Datasets:

sxu

/

RaVE_emnlp23

like 0

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{ "0": "Allegation: 3\n5.The applicant was born in 1983.\n6.On 25 April 2016, prisons in Brussels and Wallonia were affected by a prison staff strike. The lack of any guaranteed minimum service in the Belgian prisons led to the suspension of the ordinary prison regime, to degrees which varied from prison to prison.\n7.During the strike the applicant was being held in Ittre Prison, as he still is, pursuant to a final criminal conviction. In 2016 Ittre Prison had a total of 386 prisoners, with a total capacity of 420 places. The great majority of the cells are single-occupancy, measuring 9 m2. They are fitted with wash basins and partitioned toilets.\n8.On 2 May 2016 the applicant, together with other prisoners, lodged an urgent application under Article 584 of the Judicial Code (see paragraph 19 below) with the President of the Walloon Brabant Court of First Instance (CFI), asking her to order the Belgian State immediately to reinstate the ordinary prison regime in pursuance of the 12 January 2005 Prison Administration and Prisoners’ Legal Status (Principles) Act. Relying, in particular, on a violation of Article 3 of the Convention, the applicant complained of the inhuman conditions of detention resulting from the strike.\n9.On the basis of the information provided by the parties at the hearing on 3May 2016, the President of the CFI, sitting as the judge responsible for urgent applications, issued an order on that same day describing the conditions of detention pertaining in IttrePrison since 26 April 2016as follows:\n“B. In Ittre, the detention regime has been as follows for each prisoner since 26 April 2016:\n- Telephone calls on 26, 29, and 30 April and 1 May,\n- Showers on 27 and 29 April and 1 May,\n- Exercise yard on 28 and 30 April,\n- Healthcare, distribution of medicines and psychiatric consultations as per normal,\n- No family visits;\n- It transpires from the statement drawn up by the Chair of the Supervisory Board that the pickets are currently blocking lorries attempting to deliver food, and that if that situation continues the prisoners will no longer have food supplies as of Thursday [5 May 2016].”\n10.The President of the CFI partly allowed the applicant’s request, finding against the Belgian State as follows:\n“We order the respondent to provide applicant with the following services:\n- three meals per day, one of which must be hot,\n- access to showers every other day,\n- access to telephones every other day,\n- two family visits per week,\n- organisation of two days per week for lawyers and the Supervisory Board,\non pain of a 10,000-euro fine per infringement within 24 hours from the serving of this order.”\n11.Subsequently, the State contacted all the CFIs whose territories comprised prisons affected by strikes, inviting them to prohibit blockades at prison entrances by strikers such as to guarantee access to the premises by members of the prison staff wishing to work and by vehicles delivering goods to the prisons. As regards Ittre Prison, an order of this type was issued by the President of the Walloon Brabant CFI on 6 May 2016.\n12.The authorities also adopted other measures, such as calling on the local and Federal police forces, members of the prison directorates, civil protection agencies, the Red Cross and the army.\n13.The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“CPT”) conducted an ad hoc visit to Ittre Prison from 7to9May 2016 in order to assess the consequences of industrial action on prisoners’ conditions of detention. In its report published on 18 November 2016 the CPT pointed out that the prisoners had been subject to the following conditions since the beginning of the strike: limited access to showers, medicines to alleviate anxiety and stress, collective access to the exercise yard once a week, confinement to cells 24 hours a day, interrupted supplies to stores for canteens, drinks, coffee and tobacco, access to showers once or twice a week, no cleaning products or hygiene items, no visits since the beginning of the strike, and lack of staff to top up telephone accounts.\n14.The strike at Ittre Prison ended on 22 June 2016. On 23 June the Ittre Prison Supervisory Board drew up a capitulatory document on the conditions of detention experienced by prisoners during the strike, reaching the following conclusions:\n“- The inmates of Ittre Prison had no visits by their lawyers before 16 June 2016 and no family visits, except on the weekends of 4-5 and 11-12 June 2016;\n- Only one meal a day was distributed;\n- Contact with the outside was therefore limited to one telephone call every three days or so.\n- Night regime was applied in such a way as to confine the prisoners to their cells. Until 16 June 2016 they only left the cells once every three days to exercise in the yard or take a shower.\n- The Supervisory Board was unable to discharges its duties pursuant to the law, that is, in the framework of confidential and unsupervised interviews.\n- No other activities were provided.”\n15.These findings were also made by the President of the CFI on the basis of information provided by the Prison Director in an unannounced visit to the prison on 25 May 2016, in the framework of urgent proceedings brought by other inmates. As regards the presence of prison staff on the premises, the visit report noted the following:\n“Ms [A., a member of the Director’s office] explained ... that the administration kept a daily register of staff entering the prison to work, in order to plan for the requisite police reinforcements required.\nStaff presence depends on the location of the strike picket, which is located sometimes at the roundabout some distance from the prison entrance, and sometimes just in front of the entrance doors, blocking access to the building.\nThe picket at the entrance doors has already caused confrontation, with injuries sustained, and demotivates staff wishing to work, which has led to an increase in the number of days off sick.\nThe number of staff working varies from 4 to 20.\nThe number of staff present has no impact on the “service provided for inmates” since the quota of 21 staff members required for operating the 7 a.m. to 3 p.m. shift is made up by police reinforcements in accordance with the number of staff present.\nThe 3 to 10 p.m. shift is covered by 8 persons (night regime).\nAs a general rule, all doors are now kept locked during the night...\nRegular service requires the presence of 45 staff members under the normal regime, although officially there should be a total of staff (which is never the case).\nAt the current time the police are on guard duty, but are seldom involved in service provision...”\n16.On 23 May 2016, owing to the difficulties in enforcing the 3 May 2016 order, the applicant, together with other prisoners, forwarded to the Belgian State an order to pay the outstanding fines. The Belgian State appealed against that order on 3 June 2016. According to the applicant, the judge initially dealing with the case had had to be replaced for health reasons. Oral submissions were reportedly made on 7 February 2018, but the parties have not kept the Court abreast of developments in the proceedings.\n17.In the meantime, by judgment of 26 April 2017, the Brussels Court of Appeal, to which the State had appealed against the 3 May 2016 order (see paragraphs9‑10 above), largely upheld the latter, apart from the amount of the fines, which the Court of Appeal considered should be a maximum 250 euros per day.\n18.Relying on the general principles set out in the judgments in the cases of Vasilescu v. Belgium (no.64682/12, 25November 2014) and Muršić v.Croatia ([GC], no. 7334/13, ECHR 2016), the Court of Appeal determined as follows as regards compliance with Article 3 of the Conventionin the present case:\n“... this court has previously decided, in another case, by judgment of 17 March 2016, that compliance with Article 3 of the [Convention], as regards the material conditions of detention, requires prisoners not to be treated like objects, at the mercy of prison staff refusing to work, not knowing when the strike would end and being forced, for reasons beyond their control, to accept extreme conditions of detention, that is to say confinement to their cells without any activities, particularly physical exercise, deprived of contact with their families and lawyers, or making do with irregular and uncertain exercise in the open air, contact and basic healthcare, which unavoidably leads to distress surpassing the inevitable degree of suffering inherent in imprisonment. The fact that they can listen to the radio or watch television, where such facilities are available, receive medical treatment in emergencies and have a washbasin or even a toilet ... is insufficient to conclude that their treatment during the strike did not attain the requisite degree of severity for a prima facie finding of degrading treatment within the meaning of the provision of the [Convention].\n...\nThe present orders are being issued during the critical period when the respondents are suffering profoundly degrading treatment...\nThey are experiencing these privations in absolute uncertainty as to their duration, because ... the strikers have still not announced the end of their industrial action, it being impossible to forecast when it will end.\nDuring this uncertain period they must make do with a reduced number of undoubtedly stressed prison officers who cannot be sure that they can perform work which obviously exceeds the bounds of their own specific duties, especially since the requisitioned police officers lack the requisite competences to replace prison wardens and are only discharging security duties in the prison.\nThe respondents’ conditions of detention have therefore seriously deteriorated when the first judge decided that they amounted to a prima facie infringement of Article 3 of the [Convention] and issued the impugned orders.”", "1": "Allegation: 5,6,8\nI.THE CIRCUMSTANCES OF THE CASE\n5.The applicants were born in 1976, 1972, 1976, 1970 and 1976 respectively. They are currently detained in Turkey.\nA.Background to the case\n6.The applicants were secondary school teachers in a private chain of schools in Moldova called Orizont, which has been in operation since 1993.\n7.Mr Yasin Ozdil had lived in Moldova since 2015 with his wife and their two minor children. Mr Mujdat Celebi had lived in Moldova since 2014 with his wife and their three minor children. Mr Riza Dogan had lived in Moldova since 1993 with his wife and their two minor children, who are Moldovan citizens. Mr Sedat Hasan Karacaoglu had lived in Moldova since 1998 with his wife. Mr Mehmet Feridun Tufekci had lived in Moldova since 1993 together with his Moldovan wife and their two minor children, who are Moldovan citizens. All the applicants had valid residence permits for Moldova.\n8.During the night of 15 to 16 July 2016 a group of members of the Turkish armed forces calling themselves the “Peace at Home Council” attempted to carry out a military coup aimed at overthrowing the democratically elected parliament, government and President of Turkey. The day after the attempted military coup, the national authorities blamed the network linked to Fetullah Gülen, a Turkish citizen living in Pennsylvania (United States of America) and considered to be the leader of a terrorist organisation known as FETÖ/PDY (“Gülenist Terror Organisation/Parallel State Structure”). Several criminal investigations were subsequently initiated by the appropriate prosecuting authorities in relation to suspected members of that organisation. In connection with the above events, the Turkish ambassador to Moldova accused the Orizont schools of ties to that movement and accused the teachers in those schools of terrorism.\n9.In May 2017 the Turkish Prime Minister visited Moldova and requested from his Moldovan counterpart the shutdown of the Orizont schools.\n10.On 31 March 2018 the principal of the Chişinău-based Orizont secondary school was arrested at Chişinău Airport and questioned for sevenhours by the Moldovan secret service concerning allegations of supporting terrorist organisations. A criminal investigation was initiated against him and the preventive measure of a bar on leaving the country for ten days was imposed.\n11.In connection with the above events, on 6 April 2018 all the applicants applied to the Moldovan Bureau for Migration and Asylum (“the BMA”) for asylum. They sought to obtain refugee status in Moldova because they feared reprisals in their country of origin, Turkey, on the grounds of their political views.\n12.On 10 April 2018 the charges against the principal of the Chişinău Orizont secondary school were dropped and the investigation was discontinued. On 5 May 2018 the applicants wrote to the competent authorities in Moldova and asked for information on whether there were any pending criminal investigations concerning them. In a letter dated 13June 2018 the prosecutor’s office specialising in organised crime wrote to the applicants, stating that there were no pending criminal investigations involving them. A similar letter was received by the applicants on 31July 2018 from the anti-corruption prosecutor’s office.