medical staff that operated on their daughter. Secondly, the Government asked the Court to reject the application for non-compliance with the six months time-limit. In their view, the applicants should have lodged their application with the Court following the decision of the Diyarbakır Administrative Court dated 17 November 1998, since decisions regarding legal aid are binding pursuant to Article 469 of the Code of Civil Procedure. 27. As regards exhaustion of domestic remedies, the Court observes that the domestic law provided administrative and criminal remedies to the applicants in respect of their allegation that their daughter had been paralysed because of medical malpractice. The Court recalls at this point that it is for the individual to select which legal remedy to pursue for obtaining redress for the breaches alleged (see Airey v. Ireland, judgment of 9 October 1979, Series A no. 32, § 23). In the present case, the applicants' main complaint is the suffering that they had to endure because of their daughter's illness, which in their view was the result of a medical malpractice. As they chose to seek reparation by initiating compensation proceedings, the Court is of the opinion that they were not required to bring the criminal proceedings as suggested by the Government. 28. As regards the Government's second objection, the Court observes that the applicants have lodged their application within six months of the decision of the Diyarbakır Administrative Court, dated 16 April 1999, by which it was decided to discontinue the compensation proceedings because of the applicants' failure to pay the court fees. This judgment was subsequently upheld by the Supreme Administrative Court on 16 October 2001. In the present case, as the

main legal problem is the applicants' right of access to a court, the Court concludes that they have filed their application within the six months time-limit as required by Article 35 § 1 of the Convention. 29. In view of the above, the Court rejects the Government's objections. 30. The Court further notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. Nor is it inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 31. The applicants maintained that they had been denied access to court as the court fees were set at a level far beyond their means. They further stated that the administrative court's decision rejecting their legal aid request had been unfair. In this connection, they stated that, although they had submitted the relevant documents which attested to their indigence, the Administrative Court had refused to grant legal aid because they were being represented by a lawyer. 32. The Government contested this claim. They stated that the decisions of the domestic courts had been delivered in accordance with the domestic law and did not breach the applicants' right of access to court 33. The Court reiterates that the “right to a court” is not absolute. It may be subject to limitations permitted by implication because the right of access by its very nature calls for regulation by the State. Guaranteeing to litigants an effective right of access to courts for the determination of their “civil rights and obligations”, Article 6 § 1 leaves to the State a free choice of the means to be used towards this end but, while the Contracting States enjoy a certain margin of appreciation in that respect, the ultimate decision as to the observance of the Convention's requirements rests with the Court (see Kreuz v. Poland, no. 28249/95, § 53, ECHR 2001‑VI). 34. A restriction placed on access to a court or tribunal will not be compatible with Article 6 § 1 unless it pursues a legitimate aim and there is a reasonable relationship of proportionality between the means employed and the legitimate aim sought to be achieved (Tolstoy Miloslavsky v. the United Kingdom, judgment of 13 July 1995, Series A no. 316‑B, § 59). According to the Court's case-law, a financial limitation may be imposed in the interests of a fair administration of justice. In the past, the Court has held that the requirement to pay fees to civil courts in connection with the claims which they are asked to determine cannot be regarded as a restriction on the right of access to a court that is incompatible per se with Article 6 § 1 of the Convention. It reiterates, however, that the amount of the fees assessed in the light of the particular circumstances of a given case, including the applicant's ability to pay them, and the phase of the proceedings at which that restriction has been imposed, are factors which are material in assessing whether or not a person enjoyed the right of access and had “a... hearing by [a] tribunal” (see Kreuz, cited above, § 60). 35. In the present case, the Court must therefore determine whether the requirement to pay the court fees imposed on the applicants constituted a restriction in breach of their right of access to a court. 36. The Court notes that the applicants' daughter underwent surgery in the Dicle University Medical Faculty and lapsed into a coma during the operation. Subsequently, she came out of the coma but lost the ability to move her arms and legs. Following this incident, the applicants sought to initiate compensation proceedings against the Dicle University. To initiate these proceedings, under domestic legislation, they were required to pay court fees amounting to TRL 180,000,000. At this point, it should be underlined that, in December 1998, this amount was four times higher than the monthly minimum wage in force at the time (see paragraph 23 above). It is also an undisputed fact that, at the time of the events, the applicants had no income. This fact was supported by certificates submitted by the applicants to the Diyarbakır Administrative Court (see paragraphs 7-10 above). Furthermore, in October 1998, based on these documents, the Diyarbakır Civil Court of General Jurisdiction decided to exempt the applicants from paying the court fees (see paragraph 12 above). In view of the foregoing, the Court considers that the amount of the court fees imposed by the Administrative Court constituted an excessive burden on the applicants. 37. Furthermore, it is observed that, when the Administrative Court refused to exempt the applicants from paying the court fees, it referred to the case-law of the Supreme Administrative Court, according to which no legal aid was to be granted to claimants who were represented by a lawyer. The Court recalls that, pursuant to Article 19 of the Convention, its task is not to substitute itself for the competent domestic authorities

in determining the most appropriate policy for regulating access to domestic courts. Nor can it re-assess the facts which led that court to adopt one decision rather than another. The Court's role is limited to a review under the Convention of the decisions which those authorities have taken in the exercise of their power of appreciation (see Tolstoy Miloslavsky, cited above, § 59). However, in the instant case, the Court considers that the reason, given by the Administrative Court, when refusing to award legal aid to the applicants, is wholly insufficient. It is true that the applicants hired a lawyer to pursue the compensation proceedings; however, this does not mean that they had the means to pay the court fees. Furthermore, the applicants' lawyer had explained to the domestic courts that he had not received any money from the applicants to pursue their case, but they had agreed to pay him a certain percentage of any compensation received at the end of the proceedings. 38. Consequently, in the Court's view, the requirement that the applicants, who had no income, had to pay court fees which amounted to four times more than the monthly minimum wage at the time, cannot be considered proportionate. 39. The Court concludes that in the instant case there has been a disproportionate restriction on the applicants' right of access to a court. There has accordingly been a violation of Article 6 § 1 in that respect. II. ALLEGED VIOLATION OF ARTICLES 3 AND 8 OF THE CONVENTION, AND ARTICLE 1 OF PROTOCOL NO. 1 40. The applicants complained of the suffering which they have endured because of their daughter's illness, as a result of medical malpractice and the lack of compensation. In this respect, they relied on Articles 3 and 8 of the Convention, as well as Article 1 of Protocol No. 1. 41. The Government contested those allegations. 42. The Court notes that these complaints are linked to the one examined above and must likewise be declared admissible. 43. The Court further notes that the main Convention question raised in the instant application was the applicants' right of access to a court, pursuant to Article 6 § 1 of the Convention. Having found a violation of this provision (paragraphs 35-39 above), the Court considers that there is no need to make a separate ruling on the applicants' other complaints, given the fact that it cannot determine the issues of malpractice or compensation as a first instance court itself (see Uzun v. Turkey, no. 37410/97, § 64, 10 May 2007; Sadak and Others v. Turkey, nos. 29900/96, 29901/96, 29902/96 and 29903/96, § 73, ECHR 2001‑VIII). III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 44. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 45. The applicants claimed 1,962,681,000,00 Turkish liras (TRL) –approximately 1,216,789.21 euros (EUR) – in respect of pecuniary damage and EUR 60,000 in respect of non-pecuniary damage. 46. The Government, considering the requested amounts excessive, contested these claims. 47. As regards material damage, the Court reiterates that the most appropriate form of redress for a violation of Article 6 § 1 would be to ensure that the applicants, as far as possible, are put in the position in which they would have been had this provision not been disregarded (see Teteriny v. Russia, no. 11931/03, § 56, 30 June 2005; Jeličić v. Bosnia and Herzegovina, no. 41183/02, § 53, ECHR 2006‑...). The Court finds that this principle applies in the present case as well. Consequently, it considers that the most appropriate form of redress would be to annul or otherwise put aside the administrative court decisions of 16 April 1999 and 16 October 2001 (paragraphs 17 and 18 above) and restart the proceedings before the Diyarbakır Administrative Court, in accordance with the requirements of Article 6 § 1 of the Convention, should the applicants so request (see, mutatis mutandis, Gençel v. Turkey, no. 53431/99, § 27, 23 October 2003). 48. As regards non-pecuniary damage, deciding on an equitable basis, the Court awards the applicants EUR 10,000 under this head. B. Costs and expenses 49. The applicants also claimed EUR 4,712 for the costs and expenses

incurred before the Court. In respect of their claims, the applicants relied on the Diyarbakır Bar Association's list of recommended minimum fees and submitted a document showing the number of hours – 38 – spent by the lawyer on their case. 50. The Government contested this claim. 51. According to the Court's case-law, an applicant is entitled to reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 1,500 for the proceedings before the Court. C. Default interest 52. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the application admissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds that there is no need to examine separately the applicants' other complaints under Articles 3 and 8 of the Convention, or Article 1 of Protocol No. 1; 4. Holds (a) that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts to be converted into New Turkish liras at the rate applicable at the date of settlement and free of any taxes or charges that may be payable: (i) EUR 10,000 (ten thousand euros) in respect of non-pecuniary damage; (ii) EUR 1,500 (one thousand five hundred euros) in respect of costs and expenses. (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; Done in English, and notified in writing on 17 July 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. S. DolléF. Tulkens RegistrarPresident [1] Approximately 514 euros

FIRST SECTION CASE OF BIG BROTHER WATCH AND OTHERSv. THE UNITED KINGDOM (Applications nos. 58170/13, 62322/14 and 24960/15) JUDGMENT STRASBOURG 13 September 2018 Referral to the Grand Chamber 04/02/2019 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. TABLE OF CONTENTS PROCEDURE THE FACTS I. THE CIRCUMSTANCES OF THE CASE A. Background B. The secret surveillance schemes 1. Government Communications Headquarters (“GCHQ”) 2. The United States’ National Security Agency (“NSA”) (a) PRISM (b) Upstream C. Domestic proceedings in the first and second of the joined cases D. Domestic proceedings in the third of the joined cases 1. The hearing 2. The IPT’s first judgment of 5 December 2014 (a) The PRISM issue (b) The section 8(4) issue 3. The IPT’s second judgment of 6 February 2015 4. The IPT’s third judgment of 22 June 2015 as amended by its 1 July 2015 letter II. RELEVANT DOMESTIC LAW AND PRACTICE A. The interception of communications 1. Warrants: general 2. Warrants: section 8(4) (a) Authorisation (b) “External” communications 3. Specific safeguards under RIPA (a) Section 15 (b) Section 16 4. The Interception of Communications Code of Practice 5. Statement of Charles Farr 6. Belhadj and Others v. Security Service, Secret Intelligence Service, Government Communications Headquarters, the Secretary of State for the Home Department, and the Secretary of State for the Foreign and Commonwealth Office, IPT/13/132-9/H and IPT/14/86/CH B. Intelligence sharing 1. British-US Communication Intelligence Agreement 2. Relevant statutory framework for the operation of the intelligence services (a) MI5 (b) MI6 (c) GCHQ (d) Counter-Terrorism Act 2008 (e) The Data Protection Act 1998 (“DPA”) (f) The Official Secrets Act 1989 (“OSA”) (g) The Human Rights Act 1998 (“HRA”) 3. The Interception of Communications Code of Practice C. Acquisition of communications data 1. Chapter II of RIPA 2. The Acquisition and Disclosure of Communications Data: Code of Practice 3. News Group and Others v. The Commissioner of Police of the Metropolis IPT/14/176/H, 17 December 2015 4. The Police and Criminal Evidence Act 1984 D. IPT practice and procedure 1. RIPA 2. The Investigatory Powers Tribunal Rules 2000 (“the Rules”) 3. IPT ruling on preliminary issues of law 4. Counsel to the Tribunal E. Oversight F. Reviews of interception operations by the intelligence service 1. Intelligence and Security Committee of Parliament: July 2013 Statement on GCHQ’s alleged interception of communications under the US PRISM programme 2. Privacy and security: a modern and transparent legal framework 3. “A Question of Trust”: Report of the Investigatory Powers Review by the Independent Reviewer of Terrorism Legislation (“the Anderson Report”) 4. A Democratic Licence to Operate: Report of the Independent Surveillance Review (“ISR”) 5. Report of the Bulk Powers Review 6. Attacks in London and Manchester March-June 2017: Independent Assessment of MI5 and Police Internal Reviews 7. Annual Report of the Interception of Communications Commissioner for 2016 (a) Section 8(4) warrants (b) Acquisition of communications data under Chapter II of RIPA G. The Investigatory Powers Act 2016 H. Relevant international law 1. The United Nations (a) Resolution no. 68/167 on The Right to Privacy in the Digital

Age (b) The Constitution of the International Telecommunication Union 1992 (c) The 2006 Annual Report of the International Law Commission 2. The Council of Europe (a) The Council of Europe Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data 1981 (b) The Additional Protocol to the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data regarding supervisory authorities and transborder data flows of 8 November 2001 (CETS No. 181) (c) Recommendation of the Committee of Ministers on the protection of personal data in the area of telecommunication services (d) The 2001 (Budapest) Convention on Cybercrime (e) The 2015 Report of the European Commission for Democracy through Law (“the Venice Commission”) on the Democratic Oversight of Signals Intelligence Agencies I. European Union law 1. Charter of Fundamental Rights of the European Union Article 7 – Respect for private and family life Article 8 – Protection of personal data Article 11 – Freedom of expression and information 2. EU directives and regulations relating to protection and processing of personal data 3. Relevant case-law of the Court of Justice of the European Union (“CJEU”) (a) Digital Rights Ireland v. Minister for Communications, Marine and Natural Resources and Others and Seitinger and Others (Cases C‑293/12 and C‑594/12; ECLI:EU:C:2014:238) (b) Tele2 Sverige AB v Post- och telestyrelsen and Secretary of State for the Home Department v Tom Watson and Others (Cases C‑203/15 and C‑698/15; ECLI:EU:C:2016:970) (c) Privacy International v. Secretary of State for Foreign and Commonwealth Affairs, Secretary of State for the Home Department, Government Communications Headquarters, Security Service and Secret Intelligence Service (IPT/15/110/CH; EU OJ C 22, 22.1.2018, p. 29–30) THE LAW I. EXHAUSTION OF DOMESTIC REMEDIES A. The parties’ submissions 1. The Government 2. The applicants B. The submissions of the third party C. The Court’s assessment 1. General principles 2. Application of those principles to the case at hand II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION A. The section 8(4) regime 1. Admissibility 2. Merits (a) The parties’ submissions (i) The applicants (ii) The Government (b) The submissions of the third parties (i) Article 19 (ii) Access Now (iii) ENNHRI (iv) The Helsinki Foundation for Human Rights (“HFHR”) (v) The International Commission of Jurists (“ICJ”) (vi) Open Society Justice Initiative (“OSJI”) (vii) European Digital Rights (“EDRi”) and other organisations active in the field of human rights in the information society (viii) The Law Society of England and Wales (c) The Court’s assessment (i) General principles relating to secret measures of surveillance, including the interception of communications (ii) Existing case-law on the bulk interception of communications (iii) The test to be applied in the present case B. The intelligence sharing regime 1. Admissibility (a) The parties’ submissions (b) The Court’s assessment 2. Merits (a) The parties’ submissions (i) The applicants (ii) The Government (b) The submissions of the third parties (i) The Electronic Privacy Information Center (“EPIC”) (ii) Access Now (iii) Bureau Brandeis (iv) Center for Democracy and Technology (“CDT”) and Pen American Center (“PEN America”) (v) The International Commission of Jurists (“ICJ”) (vi) Open Society Justice Initiative (“OSJI”) (vii) The Law Society of England and Wales (viii) Human Rights Watch (“HRW”) (c) The Court’s assessment (i) The scope of the applicants’ complaints (ii)