\nB.The applicants’ transfer to Turkey\n13.On 6 September 2018 in the morning, seven teachers from the Orizont schools – among them the applicants – were arrested in their homes or on their way to work by individuals wearing plain clothes and taken to an unknown destination. Later in the day the Moldovan secret service issued several statements concerning a large anti-terrorist operation which had taken place that day, during which seven foreign nationals suspected of ties to an Islamist organisation had been arrested and removed from Moldova in cooperation with secret services from other countries.\n14.On the same day the Turkish media reported that the Turkish secret service had conducted a successful operation in Moldova, during which seven members of the Fethullah Gülen movement had been arrested.\n15.On 6 September 2018 some of the members of the applicants’ families, their colleagues from the schools and human rights defenders spent the day at the airport in the hope of stopping the applicants’ deportation to Turkey. They expected the applicants to be taken to Turkey by the scheduled flight leaving later in the day.\n16.The fate of the applicants, and even whether they were still in Moldova, remained unknown to their families for several weeks. The Moldovan authorities refrained from communicating any information about them either to their families or to the press.\n17.It appeared later that on the very morning of their arrest the applicants were taken directly to Chişinău Airport, where an aeroplane chartered for that purpose was waiting for them and took them immediately to Turkey.\nC.Events that took place after the applicants’ transfer to Turkey\n18.On 7 September 2018, the head of the BMA, O.P., stated in an interview that the authority had not been involved in the case of the seven Orizont teachers and that the procedure for declaring them undesirable and removing them from Moldova had not been carried out by the BMA.\n19.Several days after the applicants’ arrest, their families received letters from the BMA containing decisions dated 4September 2018 in which the applicants’ applications for asylum were rejected. The decisions contained a thorough analysis of the manner in which the Gülen movement followers had been treated in Turkey and concluded that the applicants’ fear of reprisals at the hands of the Turkish authorities were justified. In particular, the BMA found that the Turkish authorities had committed acts of harassment, threatening, arbitrary detentions and other serious human rights violations in respect of opposition leaders and members of the Gülen movement. The BMA concluded that the applicants fulfilled the legal requirements to be granted asylum in Moldova. Nevertheless, their applications were rejected on the basis of a classified note received from the Moldovan secret service, according to which the applicants presented a threat to national security. The decisions did not give any details as to the content of the note, not even the date on which it had been issued. The applicants were given fifteen days to leave the country and they were entitled to challenge the decisions within thirty days. The letters accompanying the decisions were posted on 7 and 10 September 2018 and were signed by the head of the BMA, O.P.\n20.Several days after the applicants’ arrest and transfer to Turkey their families also received from the BMA decisions dated 5September 2018, banning the applicants from entering Moldovan territory for a period of five years and ordering their expulsion under supervision from Moldova by the BMA in accordance with section 58 of the Status of Aliens Act (see paragraph 27 below). The letters accompanying the decisions were also signed by the head of the BMA, O.P.\n21.On different dates in September and October 2018 the applicants’ representative, who had received powers of attorney from their wives, contested the above decisions in court. However, their actions were dismissed on the grounds that the powers of attorney had not been signed by the applicants themselves. The court decisions were challenged before the hierarchically superior court but without any success.\nD.International reactions to the applicants’ transfer to Turkey\n22.On 15 October 2018 the European Parliament made public a report on the implementation of the EU Association Agreement with Moldova (2017/2281(INI)). In its report, the European Parliament issued a statement in which it expressed itself in the following terms on the manner in which the applicants had been transferred from Turkey:\n“29.Strongly condemns the recent extradition/abduction of Turkish citizens to Turkey due to their alleged links to the Gülen movement, in violation of the rule of law and basic human rights; urges the Moldovan authorities to ensure that any extradition requests coming from third countries are processed in a transparent manner while following judicial procedures fully in line with European principles and standards...”\n23.Amnesty International also made a statement in relation to the deportation of the seven Orizont teachers to Turkey. On 6September 2018 the organisation’s director for Eastern Europe and Central Asia made the following statement in relation to the applicants’ transfer to Turkey:\n“The Moldovan authorities didn’t just violate these individuals’ rights once by deporting them - they put them on a fast-track to further human rights violations such as an unfair trial. ... The latest arrests in Moldova follow the pattern of political reprisals against Turkish nationals living abroad by the increasingly repressive government of Recep Tayyip Erdoğan. ... Forcible return of those seeking protection in Moldova is a flagrant violation of Moldova’s international human rights obligations. The state authorities must immediately hold to account those responsible for the arbitrary detention and expulsion of the Turkish nationals.”", "2": "Allegation: 5,6,8\nI.THE CIRCUMSTANCES OF THE CASE\n5.The applicants were born in 1976, 1972, 1976, 1970 and 1976 respectively. They are currently detained in Turkey.\nA.Background to the case\n6.The applicants were secondary school teachers in a private chain of schools in Moldova called Orizont, which has been in operation since 1993.\n7.Mr Yasin Ozdil had lived in Moldova since 2015 with his wife and their two minor children. Mr Mujdat Celebi had lived in Moldova since 2014 with his wife and their three minor children. Mr Riza Dogan had lived in Moldova since 1993 with his wife and their two minor children, who are Moldovan citizens. Mr Sedat Hasan Karacaoglu had lived in Moldova since 1998 with his wife. Mr Mehmet Feridun Tufekci had lived in Moldova since 1993 together with his Moldovan wife and their two minor children, who are Moldovan citizens. All the applicants had valid residence permits for Moldova.\n8.During the night of 15 to 16 July 2016 a group of members of the Turkish armed forces calling themselves the “Peace at Home Council” attempted to carry out a military coup aimed at overthrowing the democratically elected parliament, government and President of Turkey. The day after the attempted military coup, the national authorities blamed the network linked to Fetullah Gülen, a Turkish citizen living in Pennsylvania (United States of America) and considered to be the leader of a terrorist organisation known as FETÖ/PDY (“Gülenist Terror Organisation/Parallel State Structure”). Several criminal investigations were subsequently initiated by the appropriate prosecuting authorities in relation to suspected members of that organisation. In connection with the above events, the Turkish ambassador to Moldova accused the Orizont schools of ties to that movement and accused the teachers in those schools of terrorism.\n9.In May 2017 the Turkish Prime Minister visited Moldova and requested from his Moldovan counterpart the shutdown of the Orizont schools.\n10.On 31 March 2018 the principal of the Chişinău-based Orizont secondary school was arrested at Chişinău Airport and questioned for sevenhours by the Moldovan secret service concerning allegations of supporting terrorist organisations. A criminal investigation was initiated against him and the preventive measure of a bar on leaving the country for ten days was imposed.\n11.In connection with the above events, on 6 April 2018 all the applicants applied to the Moldovan Bureau for Migration and Asylum (“the BMA”) for asylum. They sought to obtain refugee status in Moldova because they feared reprisals in their country of origin, Turkey, on the grounds of their political views.\n12.On 10 April 2018 the charges against the principal of the Chişinău Orizont secondary school were dropped and the investigation was discontinued. On 5 May 2018 the applicants wrote to the competent authorities in Moldova and asked for information on whether there were any pending criminal investigations concerning them. In a letter dated 13June 2018 the prosecutor’s office specialising in organised crime wrote to the applicants, stating that there were no pending criminal investigations involving them. A similar letter was received by the applicants on 31July 2018 from the anti-corruption prosecutor’s office.\nB.The applicants’ transfer to Turkey\n13.On 6 September 2018 in the morning, seven teachers from the Orizont schools – among them the applicants – were arrested in their homes or on their way to work by individuals wearing plain clothes and taken to an unknown destination. Later in the day the Moldovan secret service issued several statements concerning a large anti-terrorist operation which had taken place that day, during which seven foreign nationals suspected of ties to an Islamist organisation had been arrested and removed from Moldova in cooperation with secret services from other countries.\n14.On the same day the Turkish media reported that the Turkish secret service had conducted a successful operation in Moldova, during which seven members of the Fethullah Gülen movement had been arrested.\n15.On 6 September 2018 some of the members of the applicants’ families, their colleagues from the schools and human rights defenders spent the day at the airport in the hope of stopping the applicants’ deportation to Turkey. They expected the applicants to be taken to Turkey by the scheduled flight leaving later in the day.\n16.The fate of the applicants, and even whether they were still in Moldova, remained unknown to their families for several weeks. The Moldovan authorities refrained from communicating any information about them either to their families or to the press.\n17.It appeared later that on the very morning of their arrest the applicants were taken directly to Chişinău Airport, where an aeroplane chartered for that purpose was waiting for them and took them immediately to Turkey.\nC.Events that took place after the applicants’ transfer to Turkey\n18.On 7 September 2018, the head of the BMA, O.P., stated in an interview that the authority had not been involved in the case of the seven Orizont teachers and that the procedure for declaring them undesirable and removing them from Moldova had not been carried out by the BMA.\n19.Several days after the applicants’ arrest, their families received letters from the BMA containing decisions dated 4September 2018 in which the applicants’ applications for asylum were rejected. The decisions contained a thorough analysis of the manner in which the Gülen movement followers had been treated in Turkey and concluded that the applicants’ fear of reprisals at the hands of the Turkish authorities were justified. In particular, the BMA found that the Turkish authorities had committed acts of harassment, threatening, arbitrary detentions and other serious human rights violations in respect of opposition leaders and members of the Gülen movement. The BMA concluded that the applicants fulfilled the legal requirements to be granted asylum in Moldova. Nevertheless, their applications were rejected on the basis of a classified note received from the Moldovan secret service, according to which the applicants presented a threat to national security. The decisions did not give any details as to the content of the note, not even the date on which it had been issued. The applicants were given fifteen days to leave the country and they were entitled to challenge the decisions within thirty days. The letters accompanying the decisions were posted on 7 and 10 September 2018 and were signed by the head of the BMA, O.P.\n20.Several days after the applicants’ arrest and transfer to Turkey their families also received from the BMA decisions dated 5September 2018, banning the applicants from entering Moldovan territory for a period of five years and ordering their expulsion under supervision from Moldova by the BMA in accordance with section 58 of the Status of Aliens Act (see paragraph 27 below). The letters accompanying the decisions were also signed by the head of the BMA, O.P.\n21.On different dates in September and October 2018 the applicants’ representative, who had received powers of attorney from their wives, contested the above decisions in court. However, their actions were dismissed on the grounds that the powers of attorney had not been signed by the applicants themselves. The court decisions were challenged before the hierarchically superior court but without any success.\nD.International reactions to the applicants’ transfer to Turkey\n22.On 15 October 2018 the European Parliament made public a report on the implementation of the EU Association Agreement with Moldova (2017/2281(INI)). In its report, the European Parliament issued a statement in which it expressed itself in the following terms on the manner in which the applicants had been transferred from Turkey:\n“29.Strongly condemns the recent extradition/abduction of Turkish citizens to Turkey due to their alleged links to the Gülen movement, in violation of the rule of law and basic human rights; urges the Moldovan authorities to ensure that any extradition requests coming from third countries are processed in a transparent manner while following judicial procedures fully in line with European principles and standards...”\n23.Amnesty International also made a statement in relation to the deportation of the seven Orizont teachers to Turkey. On 6September 2018 the organisation’s director for Eastern Europe and Central Asia made the following statement in relation to the applicants’ transfer to Turkey:\n“The Moldovan authorities didn’t just violate these individuals’ rights once by deporting them - they put them on a fast-track to further human rights violations such as an unfair trial. ... The latest arrests in Moldova follow the pattern of political reprisals against Turkish nationals living abroad by the increasingly repressive government of Recep Tayyip Erdoğan. ... Forcible return of those seeking protection in Moldova is a flagrant violation of Moldova’s international human rights obligations. The state authorities must immediately hold to account those responsible for the arbitrary detention and expulsion of the Turkish nationals.”", "3": "Allegation: 5,6,8\nI.THE CIRCUMSTANCES OF THE CASE\n5.The applicants were born in 1976, 1972, 1976, 1970 and 1976 respectively. They are currently detained in Turkey.\nA.Background to the case\n6.The applicants were secondary school teachers in a private chain of schools in Moldova called Orizont, which has been in operation since 1993.\n7.Mr Yasin Ozdil had lived in Moldova since 2015 with his wife and their two minor children. Mr Mujdat Celebi had lived in Moldova since 2014 with his wife and their three minor children. Mr Riza Dogan had lived in Moldova since 1993 with his wife and their two minor children, who are Moldovan citizens. Mr Sedat Hasan Karacaoglu had lived in Moldova since 1998 with his wife. Mr Mehmet Feridun Tufekci had lived in Moldova since 1993 together with his Moldovan wife and their two minor children, who are Moldovan citizens. All the applicants had valid residence permits for Moldova.\n8.During the night of 15 to 16 July 2016 a group of members of the Turkish armed forces calling themselves the “Peace at Home Council” attempted to carry out a military coup aimed at overthrowing the democratically elected parliament, government and President of Turkey. The day after the attempted military coup, the national authorities blamed the network linked to Fetullah Gülen, a Turkish citizen living in Pennsylvania (United States of America) and considered to be the leader of a terrorist organisation known as FETÖ/PDY (“Gülenist Terror Organisation/Parallel State Structure”). Several criminal investigations were subsequently initiated by the appropriate prosecuting authorities in relation to suspected members of that organisation. In connection with the above events, the Turkish ambassador to Moldova accused the Orizont schools of ties to that movement and accused the teachers in those schools of terrorism.\n9.In May 2017 the Turkish Prime Minister visited Moldova and requested from his Moldovan counterpart the shutdown of the Orizont schools.\n10.On 31 March 2018 the principal of the Chişinău-based Orizont secondary school was arrested at Chişinău Airport and questioned for sevenhours by the Moldovan secret service concerning allegations of supporting terrorist organisations. A criminal investigation was initiated against him and the preventive measure of a bar on leaving the country for ten days was imposed.\n11.In connection with the above events, on 6 April 2018 all the applicants applied to the Moldovan Bureau for Migration and Asylum (“the BMA”) for asylum. They sought to obtain refugee status in Moldova because they feared reprisals in their country of origin, Turkey, on the grounds of their political views.\n12.On 10 April 2018 the charges against the principal of the Chişinău Orizont secondary school were dropped and the investigation was discontinued. On 5 May 2018 the applicants wrote to the competent authorities in Moldova and asked for information on whether there were any pending criminal investigations concerning them. In a letter dated 13June 2018 the prosecutor’s office specialising in organised crime wrote to the applicants, stating that there were no pending criminal investigations involving them. A similar letter was received by the applicants on 31July 2018 from the anti-corruption prosecutor’s office.\nB.The applicants’ transfer to Turkey\n13.On 6 September 2018 in the morning, seven teachers from the Orizont schools – among them the applicants – were arrested in their homes or on their way to work by individuals wearing plain clothes and taken to an unknown destination. Later in the day the Moldovan secret service issued several statements concerning a large anti-terrorist operation which had taken place that day, during which seven foreign nationals suspected of ties to an Islamist organisation had been arrested and removed from Moldova in cooperation with secret services from other countries.\n14.On the same day the Turkish media reported that the Turkish secret service had conducted a successful operation in Moldova, during which seven members of the Fethullah Gülen movement had been arrested.\n15.On 6 September 2018 some of the members of the applicants’ families, their colleagues from the schools and human rights defenders spent the day at the airport in the hope of stopping the applicants’ deportation to Turkey. They expected the applicants to be taken to Turkey by the scheduled flight leaving later in the day.\n16.The fate of the applicants, and even whether they were still in Moldova, remained unknown to their families for several weeks. The Moldovan authorities refrained from communicating any information about them either to their families or to the press.\n17.It appeared later that on the very morning of their arrest the applicants were taken directly to Chişinău Airport, where an aeroplane chartered for that purpose was waiting for them and took them immediately to Turkey.\nC.Events that took place after the applicants’ transfer to Turkey\n18.On 7 September 2018, the head of the BMA, O.P., stated in an interview that the authority had not been involved in the case of the seven Orizont teachers and that the procedure for declaring them undesirable and removing them from Moldova had not been carried out by the BMA.\n19.Several days after the applicants’ arrest, their families received letters from the BMA containing decisions dated 4September 2018 in which the applicants’ applications for asylum were rejected. The decisions contained a thorough analysis of the manner in which the Gülen movement followers had been treated in Turkey and concluded that the applicants’ fear of reprisals at the hands of the Turkish authorities were justified. In particular, the BMA found that the Turkish authorities had committed acts of harassment, threatening, arbitrary detentions and other serious human rights violations in respect of opposition leaders and members of the Gülen movement. The BMA concluded that the applicants fulfilled the legal requirements to be granted asylum in Moldova. Nevertheless, their applications were rejected on the basis of a classified note received from the Moldovan secret service, according to which the applicants presented a threat to national security. The decisions did not give any details as to the content of the note, not even the date on which it had been issued. The applicants were given fifteen days to leave the country and they were entitled to challenge the decisions within thirty days. The letters accompanying the decisions were posted on 7 and 10 September 2018 and were signed by the head of the BMA, O.P.\n20.Several days after the applicants’ arrest and transfer to Turkey their families also received from the BMA decisions dated 5September 2018, banning the applicants from entering Moldovan territory for a period of five years and ordering their expulsion under supervision from Moldova by the BMA in accordance with section 58 of the Status of Aliens Act (see paragraph 27 below). The letters accompanying the decisions were also signed by the head of the BMA, O.P.\n21.On different dates in September and October 2018 the applicants’ representative, who had received powers of attorney from their wives, contested the above decisions in court. However, their actions were dismissed on the grounds that the powers of attorney had not been signed by the applicants themselves. The court decisions were challenged before the hierarchically superior court but without any success.\nD.International reactions to the applicants’ transfer to Turkey\n22.On 15 October 2018 the European Parliament made public a report on the implementation of the EU Association Agreement with Moldova (2017/2281(INI)). In its report, the European Parliament issued a statement in which it expressed itself in the following terms on the manner in which the applicants had been transferred from Turkey:\n“29.Strongly condemns the recent extradition/abduction of Turkish citizens to Turkey due to their alleged links to the Gülen movement, in violation of the rule of law and basic human rights; urges the Moldovan authorities to ensure that any extradition requests coming from third countries are processed in a transparent manner while following judicial procedures fully in line with European principles and standards...”\n23.Amnesty International also made a statement in relation to the deportation of the seven Orizont teachers to Turkey. On 6September 2018 the organisation’s director for Eastern Europe and Central Asia made the following statement in relation to the applicants’ transfer to Turkey:\n“The Moldovan authorities didn’t just violate these individuals’ rights once by deporting them - they put them on a fast-track to further human rights violations such as an unfair trial. ... The latest arrests in Moldova follow the pattern of political reprisals against Turkish nationals living abroad by the increasingly repressive government of Recep Tayyip Erdoğan. ... Forcible return of those seeking protection in Moldova is a flagrant violation of Moldova’s international human rights obligations. The state authorities must immediately hold to account those responsible for the arbitrary detention and expulsion of the Turkish nationals.”", "4": "Allegation: 2, 3, 6, 14, P1-1\nI.THE CIRCUMSTANCES OF THE CASE\n6.Both applicants were born in 1953. On 20 January 2015 the first applicant died. The second applicant currently lives in Tbilisi.\nA.The situation prior to notification of the case being given on 18March 2013\n7.On 2 May 2006, at around 9.30 a.m., Z.V., the applicants’ son, aged22 at that time, and his friend, A.Kh., aged 25, were shot dead by police as they were driving in Z.V.’s car in a street of Tbilisi (“the police operation of 2 May 2006”). At least fifty police officers, including senior officials from the criminal police unit of the Ministry of the Interior led by that unit’s deputy head, I.P., and masked officers of a riot-police unit, armed with machine guns, participated in that police operation. More than seventy bullets were shot by the police in the direction of Z.V.’s car, with some forty bullets hitting their target. Experts of a subsequent, post-mortem forensic examination were not able to establish, owing to the severity of the injuries, the exact number of bullets that had penetrated the body and skull of the applicants’ son and A.Kh. A third passenger of the car, Mr B.P., aged twenty-two, was seriously wounded during the shooting, but survived.\n8.On the same day, 2 May 2006, the criminal unit of the Ministry of the Interior opened a criminal case against the applicants’ late son and the other passengers of Z.V.’s car for attempted robbery and unlawful possession and transport of firearms. The investigation was led by a senior official of the Ministry who had himself participated in the police operation earlier that day. All the preliminary investigative measures, including those directly relating to the examination of the scene of the shooting, were conducted within the framework of that investigation. The results of the investigation were subsequently transmitted to the Tbilisi city public prosecutor’s office (“the city prosecutor’s office”), which relied on the thus collected evidence in its subsequent probe into the lawfulness of the police actions (see paragraph 10 below).