The nature of the interference (iii) The applicable test (iv) Application of the test to material falling into the second category (v) Application of the test to material falling into the third category C. The Chapter II regime 1. Admissibility 2. Merits (a) The parties’ submissions (i) The applicants (ii) The Government (b) The Court’s assessment (i) Existing case-law on the acquisition of communications data (ii) The approach to be taken in the present case (iii) Examination of the Chapter II regime III. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION A. Admissibility 1. The applicants in the third of the joined cases 2. The applicants in the second of the joined cases B. Merits 1. The parties’ submissions (a) The applicants (b) The Government 2. The submissions of the third parties (a) The Helsinki Foundation for Human Rights (b) The National Union of Journalists (“NUJ”) and the International Federation of Journalists (“IFJ”) (c) The Media Lawyers’ Association (“MLA”) 3. The Court’s assessment (a) General principles (b) The application of the general principles to the present case (i) The section 8(4) regime (ii) The Chapter II regime (iii) Overall conclusion IV. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION V. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION COMBINED WITH ARTICLES 8 AND 10 OF THE CONVENTION VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION A. Damage B. Costs and expenses C. Default interest FOR THESE REASONS, THE COURT: APPENDIX PARTLY CONCURRING, PARTLY DISSENTING OPINION OF JUDGE KOSKELO, JOINED BY JUDGE TURKOVIĆ I. The RIPA section 8(4) regime (i) The context of earlier case-law (ii) The context of the present case (iii) Concerns II. The intelligence-sharing regime JOINT PARTLY DISSENTING AND PARTLY CONCURRING OPINION OF JUDGES PARDALOS AND EICKE Introduction Admissibility The section 8(4) regime Post Scriptum In the case of Big Brother Watch and Others v. the United Kingdom, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Linos-Alexandre Sicilianos, President,Kristina Pardalos,Aleš Pejchal,Ksenija Turković,Armen Harutyunyan,Pauliine Koskelo,Tim Eicke, judges,and Abel Campos, Section Registrar, Having deliberated in private on 7 November 2017 and 3 July 2018, Delivers the following judgment, which was adopted on the last‑mentioned date: PROCEDURE 1. The case originated in three applications (nos. 58170/13, 62322/14 and 24960/15) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by the companies, charities, organisations and individuals listed in the Appendix (“the applicants”) on 4 September 2013, 11 September 2014 and 20 May 2015 respectively. 2. The applicants were represented by Mr D. Carey, of Deighton Pierce Glynn Solicitors; Ms R. Curling of Leigh Day and Co. Solicitors; and Ms E. Norton of Liberty. The Government of the United Kingdom (“the Government”) were represented by their Agent, Ms R. Sagoo of the Foreign and Commonwealth Office. 3. The applicants complained about the scope and magnitude of the electronic surveillance programmes operated by the Government of the United Kingdom. 4. The applications were communicated to the Government on 7 January 2014, 5 January 2015 and 24 November 2015. In the first case, leave to intervene was granted to Human Rights Watch, Access Now, Bureau Brandeis, Center For Democracy & Technology, European Network of National Human Rights Institutions and the Equality and Human Rights Commission, the Helsinki Foundation For Human Rights, the International Commission of Jurists,

Open Society Justice Initiative, The Law Society of England and Wales and Project Moore; in the second case, to the Center For Democracy & Technology, the Helsinki Foundation For Human Rights, the International Commission of Jurists, the National Union of Journalists and the Media Lawyers’ Association; and in the third case, to Article 19, the Electronic Privacy Information Center and to the Equality and Human Rights Commission. 5. On 4 July 2017 the Chamber of the First Section decided to join the applications and hold an oral hearing. That hearing took place in public in the Human Rights Building, Strasbourg, on 7 November 2017. There appeared before the Court: (a) for the GovernmentMs R. Sagoo,Agent,Mr J. Eadie qc, Mr J. Milford,Counsel,Ms N. SamuelMr S. Bowden,Mr M. Anstee,Mr T. Rutherford,Ms L. Morgan, Mr B. Newman, Advisers. (b) for the applicantsMs D. Rose qc,Ms H. Mountfield qc,Mr M. Ryder qc,Counsel,Mr R. Mehta,Mr C. McCarthy,Mr D. Carey,Mr N. WilliamsAdvisers. 6. The Court heard addresses by Mr Eadie, Ms Rose and Ms Mountfield, as well as their replies to questions put by the President and by Judges Koskelo, Harutyunyan, Eicke, Turković and Pardalos. THE FACTS I. THE CIRCUMSTANCES OF THE CASE A. Background 7. The three applications were introduced following revelations by Edward Snowden relating to the electronic surveillance programmes operated by the intelligence services of the United States of America and the United Kingdom. 8. The applicants, who are listed in the Appendix, all believed that due to the nature of their activities, their electronic communications were likely to have either been intercepted by the United Kingdom intelligence services; obtained by the United Kingdom intelligence services after being intercepted by foreign governments; and/or obtained by the United Kingdom authorities from Communications Service Providers (“CSPs”). B. The secret surveillance schemes 9. Internet communications are primarily carried over international sub-marine fibre optic cables operated by CSPs. Each cable may carry several “bearers”, and there are approximately 100,000 of these bearers joining up the global Internet. A single communication over the Internet is divided into “packets” (units of data) which may be transmitted separately across multiple bearers. These packets will travel via a combination of the quickest and cheapest paths, which may also depend on the location of the servers. Consequently, some or all of the parts of any particular communication sent from one person to another, whether within the United Kingdom or across borders, may be routed through one or more other countries if that is the optimum path for the CSPs involved. 1. Government Communications Headquarters (“GCHQ”) 10. The Edward Snowden revelations indicated that GCHQ (being one of the United Kingdom intelligence services) was running an operation, codenamed “TEMPORA”, which allowed it to tap into and store huge volumes of data drawn from bearers. 11. According to the March 2015 Report of the Intelligence and Security Committee of Parliament (“the ISC report” – see paragraphs 151-159 below), GCHQ is operating two major processing systems for the bulk interception of communications. The United Kingdom authorities have neither confirmed nor denied the existence of an operation codenamed TEMPORA. 12. The first of the two processing systems referred to in the ISC report is targeted at a very small percentage of bearers. As communications flow across the targeted bearers, the system compares the traffic against a list of “simple selectors”. These are specific identifiers (for example, an email address) relating to a known target. Any communications which match are collected; those that do not are automatically discarded. Analysts then carry out a “triage process” in relation to collected communications to determine which are of the highest intelligence value and should therefore be opened and read. In practice, only a very small proportion of the items collected under this process are opened and read by analysts. GCHQ does not have the capacity to read all communications. 13. The second processing system is targeted at an even smaller number of bearers (a subset of those accessed by the process described in the paragraph above) which are deliberately targeted as those most likely to carry communications of intelligence interest. This second system has two stages: first, the initial application of a set of “processing rules” designed to discard material least likely to be of value; and secondly, the application of complex queries to the selected material in order to draw out those likely to be

of the highest intelligence value. Those searches generate an index, and only items on that index may potentially be examined by analysts. All communications which are not on the list must be discarded. 14. The legal framework for bulk interception in force at the relevant time is set out in detail in the “Relevant Domestic law and practice” section below. In brief, section 8(4) of the Regulation of Investigatory Powers Act 2000 (“RIPA” – see paragraph 67 below) allows the Secretary of State to issue warrants for the “interception of external communications”, and pursuant to section 16 of RIPA (see paragraphs 78-85 below) intercepted material cannot be selected to be read, looked at or listened to, “according to a factor which is referable to an individual who is known to be for the time being in the British Islands”. 2. The United States’ National Security Agency (“NSA”) 15. The NSA has acknowledged the existence of two operations called PRISM and Upstream. (a) PRISM 16. PRISM is a programme through which the United States’ Government obtains intelligence material (such as communications) from Internet Service Providers (“ISPs”). Access under PRISM is specific and targeted (as opposed to a broad “data mining” capability). The United States’ administration has stated that the programme is regulated under the Foreign Intelligence Surveillance Act (“FISA”), and applications for access to material through PRISM have to be approved by the FISA Court, which is comprised of eleven senior judges. 17. Documents from the NSA leaked by Edward Snowden suggest that GCHQ has had access to PRISM since July 2010 and has used it to generate intelligence reports. GCHQ has acknowledged that it acquired information from the United States’ which had been obtained via PRISM. (b) Upstream 18. According to the leaked documents, the Upstream programme allows the collection of content and communications data from fibre-optic cables and infrastructure owned by United States’ CSPs. This programme has broad access to global data, in particular that of non-US citizens, which can then be collected, stored and searched using keywords. C. Domestic proceedings in the first and second of the joined cases 19. The applicants in the first of the joined cases (application no. 58170/13) sent a pre-action protocol letter to the Government on 3 July 2013 setting out their complaints and seeking declarations that sections 1 and 3 of the Intelligence Services Act (see paragraphs 100-103 below), section 1 of the Security Services Act (see paragraph 99 below) and section 8 of RIPA (see paragraph 67 below) were incompatible with the Convention. In their reply of 26 July 2013, the Government stated that the effect of section 65(2) of RIPA was to exclude the jurisdiction of the High Court in respect of human rights complaints against the intelligence services. These complaints could however be raised in the Investigatory Powers Tribunal (“IPT”), a court established under RIPA to hear allegations by citizens of wrongful interference with their communications as a result of conduct covered by that Act, which was endowed with exclusive jurisdiction to investigate any complaint that a person’s communications have been intercepted and, where interception has occurred, to examine the authority for such interception (see paragraphs 123-143 below). No further action was taken by these applicants. 20. The applicants in the second of the joined cases (application no. 62322/14) did not bring any domestic proceedings as they did not believe that they had an effective remedy for their Convention complaints. D. Domestic proceedings in the third of the joined cases 21. The ten human rights organisations which are the applicants in the third of the joined cases (application no. 24960/15) each lodged a complaint before the IPT between June and December 2013. They alleged that the intelligence services, the Home Secretary and the Foreign Secretary had acted in violation of Articles 8, 10, and 14 of the Convention by: (i) accessing or otherwise receiving intercepted communications and communications data from the US Government under the PRISM and Upstream programmes (“the PRISM issue”); and (ii) intercepting, inspecting and retaining their communications and their communications data under the TEMPORA programme (“the section 8(4) issue”). The applicants sought disclosure of all relevant material relied on by the intelligence services in the context of their interception activities and, in particular, all policies and guidance. 22. On 14 February 2014 the IPT ordered that the ten cases be joined. It subsequently appointed Counsel to the Tribunal (see paragraph 142 below), whose function is to assist the IPT in whatever way it directs, including by making representations on issues in relation to which not all parties can be represented (for example, for

reasons of national security). 23. In their response to the applicants’ claims, the Government adopted a “neither confirm nor deny” approach, that is to say, they declined to confirm or deny whether the applicants’ communications had actually been intercepted. It was therefore agreed that the IPT would determine the legal issues on the basis of assumed facts to the effect that the NSA had obtained the applicants’ communications and communications data via PRISM or Upstream and had passed them to GCHQ, where they had been retained, stored, analysed and shared; and that the applicants’ communications and communications data had been intercepted by GCHQ under the TEMPORA programme and had been retained, stored, analysed and shared. The question was whether, on these assumed facts, the interception, retention, storage and sharing of data was compatible with Articles 8 and 10, taken alone and together with Article 14 of the Convention. 1. The hearing 24. The IPT, composed of two High Court Judges (including the President), a Circuit Judge and two senior barristers, held a five-day, public hearing from 14-18 July 2014. The Government requested an additional closed hearing in order to enable the IPT to consider GCHQ’s unpublished – described during the public hearing as “below the waterline” – internal arrangements for processing data. The applicants objected, arguing that the holding of a closed hearing was not justified and that the failure to disclose the arrangements to them was unfair. 25. The request for a closed hearing was granted pursuant to Rule 9 of the IPT’s Rules of Procedure (see paragraph 131 below) and on 10 September 2014 a closed hearing took place, at which neither the applicants nor their representatives were present. Instead, the IPT was “assisted by the full, perceptive and neutral participation... of Counsel to the Tribunal”, who performed the following roles: (i) identifying documents, parts of documents or gists that ought properly to be disclosed; (ii) making such submissions in favour of disclosure as were in the interests of the Claimants and open justice; and (iii) ensuring that all the relevant arguments (from the Claimants’ perspective) on the facts and the law were put before the IPT. 26. In the closed hearing, the IPT examined the internal arrangements regulating the conduct and practice of the intelligence services. It found that it was entitled to look “below the waterline” to consider the adequacy of the applicable safeguards and whether any further information could or should be disclosed to the public in order to comply with the requirements of Articles 8 and 10. 27. On 9 October 2014 the IPT notified the applicants that it was of the view that there was some closed material which could be disclosed. It explained that it had invited the Government to disclose the material and that the Government had agreed to do so. The material was accordingly provided to the applicants in a note (“the 9 October disclosure”) and the parties were invited to make submissions to the IPT on the disclosed material. 28. The applicants sought information on the context and source of the disclosure but the IPT declined to provide further details. The applicants made written submissions on the disclosure. 29. The respondents subsequently amended and amplified the disclosed material. 30. Following final disclosures made on 12 November 2014, the 9 October disclosure provided as follows: “The US Government has publicly acknowledged that the Prism system and Upstream programme... permit the acquisition of communications to, from, or about specific tasked selectors associated with non-US persons who are reasonably believed to be located outside the United States in order to acquire foreign intelligence information. To the extent that the Intelligence Services are permitted by the US Government to make requests for material obtained under the Prism system (and/or... pursuant to the Upstream programme), those requests may only be made for unanalysed intercepted communications (and associated communications data) acquired in this way. 1. A request may only be made by the Intelligence Services to the government of a country or territory outside the United Kingdom for unanalysed intercepted communications (and associated communications data), otherwise than in accordance with an international mutual legal assistance agreement, if either: ... 2. Where the Intelligence Services receive intercepted communications content or communications data from the government of a country or territory outside the United Kingdom, irrespective of whether it is/they are solicited or unsolicited, whether the content is analysed or unanalysed, or whether or not the communications data are associated with the content of communications, the communications content and data are, pursuant to internal ‘arrangements’, subject to the same internal rules and safeguards as the same categories of content or data, when they are obtained directly by the Intelligence Services as a result of interception under RIPA. 3. Those of the Intelligence Services that receive unanalysed intercepted material and related communications data from interception