\n9.Later the same day, I.K., the head of the criminal police unit of the Ministry, stated at a press briefing that the applicants’ son and the two other passengers of his car had robbed a pawn shop on 30 April 2006 in Tbilisi. According to “information provided by an anonymous police informant”, the group of young men had been on their way to carry out another robbery of an apartment on 2 May 2006 when the “carefully planned” police operation had intervened, preventing the group from realising their criminal goals. Commenting further on the circumstances of the police operation of 2May 2006, the high-ranking police officer stated that the passengers of the car had opened fire on the police first and that the police had been obliged to return fire.\n10.On 5 May 2006 the Tbilisi city prosecutor’s office opened an investigation under Article 114 of the Criminal Code (killing as a result of the use of force beyond what was required for arresting a wrongdoer) for excessive use of force by the police during the operation of 2 May 2006. The relevant investigation file was mostly based on the evidence that had been collected by the Ministry of the Interior in the immediate aftermath of the police operation in question (see paragraph 8 above).\n11.From the early stages, the applicants complained regularly to the city prosecutor that the investigation was not being conducted thoroughly and impartially. They alleged that the investigators from the city prosecutor’s office who were in charge of the case were ignoring important witness statements which incriminated the police in the intentional killing of their son, and were denying the applicants the possibility to participate effectively in the proceedings, and that they had destroyed and fabricated evidence. In respect of the denial to participate properly in the proceedings, the applicants asserted that the prosecution authority had refused to grant, for several weeks, a request by the second applicant to be recognised a victim in the case. On 7 July 2006, following numerous complaints lodged by the applicants’ lawyers and the involvement of the Public Defender (Ombudsman), the second applicant was at last granted that procedural status. She was subsequently invited to get acquainted with the case file at the office of the prosecutor in charge of the case. As she was denied an opportunity to photocopy case-file material, the second applicant was obliged to rewrite by hand the content of the most significant pieces of evidence, including the forensic report containing the detailed description of the numerous lethal injuries on the body and skull of her late son.\n12.As is apparent from the case-file material, the city prosecutor’s office questioned at that time only two independent eyewitnesses to the police operation of 2 May 2006, M.Ts. and I.G. During interviews with them that took place in February 2007 the witnesses reported that it had been the police who had started firing and that there had been no retaliation from the passengers in Z.V.’s car; the police had continued shooting even after the car had hit the kerb and stopped. In a later prosecutorial resolution on the discontinuation of the investigation into the police’s actions (see paragraph 14 below), the prosecution authority stated that the statements given by the above-mentioned two independent witnesses had not been credible as they had clearly contradicted the opposite statements given by the police officers who had participated in the police operation of 2May 2006.\n13.According to the results of a ballistics test commissioned by the city prosecutor’s office in February-March 2007, the passengers of Z.V.’s car had fired shots at the police from through a hole in the left upper corner of the car’s rear window during the police operation of 2 May 2006.\n14.On 19 April 2007 the city prosecutor’s office quashed its previous decision granting victim status to the second applicant (see paragraph12 above). On the following day, 20 April 2007, the prosecution authority issued a resolution discontinuing the investigation into the police actions for want of a criminal offence. In reaching that decision, the authority mainly relied on the statements of the police officers who had participated in the police operation of 2 May 2006 as well as the results of the relevant ballistics test (see paragraphs 13 above) to conclude that the police had used force only in retaliation to the gunfire from Z.V.’s car and that the use of force had thus been necessary in the circumstances.\n15.Deprived of her victim status (see the preceding paragraph), the second applicant became unable to appeal against the discontinuation of the investigation to a court.\n16.Acting at the request of the first applicant, the Public Defender’s Office conducted, in 2009, its own probe into the circumstances surrounding the police operation of 2 May 2006 and assessed the adequacy of the investigation into the police actions. As part of that probe, the Public Defender commissioned an alternative forensic examination of Z.V.’s car. The results of that examination established that no shot had ever been fired from that car.\n17.On 8 September 2009 the Public Defender’s Office addressed the Chief Public Prosecutor’s Office with a recommendation to reopen the investigation into the police actions during the incident of 2 May 2006. The prosecution authority’s attention was drawn to the fact that the original investigation, which had been discontinued on 20 April 2007, had failed to address such principal aspects of the case as whether or not the use of force by the police during the incident had been proportionate. The Public Defender further called into question the inconclusiveness of a number of findings previously made by the city prosecutor’s office, notably as regards the question of gunfire purportedly originating from Z.V.’s car (see paragraphs 14 and 16 above). The recommendation of the Public Defender’s Office was left unanswered.\n18.The case file contains video footage, filmed by a cameraman of the Ministry of the Interior, showing the state of Z.V.’s car at the scene of the police operation of 2 May 2006 immediately after the shooting had ended. The footage showed the glass of the car’s rear window as wholly intact, without any holes or other damage. A verbatim record of the visual examination of the car after it had been taken from the scene of the shooting to a special parking area of the Ministry of the Interior further attested, similarly to the above-mentioned video footage, that the car’s rear window had been undamaged.\nB.Circumstances revealed after notification of the case being given\n1.Reopening of the investigation into the use of force by the police during the incident of 2 May 2006\n19.On 23 October 2012 the applicants obtained a statement from a former officer of the Ministry of the Interior, V.Kh. According to that witness, several police officers who participated in the police operation of 2May 2006 were instructed by I.P., the senior officer who had set up the police operation (see paragraph 7 above), to fire guns at a police vehicle found at the scene of the police operation of 2 May 2006 in order to be able to claim later that there had been an exchange of fire with the passengers of Z.V’s car. V.Kh. also stated that he had heard how, in the immediate aftermath of the police operation of 2 May 2006, a forensic expert had clearly told I.P. that the bullet holes found on the police car had been inconsistent with the trajectory of shots that could have been fired from where Z.V.’s car had been standing after it had hit the kerb (see paragraphs12, 13 and 16 above).\n20.On 26 October 2012 the applicants were able to approach B.P., the third passenger in the car (see paragraph 7 above), for the first time. They obtained a written statement from him, in which he described details of the police operation of 2 May 2006. He recalled that he and his two friends had been waiting in the relevant street in Tbilisi at a red traffic light in the car driven by Z.V. when suddenly a person in civilian clothes, holding a pistol in his hand, had approached the car from the right side. That person had first attempted to open the front door from the outside, but as the door was locked, the person, without giving any prior warning, had started shooting with his pistol. Z.V. had attempted to manoeuvre the car in order to escape the shooting but the car had veered out of its lane, mounted the kerb and crashed into a lamp post. The relentless shooting towards them had continued even after the crash. B.P. emphasised that not a single shot had ever been fired in the direction of the police from their side. He added that neither he nor his friends had been carrying any firearms with them on the day of the incident.\n21.On 12 November 2012 the applicants obtained written statements from two additional independent eyewitnesses to the police operation of 2May 2006, R.P. and M.P. (see also the statements of two original independent witnesses, described in paragraph 12 above). Those witnesses confirmed that they had seen Z.V.’s car crashing into a lamp post and numerous armed men shooting in the direction of the car after that crash. The shooting had lasted about a minute or so. After it had stopped, the armed men had started collecting the used cartridge cases from the ground.\n22.On 30 October 2012 the applicants, referring to the newly obtained information (see paragraphs 19-21 above), asked the Chief Public Prosecutor’s Office to reopen the investigation into the police actions during the incident of 2 May 2006.\n23.On 14 December 2012 the Chief Public Prosecutor’s Office annulled the prosecutorial resolution of 20 April 2007 (see paragraph 14 above) and reopened the investigation into the police operation of 2 May 2006.\n24.In January 2013, after the first applicant had personally met with the Chief Public Prosecutor, during which the latter had allegedly conceded that the previous investigation had been defective, the applicants again transmitted to the Chief Public Prosecutor’s Office the witness statements that they had recently collected (see paragraphs 19-21 above).\n25.On 18 January 2013 the applicants asked the Chief Public Prosecutor’s Office to conduct a number of specific investigative measures. The prosecution authority replied on 22 January 2013 that the applicants’ request could not be taken into consideration because neither of them had been granted victim status.\n26.On 2 February 2013 the applicants obtained a written statement from another independent eyewitness to the police operation of 2 May 2006, K.M. That witnesses stated that she had seen how, after the police had ended a minute-long cycle of uninterrupted shooting from multiple firearms at Z.V.’s car, a police officer, wearing a balaclava, had approached the front left door of the car and shot into the cabin of the car through the left-side front window.\n27.In July 2013 the first applicant had a meeting with the Tbilisi city prosecutor, during which the latter allegedly promised the former that all the police officers who had been implicated in his son’s murder would be brought to justice.\n28.On 21 July 2013, G.M., a former member of the special police unit, who had personally participated in the police operation of 2 May 2006, convened a press conference. During that press conference, G.M. publicly declared that the order to “liquidate” (ლიკვიდაციის ბრძანება – in Georgian the term implies “lawful force”) the passengers of Z.V.’s car had been given by I.P., the then deputy head of the criminal police unit (see paragraphs 7 and 19 above). G.M. gave an additional explanation as regards the possible motive behind I.P’s order, suggesting that the latter had felt personal animosity towards A.Kh., one of the victims of the incident (for more details, see paragraphs 37, 39 and 44 below).\n29.On 9 August 2013 the first applicant held a press conference, speaking about the reopened investigation into the circumstances surrounding the police operation of 2 May 2006. He declared that sufficient evidence had been obtained to directly incriminate several high-ranking officers of the Ministry of the Interior in the killing of his son and in the subsequent cover-up of the original investigation. Notably, the first applicant publicly mentioned the names of I.P., G.Ts. and K.N. (see paragraph46 below), as well as I.K., the former commanding officer of I.P. at the criminal police unit (see paragraph 9 above). The first applicant stated that he would not stop his public activities until all those implicated officers had been arrested and punished.\n30.On 18 August 2013 the applicants lodged another request with the Chief Public Prosecutor’s Office aimed at obtaining information regarding the progress in the investigation, if any. Their request was left unanswered.