under a s.8(4) warrant have internal ‘arrangements’ that require a record to be created, explaining why access to the unanalysed intercepted material is required, before an authorised person is able to access such material pursuant to s.16 of RIPA. 4. The internal ‘arrangements’ of those of the Intelligence Services that receive unanalysed intercepted material and related communications data from interception under a s.8(4) warrant specify (or require to be determined, on a system-by-system basis) maximum retention periods for different categories of such data which reflect the nature and intrusiveness of the particular data at issue. The periods so specified (or determined) are normally no longer than 2 years, and in certain cases are significantly shorter (intelligence reports that draw on such data are treated as a separate category, and are retained for longer). Data may only be retained for longer than the applicable maximum retention period where prior authorisation has been obtained from a senior official within the particular Intelligence Service at issue on the basis that continued retention of the particular data at issue has been assessed to be necessary and proportionate (if the continued retention of any such data is thereafter assessed no longer to meet the tests of necessity and proportionality, such data are deleted). As far as possible, all retention periods are implemented by a process of automated deletion which is triggered once the applicable maximum retention period has been reached for the data at issue. The maximum retention periods are overseen by, and agreed with the Commissioner. As regards related communications data in particular, Sir Anthony May made a recommendation to those of the Intelligence Services that receive unanalysed intercepted material and related communications data from interception under a s8(4) warrant, and the interim Commissioner (Sir Paul Kennedy) has recently expressed himself to be content with the implementation of that recommendation. 5. The Intelligence Services’ internal ‘arrangements’ under [the Security Services Act 1989], [the Intelligence Services Act 1994] and ss.15-16 of RIPA are periodically reviewed to ensure that they remain up-to-date and effective. Further, the Intelligence Services are henceforth content to consider, during the course of such periodic reviews, whether more of those internal arrangements might safely and usefully be put into the public domain (for example, by way of inclusion in a relevant statutory Code of Practice).” 2. The IPT’s first judgment of 5 December 2014 31. The IPT issued its first judgment on 5 December 2014. The judgment addressed the arrangements then in place for intercepting and sharing data, making extensive reference throughout to this Court’s case-law. (a) The PRISM issue 32. The IPT accepted that the PRISM issue engaged Article 8 of the Convention, albeit at a “lower level” than the regime under consideration in Weber and Saravia v. Germany (dec.), no. 54934/00, ECHR 2006‑XI. As a consequence, there would need to be compliance by the authorities involved in processing the data with the requirements of Article 8, particularly in relation to storage, sharing, retention and destruction. In the IPT’s view, in order for the interference to be considered “in accordance with the law”, there could not be unfettered discretion for executive action; rather, the nature of the rules had to be clear and the ambit of the rules had – in so far as possible – to be in the public domain (citing Bykov v. Russia [GC], no. 4378/02, §§ 76 and 78, 10 March 2009 and Malone v. the United Kingdom, 2 August 1984, Series A no. 82). However, it considered it plain that in the field of national security, much less was required to be put in the public domain and the degree of foreseeability required by Article 8 had to be reduced, otherwise the whole purpose of the steps taken to protect national security would be at risk (citing Leander v. Sweden, 26 March 1987, § 51, Series A no. 116). 33. The IPT continued: “41. We consider that what is required is a sufficient signposting of the rules or arrangements insofar as they are not disclosed... We are satisfied that in the field of intelligence sharing it is not to be expected that rules need to be contained in statute (Weber) or even in a code (as was required by virtue of the Court’s conclusion in Liberty v. [the United Kingdom, no. 58243/00, 1 July 2008]). It is in our judgment sufficient that: i) Appropriate rules or arrangements exist and are publicly known and confirmed to exist, with their content sufficiently signposted, such as to give an adequate indication of it (as per Malone...). ii) They are subject to proper oversight.” 34. The IPT

noted that arrangements for information sharing were provided for in the statutory framework set out in the Security Services Act 1989 (“the SSA” – see paragraphs 98-99 below) and the Intelligence Services Act 1994 (“the ISA” – see paragraphs 100-103 below). It further referred to a witness statement of Charles Farr, the Director-General of the Office for Security and Counter Terrorism (“OSCT”) at the Home Office, in which he explained that the statutory framework set out in those Acts was underpinned by detailed internal guidance, including arrangements for securing that the services only obtained the information necessary for the proper discharge of their functions. He further indicated that staff received mandatory training on the legal and policy framework in which they operated, including clear instructions on the need for strict adherence to the law and internal guidance. Finally, he stated that the full details of the arrangements were confidential since they could not be published safely without undermining the interests of national security. 35. The IPT therefore acknowledged that as the arrangements were not made known to the public, even in summary form, they were not accessible. However, the IPT considered it significant that the arrangements were subject to oversight and investigation by the Intelligence and Security Committee of Parliament and the independent Interception of Communications Commissioner. Furthermore, it itself was in a position to provide oversight, having access to all secret information, and being able to adjourn into closed hearing to assess whether the arrangements referred to by Mr Farr existed and were capable of giving the individual protection against arbitrary interference. 36. In so far as the claimants challenged the IPT’s decision to look “below the waterline” when assessing the adequacy of the safeguards, the IPT considered itself entitled to look at the internal arrangements in order to be satisfied that there were adequate safeguards and that what was described as “above the waterline” was accurate and gave a sufficiently clear signposting as to what was “below the waterline” without disclosing the detail of it. In this regard, the IPT did not accept that the holding of a closed hearing, as had been carried out in the applicants’ case, was unfair. It accorded with the statutory procedure, gave the fullest and most transparent opportunity for hearing full arguments inter partes on hypothetical and actual facts with as much as possible heard in public, and protected the public interest and national security. 37. Having considered the arrangements “below the waterline”, the IPT was satisfied that the 9 October disclosure (as subsequently amended) provided a clear and accurate summary of that part of the evidence given in the closed hearing which could and should be disclosed and that the rest of the evidence given in closed hearing was too sensitive for disclosure without risk to national security or to the “neither confirm nor deny” principle. It was further satisfied that it was clear that the preconditions for requesting information from the United States Government were either the existence of a section 8(1) warrant, or the existence of a section 8(4) warrant within whose ambit the proposed target’s communications fell, together, if the individual was known to be in the British Islands, with a section 16(3) modification (see paragraph 80 below). In other words, any request pursuant to PRISM or Upstream in respect of intercept or communications data would be subject to the RIPA regime, unless it fell within the wholly exceptional scenario outlined in 1(b) of the material disclosed after the first hearing. However, a 1(b) request had never occurred. 38. The IPT nevertheless identified the following “matter of concern”: “Although it is the case that any request for, or receipt of, intercept or communications data pursuant to Prism and/or Upstream is ordinarily subject to the same safeguards as in a case where intercept or communication data are obtained directly by the Respondents, if there were a 1(b) request, albeit that such request must go to the Secretary of State, and that any material so obtained must be dealt with pursuant to RIPA, there is the possibility that the s.16 protection might not apply. As already indicated, no 1(b) request has in fact ever occurred, and there has thus been no problem hitherto. We are however satisfied that there ought to be introduced a procedure whereby any such request, if it be made, when referred to the Secretary of State, must address the issue of s.16(3).” 39. However, subject to this caveat, the IPT reached the following conclusions: “(i) Having considered the arrangements below the waterline, as described in this judgment, we are satisfied that there are adequate arrangements in place for the purpose of ensuring compliance with the statutory framework and with Articles 8 and 10 of the Convention, so far as the receipt of intercept from Prism and/or Upstream is concerned. (ii) This is of course

of itself not sufficient, because the arrangements must be sufficiently accessible to the public. We are satisfied that they are sufficiently signposted by virtue of the statutory framework to which we have referred and the Statements of the ISC and the Commissioner quoted above, and as now, after the two closed hearings that we have held, publicly disclosed by the Respondents and recorded in this judgment. (iii) These arrangements are subject to oversight. (iv) The scope of the discretion conferred on the Respondents to receive and handle intercepted material and communications data and (subject to the s.8(4) issues referred to below) the manner of its exercise, are accordingly (and consistent with Bykov - see paragraph 37 above) accessible with sufficient clarity to give the individual adequate protection against arbitrary interference.” 40. Finally, the IPT addressed an argument raised by Amnesty International only; namely, that the United Kingdom owed a positive obligation under Article 8 of the Convention to prevent or forestall the United States from intercepting communications including an obligation not to acquiesce in such interception by receiving its product. However, the IPT, citing M. and Others v. Italy and Bulgaria, no. 40020/03, § 127, 31 July 2012, noted that “the Convention organs have repeatedly stated that the Convention does not contain a right which requires a High Contracting Party to exercise diplomatic protection, or espouse an applicant’s complaints under international law, or otherwise to intervene with the authorities of another state on his or her behalf”. The IPT therefore rejected this submission. (b) The section 8(4) issue 41. The IPT formulated four questions to be decided in order to determine whether the section 8(4) regime (which provided the legal framework for the bulk interception of external communications – see paragraph 67 below) was compatible with the Convention: “(1) Is the difficulty of determining the difference between external and internal communications... such as to cause the s.8(4) regime not to be in accordance with law contrary to Article 8(2)? (2) Insofar as s.16 of RIPA is required as a safeguard in order to render the interference with Article 8 in accordance with law, is it a sufficient one? (3) Is the regime, whether with or without s.16, sufficiently compliant with the Weber requirements, insofar as such is necessary in order to be in accordance with law? (4) Is s. 16(2) indirectly discriminatory contrary to Article 14 of the Convention, and, if so, can it be justified?” 42. In relation to the first question, the applicants had contended that following the “sea-change in technology since 2000” substantially more communications were now external, and as a result the internal/external distinction in section 8(4) was no longer “fit for purpose”. While the IPT accepted that the changes in technology had been substantial, and that it was impossible to differentiate at interception stage between external and internal communications, it found that the differences in view as to the precise definition of “external communications” did not per se render the section 8(4) regime incompatible with Article 8 § 2. In this regard, it considered that the difficulty in distinguishing between “internal” and “external” communications had existed since the enactment of RIPA and the changes in technology had not materially added to the quantity or proportion of communications which could or could not be differentiated as being external or internal at the time of interception. At worst, they had “accelerated the process of more things in the world on a true analysis being external than internal”. In any case the distinction was only relevant at interception stage. The “heavy lifting” was done by section 16 of RIPA, which prevented intercepted material being selected to be read, looked at or listened to “according to a factor which is referable to an individual who is known to be for the time being in the British Islands” (see paragraphs 78-80 below). Furthermore, all communications intercepted under a section 8(4) warrant could only be considered for examination by reference to that section. 43. In respect of the second question, the IPT held that the section 16 safeguards, which applied only to intercept material and not to related communications data, were sufficient. Although it concluded that the Weber criteria also extended to communications data, it considered that there was adequate protection or safeguards by reference to section 15 (see paragraphs 72-77 below). In addition, insofar as section 16 offered greater protection for communications content than for communications data, the difference was justified and proportionate because communications data was necessary to identify individuals whose intercepted material was protected by section 16 (that is, individuals known to be in the British Islands). 44. Turning to the third question, the IPT concluded that the section 8(4) regime was sufficiently compliant with

the Weber criteria and was in any event “in accordance with the law”. With regard to the first and second requirements, it considered that the reference to “national security” was sufficiently clear (citing Esbester v. the United Kingdom (dec.), no. 18601/91, 2 April 1993 and Kennedy v. the United Kingdom, no. 26839/05, 18 May 2010); the absence of targeting at the interception stage was acceptable and inevitable, as it had been in Weber; on their face, the provisions of paragraph 5.2 of the Interception of Communications Code of Practice, together with paragraphs 2.4, 2.5, 5.3, 5.4, 5.5 and 5.6 were satisfactory; there was no call for search words to be included in an application for a warrant or in the warrant itself, as this would unnecessarily undermine and limit the operation of the warrant and might in any event be entirely unrealistic; and there was no requirement for the warrant to be judicially authorised. 45. In considering the third, fourth, fifth and sixth of the Weber criteria, the IPT had regard to the safeguards in sections 15 and 16 of RIPA, the Interception of Communications Code of Practice, and the “below the waterline arrangements”. It did not consider it necessary that the precise details of all the safeguards should be published or contained in either statute or code of practice. Particularly in the field of national security, undisclosed administrative arrangements, which by definition could be changed by the Executive without reference to Parliament, could be taken into account, provided that what is disclosed indicated the scope of the discretion and the manner of its exercise. This was particularly so when, as was the case here, the Code of Practice itself referred to the arrangements, and there was a system of oversight (being the Commissioner, the IPT itself, and the ISC) which ensured that these arrangements were kept under review. The IPT was satisfied that, as a result of what it had heard at the closed hearing and the 9 October disclosure as amended, there was no large databank of communications data being built up and that there were adequate arrangements in respect of the duration of the retention of data and its destruction. As with the PRISM issue, the IPT considered that the section 8(4) arrangements were sufficiently signposted in statute, in the Code of Practice, in the Interception of Communications Commissioner’s reports and, now, in its own judgment. 46. As regards the fourth and final question, the IPT did not make any finding as to whether there was in fact indirect discrimination on grounds of national origin as a result of the different regimes applicable to individuals located in the British Islands and those located outside, since it considered that any indirect discrimination was sufficiently justified on the grounds that it was harder to investigate terrorist and criminal threats from abroad. Given that the purpose of accessing external communications was primarily to obtain information relating to those abroad, the consequence of eliminating the distinction would be the need to obtain a certificate under section 16(3) of RIPA (which exceptionally allowed access to material concerning persons within the British Islands intercepted under a section 8(4) warrant – see paragraph 80 below) in almost every case, which would radically undermine the efficacy of the section 8(4) regime. 47. Finally, in respect of Article 10, the applicants argued that its protection applied to investigatory NGOs as to journalists. Amnesty initially alleged before the IPT that there were likely to be no adequate arrangements for material protected by legal professional privilege, a complaint which was subsequently “hived off” to be dealt with in the Belhadj case (see paragraphs 92-94 below), to which Amnesty was joined as an additional claimant. No similar argument was made in respect of NGO confidence until 17 November 2014 (the first and second open hearings having taken place in July and October 2014). As the IPT considered that this argument could have been raised at any time, in its judgment it had been raised “far too late” to be incorporated into the ambit of the proceedings. 48. With regard to the remaining Article 10 complaints, the IPT noted that there was no separate argument over and above that arising in respect of Article 8. Although the IPT observed that there might be a special argument relating to the need for judicial pre-authorisation of a warrant (referring to Sanoma Uitgevers B.V. v. the Netherlands [GC], no. 38224/03, 14 September 2010), it emphasised that the applicants’ case did not concern targeted surveillance of journalists or non-governmental organisations. In any case, in the context of untargeted monitoring via a section 8(4) warrant, it was “clearly impossible” to anticipate a judicial pre-authorisation prior to the warrant limited to what might turn out to impact upon Article 10. Although the IPT accepted that an issue might arise in the

event that, in the course of examination of the contents, some question of journalistic confidence arose, it observed that there were additional safeguards in the Code of Practice in relation to treatment of such material. 49. Following the publication of the judgment, the parties were invited to make submissions on whether, prior to the disclosures made to the IPT, the legal regime in place in respect of the PRISM issue complied with Articles 8 and 10 and on the proportionality and lawfulness of any alleged interception of their communications. The IPT did not see any need for further submissions on the proportionality of the section 8(4) regime as a whole. 3. The IPT’s second judgment of 6 February 2015 50. In its second judgment of 6 February 2015, the IPT considered whether, prior to its December 2014 judgment, the PRISM or Upstream arrangements breached Article 8 and/or 10 of the Convention. 51. It agreed that it was only by reference to the 9 October disclosure as amended that it was satisfied the current regime was “in accordance with the law”. The IPT was of the view that without the disclosures made, there would not have been adequate signposting, as was required under Articles 8 and 10. It therefore made a declaration that prior to the disclosures made: “23.... [T]he regime governing the soliciting, receiving, storing and transmitting by UK authorities of private communications of individuals located in the UK, which have been obtained by US authorities pursuant to Prism and/or... Upstream, contravened Articles 8 or 10 ECHR, but now complies.” 4. The IPT’s third judgment of 22 June 2015 as amended by its 1 July 2015 letter 52. The third judgment of the IPT, published on 22 June 2015, determined whether the applicants’ communications obtained under PRISM or Upstream had been solicited, received, stored or transmitted by the United Kingdom authorities in contravention of Articles 8 and/or 10 of the Convention; and whether the applicants’ communications had been intercepted, viewed, stored or transmitted by the United Kingdom authorities so as to amount to unlawful conduct or in contravention of Articles 8 and/or 10. 53. The IPT made no determination in favour of eight of the ten applicants. In line with its usual practice where it did not find in favour of the claimant, it did not confirm whether or not their communications had been intercepted. However, in relation to two applicants the IPT made determinations. The identity of one of the organisations was wrongly noted in the judgment and the error was corrected by the IPT’s letter of 1 July 2015. 54. In respect of Amnesty International, the IPT found that email communications had been lawfully and proportionately intercepted and accessed pursuant to section 8(4) of RIPA but that the time-limit for retention permitted under the internal policies of GCHQ had been overlooked and the material had therefore been retained for longer than permitted. However, the IPT was satisfied that the material had not been accessed after the expiry of the relevant retention time-limit and that the breach could be characterised as a technical one. It amounted nonetheless to a breach of Article 8 and GCHQ was ordered to destroy any of the communications which had been retained for longer than the relevant period and to deliver one hard copy of the documents within seven days to the Interception of Communications Commissioner to retain for five years in case they were needed for any further legal proceedings. GCHQ was also ordered to provide a closed report within fourteen days confirming the destruction of the documents. No award of compensation was made. 55. In respect of the Legal Resources Centre, the IPT found that communications from an email address associated with the applicant had been intercepted and selected for examination under a section 8(4) warrant. Although it was satisfied the interception was lawful and proportionate and that selection for examination was proportionate, the IPT found that the internal procedure for selection was, in error, not followed. There had therefore been a breach of the Legal Resources Centre’s Article 8 rights. However, the IPT was satisfied that no use was made of the material and that no record had been retained so the applicant had not suffered material detriment, damage or prejudice. Its determination therefore constituted just satisfaction and no compensation was awarded. II. RELEVANT DOMESTIC LAW AND PRACTICE A. The interception of communications 1. Warrants: general 56. Section 1(1) of RIPA renders unlawful the interception of any communication in the course of its transmission by means of a public postal service or a public telecommunication system unless it takes place in accordance with a warrant under section 5 (“intercept warrant”). 57. Section 5(2) allows the Secretary of State to authorise an intercept warrant if he believes: that it is necessary for the reasons set out

in section 5(3), namely that it is in the interests of national security, for the purpose of preventing or detecting serious crime, or for safeguarding the economic well-being of the United Kingdom; and that the conduct authorised by the warrant is proportionate to what is sought to be achieved by that conduct. In assessing necessity and proportionality, account should be taken of whether the information sought under the warrant could reasonably be obtained by other means. 58. Section 81(2)(b) of RIPA defines “serious crime” as crime which satisfies one of the following criteria: “(a) that the offence or one of the offences that is or would be constituted by the conduct is an offence for which a person who has attained the age of twenty-one and has no previous convictions could reasonably be expected to be sentenced to imprisonment for a term of three years or more; (b) that the conduct involves the use of violence, results in substantial financial gain or is conduct by a large number of persons in pursuit of a common purpose.” 59. Section 81(5) provides: “For the purposes of this Act detecting crime shall be taken to include– (a) establishing by whom, for what purpose, by what means and generally in what circumstances any crime was committed; and (b) the apprehension of the person by whom any crime was committed; and any reference in this Act to preventing or detecting serious crime shall be construed accordingly...” 60. Section 6 provides that in respect of the intelligence services, only the Director General of MI5, the Chief of MI6 and the Director of GCHQ may apply for an intercept warrant. 61. There are two types of intercept warrant to which sections 5 and 6 apply: a targeted warrant as provided for by section 8(1); and an untargeted warrant as provided for by section 8(4). 62. By virtue of section 9 of RIPA, a warrant issued in the interests of national security or for safeguarding the economic well-being of the United Kingdom shall cease to have effect at the end of six months, and a warrant issued for the purpose of detecting serious crime shall cease to have effect after three months. At any time before the end of those periods, the Secretary of State may renew the warrant (for periods of six and three months respectively) if he believes that the warrant continues to be necessary on grounds falling within section 5(3). The Secretary of State shall cancel an interception warrant if he is satisfied that the warrant is no longer necessary on grounds falling within section 5(3). 63. Pursuant to section 5(6), the conduct authorised by an interception warrant shall be taken to include the interception of communications not identified by the warrant if necessary to do what is expressly authorised or required by the warrant; and the obtaining of related communications data. 64. Section 21(4) defines “communications data” as “(a) any traffic data comprised in or attached to a communication (whether by the sender or otherwise) for the purposes of any postal service or telecommunication system by means of which it is being or may be transmitted; (b) any information which includes none of the contents of a communication (apart from any information falling within paragraph (a)) and is about the use made by any person— i. of any postal service or telecommunications service; or ii. in connection with the provision to or use by any person of any telecommunications service, of any part of a telecommunication system; (c) any information not falling within paragraph (a) or (b) that is held or obtained, in relation to persons to whom he provides the service, by a person providing a postal service or telecommunications service.” 65. The March 2015 Acquisition and Disclosure of Communications Data Code of Practice refers to these three categories as “traffic data”, “service use information”, and “subscriber information”. Section 21(6) of RIPA further defines “traffic data” as data which identifies the person, apparatus, location or address to or from which a communication is transmitted, and information about a computer file or program accessed or run in the course of sending or receiving a communication. 66. Section 20 defines “related communications data”, in relation to a communication intercepted in the course of its transmission by means of a postal service or telecommunication system, as communications data “obtained by, or in connection with, the interception”; and which “relates to the communication or to the sender or recipient, or intended recipient, of the communication”. 2. Warrants: section 8(4) (a) Authorisation 67. “Bulk interception” of communications is carried out pursuant to a section 8(4

) warrant. Section 8(4) and (5) of RIPA allows the Secretary of State to issue a warrant for “the interception of external communications in the course of their transmission by means of a telecommunication system”. 68. At the time of issuing a section 8(4) warrant, the Secretary of State must also issue a certificate setting out a description of the intercepted material which he considers it necessary to examine, and stating that he considers the examination of that material to be necessary for the reasons set out in section 5(3) (that is, that it is necessary in the interests of national security, for the purpose of preventing or detecting serious crime, or for safeguarding the economic well-being of the United Kingdom). (b) “External” communications 69. Section 20 defines “external communication” as “a communication sent or received outside the British Islands”. 70. In the course of the Liberty proceedings, Charles Farr, the Director General of the OSCT, indicated that two people in the United Kingdom who email each other are engaging in “internal communication” even if the email service was housed on a server in the United States of America; however, that communication may be intercepted as a “by-catch” of a warrant targeting external communications. On the other hand, a person in the United Kingdom who communicates with a search engine overseas is engaging in an external communication, as is a person in the United Kingdom who posts a public message (such as a tweet or Facebook status update), unless all the recipients of that message are in the British Islands. 71. Giving evidence to the Intelligence and Security Committee of Parliament in October 2014, the Secretary of State for the Foreign and Commonwealth considered that: “• In terms of an email, if one or both of the sender or recipient is overseas then this would be an external communication. • In terms of browsing the Internet, if an individual reads the Washington Post’s website, then they have ‘communicated’ with a web server located overseas, and that is therefore an external communication. • In terms of social media, if an individual posts something on Facebook, because the web server is based overseas, this would be treated as an external communication. • In terms of cloud storage (for example, files uploaded to Dropbox), these would be treated as external communications, because they have been sent to a web server overseas.” 3. Specific safeguards under RIPA (a) Section 15 72. Pursuant to Section 15(1), it is the duty of the Secretary of State to ensure, in relation to all interception warrants, that such arrangements are in force as he considers necessary for securing that the requirements of subsections (2) and (3) are satisfied in relation to the intercepted material and any related communications data; and, in the case of warrants in relation to which there are section 8(4) certificates, that the requirements of section 16 are also satisfied. 73. Section 15(2) provides: “The requirements of this subsection are satisfied in relation to the intercepted material and any related communications data if each of the following– (a) the number of persons to whom any of the material or data is disclosed or otherwise made available, (b) the extent to which any of the material or data is disclosed or otherwise made available, (c) the extent to which any of the material or data is copied, and (d) the number of copies that are made, is limited to the minimum that is necessary for the authorised purposes.” 74. Section 15(3) provides: “The requirements of this subsection are satisfied in relation to the intercepted material and any related communications data if each copy made of any of the material or data (if not destroyed earlier) is destroyed as soon as there are no longer any grounds for retaining it as necessary for any of the authorised purposes.” 75. Pursuant to section 15(4), something is necessary for the authorised purposes if, and only if, it continues to be, or is likely to become, necessary as mentioned in section 5(3) of the Act (that is, it is necessary in the interests of national security, for the purpose of preventing or detecting serious crime; for the purpose of safeguarding the economic well-being of the United Kingdom; or for the purpose of giving effect to the provisions of any international mutual assistance agreement); it is necessary for facilitating the carrying out of any of the interception functions of the Secretary of State; it is necessary for facilitating the carrying out of any functions of the Interception of Communications Commissioner or of the IPT; it is necessary to ensure that a person conducting a criminal prosecution has the information he needs to determine what is required of him by his duty to secure the fairness of the prosecution; or

it is necessary for the performance of any duty imposed on any person under public records legislation. 76. Section 15(5) requires the arrangements in place to secure compliance with section 15(2) to include such arrangements as the Secretary of State considers necessary for securing that every copy of the material or data that is made is stored, for so long as it is retained, in a secure manner. 77. Pursuant to section 15(6), the arrangements to which section 15(1) refers are not required to secure that the requirements of section 15(2) and (3) are satisfied in so far as they relate to any of the intercepted material or related communications data, or any copy of any such material or data, possession of which has been surrendered to any authorities of a country or territory outside the United Kingdom. However, such arrangements are required to secure, in the case of every such warrant, that possession of the intercepted material and data and of copies of the material or data is surrendered to authorities of a country or territory outside the United Kingdom only if the requirements of section 15(7) are satisfied. Section 15(7) provides: “The requirements of this subsection are satisfied in the case of a warrant if it appears to the Secretary of State– (a) that requirements corresponding to those of subsections (2) and (3) will apply, to such extent (if any) as the Secretary of State thinks fit, in relation to any of the intercepted material or related communications data possession of which, or of any copy of which, is surrendered to the authorities in question; and (b) that restrictions are in force which would prevent, to such extent (if any) as the Secretary of State thinks fit, the doing of anything in, for the purposes of or in connection with any proceedings outside the United Kingdom which would result in such a disclosure as, by virtue of section 17, could not be made in the United Kingdom.” (b) Section 16 78. Section 16 sets out additional safeguards in relation to the interception of “external” communications under section 8(4) warrants. Section 16(1) requires that intercepted material may only be read, looked at or listened to by the persons to whom it becomes available by virtue of the warrant if and to the extent that it has been certified as material the examination of which is necessary as mentioned in section 5(3) of the Act; and falls within section 16(2). Section 20 defines “intercepted material” as the contents of any communications intercepted by an interception to which the warrant relates. 79. Section 16(2) provides: “Subject to subsections (3) and (4), intercepted material falls within this subsection so far only as it is selected to be read, looked at or listened to otherwise than according to a factor which– (a) is referable to an individual who is known to be for the time being in the British Islands; and (b) has as its purpose, or one of its purposes, the identification of material contained in communications sent by him, or intended for him.” 80. Pursuant to section 16(3), intercepted material falls within section 16(2), notwithstanding that it is selected by reference to one of the factors mentioned in that subsection, if it is certified by the Secretary of State for the purposes of section 8(4) that the examination of material selected according to factors referable to the individual in question is necessary as mentioned in subsection 5(3) of the Act; and the material relates only to communications sent during a period specified in the certificate that is no longer than the permitted maximum. 81. The “permitted maximum” is defined in section 16(3A) as follows: “(a) in the case of material the examination of which is certified for the purposes of section 8(4) as necessary in the interests of national security, six months; and (b) in any other case, three months.” 82. Pursuant to section 16(4), intercepted material also falls within section 16(2), even if it is selected by reference to one of the factors mentioned in that subsection, if the person to whom the warrant is addressed believes, on reasonable grounds, that the circumstances are such that the material would fall within that subsection; or the conditions set out in section 16(5) are satisfied in relation to the selection of the material. 83. Section 16(5) provides: “Those conditions are satisfied in relation to the selection of intercepted material if – (a) it has appeared to the person to whom the warrant is addressed that there has been such a relevant change of circumstances as, but for subsection (4)(b), would prevent the intercepted material from falling within subsection (2); (b) since it first so appeared, a written