\n31.On 18 August, 18 and 23 September and 9 and 11 October 2013 the applicants repeatedly enquired with the prosecution authority about the progress in the investigation and asked to view the available case-file material. They further requested that specific investigative measures be undertaken, such as formal questioning of the witnesses they had already approached themselves (see paragraphs 19-21 above) and a repeat forensic examination of Z.V.’s car with the aim of establishing whether any shots had been fired from inside of it.\n32.In reply, the Tbilisi city prosecutor’s office advised the applicants in letters dated 4 and 14 October 2013, that since victim status had not been granted to either of them, they were not entitled either to make any procedural requests or to view the criminal-case-file material or to receive updates concerning the progress in the investigation. The prosecution authority limited itself to advising the applicants in general terms that the criminal investigation was still ongoing, that important pieces of evidence had already been collected but that a number of additional investigative measures remained to be undertaken.\n33.According to the applicants, in December 2013 the first applicant met personally with the then Minister of the Interior. During a tense conversation, the first applicant complained that one of the high-ranking police officers, G.D., who had participated as a member of the criminal police unit in the police operation of 2 May 2006 was still holding a senior post within the Ministry. The Minister replied that he was aware that G.D. had participated in the incident. However, according to G.D.’s own statements, the latter had never fired shots at Z.V.’s car. That being so, the Minister had not seen any need to dismiss G.D. from his post. On the other hand, the Minister brought the first applicant’s attention to the fact that all the other senior officers implicated in the police operation of 2 May 2006 had already been fired from their positions in the law-enforcement system.\n34.On 14 February 2014 the applicants again requested victim status. The request was left unanswered.\n2.Delivery of the court judgment of 30 October 2015 on the basis of the reopened investigation\n35.Given that the applicants had not been involved in the reopened investigation as victims, it came as a surprise to the second applicant that, after her husband’s death (see paragraph 5 above), on 30 October 2015 the Tbilisi City Court delivered a judgment convicting five former senior officers of the Ministry of the Interior, including I.P., the ex-deputy head of the criminal police unit, of either aggravated murder (Article 109 of the Criminal Code), perverting the course of justice in a criminal case by fabrication of evidence (Article 369 of the Criminal Code), malfeasance by a public official (Article 333 of the Criminal Code) or false arrest(Article147 of the Criminal Code).\n36.As is apparent from the conviction of 30 October 2015, both the prosecution authority and the trial court conducted various investigative actions, including the examination of all those witnesses to whom the applicants had referred during the investigation stage (see paragraphs19‑21 above). As a result, the conviction delivered against the five former high-ranking police officers was confirmed by copious material and documentary evidence, both direct and circumstantial, such as the relevant witnesses’ statements, results of various crime-detection examinations, forensic expert statements given to the trial court, video recordings of the shooting scene in the immediate aftermath of the police operation 2 May 2006, various official documents, inferences drawn from a confrontation during the trial between the accused people and the witnesses for the prosecution, and so on. On the basis of all that evidence examined during the trial with the participation of the parties concerned, the Tbilisi City Court established the following facts, giving them the relevant legal qualifications.\n(a)Established facts\n37.The trial court established that on 7 April 2006 the special investigations unit of the Ministry of the Interior (“the SIU”) had arrested L.P., a younger brother of I.P., the senior officer who had set up the police operation (see paragraphs 7, 19 and 29 above), in relation to drug trafficking. The initiation of the criminal proceedings against L.P. and his arrest had been based on information provided to the SIU by A.Kh., one of the people killed during the police operation of 2 May 2006 (see paragraph7 above). A.Kh. had been a regular client of L.P., frequently buying various narcotic substances from the latter. A.Kh. had decided to act as a police informer owing to the emergence of a personal conflict between him and L.P. It was also reported that A.Kh. had been spreading rumours that L.P. had been procuring drugs for sale from the store of narcotic substances seized by the Ministry of the Interior as evidence in drug‑trafficking cases.\n38.A number of former officers of the Ministry of the Interior testified before the trial court that, when L.P. had been arrested on 7 April 2006, a number of high-ranking officers of the SIU had been involved in a deep organisational feud with their counterparts from the criminal police unit, in particular with I.P., its deputy head. That being so, the SIU was believed to have been interested in using the initiation of the criminal proceedings against L.P. as an opportunity to undermine the authority of I.P., the accused’s brother, in the eyes of the then Minister of the Interior.\n39.Having regard to the arrest of his younger brother as well as the organisational tensions with the competing agency, I.P. had decided to take revenge against A.Kh., who had been at the origin of all his family and professional troubles. Driven by that motive, I.P. had reported on 1May 2006 to his direct superior, the head of the criminal police unit, that he was in possession of anonymously received information that a robbery of a pawn shop had been planned by a small group of “criminals”, led by A.Kh. He had asked for and obtained approval to conduct a police operation against the group. I.P. had also received authorisation to mobilise an armed response squad of the Ministry of the Interior, which had consisted of approximately twenty heavily-armed officers. That squad had been led by K.N. In addition to that, I.P. had mobilised around thirty police officers from the criminal police unit.\n40.Having studied the files of the criminal police unit, the trial court concluded that I.P. had fabricated the so-called “anonymous information” about the planned robbery (see paragraph 9 above) in order to obtain authorisation to conduct a police operation. Furthermore, since I.P. had been tapping, in an unlawful manner, the mobile telephone conversations of A.Kh, he knew about the latter’s plan to meet up with his friends, Z.V. and B.P., on the morning of 2 May 2006. I.P. had ordered a small team of criminal police officers to monitor A.Kh.’s movements starting from the evening of 1 May 2006. With the help of that surveillance team and by tapping A.Kh.’s telephone conversations, I.P. had learnt that, having met with his two friends at 9 a.m. on 2 May 2006, the group had been travelling in a vehicle registered in the name of Z.V. in the direction of Isani-Samgori metro station. To reach the destination, the car had been supposed to pass through the right bank of the River Mtkvari, an extremely busy arterial avenue through the centre of Tbilisi.\n41.The Tbilisi City Court further established that I.P. had considered that the above-mentioned highway had been the most suitable place to conduct a police operation and so had ordered the mobilised police officers to prepare for an ambush there. At around 9.45 a.m., the moment the black car driven by Z.V. had stopped at a red traffic light, and an undercover police van had artificially created a traffic jam ahead of it, I.P. and eight officers of the special unit, led by K.N., had started approaching the car. K.N. had been the first one to reach the car, from the front passenger side, and, after having attempted to open the closed door from the outside, he had started shooting with his service pistol in the direction of the front passenger and the driver. The latter had started manoeuvring his car in order to escape the traffic jam created by the police van. In that manoeuvre, the car had crossed the lane into the traffic lane in the opposing direction; at that moment all the nine officers had opened heavy fire. Eventually, Z.V. had lost control over his vehicle which had crashed into a lamp post on the kerb, but the shooting at the car had continued after the crash. The trial court also established that, after the heavy shooting at Z.V.’s vehicle had stopped, G.Ts., a senior officer of the criminal police unit, who had been I.P.’s closest confidant at work, had approached the car from the driver’s side and fired two shots from his service pistol through the rolled-down window of the car into the heads of the driver, Z.V., and the front passenger, A.Kh. Those two shots were characterised by the trial court as “controlling” (საკონტროლო გასროლა) ones. Notably, as was confirmed by the results of the relevant forensic examination of the two dead bodies, both Z.V. and A.Kh. had been alive prior to those shots. The third passenger of the car, B.P., who had been seated on the rear passenger seat, had been heavily wounded, with more than fifteen bullets having penetrated various parts of his body, but had nevertheless survived.\n42.As a follow-up to its previous finding concerning the fabrication of the anonymous information received at the criminal police unit about the “planned robbery” (see paragraphs 9 and 40 above), the Tbilisi City Court further established, on the basis of the relevant legal documents, that a criminal investigation into conspiracy to commit a robbery by A.Kh., Z.V. and B.P. had been launched after the police operation of 2 May 2006. The trial court concluded that the only reason why the criminal police unit had launched that criminal investigation had been to be able to get control of the very first investigative measures conducted at the scene of the crime, as I.P. had been conspiring to cover up his and his team’s wrongdoings. In that connection, the trial court established, on the basis of the statements received from a number of former officers of the Ministry of the Interior, including those who had participated in the police operation of 2 May 2006, that, when preparing the armed ambush on Z.V.’s car, I.P. had thought of bringing along from the carpark of the Ministry of the Interior a police car that had already received bullet damage in a previous and unrelated police operation (“the damaged police car”). I.P. had ordered the driver of the damaged police car to place it right behind Z.V.’s car after the termination of the police operation of 2 May 2006. Those facts were confirmed to the trial court by the driver of the damaged police car himself.\n43.The Tbilisi City Court further found, on the basis of the statements given by numerous witnesses, including both the participants in the police operation and the independent eyewitnesses to the police operation of 2May 2006, that no shot had ever been fired from inside of Z.V.’s car. The latter fact was further confirmed by the results of a ballistics examination conducted during the reopened investigation. The City Court further established that, in another attempt to fabricate evidence of having been under fire from Z.V.’s car, I.P. had ordered one of his subordinates, L.B., who had participated in the police operation of 2 May 2006, to inflict a light injury on himself, and the latter had duly obeyed. Furthermore, I.P. had ordered his subordinates to plant four different types of guns, balaclavas and police radio scanners in Z.V.’s car immediately after the termination of the police operation. A subsequently conducted ballistics examination confirmed that no shot had ever been fired from any of the four planted guns. The trial court also established that I.P. had made prior arrangements with an undercover police informer, who had been collaborating with the criminal police in a number of unrelated cases, to come forward in the case at hand and pretend to be a victim of the robbery attack purportedly planned by Z.V. and his two friends. Lastly, it was also established that I.P. had induced a former convicted criminal, who had been released on parole and under the criminal police’s close supervision during the probationary period, to claim falsely that he had been the three young men’s fourth accomplice in their intention to commit the robbery.