authorisation to read, look at or listen to the material has been given by a senior official; and (c) the selection is made before the end of the permitted period.” 84. Pursuant to section 16(5A), the “permitted period” means: “(a) in the case of material the examination of which is certified for the purposes of section 8(4) as necessary in the interests of national security, the period ending with the end of the fifth working day after it first appeared as mentioned in subsection (5)(a) to the person to whom the warrant is addressed; and (b) in any other case, the period ending with the end of the first working day after it first so appeared to that person.” 85. Section 16(6) explains that a “relevant change of circumstances” means that it appears that either the individual in question has entered the British Islands; or that a belief by the person to whom the warrant is addressed in the individual’s presence outside the British Islands was in fact mistaken. 86. Giving evidence to the Intelligence and Security Committee of Parliament in October 2014, the Secretary of State for the Foreign and Commonwealth explained that: “When an analyst selects communications that have been intercepted under the authority of an 8(4) warrant for examination, it does not matter what form of communication an individual uses, or whether his other communications are stored on a dedicated mail server or in cloud storage physically located in the UK, the US or anywhere else (and in practice the individual user of cloud services will not know where it is stored). If he or she is known to be in the British Islands it is not permissible to search for his or her communications by use of his or her name, e-mail address or any other personal identifier.” 4. The Interception of Communications Code of Practice 87. Section 71 of RIPA provides for the adoption of codes of practice by the Secretary of State in relation to the exercise and performance of his powers and duties under the Act. Draft codes of practice must be laid before Parliament and are public documents. They can only enter into force in accordance with an order of the Secretary of State. The Secretary of State can only make such an order if a draft of the order has been laid before Parliament and approved by a resolution of each House. 88. Under section 72(1) of RIPA, a person exercising or performing any power or duty relating to interception of communications must have regard to the relevant provisions of a code of practice. The provisions of a code of practice may, in appropriate circumstances, be taken into account by courts and tribunals under section 72(4) RIPA. 89. The Interception of Communication Code of Practice (“the IC Code”) was issued pursuant to section 71 of RIPA. The IC Code currently in force was issued in 2016. 90. Insofar as relevant, the IC Code provides: “3.2. There are a limited number of persons who can make an application for an interception warrant, or an application can be made on their behalf. These are: 3.3. Any application made on behalf of one of the above must be made by a person holding office under the Crown. 3.4. All interception warrants are issued by the Secretary of State. Even where the urgency procedure is followed, the Secretary of State personally authorises the warrant, although it is signed by a senior official. Necessity and proportionality 3.5. Obtaining a warrant under RIPA will only ensure that the interception authorised is a justifiable interference with an individual’s rights under Article 8 (right to respect for private and family life) of the European Convention on Human Rights (ECHR) if it is necessary and proportionate for the interception to take place. RIPA recognises this by first requiring that the Secretary of State believes that the authorisation is necessary for one or more of the following statutory grounds: 3.6. These purposes are set out in section 5(3) of RIPA. The Secretary of State must also believe that the interception is proportionate to what is sought to be achieved by that conduct. Any assessment of proportionality involves balancing the seriousness of the intrusion into the privacy or property of the subject of the operation (or any other person who may be affected) against the need for the activity in investigative, operational or capability terms. The warrant will not be proportionate if it is excessive in the overall circumstances of the case. Each action authorised should bring an expected benefit to the investigation or operation and should not be disproportionate or arbitrary. The fact that there is a potential threat to national security (for example) may not alone render the most intrusive actions proportionate. No interference should be considered proportionate if the information which is sought could reasonably be obtained by other less intrusive

means. 3.7. The following elements of proportionality should therefore be considered: ... Duration of interception warrants 3.18. Interception warrants issued on serious crime grounds are valid for an initial period of three months. Interception warrants issued on national security/economic well-being of the UK grounds are valid for an initial period of six months. A warrant issued under the urgency procedure (on any grounds) is valid for five working days following the date of issue unless renewed by the Secretary of State. 3.19. Upon renewal, warrants issued on serious crime grounds are valid for a further period of three months. Warrants renewed on national security/economic well-being of the UK grounds are valid for a further period of six months. These dates run from the date on the renewal instrument. 3.20. Where modifications to an interception warrant are made, the warrant expiry date remains unchanged. However, where the modification takes place under the urgency provisions, the modification instrument expires after five working days following the date of issue, unless it is renewed in line with the routine procedure. 3.21. Where a change in circumstance leads the intercepting agency to consider it no longer necessary, proportionate or practicable for a warrant to be in force, the agency must make a recommendation to the Secretary of State that it should be cancelled with immediate effect. ... 4. SPECIAL RULES ON INTERCEPTION WITH A WARRANT Collateral intrusion 4.1. Consideration should be given to any interference with the privacy of individuals who are not the subject of the intended interception, especially where communications relating to religious, medical, journalistic or legally privileged material may be involved, or where communications between a Member of Parliament and another person on constituency business may be involved or communications between a Member of Parliament and a whistle-blower. An application for an interception warrant should state whether the interception is likely to give rise to a degree of collateral infringement of privacy. A person applying for an interception warrant must also consider measures, including the use of automated systems, to reduce the extent of collateral intrusion. Where it is possible to do so, the application should specify those measures. These circumstances and measures will be taken into account by the Secretary of State when considering a warrant application made under section 8(1) of RIPA. Should an interception operation reach the point where individuals other than the subject of the authorisation are identified as investigative targets in their own right, consideration should be given to applying for separate warrants covering those individuals. Confidential information 4.2. Particular consideration should also be given in cases where the subject of the interception might reasonably assume a high degree of privacy, or where confidential information is involved. This includes where the communications relate to legally privileged material; where confidential journalistic material may be involved; where interception might involve communications between a medical professional or Minister of Religion and an individual relating to the latter’s health or spiritual welfare; or where communications between a Member of Parliament and another person on constituency business may be involved. 4.3. Confidential journalistic material includes material acquired or created for the purposes of journalism and held subject to an undertaking to hold it in confidence, as well as communications resulting in information being acquired for the purposes of journalism and held subject to such an undertaking. See also paragraphs 4.26 and 4.28 – 4.31 for additional safeguards that should be applied in respect of confidential journalistic material. ... Communications involving confidential journalistic material, confidential personal information and communications between a Member of Parliament and another person on constituency business 4.26. Particular consideration must also be given to the interception of communications that involve confidential journalistic material, confidential personal information, or communications between a Member of Parliament and another person on constituency business. Confidential journalistic material is explained at paragraph 4.3. Confidential personal information is information held in confidence concerning an individual (whether living or dead) who can be identified from it, and the material in question relates to his or her physical or mental health or to spiritual counselling. Such information can include both oral and written communications. Such information as described above is held in confidence if it is held subject to an express or implied undertaking to hold it in confidence, or is subject to a restriction on disclosure or an obligation of confidentiality contained in existing legislation. For example, confidential personal information might include consultations between a health professional and a patient, or information from a patient’s medical records. ... 4.28. Where the intention is to acquire confidential personal information, the reasons should be clearly documented and the specific necessity and proportionality of doing so should be carefully considered. If the acquisition of confidential personal information is likely but not intended, any possible mitigation steps should be considered and, if none is available, consideration should be given to whether special handling arrangements are required within the intercepting agency. 4.29. Material which has been identified as confidential information should be retained only where it is necessary and proportionate to do so

for one or more of the authorised purposes set out in section 15(4). It must be securely destroyed when its retention is no longer needed for those purposes. If such information is retained, there must be adequate information management systems in place to ensure that continued retention remains necessary and proportionate for the authorised statutory purposes. 4.30. Where confidential information is retained or disseminated to an outside body, reasonable steps should be taken to mark the information as confidential. Where there is any doubt as to the lawfulness of the proposed handling or dissemination of confidential information, advice should be sought from a legal adviser within the relevant intercepting agency and before any further dissemination of the material takes place. 4.31. Any case where confidential information is retained should be notified to the Interception of Communications Commissioner as soon as reasonably practicable, as agreed with the Commissioner. Any material which has been retained should be made available to the Commissioner on request. 4.32. The safeguards set out in paragraphs 4.28 – 4.31 also apply to any section 8(4) material (see chapter 6) which is selected for examination and which constitutes confidential information. ... 6. INTERCEPTION WARRANTS (SECTION 8(4)) 6.1. This section applies to the interception of external communications by means of a warrant complying with section 8(4) of RIPA. 6.2. In contrast to section 8(1), a section 8(4) warrant instrument need not name or describe the interception subject or a set of premises in relation to which the interception is to take place. Neither does section 8(4) impose an express limit on the number of external communications which may be intercepted. For example, if the requirements of sections 8(4) and (5) are met, then the interception of all communications transmitted on a particular route or cable, or carried by a particular CSP, could, in principle, be lawfully authorised. This reflects the fact that section 8(4) interception is an intelligence gathering capability, whereas section 8(1) interception is primarily an investigative tool that is used once a particular subject for interception has been identified. 6.3. Responsibility for the issuing of interception warrants under section 8(4) of RIPA rests with the Secretary of State. When the Secretary of State issues a warrant of this kind, it must be accompanied by a certificate. The certificate ensures that a selection process is applied to the intercepted material so that only material described in the certificate is made available for human examination. If the intercepted material cannot be selected to be read, looked at or listened to with due regard to proportionality and the terms of the certificate, then it cannot be read, looked at or listened to by anyone. Section 8(4) interception in practice 6.4. A section 8(4) warrant authorises the interception of external communications. Where a section 8(4) warrant results in the acquisition of large volumes of communications, the intercepting agency will ordinarily apply a filtering process to automatically discard communications that are unlikely to be of intelligence value. Authorised persons within the intercepting agency may then apply search criteria to select communications that are likely to be of intelligence value in accordance with the terms of the Secretary of State’s certificate. Before a particular communication may be accessed by an authorised person within the intercepting agency, the person must provide an explanation of why it is necessary for one of the reasons set out in the certificate accompanying the warrant issued by the Secretary of State, and why it is proportionate in the particular circumstances. This process is subject to internal audit and external oversight by the Interception of Communications Commissioner. Where the Secretary of State is satisfied that it is necessary, he or she may authorise the selection of communications of an individual who is known to be in the British Islands. In the absence of such an authorisation, an authorised person must not select such communications. Definition of external communications 6.5. External communications are defined by RIPA to be those which are sent or received outside the British Islands. They include those which are both sent and received outside the British Islands, whether or not they pass through the British Islands in the course of their transmission. They do not include communications both sent and received in the British Islands, even if they pass outside the British Islands en route. For example, an email from a person in London to a person in Birmingham will be an internal, not external communication for the purposes of section 20 of RIPA, whether or not it is routed via IP addresses outside the British Islands, because the sender and intended recipient are within the British Islands. Intercepting non-external communications under section 8(4) warrants 6.6. Section 5(6)(a) of RIPA makes clear that the conduct authorised by a section 8(4) warrant may, in principle, include the interception of communications which are not external communications to the extent this is necessary in order to intercept the external communications

to which the warrant relates. 6.7. When conducting interception under a section 8(4) warrant, an intercepting agency must use its knowledge of the way in which international communications are routed, combined with regular surveys of relevant communications links, to identify those individual communications bearers that are most likely to contain external communications that will meet the descriptions of material certified by the Secretary of State under section 8(4). It must also conduct the interception in ways that limit the collection of non-external communications to the minimum level compatible with the objective of intercepting wanted external communications. Application for a section 8(4) warrant 6.8. An application for a warrant is made to the Secretary of State. Interception warrants, when issued, are addressed to the person who submitted the application. The purpose of such a warrant will typically reflect one or more of the intelligence priorities set by the National Security Council (NSC). 6.9. Prior to submission, each application is subject to a review within the agency making the application. This involves scrutiny by more than one official, who will consider whether the application is for a purpose falling within section 5(3) of RIPA and whether the interception proposed is both necessary and proportionate. 6.10. Each application, a copy of which must be retained by the applicant, should contain the following information:  Description of the communications to be intercepted, details of the CSP(s) and an assessment of the feasibility of the operation where this is relevant; and  Description of the conduct to be authorised, which must be restricted to the interception of external communications, or the conduct (including the interception of other communications not specifically identified by the warrant as foreseen under section 5(6)(a) of RIPA) it is necessary to undertake in order to carry out what is authorised or required by the warrant, and the obtaining of related communications data. Authorisation of a section 8(4) warrant 6.11. Before issuing a warrant under section 8(4), the Secretary of State must believe the warrant is necessary: 6.12. The power to issue an interception warrant for the purpose of safeguarding the economic well-being of the UK (as provided for by section 5(3)(c) of RIPA), may only be exercised where it appears to the Secretary of State that the circumstances are relevant to the interests of national security. The Secretary of State will not issue a warrant on section 5(3)(c) grounds if a direct link between the economic well-being of the UK and national security is not established. Any application for a warrant on section 5(3)(c) grounds should therefore identify the circumstances that are relevant to the interests of national security. 6.13. The Secretary of State must also consider that the conduct authorised by the warrant is proportionate to what it seeks to achieve (section 5(2)(b)). In considering necessity and proportionality, the Secretary of State must take into account whether the information sought could reasonably be obtained by other means (section 5(4)). 6.14. When the Secretary of State issues a warrant of this kind, it must be accompanied by a certificate in which the Secretary of State certifies that he or she considers examination of the intercepted material to be necessary for one or more of the section 5(3) purposes. The purpose of the statutory certificate is to ensure that a selection process is applied to intercepted material so that only material described in the certificate is made available for human examination. Any certificate must broadly reflect the “Priorities for Intelligence Collection” set by the NSC for the guidance of the intelligence agencies. For example, a certificate might provide for the examination of material providing intelligence on terrorism (as defined in the Terrorism Act 2000) or on controlled drugs (as defined by the Misuse of Drugs Act 1971). The Interception of Communications Commissioner must review any changes to the descriptions of material specified in a certificate. 6.15. The Secretary of State has a duty to ensure that arrangements are in force for securing that only that material which has been certified as necessary for examination for a section 5(3) purpose, and which meets the conditions set out in section 16(2) to section 16(6) is, in fact, read, looked at or listened to. The Interception of Communications Commissioner is under a duty to review the adequacy of those arrangements. Urgent authorisation of a section 8(4) warrant 6.16. RIPA makes provision (section 7(l)(b)) for cases in which an interception warrant is required urgently, yet the Secretary of State is not available to sign the warrant. In these cases the Secretary of State will still personally authorise the interception but the warrant is signed by a senior official, following discussion of the case between officials and the Secretary of State. RIPA restricts the

issue of warrants in this way to urgent cases where the Secretary of State has personally and expressly authorised the issue of the warrant (section 7(2)(a)), and requires the warrant to contain a statement to that effect (section 7(4)(a)). 6.17. A warrant issued under the urgency procedure lasts for five working days following the date of issue unless renewed by the Secretary of State, in which case it expires after three months in the case of serious crime or six months in the case of national security or economic well-being, in the same way as other section 8(4) warrants. Format of a section 8(4) warrant 6.18. Each warrant is addressed to the person who submitted the application. A copy may then be served upon such providers of communications services as he or she believes will be able to assist in implementing the interception. CSPs will not normally receive a copy of the certificate. The warrant should include the following: Modification of a section 8(4) warrant and/or certificate 6.19. Interception warrants and certificates may be modified under the provisions of section 10 of RIPA. A warrant may only be modified by the Secretary of State or, in an urgent case, by a senior official with the express authorisation of the Secretary of State. In these cases a statement of that fact must be endorsed on the modifying instrument, and the modification ceases to have effect after five working days following the date of issue unless it is endorsed by the Secretary of State. 6.20. A certificate must be modified by the Secretary of State, except in an urgent case where a certificate may be modified by a senior official provided that the official holds a position in which he or she is expressly authorised by provisions contained in the certificate to modify the certificate on the Secretary of State’s behalf, or the Secretary of State has expressly authorised the modification and a statement of that fact is endorsed on the modifying instrument. In the latter case, the modification ceases to have effect after five working days following the date of issue unless it is endorsed by the Secretary of State. 6.21. Where the Secretary of State is satisfied that it is necessary, a certificate may be modified to authorise the selection of communications of an individual in the British Islands. An individual’s location should be assessed using all available information. If it is not possible, to determine definitively where the individual is located using that information, an informed assessment should be made, in good faith, as to the individual’s location. If an individual is strongly suspected to be in the UK, the arrangements set out in this paragraph will apply. Renewal of a section 8(4) warrant 6.22. The Secretary of State may renew a warrant at any point before its expiry date. Applications for renewals are made to the Secretary of State and contain an update of the matters outlined in paragraph 6.10 above. In particular, the applicant must give an assessment of the value of interception to date and explain why it is considered that interception continues to be necessary for one or more of the purposes in section 5(3), and why it is considered that interception continues to be proportionate. 6.23. Where the Secretary of State is satisfied that the interception continues to meet the requirements of RIPA, the Secretary of State may renew the warrant. Where the warrant is issued on serious crime grounds, the renewed warrant is valid for a further three months. Where it is issued on national security/economic well-being grounds the renewed warrant is valid for six months. These dates run from the date of signature on the renewal instrument. 6.24. In those circumstances where the assistance of CSPs has been sought, a copy of the warrant renewal instrument will be forwarded to all those on whom a copy of the original warrant instrument has been served, providing they are still actively assisting. A renewal instrument will include the reference number of the warrant or warrants being renewed under this single instrument. Warrant cancellation 6.25. The Secretary of State must cancel an interception warrant if, at any time before its expiry date, he or she is satisfied that the warrant is no longer necessary on grounds falling within section 5(3) of RIPA. Intercepting agencies will therefore need to keep their warrants under continuous review and must notify the Secretary of State if they assess that the interception is no longer necessary. In practice, the responsibility to cancel a warrant will be exercised by a senior official in the warrant issuing department on behalf of the Secretary of State. 6.26. The cancellation instrument will be addressed to the person to whom the warrant was issued (the intercepting agency). A copy of the cancellation instrument should be sent to those CSPs, if any, who have given effect to the warrant during the preceding twelve months. Records 6.27. The oversight regime allows the Interception of Communications Commissioner to inspect the warrant application upon which the

Secretary of State’s decision is based, and the interception agency may be required to justify the content. Each intercepting agency should keep the following to be made available for scrutiny by the Commissioner as he or she may require: 6.28. Records should also be kept of the arrangements for securing that only material which has been certified for examination for a purpose under section 5(3) and which meets the conditions set out in section 16(2) – 16(6) of RIPA in accordance with section 15 of RIPA is, in fact, read, looked at or listened to. Records should be kept of the arrangements by which the requirements of section 15(2) (minimisation of copying and distribution of intercepted material) and section 15(3) (destruction of intercepted material) are to be met. For further details see the chapter on “Safeguards”. 7. SAFEGUARDS 7.1. All material intercepted under the authority of a warrant complying with section 8(1) or section 8(4) of RIPA and any related communications data must be handled in accordance with safeguards which the Secretary of State has approved in conformity with the duty imposed on him or her by RIPA. These safeguards are made available to the Interception of Communications Commissioner, and they must meet the requirements of section 15 of RIPA which are set out below. In addition, the safeguards in section 16 of RIPA apply to warrants complying with section 8(4). Any breach of these safeguards must be reported to the Interception of Communications Commissioner. The intercepting agencies must keep their internal safeguards under periodic review to ensure that they remain up-to-date and effective. During the course of such periodic reviews, the agencies must consider whether more of their internal arrangements might safely and usefully be put into the public domain. The section 15 safeguards 7.2. Section 15 of RIPA requires that disclosure, copying and retention of intercepted material is limited to the minimum necessary for the authorised purposes. Section 15(4) of RIPA provides that something is necessary for the authorised purposes if the intercepted material: Dissemination of intercepted material 7.3. The number of persons to whom any of the intercepted material is disclosed, and the extent of disclosure, is limited to the minimum that is necessary for the authorised purposes set out in section 15(4) of RIPA. This obligation applies equally to disclosure to additional persons within an agency, and to disclosure outside the agency. It is enforced by prohibiting disclosure to persons who have not been appropriately vetted and also by the need-to-know principle: intercepted material must not be disclosed to any person unless that person’s duties, which must relate to one of the authorised purposes, are such that he or she needs to know about the intercepted material to carry out those duties. In the same way, only so much of the intercepted material may be disclosed as the recipient needs. For example, if a summary of the intercepted material will suffice, no more than that should be disclosed. 7.4. The obligations apply not just to the original interceptor, but also to anyone to whom the intercepted material is subsequently disclosed. In some cases this will be achieved by requiring the latter to obtain the originator’s permission before disclosing the intercepted material further. In others, explicit safeguards are applied to secondary recipients. 7.5. Where intercepted material is disclosed to the authorities of a country or territory outside the UK, the agency must take reasonable steps to ensure that the authorities in question have and will maintain the necessary procedures to safeguard the intercepted material, and to ensure that it is disclosed, copied, distributed and retained only to the minimum extent necessary. In particular, the intercepted material must not be further disclosed to the authorities of a third country or territory unless explicitly agreed with the issuing agency, and must be returned to the issuing agency or securely destroyed when no longer needed. Copying 7.6. Intercepted material may only be copied to the extent necessary for the authorised purposes set out in section 15(4) of RIPA. Copies include not only direct copies of the whole of the intercepted material, but also extracts and summaries which identify themselves as the product of an interception, and any record referring to an interception which includes the identities of the persons to or by whom the intercepted material was sent. The restrictions are implemented by requiring special treatment of such copies, extracts and summaries that are made by recording their making, distribution and destruction. Storage 7.7. Intercepted material and all copies, extracts and summaries of it, must be handled and stored securely, so as to minimise the risk of loss or theft. It must be held so as to be inaccessible to persons without the required level of vetting. This requirement to store intercept product securely applies to all those who are responsible for handling it, including CSPs. The details of what such a requirement will mean in practice for CSP

s will be set out in the discussions they have with the Government before a Section 12 Notice is served (see paragraph 3.13). Destruction 7.8. Intercepted material, and all copies, extracts and summaries which can be identified as the product of an interception, must be marked for deletion and securely destroyed as soon as possible once it is no longer needed for any of the authorised purposes. If such intercepted material is retained, it should be reviewed at appropriate intervals to confirm that the justification for its retention is still valid under section 15(3) of RIPA. 7.9. Where an intercepting agency undertakes interception under a section 8(4) warrant and receives unanalysed intercepted material and related communications data from interception under that warrant, the agency must specify (or must determine on a system by system basis) maximum retention periods for different categories of the data which reflect its nature and intrusiveness. The specified periods should normally be no longer than two years, and should be agreed with the Interception of Communications Commissioner. Data may only be retained for longer than the applicable maximum retention periods if prior authorisation is obtained from a senior official within the particular intercepting agency on the basis that continued retention of the data has been assessed to be necessary and proportionate. If continued retention of any such data is thereafter assessed to no longer meet the tests of necessity and proportionality, it must be deleted. So far as possible, all retention periods should be implemented by a process of automated deletion, which is triggered once the applicable maximum retention period has been reached for the data at issue. Personnel security 7.10. All persons who may have access to intercepted material or need to see any reporting in relation to it must be appropriately vetted. On an annual basis, managers must identify any concerns that may lead to the vetting of individual members of staff being reconsidered. The vetting of each individual member of staff must also be periodically reviewed. Where it is necessary for an officer of one agency to disclose intercepted material to another, it is the former’s responsibility to ensure that the recipient has the necessary clearance. The section 16 safeguards 7.11. Section 16 provides for additional safeguards in relation to intercepted material gathered under section 8(4) warrants, requiring that the safeguards: 7.12. In addition, any individual selection of intercepted material must be proportionate in the particular circumstances (given section 6(1) of the Human Rights Act 1998). 7.13. The certificate ensures that a selection process is applied to material intercepted under section 8(4) warrants so that only material described in the certificate is made available for human examination (in the sense of being read, looked at or listened to). No official is permitted to gain access to the data other than as permitted by the certificate. 7.14. In general, automated systems must, where technically possible, be used to effect the selection in accordance with section 16(1) of RIPA. As an exception, a certificate may permit intercepted material to be accessed by a limited number of specifically authorised staff without having been processed or filtered by the automated systems. Such access may only be permitted to the extent necessary to determine whether the material falls within the main categories to be selected under the certificate, or to ensure that the methodology being used remains up to date and effective. Such checking must itself be necessary on the grounds specified in section 5(3) of RIPA. Once those functions have been fulfilled, any copies made of the material for those purposes must be destroyed in accordance with section 15(3) of RIPA. Such checking by officials should be kept to an absolute minimum; whenever possible, automated selection techniques should be used instead. Checking will be kept under review by the Interception of Communications Commissioner during his or her inspections. 7.15. Material gathered under a section 8(4) warrant should be read, looked at or listened to only by authorised persons who receive regular mandatory training regarding the provisions of RIPA and specifically the operation of section 16 and the requirements of necessity and proportionality. These requirements and procedures must be set out in internal guidance provided to all authorised persons and the attention of all authorised persons must be specifically directed to the statutory safeguards. All authorised persons must be appropriately vetted (see paragraph 7.10 for further information). 7.16. Prior to an authorised person being able to read, look at or listen to material, a record should be created setting out why access to the material is required consistent with, and pursuant to, section 16 and the applicable certificate, and why such access is proportionate. Save where the material or automated systems are being checked as described in paragraph 7.14, the record must indicate, by reference to specific factors, the material to which access is being sought and systems should, to the extent possible, prevent access to the material unless such a record has been created. The record should include any circumstances that are likely to give rise to a degree of collateral infringement of privacy,

and any measures taken to reduce the extent of the collateral intrusion. All records must be retained for the purposes of subsequent examination or audit. 7.17. Access to the material as described in paragraph 7.15 must be limited to a defined period of time, although access may be renewed. If access is renewed, the record must be updated with the reason for the renewal. Systems must be in place to ensure that if a request for renewal is not made within that period, then no further access will be granted. When access to the material is no longer sought, the reason for this must also be explained in the record. 7.18. Periodic audits should be carried out to ensure that the requirements set out in section 16 of RIPA and Chapter 3 of this code are being met. These audits must include checks to ensure that the records requesting access to material to be read, looked at, or listened to have been correctly compiled, and specifically, that the material requested falls within matters certified by the Secretary of State. Any mistakes or procedural deficiencies should be notified to management, and remedial measures undertaken. Any serious deficiencies should be brought to the attention of senior management and any breaches of safeguards (as noted in paragraph 7.1) must be reported to the Interception of Communications Commissioner. All intelligence reports generated by the authorised persons must be subject to a quality control audit. 7.19. In order to meet the requirements of RIPA described in paragraph 6.3 above, where a selection factor refers to an individual known to be for the time being in the British Islands, and has as its purpose or one of its purposes, the identification of material contained in communications sent by or intended for him or her, a submission must be made to the Secretary of State, or to a senior official in an urgent case, giving an explanation of why an amendment to the section 8(4) certificate in relation to such an individual is necessary for a purpose falling within section 5(3) of RIPA and is proportionate in relation to any conduct authorised under section 8(4) of RIPA. 7.20. The Secretary of State must ensure that the safeguards are in force before any interception under section 8(4) warrants can begin. The Interception of Communications Commissioner is under a duty to review the adequacy of the safeguards. ... 10. OVERSIGHT 10.1. RIPA provides for an Interception of Communications Commissioner, whose remit is to provide independent oversight of the use of the powers contained within the warranted interception regime under Chapter I of Part I of RIPA. 10.2. The Commissioner carries out biannual inspections of each of the nine interception agencies. The primary objectives of the inspections are to ensure that the Commissioner has the information he or she requires to carry out his or her functions under section 57 of RIPA and produce his or her report under section 58 of RIPA. This may include inspection or consideration of: 10.3. Any person who exercises the powers in RIPA Part I Chapter I must report to the Commissioner any action that is believed to be contrary to the provisions of RIPA or any inadequate discharge of section 15 safeguards. He or she must also comply with any request made by the Commissioner to provide any such information as the Commissioner requires for the purpose of enabling him or her to discharge his or her functions.” 5. Statement of Charles Farr 91. In his witness statement prepared for the Liberty proceedings, Charles Farr indicated that, beyond the details set out in RIPA, the 2010 Code, and the draft 2016 Code (which had at that stage been published for consultation), the full details of the sections 15 and 16 safeguards were kept confidential. He had personally reviewed the arrangements and was satisfied that they could not safely be put in the public domain without undermining the effectiveness of the interception methods. However, the arrangements were made available to the Commissioner who is required by RIPA to keep them under review. Furthermore, each intercepting agency was required to keep a record of the arrangements in question and any breach must be reported to the Commissioner. 6. Belhadj and Others v. Security Service, Secret Intelligence Service, Government Communications Headquarters, the Secretary of State for the Home Department, and the Secretary of State for the Foreign and Commonwealth Office, IPT/13/132-9/H and IPT/14/86/CH 92. The applicants in this case complained of breaches of Articles 6, 8 and 14 of the Convention arising from the alleged interception of their legally privileged communications. Insofar as Amnesty International, in the course of the Liberty proceedings, complained about the adequacy of the arrangements for the protection of material protected by legal professional privilege (“LPP”), those complaints were “hived off” to be dealt with in this case, and Amnesty International was joined as a claimant (see paragraph 47 above). 93. In the course of the proceedings, the respondents

conceded that by virtue of there not being in place a lawful system for dealing with LPP, from January 2010 the regime for the interception/obtaining, analysis, use, disclosure and destruction of legally privileged material had not been in accordance with the law for the purposes of Article 8 § 2 of the Convention and was accordingly unlawful. The Security Service and GCHQ confirmed that they would work in the forthcoming weeks to review their policies and procedures in light of the draft Interception Code of Practice and otherwise. 94. The IPT subsequently held a closed hearing, with the assistance of Counsel to the Tribunal (see paragraph 142 below), to consider whether any documents or information relating to any legally privileged material had been intercepted or obtained by the respondents. In a determination of 29 March 2015 it found that only two documents containing material subject to legal professional privilege of any of the claimants had been held by the agencies, and they neither disclosed nor referred to legal advice. It therefore found that the claimant concerned had not suffered any detriment or damage, and that the determination provided adequate just satisfaction. It nevertheless required that GCHQ provide an undertaking that those parts of the documents containing legally privileged material would be destroyed or deleted; that a copy of the documents would be delivered to the Interception of Communications Commissioner to be retained for five years; and that a closed report would be provided within fourteen days confirming the destruction and deletion of the documents. 95. Draft amendments to both the Interception of Communications Code of Practice and the Acquisition of Communications Data Code of Practice were subsequently put out for consultation and the Codes which were adopted as a result contained expanded sections concerning access to privileged information. B. Intelligence sharing 1. British-US Communication Intelligence Agreement 96. A British-US Communication Intelligence Agreement of 5 March 1946 governs the arrangements between the British and United States authorities in relation to the exchange of intelligence information relating to “foreign” communications, defined by reference to countries other than the United States, the United Kingdom and the Commonwealth. Pursuant to the agreement, the parties undertook to exchange the products of a number of interception operations relating to foreign communications. 2. Relevant statutory framework for the operation of the intelligence services 97. There are three intelligence services in the United Kingdom: the security service (“MI5”), the secret intelligence service (“MI6”) and GCHQ. (a) MI5 98. Pursuant to section 2 of the Security Services Act 1989 (“SSA”), it is the duty of the Director-General of MI5, who is appointed by the Secretary of State, to ensure that there are arrangements for securing that no information is obtained by MI5 except so far as necessary for the proper discharge of its functions or disclosed by it except so far as necessary for that purpose or for the purpose of the prevention or detection of serious crime or for the purpose of any criminal proceedings. 99. According to section 1 of the SSA, the functions of MI5 are the protection of national security and, in particular, its protection against threats from espionage, terrorism and sabotage, from the activities of agents of foreign powers and from actions intended to overthrow or undermine parliamentary democracy by political, industrial or violent means; to safeguard the economic well-being of the United Kingdom against threats posed by the actions or intentions of persons outside the British Islands; and to act in support of the activities of police forces, the National Crime Agency and other law enforcement agencies in the prevention and detection of serious crime. (b) MI6 100. Section 2 of the Intelligence Services Act 1994 (“ISA”) provides that the duties of the Chief of Service of MI6, who is appointed by the Secretary of State, include ensuring that there are arrangements for securing that no information is obtained by MI6 except so far as necessary for the proper discharge of its functions, and that no information is disclosed by it except so far as necessary for that purpose, in the interests of national security, for the purposes of the prevention or detection of serious crime or for the purpose of any criminal proceedings. 101. According to section 1 of the ISA, the functions of MI6 are to obtain and provide information relating to the actions or intentions of persons outside the British Islands; and to perform other tasks relating to the actions or intentions of such persons. Those functions may only be exercised in the interests of national security, with particular reference to the State’s defence and foreign policies; in the interests of the economic well-being of the United Kingdom; or in support of the prevention or detection of serious crime. (c) GCHQ 102. Section 4 of the ISA provides that it is the duty of the Director of GCHQ, who is appointed by the Secretary of State, to ensure that there are arrangements for securing that it obtains no information except so far as necessary for the proper discharge of its functions and that no information is disclosed by it