\n(b)Conclusions drawn from the established facts\n44.In the light of the foregoing factual findings, the Tbilisi City Court concluded that, firstly, there had been no lawful grounds for mounting a police operation against Z.V. and his two friends as the criminal police unit had not been in possession of any real information raising a reasonable suspicion that the young men had been planning to commit a criminal offence. I.P. was found to have fabricated, possibly in complicity with other unidentified senior law-enforcement officers of the Ministry of the Interior, the relevant documents in order to justify the mobilisation of police units. The trial court established that the mens rea behind I.P.’s criminal actions had been to take personal revenge against A.Kh. (see paragraphs37‑39 above). The police operation of 2 May 2006 had thus been mounted with the sole aim of assassinating the passengers of Z.V.’s car. The trial court also concluded that G.Ts. had been the direct perpetrator of the killings of the two young men.\n45.Apart from the clearly murderous intent behind I.P.’s and G.Ts.’s actions, the Tbilisi City Court emphasised the shortcomings of the police operation of 2 May 2006, not least the choice to proceed with it on one of the most densely crowded avenues of the capital city during the morning rush hour, thus endangering the lives of passers-by, and the decision to open fire at Z.V.’s car unexpectedly, without giving any prior warning or order to surrender. The trial court also underscored the clearly disproportionate nature of the force used by the police – whilst no resistance whatsoever had been received from the passengers in Z.V.’s car, within the fifteen seconds that followed K.N.’s initial unwarranted gun shots, at least five police officers fired from their Kalashnikov automatic rifles, each of them fully discharging their high-capacity magazines. Overall, more than hundred shots were fired, with some of the stray bullets damaging a public-transport bus. The trial court stated that, even assuming that the passengers of Z.V.’s car had put up resistance to the police’s lawful orders, the use of such overwhelming armed force had been clearly disproportionate.\n46.The Tbilisi City Court also found that I.P. and L.B. had been directly implicated in the intentional misrepresentation of facts and fabrication of evidence with the aim of obstructing the original investigation into the police actions during the police operation of 2 May 2006. When reaching the latter conclusion, the City Court suggested that it was not unreasonable to assume that other officers of the Ministry of the Interior, who had not been identified during the reopened investigation, could have been involved in perverting the course of justice. Furthermore, given that the initiation of the criminal proceedings for attempted robbery and unlawful transport of firearms against the passengers of Z.V.’s car had been unlawful (see paragraph40 above), the trial court concluded that the arrest of B.P., the only survivor, by G.K., the investigator in charge of the fabricated robbery case, had been unlawful. All in all:\n– I.P., born in 1968, was found guilty of aggravated murder (the offence prosecuted under Article 109 (a), (g) and (h) and of the Criminal Code) and sentenced to sixteen years’ imprisonment. Reducing the latter prison sentence by a quarter, pursuant to section 16 of the Amnesty Act of 28December 2012 (“the Amnesty Act”), the court finally fixed his sentence at twelve years;\n– G.Ts., born in 1972, was likewise convicted of murder under Article109 (a) and (h) of the Criminal Code and sentenced to sixteen years in prison. Reducing the latter prison sentence by a quarter, pursuant to section 16 of the Amnesty Act, the court finally fixed his sentence at twelve years;\n– K.N., born in 1976, was convicted of malfeasance (the offence prosecuted under Article 333 § 1, 2 and 3 (b) of the Criminal Code) on account of the disproportionate use of force by the special unit under his command, sentenced to eight years’ imprisonment and banned from public service jobs for a period of two years. Reducing the latter prison sentence by a quarter, pursuant to section 16 of the Amnesty Act, the court finally fixed the convict’s prison sentence at six years;\n– L.B., born in 1975, was convicted of fabrication of evidence with the aim of perverting the course of justice under Article 369 § 3 of the Criminal Code, sentenced to four years in prison and banned from public service jobs for a period of two years and three months. Reducing the latter prison sentence by a quarter, pursuant to section 16 of the Amnesty Act, the court finally fixed his prison sentence at three years;\n– G.K., born in 1978, was convicted of unlawful arrest of B.P. (the offence prosecuted Article 147 § 1 of the Criminal Code), sentenced to six years of imprisonment and banned from holding public service jobs for a period of two years and three months. Reducing the latter prison sentence by a quarter, pursuant to section 16 of the Amnesty Act, the court finally fixed his prison sentence at four years and six months.\n47.In the sentencing part of the judgment of 30 October 2015, the Tbilisi City Court stated that, when imposing the prison sentences, it took into consideration both the aggravating circumstances in which the offences had been committed and a number of mitigating considerations. Amongst the latter, the court referred to the fact that all five individuals to be sentenced had successfully fought criminality, owing to their former status as officers of the Ministry of the Interior, for many years, and that some of the convicted individuals were moreover war veterans who had participated in various armed conflicts and defended the territorial integrity of the country, for which service they should be given credit.\n(c)Termination of the criminal proceedings\n48.The prosecution authority – who requested a more severe punishment – and the five accused – who claimed their innocence – all appealed against the Tbilisi City Court’s judgment of 30 October 2015. The prosecution authority particularly insisted in its appeal that the prison sentences imposed upon the convicted individuals had been manifestly inadequate when compared with the heinous nature of the crimes committed. The authority complained that the lower-instance court had failed to give due consideration to the fact that the offences in question had been committed by former State agents who had used State power for the commission of the crime.\n49.By a decision of 21 June 2017, the Tbilisi Court of Appeal, after having conducted a fully adversarial retrial during which all of the witnesses and material pieces of evidence were examined anew, dismissed the parties’ appeals and upheld the lower-instance judgment in full. With respect to the sentencing part, the appellate court briefly stated that the prison sentences imposed by the lower court had been adequate.\n50.By a decision of 23 January 2018, the Supreme Court rejected appeals on points of law lodged by the parties, thus terminating the criminal proceedings.\n3.Investigation of the first applicant’s assassination\n51.On 20 January 2015 the first applicant was killed in a bomb blast caused by an improvised device planted at his son’s grave. The incident occurred in the village of Karaphila, Kaspi district, where Z.V., had been buried in the family cemetery plot.\n52.On 7 February 2015 G.S., a police officer, was arrested on suspicion of assassination of the first applicant. In a judgment of 6 November 2015 the Tbilisi City Court convicted G.S. as charged. As disclosed by the conviction, his guilt was confirmed by the following facts and inferences.\n(a)Established facts\n53.The Tbilisi City Court established that, after the killing of his son on 2 May 2006, which became one of the most well-known and scandalous examples of police abuse, the first applicant had become actively involved in public life, incessantly demanding an effective investigation into and the bringing to justice of all those police officers who had been implicated in the crime. As part of that public struggle, the first applicant had established a non-governmental organisation, Save a Life (“the NGO”), whose mission had been to shine a light on the activities of numerous high-ranking law‑enforcement officers who had allegedly been involved in various crimes committed by the police. The first applicant and his NGO had been propagating the idea that there had been an administrative practice of tolerance towards and impunity in respect of police abuse in the country.\n54.The Tbilisi City Court noted that the first applicant had become particularly active in 2012, when he had started having private meetings with various decision-makers in the Government and other high-level State officials (see paragraphs 19-29 above). It had been as a result of his constant pressure that the investigation into the police operation of 2 May 2006 had been renewed and that the implicated police officers had been dismissed from the Ministry (see paragraphs 33 above). In 2012 the NGO had published an article in a national newspaper with a long list of all those police officers believed to have been implicated in various criminal offences (hereinafter “the police blacklist”). At the top of the police blacklist there had been the names of I.P. and of two other senior police officers, Z.Tch. and N.S., whilst in the end of the document the name of G.S., the accused, had also appeared.\n55.The trial further established, by reference to witness statements and various Internet news feeds found in G.S.’s electronic possession, that the accused had been closely monitoring the first applicant’s public activities and had been aware of the published police blacklist. Having regard to lawfully wiretapped conversations that G.S. had held with a number of witnesses through an Internet messaging service as well as to the statements that those witnesses had given during the trial, the court established that G.S. had experienced negative personal animosity towards the first applicant because of the threat that the latter had represented for him and his colleagues. It had been further confirmed by various pieces of evidence that G.S. had been on particularly good terms with I.P., Z.Tch. and N.S., the officers at the top of the police blacklist (see the preceding paragraph).\n56.The Tbilisi City Court also established that G.S., who had taken part in the armed conflict between Georgia and the Russian Federation in August 2008, possessed, according to his military records, significant expertise in dealing with explosive materials. The trial court further found that on 12January 2015 G.S. had accessed, using his personal official password, the police national database, which contained certain data of Georgian nationals, and collected all available information about the first applicant and his late son. It had been through the latter database, as well as by placing repeated telephone calls with his acquaintance, a police officer who had worked in the Kaspi police station, that G.S. had learnt that Z.V. had been buried in the village of Karaphila and that the first applicant had visited his son’s grave regularly, at least once every two weeks.\n57.On 18 January 2015 G.S. had driven in his car to the village of Karaphila. His car had been seen on that day by several villagers at the entrance to the local cemetery. As further incriminating evidence, the City Court referred to the fact that (i)traces of G.S.’s DNA had been found on the parts of the bomb found dispersed at the scene of the crime and that (ii)particles of soil from Z.V.’s grave had been found in G.S.’s car, under the driver’s seat, near the accelerator. The City Court also took into account the following facts – as soon as the news about the first applicant’s death had spread, G.S. had not been able to hide his satisfaction in a conversation with his friend and had immediately started promoting, within his professional, police circles, a version of the first applicant’s suicide. Shortly after the investigation into the first applicant’s assassination had been launched, G.S. had started enquiring, using his professional network, as to whether any suspects had already been identified.\n(b)Conclusions drawn from the established facts\n58.In the light of the foregoing conclusions, the Tbilisi City Court found G.S. guilty of the first applicant’s murder, committed in aggravating circumstances (Article 109 of the Criminal Code). The court qualified the method of the assassination to have been particularly vile and cynical given the sanctity and significance that the son’s grave, who had in his turn been killed by police officers, had represented for the mourning father and because G.S. had eagerly assumed the risk of creating an excessive and indiscriminate danger to other peoples’ lives when planting such a large explosive device. The mens rea behind the crime had been G.S.’s wish to punish the first applicant for and/or prevent him from carrying out his public activities that had been directed against the officers appearing on the police blacklist (see paragraph 54 above). In that connection, the City Court noted, as a suspicious fact, that telephone conversations had taken place between I.P. and G.S. both a few days before and after the first applicant’s assassination. However, as they did not know the content of those conversations, the trial court refrained from making any further inferences. G.S. was sentenced to twenty years in prison.\n(c)Termination of the criminal proceedings\n59.By a decision of 24 June 2016, the Tbilisi Court of Appeal upheld G.S.’s conviction and sentence. On 23 December 2016 the Supreme Court, rejected an appeal on points lodged by G.S., finally terminating the criminal proceedings against him.", "5": "Allegation: 2, 3, 6, 14, P1-1\nI.THE CIRCUMSTANCES OF THE CASE\n6.Both applicants were born in 1953. On 20 January 2015 the first applicant died. The second applicant currently lives in Tbilisi.\nA.The situation prior to notification of the case being given on 18March 2013\n7.On 2 May 2006, at around 9.30 a.m., Z.V., the applicants’ son, aged22 at that time, and his friend, A.Kh., aged 25, were shot dead by police as they were driving in Z.V.’s car in a street of Tbilisi (“the police operation of 2 May 2006”). At least fifty police officers, including senior officials from the criminal police unit of the Ministry of the Interior led by that unit’s deputy head, I.P., and masked officers of a riot-police unit, armed with machine guns, participated in that police operation. More than seventy bullets were shot by the police in the direction of Z.V.’s car, with some forty bullets hitting their target. Experts of a subsequent, post-mortem forensic examination were not able to establish, owing to the severity of the injuries, the exact number of bullets that had penetrated the body and skull of the applicants’ son and A.Kh. A third passenger of the car, Mr B.P., aged twenty-two, was seriously wounded during the shooting, but survived.\n8.On the same day, 2 May 2006, the criminal unit of the Ministry of the Interior opened a criminal case against the applicants’ late son and the other passengers of Z.V.’s car for attempted robbery and unlawful possession and transport of firearms. The investigation was led by a senior official of the Ministry who had himself participated in the police operation earlier that day. All the preliminary investigative measures, including those directly relating to the examination of the scene of the shooting, were conducted within the framework of that investigation. The results of the investigation were subsequently transmitted to the Tbilisi city public prosecutor’s office (“the city prosecutor’s office”), which relied on the thus collected evidence in its subsequent probe into the lawfulness of the police actions (see paragraph 10 below).\n9.Later the same day, I.K., the head of the criminal police unit of the Ministry, stated at a press briefing that the applicants’ son and the two other passengers of his car had robbed a pawn shop on 30 April 2006 in Tbilisi. According to “information provided by an anonymous police informant”, the group of young men had been on their way to carry out another robbery of an apartment on 2 May 2006 when the “carefully planned” police operation had intervened, preventing the group from realising their criminal goals. Commenting further on the circumstances of the police operation of 2May 2006, the high-ranking police officer stated that the passengers of the car had opened fire on the police first and that the police had been obliged to return fire.\n10.On 5 May 2006 the Tbilisi city prosecutor’s office opened an investigation under Article 114 of the Criminal Code (killing as a result of the use of force beyond what was required for arresting a wrongdoer) for excessive use of force by the police during the operation of 2 May 2006. The relevant investigation file was mostly based on the evidence that had been collected by the Ministry of the Interior in the immediate aftermath of the police operation in question (see paragraph 8 above).\n11.From the early stages, the applicants complained regularly to the city prosecutor that the investigation was not being conducted thoroughly and impartially. They alleged that the investigators from the city prosecutor’s office who were in charge of the case were ignoring important witness statements which incriminated the police in the intentional killing of their son, and were denying the applicants the possibility to participate effectively in the proceedings, and that they had destroyed and fabricated evidence. In respect of the denial to participate properly in the proceedings, the applicants asserted that the prosecution authority had refused to grant, for several weeks, a request by the second applicant to be recognised a victim in the case. On 7 July 2006, following numerous complaints lodged by the applicants’ lawyers and the involvement of the Public Defender (Ombudsman), the second applicant was at last granted that procedural status. She was subsequently invited to get acquainted with the case file at the office of the prosecutor in charge of the case. As she was denied an opportunity to photocopy case-file material, the second applicant was obliged to rewrite by hand the content of the most significant pieces of evidence, including the forensic report containing the detailed description of the numerous lethal injuries on the body and skull of her late son.\n12.As is apparent from the case-file material, the city prosecutor’s office questioned at that time only two independent eyewitnesses to the police operation of 2 May 2006, M.Ts. and I.G. During interviews with them that took place in February 2007 the witnesses reported that it had been the police who had started firing and that there had been no retaliation from the passengers in Z.V.’s car; the police had continued shooting even after the car had hit the kerb and stopped. In a later prosecutorial resolution on the discontinuation of the investigation into the police’s actions (see paragraph 14 below), the prosecution authority stated that the statements given by the above-mentioned two independent witnesses had not been credible as they had clearly contradicted the opposite statements given by the police officers who had participated in the police operation of 2May 2006.\n13.According to the results of a ballistics test commissioned by the city prosecutor’s office in February-March 2007, the passengers of Z.V.’s car had fired shots at the police from through a hole in the left upper corner of the car’s rear window during the police operation of 2 May 2006.\n14.On 19 April 2007 the city prosecutor’s office quashed its previous decision granting victim status to the second applicant (see paragraph12 above). On the following day, 20 April 2007, the prosecution authority issued a resolution discontinuing the investigation into the police actions for want of a criminal offence. In reaching that decision, the authority mainly relied on the statements of the police officers who had participated in the police operation of 2 May 2006 as well as the results of the relevant ballistics test (see paragraphs 13 above) to conclude that the police had used force only in retaliation to the gunfire from Z.V.’s car and that the use of force had thus been necessary in the circumstances.\n15.Deprived of her victim status (see the preceding paragraph), the second applicant became unable to appeal against the discontinuation of the investigation to a court.\n16.Acting at the request of the first applicant, the Public Defender’s Office conducted, in 2009, its own probe into the circumstances surrounding the police operation of 2 May 2006 and assessed the adequacy of the investigation into the police actions. As part of that probe, the Public Defender commissioned an alternative forensic examination of Z.V.’s car. The results of that examination established that no shot had ever been fired from that car.\n17.On 8 September 2009 the Public Defender’s Office addressed the Chief Public Prosecutor’s Office with a recommendation to reopen the investigation into the police actions during the incident of 2 May 2006. The prosecution authority’s attention was drawn to the fact that the original investigation, which had been discontinued on 20 April 2007, had failed to address such principal aspects of the case as whether or not the use of force by the police during the incident had been proportionate. The Public Defender further called into question the inconclusiveness of a number of findings previously made by the city prosecutor’s office, notably as regards the question of gunfire purportedly originating from Z.V.’s car (see paragraphs 14 and 16 above). The recommendation of the Public Defender’s Office was left unanswered.\n18.The case file contains video footage, filmed by a cameraman of the Ministry of the Interior, showing the state of Z.V.’s car at the scene of the police operation of 2 May 2006 immediately after the shooting had ended. The footage showed the glass of the car’s rear window as wholly intact, without any holes or other damage. A verbatim record of the visual examination of the car after it had been taken from the scene of the shooting to a special parking area of the Ministry of the Interior further attested, similarly to the above-mentioned video footage, that the car’s rear window had been undamaged.\nB.Circumstances revealed after notification of the case being given\n1.Reopening of the investigation into the use of force by the police during the incident of 2 May 2006\n19.On 23 October 2012 the applicants obtained a statement from a former officer of the Ministry of the Interior, V.Kh. According to that witness, several police officers who participated in the police operation of 2May 2006 were instructed by I.P., the senior officer who had set up the police operation (see paragraph 7 above), to fire guns at a police vehicle found at the scene of the police operation of 2 May 2006 in order to be able to claim later that there had been an exchange of fire with the passengers of Z.V’s car. V.Kh. also stated that he had heard how, in the immediate aftermath of the police operation of 2 May 2006, a forensic expert had clearly told I.P. that the bullet holes found on the police car had been inconsistent with the trajectory of shots that could have been fired from where Z.V.’s car had been standing after it had hit the kerb (see paragraphs12, 13 and 16 above).\n20.On 26 October 2012 the applicants were able to approach B.P., the third passenger in the car (see paragraph 7 above), for the first time. They obtained a written statement from him, in which he described details of the police operation of 2 May 2006. He recalled that he and his two friends had been waiting in the relevant street in Tbilisi at a red traffic light in the car driven by Z.V. when suddenly a person in civilian clothes, holding a pistol in his hand, had approached the car from the right side. That person had first attempted to open the front door from the outside, but as the door was locked, the person, without giving any prior warning, had started shooting with his pistol. Z.V. had attempted to manoeuvre the car in order to escape the shooting but the car had veered out of its lane, mounted the kerb and crashed into a lamp post. The relentless shooting towards them had continued even after the crash. B.P. emphasised that not a single shot had ever been fired in the direction of the police from their side. He added that neither he nor his friends had been carrying any firearms with them on the day of the incident.\n21.On 12 November 2012 the applicants obtained written statements from two additional independent eyewitnesses to the police operation of 2May 2006, R.P. and M.P. (see also the statements of two original independent witnesses, described in paragraph 12 above). Those witnesses confirmed that they had seen Z.V.’s car crashing into a lamp post and numerous armed men shooting in the direction of the car after that crash. The shooting had lasted about a minute or so. After it had stopped, the armed men had started collecting the used cartridge cases from the ground.\n22.On 30 October 2012 the applicants, referring to the newly obtained information (see paragraphs 19-21 above), asked the Chief Public Prosecutor’s Office to reopen the investigation into the police actions during the incident of 2 May 2006.\n23.On 14 December 2012 the Chief Public Prosecutor’s Office annulled the prosecutorial resolution of 20 April 2007 (see paragraph 14 above) and reopened the investigation into the police operation of 2 May 2006.\n24.In January 2013, after the first applicant had personally met with the Chief Public Prosecutor, during which the latter had allegedly conceded that the previous investigation had been defective, the applicants again transmitted to the Chief Public Prosecutor’s Office the witness statements that they had recently collected (see paragraphs 19-21 above).\n25.On 18 January 2013 the applicants asked the Chief Public Prosecutor’s Office to conduct a number of specific investigative measures. The prosecution authority replied on 22 January 2013 that the applicants’ request could not be taken into consideration because neither of them had been granted victim status.