except so far as necessary. 103. According to section 3 of the ISA, one of the functions of GCHQ is to monitor or interfere with electromagnetic, acoustic and other emissions and any equipment producing such emissions and to obtain and provide information derived from or related to such emissions or equipment and from encrypted material. This function is exercisable only in the interests of national security, with particular reference to the State’s defence and foreign policies; in the interests of the economic well-being of the United Kingdom in relation to the actions or intentions of persons outside the British Islands; or in support of the prevention or detection of serious crime. (d) Counter-Terrorism Act 2008 104. Section 19 of the Counter-Terrorism Act 2008 allows the disclosure of information to any of the intelligence services for the purpose of the exercise of any of their functions. Information obtained by an intelligence service in connection with the exercise of its functions may be used by that service in connection with the exercise of any of its other functions. 105. Information obtained by MI5 may be disclosed for the purpose of the proper discharge of its functions, for the purpose of the prevention or detection of serious crime, or for the purpose of any criminal proceedings. Information obtained by MI6 may be disclosed for the purpose of the proper discharge of its functions, in the interests of national security, for the purpose of the prevention or detection of serious crime, or for the purpose of any criminal proceedings. Information obtained by GCHQ may be disclosed by it for the purpose of the proper discharge of its functions or for the purpose of any criminal proceedings. (e) The Data Protection Act 1998 (“DPA”) 106. The DPA is the legislation transposing into United Kingdom law Directive 95/46/EC on the protection of personal data. Each of the intelligence services is a “data controller” for the purposes of the DPA and, as such, they are required to comply – subject to exemption by Ministerial certificate – with the data protection principles in Part 1 of Schedule 1, including: “(5) Personal data processed for any purpose or purposes shall not be kept for longer than is necessary for that purpose or those purposes... and “(7) Appropriate technical and organisational measures shall be taken against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data.” (f) The Official Secrets Act 1989 (“OSA”) 107. A member of the intelligence services commits an offence under section 1(1) of the OSA if he discloses, without lawful authority, any information, document or other article relating to security or intelligence which is in his possession by virtue of his position as a member of those services. (g) The Human Rights Act 1998 (“HRA”) 108. Pursuant to section 6 of the HRA, it is unlawful for a public authority to act in a way which is incompatible with a Convention right. 3. The Interception of Communications Code of Practice 109. Following the Liberty proceedings, the information contained in the 9 October disclosure was incorporated into the IC Code of Practice: “12. RULES FOR REQUESTING AND HANDLING UNANALYSED INTERCEPTED COMMUNICATIONS FROM A FOREIGN GOVERNMENT Application of this chapter 12.1. This chapter applies to those intercepting agencies that undertake interception under a section 8(4) warrant. Requests for assistance other than in accordance with an international mutual assistance agreement 12.2. A request may only be made by an intercepting agency to the government of a country or territory outside the UK for unanalysed intercepted communications (and associated communications data), otherwise than in accordance with an international mutual assistance agreement, if either: 12.3. A request falling within the second bullet of paragraph 12.2 may only be made in exceptional circumstances and must be considered and decided upon by the Secretary of State personally. 12.4. For these purposes, a “relevant RIPA interception warrant” means one of the following: (i) a section 8(1) warrant in relation to the subject at issue; (ii) a section 8(4) warrant and an accompanying certificate which includes one or more “descriptions of intercepted material” (within the meaning of section 8(4)(b) of RIPA) covering the subject’s communications, together with an appropriate section 16(3) modification (for individuals known to be within the British Islands); or (iii) a section 8(4) warrant and an accompanying certificate which includes one or more “descriptions of intercepted material” covering the subject’s communications (for other individuals). Safeguards applicable to the handling of

unanalysed intercepted communications from a foreign government 12.5. If a request falling within the second bullet of paragraph 12.2 is approved by the Secretary of State other than in relation to specific selectors, any communications obtained must not be examined by the intercepting agency according to any factors as are mentioned in section 16(2)(a) and (b) of RIPA unless the Secretary of State has personally considered and approved the examination of those communications by reference to such factors. 12.6. Where intercepted communications content or communications data are obtained by the intercepting agencies as set out in paragraph 12.2, or are otherwise received by them from the government of a country or territory outside the UK in circumstances where the material identifies itself as the product of an interception, (except in accordance with an international mutual assistance agreement), the communications content and communications data must be subject to the same internal rules and safeguards that apply to the same categories of content or data when they are obtained directly by the intercepting agencies as a result of interception under RIPA. 12.7. All requests in the absence of a relevant RIPA interception warrant to the government of a country or territory outside the UK for unanalysed intercepted communications (and associated communications data) will be notified to the Interception of Communications Commissioner.” C. Acquisition of communications data 1. Chapter II of RIPA 110. Chapter II of Part 1 of RIPA sets out the framework under which public authorities may acquire communications data from CSPs. 111. Pursuant to section 22, authorisation for the acquisition of communications data from CSPs is granted by a “designated person”, being a person holding such office, rank or position with relevant public authorities as are prescribed by an order made by the Secretary of State. The designated person may either grant authorisation for persons within the same “relevant public authority” as himself to “engage in conduct to which this Chapter applies” (authorisation under section 22(3)), or he may, by notice to the CSP, require it to either disclose data already in its possession, or to obtain and disclose data (notice under section 22(4)). For the purposes of section 22(3), “relevant public authorities” includes a police force, the National Crime Agency, Her Majesty’s Revenue and Customs, any of the intelligence services, and any such public authority as may be specified by an order made by the Secretary of State. 112. Section 22(2) further provides that the designated person may only grant an authorisation under section 22(3) or give a notice under section 22(4) if he believes it is necessary for one of the following grounds: “(a) in the interests of national security; (b) for the purpose of preventing or detecting crime or of preventing disorder; (c) in the interests of the economic well-being of the United Kingdom; (d) in the interests of public safety; (e) for the purpose of protecting public health; (f) for the purpose of assessing or collecting any tax, duty, levy or other imposition, contribution or charge payable to a government department; (g) for the purpose, in an emergency, of preventing death or injury or any damage to a person’s physical or mental health, or of mitigating any injury or damage to a person’s physical or mental health; or (h) for any purpose (not falling within paragraphs (a) to (g)) which is specified for the purposes of this subsection by an order made by the Secretary of State.” 113. He must also believe that obtaining the data is proportionate to what is sought to be achieved. 114. Section 23 requires that the authorisation or notice be granted in writing or, if not, in a manner which produces a record of it having been granted. It must also describe the conduct authorised, the communications data to be obtained or disclosed, set out the grounds on which it is believed necessary to grant the authorisation or give the notice, and specify the office, rank or position of the person giving the authorisation. 115. Authorisations under section 22(3) and notices under section 22(4) last for one month, but may be renewed at any time before the expiry of that period. 116. The person who has given a notice under section 22(4) may cancel it if he is satisfied that it is no longer necessary for one of the specified grounds, or it is no longer proportionate to what is sought to be achieved. 2. The Acquisition and Disclosure of Communications Data: Code of Practice 117. The Acquisition and Disclosure of Communications Data: Code of Practice, issued under section 71 RIPA and last updated in 2015, provides, as relevant: “1 IN

TRODUCTION 1.1. This code of practice relates to the powers and duties conferred or imposed under Chapter II of Part I of the Regulation of Investigatory Powers Act 2000 (‘RIPA’). It provides guidance on the procedures to be followed when acquisition of communications data takes place under those provisions. This version of the code replaces all previous versions of the code. 1.2. This code applies to relevant public authorities within the meaning of RIPA: those listed in section 25 or specified in orders made by the Secretary of State under section 25. 1.3. Relevant public authorities for the purposes of Chapter II of Part I of RIPA (‘Chapter II’) should not: ... 1.7. The exercise of powers and duties under Chapter II is kept under review by the Interception of Communications Commissioner (‘the Commissioner’) appointed under section 57 of RIPA and by his inspectors who work from the Interception of Communications Commissioner’s Office (IOCCO). ... 2 GENERAL EXTENT OF POWERS Scope of Powers, Necessity and Proportionality 2.1. The acquisition of communications data under RIPA will be a justifiable interference with an individual’s human rights under Articles 8 and, in certain circumstances, 10 of the European Convention on Human Rights only if the conduct being authorised or required to take place is both necessary and proportionate and in accordance with law. 2.2. RIPA stipulates that conduct to be authorised or required must be necessary for one or more of the purposes set out in section 22(2) of RIPA: 2.3. The purposes for which some public authorities may seek to acquire communications data are restricted by order. The designated person may only consider necessity on grounds open to their public authority and only in relation to matters that are the statutory or administrative function of their respective public authority. The purposes noted above should only be used by a public authority in relation to the specific (and often specialist) offences or conduct that it has been given the statutory function to investigate. 2.4. There is a further restriction upon the acquisition of communications data for the following purposes: Only communications data within the meaning of section 21(4)(c) of RIPA [being subscriber information] may be acquired for these purposes and only by those public authorities permitted by order to acquire communications data for one or more of those purposes. 2.5. When a public authority wishes to acquire communications data, the designated person must believe that the acquisition, in the form of an authorisation or notice, is necessary. He or she must also believe that conduct to be proportionate to what is sought to be achieved by obtaining the specified communications data – that the conduct is no more than is required in the circumstances. This involves balancing the extent of the interference with an individual’s rights and freedoms against a specific benefit to the investigation or operation being undertaken by a relevant public authority in the public interest. 2.6. As well as consideration of the rights of the individual under investigation, consideration must also be given to any actual or potential infringement of the privacy and other rights of individuals who are not the subject of the investigation or operation. An application for the acquisition of communications data should draw attention to any circumstances which give rise to significant collateral intrusion. 2.7. Particular consideration must also be given, when pertinent, to the right to freedom of expression. 2.8. Taking all these considerations into account in a particular case, an interference with the rights of an individual may still not be justified because the adverse impact on the rights of another individual or group of individuals is too severe. 2.9. Any conduct where the interference is excessive in relation to the aims of the investigation or operation, or is in any way arbitrary, will not be proportionate. 2.10. Before public authorities can request communications data, authorisation must be given by the designated person in the relevant authority. A designated person is someone holding a prescribed office, rank or position within a relevant public authority that has been designated for the purpose of acquiring communications data by order. 2.11. The relevant public authorities for Chapter II are set out in section 25(1). They are: These and additional relevant public authorities are listed in the Regulation of Investigatory Powers (Communications Data) Order 201033 and any similar future orders made under section 25 of the Act. Communications Data 2.12. The code covers any conduct relating to the exercise of powers and duties under Chapter II of Part I of RIPA to acquire or disclose communications data. Communications data is defined in section 21(4) of RIPA. 2.13. The term ‘communications data’ embraces the ‘who’, ‘when’, ‘where’, and ‘how’ of a communication

but not the content, not what was said or written. 2.14. It includes the manner in which, and by what method, a person or machine communicates with another person or machine. It excludes what they say or what data they pass on within a communication including text, audio and video (with the exception of traffic data to establish another communication such as that created from the use of calling cards, redirection services, or in the commission of ‘dial through’ fraud and other crimes, where data is passed on to activate communications apparatus in order to obtain communications services fraudulently). 2.15. It can include the address on an envelope, the time and duration of a communication, the telephone number or email address of the originator and recipient, and sometimes the location of the device from which the communication was made. It can also include data relating to unsuccessful call attempts i.e. when the person being dialled does not answer the call, but where the network has been able to connect it successfully. It does not include data relating to an unconnected call i.e. when a call is placed, but the network is unable to carry it to its intended recipient. It covers electronic communications (not just voice telephony) and also includes postal services. 2.16. Communications data is generated, held or obtained in the provision, delivery and maintenance of communications services, those being postal services or telecommunications services. DRIPA clarified the definition of telecommunications service in section 2 of RIPA to make explicit that provision of access to systems for the creation, management or storage of communications is included in the provision of a service. 2.17. ’Communications service providers’ may therefore include those persons who provide services where customers, guests or members of the public are provided with access to communications services that are ancillary to the provision of another service, for example in hotels, restaurants, libraries and airport lounges. 2.18. In circumstances where it is impractical for the data to be acquired from, or disclosed by, the service provider, or where there are security implications in doing so, the data may be sought from the CSP which provides the communications service offered by such hotels, restaurants, libraries and airport lounges. Equally, circumstances may necessitate the acquisition of further communications data for example, where a hotel is in possession of data identifying specific telephone calls originating from a particular guest room. 2.19. Consultation with the public authority’s Single Point of Contact (SPoC) will determine the most appropriate plan for acquiring data where the provision of a communication service engages a number of providers, though it is the designated person who ultimately decides which of the CSPs should be given a notice. With the proliferation of modern communications media, including mobile telephony, internet communications, and social networks, and given that one individual can use many different forms of communications, the knowledge and experience of the SPoC in providing advice and guidance to the designated person is significant in ensuring appropriateness of any action taken to acquire the data necessary for an investigation. If a CSP, having been given a notice, believes that in future another CSP is better placed to respond, they should approach the authority to inform them of their view after disclosing the relevant data that they hold. 2.20. Any conduct to determine the CSP that holds, or may hold, specific communications data is not conduct to which the provisions of Chapter II apply. This includes, for example, establishing from information available to the public or, where necessary, from a service provider which provider makes available a specific service, such as a particular telephone number or an internet protocol address. 2.21. Communications data is defined as: 2.22. The data available on individuals, and the level of intrusion, differs between the categories of data. The public authorities which can acquire the data and, in some cases, the level of seniority of the designated person differ according to the categories of data in question. ... Traffic Data 2.24. RIPA defines certain communications data as ‘traffic data’ in sections 21(4)(a) and 21(6) of RIPA. This is data that is or has been comprised in or attached to a communication for the purpose of transmitting the communication and which ‘in relation to any communication’: 2.25. Traffic data includes data identifying a computer file or a computer program to which access has been obtained, or which has been run, by means of the communication – but only to the extent that the file or program is identified by reference to the apparatus in which the file or program is stored. In relation to internet communications, this means traffic data stops at the apparatus within which files or programs are stored, so that traffic data may identify a server or domain name (web site) but not a web page. For example, the fact that a subject of interest has

visited pages at http://www.gov.uk/ can be acquired as communications traffic data (if available from the CSP), whereas that a specific webpage that was visited is http://www.gov.uk/government/collections/ripa‑‑forms‑2 may not be acquired as communications data (as it would be content). 2.26. Examples of traffic data, within the definition in section 21(6), include: ... Service Use Information 2.28. Data relating to the use made by any person of a postal or telecommunications service, or any part of it, is widely known as ‘service use information’ and falls within section 21(4)(b) of RIPA. 2.29. Service use information is, or can be, routinely made available by a CSP to the person who uses or subscribes to the service to show the use of a service or services and to account for service charges over a given period of time. Examples of data within the definition at section 21(4)(b) include: Subscriber Information 2.30. The third type of communications data, widely known as ‘subscriber information’, is set out in section 21(4)(c) of RIPA. This relates to information held or obtained by a CSP about persons to whom the CSP provides or has provided a communications service. Those persons will include people who are subscribers to a communications service without necessarily using that service and persons who use a communications service without necessarily subscribing to it. 2.31. Examples of data within the definition at section 21(4)(c) include: ... 2.35. Additional types of data may fall into the category of subscriber information, as communications services have developed and broadened, for example where a CSP chooses to collect information about the devices used by their customers. Prior to the acquisition of data which does not fall into the illustrative list of traditional subscriber information above, specific consideration should be given to whether it is particularly sensitive or intrusive, in order to ensure that such a request is still necessary and proportionate, and compliant with Chapter II. Further Guidance on Necessity and Proportionality 2.36. Training regarding necessity and proportionality should be made available to all those who participate in the acquisition and disclosure of communications data. Necessity 2.37. In order to justify that an application is necessary, the application needs as a minimum to cover three main points: 2.38. Necessity should be a short explanation of the event, the person and the communications data and how these three link together. The application must establish the link between the three aspects to be able to demonstrate the acquisition of communications data is necessary for the statutory purpose specified. Proportionality 2.39. Applications should include an outline of how obtaining the data will benefit the investigation or operation. If more than one item of data is being sought, the relevance of the additional data should be explained. 2.40. This should include explaining how the level of intrusion is justified when taking into consideration the benefit the data will give to the investigation. This justification should include confirmation that relevant less intrusive investigations have already been undertaken where possible. For example, the subscriber details of a phone number may be obtainable from a phone book or other publically available sources. 2.41. The relevance of any time periods requested must be explained, outlining how these periods are proportionate to the event under investigation. 2.42. An examination of the proportionality of the application should particularly include a consideration of the rights (particularly to privacy and, in relevant cases, freedom of expression) of the individual and a balancing of these rights against the benefit to the investigation. 2.43. Collateral intrusion is the obtaining of any information relating to individuals other than the subject(s) of the investigation. Consideration of collateral intrusion forms part of the proportionality considerations, and becomes increasingly relevant when applying for traffic data or service use data. Applications should include details of what collateral intrusion may occur and how the time periods requested impact on the collateral intrusion. When there are no meaningful collateral intrusion risks, such as when applying for subscriber details of the person under investigation, the absence of collateral intrusion should be noted. 2.44. An examination of the proportionality of the application should also involve a consideration of possible unintended consequences and, when, relevant this should be noted. Unintended consequences of an application are outcomes that are not intended by the application. 2.45. Unintended consequences are more likely in more complicated requests for traffic data or in applications for the data of those in professions with duties of confidentiality. For example, if a journalist is a victim of crime, applications for service use data related to that journalist’s phone number as part of the criminal investigation may also return some phone numbers of that journalist’

s sources, with unintended impact on freedom of expression. Such an application may still be necessary and proportionate but the risk of unintended consequences should be considered. The special considerations that arise in such cases are discussed further in the section on “Communications data involving certain professions”. 3 GENERAL RULES ON THE GRANTING OF AUTHORISATIONS AND GIVING OF NOTICES 3.1. Acquisition of communications data under RIPA involves four roles within a relevant public authority: 3.2. RIPA provides two alternative means for acquiring communications data, by way of: An authorisation granted to a member of a public authority permits that person to engage in conduct relating to the acquisition and disclosure of communications data under Part I Chapter II of RIPA. A notice given to a postal or telecommunications operator requires it to disclose the relevant communications data held by it to a public authority, or to obtain and disclose the data, when it is reasonably practicable for them to do so. Both authorisations and notices are explained in more detail within this chapter. The applicant 3.3. The applicant is a person involved in conducting an investigation or operation for a relevant public authority who makes an application in writing or electronically for the acquisition of communications data. The applicant completes an application form, setting out for consideration by the designated person, the necessity and proportionality of a specific requirement for acquiring communications data. 3.4. An application may be made orally in exceptional circumstances, but a record of that application must be made in writing or electronically as soon as possible, and certainly within one working day (paragraphs 3.65 ‑ 3.71 provide more detail on urgent procedures). 3.5. An application – the original or a copy of which must be retained by the SPoC within the public authority – must: 3.6. The application should record subsequently whether it was approved by a designated person, by whom and when that decision was made. If approved, the application form should, to the extent necessary, be cross‑referenced to any authorisation granted or notice given. The designated person 3.7. The designated person is a person holding a prescribed office in a relevant public authority. It is the designated person’s responsibility to consider the application and record their considerations at the time (or as soon as is reasonably practicable) in writing or electronically. If the designated person believes the acquisition of communications data is necessary and proportionate in the specific circumstances, an authorisation is granted or a notice is given. 3.8. Individuals who undertake the role of a designated person must have current working knowledge of human rights principles and legislation, specifically those of necessity and proportionality, and how they apply to the acquisition of communications data under Chapter II and this code. 3.9. When considering proportionality, the designated person should apply particular consideration to unintended consequences. The seniority, experience and training of the designated person provides them with a particular opportunity to consider possible unintended consequences. 3.10. Designated persons must ensure that they grant authorisations or give notices only for purposes and only in respect of types of communications data that a designated person of their office, rank or position in the relevant public authority may grant or give. 3.11. The designated person shall assess the necessity for any conduct to acquire or obtain communications data taking account of any advice provided by the single point of contact (SPoC). 3.12. Designated persons must be independent from operations and investigations when granting authorisations or giving notices related to those operations. 3.13. Except where it is necessary to act urgently, in circumstances where a public authority is not able to call upon the services of a designated person who is independent from the investigation or operation, the Senior Responsible Officer must inform the Interception of Communications Commissioner of the circumstances and reasons (noting the relevant designated persons who, in these circumstances, will not be independent). These may include: 3.14. In all circumstances where public authorities use designated persons who are not independent from an operation or investigation this must be notified to the Commissioner at the next inspection. The details of the public authorities and the reasons such measures are being undertaken may be published and included in the Commissioner’s report. 3.15. Where a designated person is not independent from the investigation or operation their involvement and their justification for undertaking the role of the designated person must be explicit in their recorded considerations. 3.16. Particular care must be taken by designated persons when considering any application to obtain communications data to identify apparatus (such as a mobile telephone) at or within a location or locations and at or between times on a given date or dates where the identity of the apparatus is unknown. Unless the application is based on information that the apparatus was used or was likely to have been used in a particular location or locations at a particular time or times it will, in practice, be

rare that any conduct to obtain communications data will be proportionate or the collateral intrusion justified. ... The single point of contact 3.19. The single point of contact (SPoC) is an accredited individual trained to facilitate lawful acquisition of communications data and effective co‑operation between a public authority and CSPs. Despite the name, in practice many organisations will have multiple SPoCs, working together. To become accredited an individual must complete a course of training appropriate for the role of a SPoC and have been issued the relevant SPoC authentication identifier. SPoCs in public authorities should be security cleared in accordance with their own organisation’s requirements. Details of all accredited individuals are available to CSPs for authentication purposes. 3.20. Communications data should be treated as information with a classification of OFFICIAL and a caveat of SENSITIVE, though it may be classified higher if appropriate. When handling, processing, and distributing such information, SPoCs must comply with local security policies and operating procedures. The SENSITIVE caveat is for OFFICIAL information that is subject to ‘need to know’ controls so that only authorised personnel can have access to the material. This does not preclude, for example, the disclosure of material or the use of this material as evidence in open court when required. Rather, the classification and caveat of OFFICIAL ‑ SENSITIVE makes clear that communications data must be treated with care, noting the impact on the rights to privacy and, where appropriate, freedom of expression of the subjects of interest and, depending on the data, possibly some of their communications contacts. Communications data acquired by public authorities must also by stored and handled in accordance with duties under the Data Protection Act. 3.21. An accredited SPoC promotes efficiency and good practice in ensuring only practical and lawful requirements for communications data are undertaken. This encourages the public authority to regulate itself. The SPoC provides objective judgement and advice to both the applicant and the designated person. In this way the SPoC provides a ‘guardian and gatekeeper’ function ensuring that public authorities act in an informed and lawful manner. 3.22. The SPoC should be in a position to: 3.23. The SPoC would normally be the person who takes receipt of any communications data acquired from a CSP (see paragraphs 3.33 and 3.49) and would normally be responsible for its dissemination to the applicant. 3.24. Public authorities unable to call upon the services of an accredited SPoC should not undertake the acquisition of communications data. Nonetheless, in the course of a joint investigation between authority A with no SPoC and authority B with RIPA communications data acquisition powers, authority B may, where necessary and proportionate, acquire communications data under RIPA to further the joint investigation. 3.25. In circumstances where a CSP is approached by a person who cannot be authenticated as an accredited individual and who seeks to obtain data under the provisions of RIPA, the CSP may refuse to comply with any apparent requirement for disclosure of data until confirmation of both the person’s accreditation and their SPoC authentication identifier is obtained from the Home Office. 3.26. For each individual application, the roles of SPoC and designated persons will normally be carried out by two persons. In exceptional cases, such as those covered under the urgent oral procedure or, on rare occasions, for security reasons, both roles may be carried out by the same person. One person may, in separate applications, carry out the roles of either the SPoC or the designated person. 3.27. For each individual application, the roles of SPOC and Applicant will also normally be carried out by two persons. In exceptional cases, such as those covered under the urgent oral procedure or, on rare occasions, for security reasons, both roles may be carried out by the same person. One person may, in separate applications, carry out the roles of either the SPOC or the Applicant. 3.28. The same person must never be both the applicant and the designated person. Clearly, therefore, the same person should never be an applicant, a designated person and a SPoC. 3.29. Where a public authority seeks to obtain communications data using provisions providing explicitly for the obtaining of communications data (other than Chapter II of Part I of RIPA) or using statutory powers conferred by a warrant or order issued by the Secretary of State or a person holding judicial office, the SPoC should be engaged in the process of obtaining the data to ensure effective co‑operation between the public authority and the CSP. 3.30. Occasionally public authorities will wish to request data from CSPs that is neither communications data nor the content of communications. Given the training undertaken by a SPoC and the on‑going nature of a SPoC’s engagement with C

SPs, it is good practice to engage the SPoC to liaise with the CSP on such requests. The senior responsible officer 3.31. Within every relevant public authority a senior responsible officer must be responsible for: Authorisations 3.32. An authorisation provides for persons within a public authority to engage in specific conduct, relating to a postal service or telecommunications system, to obtain communications data. 3.33. Any designated person in a public authority may only authorise persons working in the same public authority to engage in specific conduct, such as requesting the data via secure auditable communications data acquisition systems. This will normally be the public authority’s SPoC, though local authorities must now use the National Anti‑Fraud Network (see later in this chapter for more details). 3.34. The decision of a designated person whether to grant an authorisation shall be based upon information presented to them in an application. 3.35. An authorisation may be appropriate where: 3.36. An authorisation is not served upon a CSP, although there may be circumstances where a CSP may require or may be given an assurance that conduct being, or to be, undertaken is lawful. That assurance may be given by disclosing details of the authorisation or the authorisation itself. 3.37. An authorisation – the original or a copy of which must be retained by the SPoC within the public authority – must: ... 3.40. At the time of giving a notice or granting an authorisation to obtain specific traffic data or service use data, a designated person may also authorise, to the extent necessary and proportionate at that time, the consequential acquisition of specific subscriber information relating to the traffic data or service use data to be obtained. This is relevant where there is a necessary and proportionate requirement to identify with whom a person has been in communication, for example: 3.41. At the time of giving a notice or granting an authorisation to obtain specific traffic data, a designated person may also authorise, to the extent necessary and proportionate at that time, the consequential acquisition of traffic data or service use information. This is relevant where there is a necessary and proportionate requirement to identify a person from the traffic data to be acquired, and the means to do so requires the CSP or another CSP to query their traffic data or service use information, for example: 3.42. It is the duty of the senior responsible officer to ensure that the designated person, applicant or other person makes available to the SPoC such information as the senior responsible officer thinks necessary to ensure the integrity of any requirements for the acquisition of subscriber information to be obtained directly upon the acquisition or disclosure of any traffic data or service use data, and their compliance with Chapter II and with this code. Notices 3.43. The giving of a notice is appropriate where a CSP is able to retrieve or obtain specific data, and to disclose that data, unless the grant of an authorisation is more appropriate. A notice may require a CSP to obtain any communications data, if that data is not already in its possession. 3.44. The decision of a designated person whether to give a notice shall be based on information presented to them in an application. 3.45. The ‘giving of a notice’ means the point at which a designated person determines that a notice should be given to a CSP. In practice, once the designated person has determined that a notice should be given, it will be served upon a CSP in writing or, in an urgent situation, communicated to the CSP orally. 3.46. The notice should contain enough information to allow the CSP to comply with the requirements of the notice. 3.47. A notice – the original or a copy of which must be retained by the SPoC within the public authority – must: 3.48. A notice must not place a CSP under a duty to do anything which it is not reasonably practicable for the CSP to do. SPoCs should be mindful of the need to draft notices to ensure the description of the required data corresponds with the ways in which the CSP processes, retains and retrieves its data for lawful disclosure. CSPs cannot necessarily or reasonably edit or adapt their systems to take account of every possible variation of what may be specified in notices. 3.49. In giving notice a designated person may only require a CSP to disclose the communications data to the designated person or to a specified person working within the same public authority. This will normally be the public authority’s SPoC. 3.50. Ordinarily the CSP should disclose, in writing or electronically, the communications data to which a notice relates not later than the end of the period of ten working days from the date the notice is served upon