\n26.On 2 February 2013 the applicants obtained a written statement from another independent eyewitness to the police operation of 2 May 2006, K.M. That witnesses stated that she had seen how, after the police had ended a minute-long cycle of uninterrupted shooting from multiple firearms at Z.V.’s car, a police officer, wearing a balaclava, had approached the front left door of the car and shot into the cabin of the car through the left-side front window.\n27.In July 2013 the first applicant had a meeting with the Tbilisi city prosecutor, during which the latter allegedly promised the former that all the police officers who had been implicated in his son’s murder would be brought to justice.\n28.On 21 July 2013, G.M., a former member of the special police unit, who had personally participated in the police operation of 2 May 2006, convened a press conference. During that press conference, G.M. publicly declared that the order to “liquidate” (ლიკვიდაციის ბრძანება – in Georgian the term implies “lawful force”) the passengers of Z.V.’s car had been given by I.P., the then deputy head of the criminal police unit (see paragraphs 7 and 19 above). G.M. gave an additional explanation as regards the possible motive behind I.P’s order, suggesting that the latter had felt personal animosity towards A.Kh., one of the victims of the incident (for more details, see paragraphs 37, 39 and 44 below).\n29.On 9 August 2013 the first applicant held a press conference, speaking about the reopened investigation into the circumstances surrounding the police operation of 2 May 2006. He declared that sufficient evidence had been obtained to directly incriminate several high-ranking officers of the Ministry of the Interior in the killing of his son and in the subsequent cover-up of the original investigation. Notably, the first applicant publicly mentioned the names of I.P., G.Ts. and K.N. (see paragraph46 below), as well as I.K., the former commanding officer of I.P. at the criminal police unit (see paragraph 9 above). The first applicant stated that he would not stop his public activities until all those implicated officers had been arrested and punished.\n30.On 18 August 2013 the applicants lodged another request with the Chief Public Prosecutor’s Office aimed at obtaining information regarding the progress in the investigation, if any. Their request was left unanswered.\n31.On 18 August, 18 and 23 September and 9 and 11 October 2013 the applicants repeatedly enquired with the prosecution authority about the progress in the investigation and asked to view the available case-file material. They further requested that specific investigative measures be undertaken, such as formal questioning of the witnesses they had already approached themselves (see paragraphs 19-21 above) and a repeat forensic examination of Z.V.’s car with the aim of establishing whether any shots had been fired from inside of it.\n32.In reply, the Tbilisi city prosecutor’s office advised the applicants in letters dated 4 and 14 October 2013, that since victim status had not been granted to either of them, they were not entitled either to make any procedural requests or to view the criminal-case-file material or to receive updates concerning the progress in the investigation. The prosecution authority limited itself to advising the applicants in general terms that the criminal investigation was still ongoing, that important pieces of evidence had already been collected but that a number of additional investigative measures remained to be undertaken.\n33.According to the applicants, in December 2013 the first applicant met personally with the then Minister of the Interior. During a tense conversation, the first applicant complained that one of the high-ranking police officers, G.D., who had participated as a member of the criminal police unit in the police operation of 2 May 2006 was still holding a senior post within the Ministry. The Minister replied that he was aware that G.D. had participated in the incident. However, according to G.D.’s own statements, the latter had never fired shots at Z.V.’s car. That being so, the Minister had not seen any need to dismiss G.D. from his post. On the other hand, the Minister brought the first applicant’s attention to the fact that all the other senior officers implicated in the police operation of 2 May 2006 had already been fired from their positions in the law-enforcement system.\n34.On 14 February 2014 the applicants again requested victim status. The request was left unanswered.\n2.Delivery of the court judgment of 30 October 2015 on the basis of the reopened investigation\n35.Given that the applicants had not been involved in the reopened investigation as victims, it came as a surprise to the second applicant that, after her husband’s death (see paragraph 5 above), on 30 October 2015 the Tbilisi City Court delivered a judgment convicting five former senior officers of the Ministry of the Interior, including I.P., the ex-deputy head of the criminal police unit, of either aggravated murder (Article 109 of the Criminal Code), perverting the course of justice in a criminal case by fabrication of evidence (Article 369 of the Criminal Code), malfeasance by a public official (Article 333 of the Criminal Code) or false arrest(Article147 of the Criminal Code).\n36.As is apparent from the conviction of 30 October 2015, both the prosecution authority and the trial court conducted various investigative actions, including the examination of all those witnesses to whom the applicants had referred during the investigation stage (see paragraphs19‑21 above). As a result, the conviction delivered against the five former high-ranking police officers was confirmed by copious material and documentary evidence, both direct and circumstantial, such as the relevant witnesses’ statements, results of various crime-detection examinations, forensic expert statements given to the trial court, video recordings of the shooting scene in the immediate aftermath of the police operation 2 May 2006, various official documents, inferences drawn from a confrontation during the trial between the accused people and the witnesses for the prosecution, and so on. On the basis of all that evidence examined during the trial with the participation of the parties concerned, the Tbilisi City Court established the following facts, giving them the relevant legal qualifications.\n(a)Established facts\n37.The trial court established that on 7 April 2006 the special investigations unit of the Ministry of the Interior (“the SIU”) had arrested L.P., a younger brother of I.P., the senior officer who had set up the police operation (see paragraphs 7, 19 and 29 above), in relation to drug trafficking. The initiation of the criminal proceedings against L.P. and his arrest had been based on information provided to the SIU by A.Kh., one of the people killed during the police operation of 2 May 2006 (see paragraph7 above). A.Kh. had been a regular client of L.P., frequently buying various narcotic substances from the latter. A.Kh. had decided to act as a police informer owing to the emergence of a personal conflict between him and L.P. It was also reported that A.Kh. had been spreading rumours that L.P. had been procuring drugs for sale from the store of narcotic substances seized by the Ministry of the Interior as evidence in drug‑trafficking cases.\n38.A number of former officers of the Ministry of the Interior testified before the trial court that, when L.P. had been arrested on 7 April 2006, a number of high-ranking officers of the SIU had been involved in a deep organisational feud with their counterparts from the criminal police unit, in particular with I.P., its deputy head. That being so, the SIU was believed to have been interested in using the initiation of the criminal proceedings against L.P. as an opportunity to undermine the authority of I.P., the accused’s brother, in the eyes of the then Minister of the Interior.\n39.Having regard to the arrest of his younger brother as well as the organisational tensions with the competing agency, I.P. had decided to take revenge against A.Kh., who had been at the origin of all his family and professional troubles. Driven by that motive, I.P. had reported on 1May 2006 to his direct superior, the head of the criminal police unit, that he was in possession of anonymously received information that a robbery of a pawn shop had been planned by a small group of “criminals”, led by A.Kh. He had asked for and obtained approval to conduct a police operation against the group. I.P. had also received authorisation to mobilise an armed response squad of the Ministry of the Interior, which had consisted of approximately twenty heavily-armed officers. That squad had been led by K.N. In addition to that, I.P. had mobilised around thirty police officers from the criminal police unit.\n40.Having studied the files of the criminal police unit, the trial court concluded that I.P. had fabricated the so-called “anonymous information” about the planned robbery (see paragraph 9 above) in order to obtain authorisation to conduct a police operation. Furthermore, since I.P. had been tapping, in an unlawful manner, the mobile telephone conversations of A.Kh, he knew about the latter’s plan to meet up with his friends, Z.V. and B.P., on the morning of 2 May 2006. I.P. had ordered a small team of criminal police officers to monitor A.Kh.’s movements starting from the evening of 1 May 2006. With the help of that surveillance team and by tapping A.Kh.’s telephone conversations, I.P. had learnt that, having met with his two friends at 9 a.m. on 2 May 2006, the group had been travelling in a vehicle registered in the name of Z.V. in the direction of Isani-Samgori metro station. To reach the destination, the car had been supposed to pass through the right bank of the River Mtkvari, an extremely busy arterial avenue through the centre of Tbilisi.\n41.The Tbilisi City Court further established that I.P. had considered that the above-mentioned highway had been the most suitable place to conduct a police operation and so had ordered the mobilised police officers to prepare for an ambush there. At around 9.45 a.m., the moment the black car driven by Z.V. had stopped at a red traffic light, and an undercover police van had artificially created a traffic jam ahead of it, I.P. and eight officers of the special unit, led by K.N., had started approaching the car. K.N. had been the first one to reach the car, from the front passenger side, and, after having attempted to open the closed door from the outside, he had started shooting with his service pistol in the direction of the front passenger and the driver. The latter had started manoeuvring his car in order to escape the traffic jam created by the police van. In that manoeuvre, the car had crossed the lane into the traffic lane in the opposing direction; at that moment all the nine officers had opened heavy fire. Eventually, Z.V. had lost control over his vehicle which had crashed into a lamp post on the kerb, but the shooting at the car had continued after the crash. The trial court also established that, after the heavy shooting at Z.V.’s vehicle had stopped, G.Ts., a senior officer of the criminal police unit, who had been I.P.’s closest confidant at work, had approached the car from the driver’s side and fired two shots from his service pistol through the rolled-down window of the car into the heads of the driver, Z.V., and the front passenger, A.Kh. Those two shots were characterised by the trial court as “controlling” (საკონტროლო გასროლა) ones. Notably, as was confirmed by the results of the relevant forensic examination of the two dead bodies, both Z.V. and A.Kh. had been alive prior to those shots. The third passenger of the car, B.P., who had been seated on the rear passenger seat, had been heavily wounded, with more than fifteen bullets having penetrated various parts of his body, but had nevertheless survived.\n42.As a follow-up to its previous finding concerning the fabrication of the anonymous information received at the criminal police unit about the “planned robbery” (see paragraphs 9 and 40 above), the Tbilisi City Court further established, on the basis of the relevant legal documents, that a criminal investigation into conspiracy to commit a robbery by A.Kh., Z.V. and B.P. had been launched after the police operation of 2 May 2006. The trial court concluded that the only reason why the criminal police unit had launched that criminal investigation had been to be able to get control of the very first investigative measures conducted at the scene of the crime, as I.P. had been conspiring to cover up his and his team’s wrongdoings. In that connection, the trial court established, on the basis of the statements received from a number of former officers of the Ministry of the Interior, including those who had participated in the police operation of 2 May 2006, that, when preparing the armed ambush on Z.V.’s car, I.P. had thought of bringing along from the carpark of the Ministry of the Interior a police car that had already received bullet damage in a previous and unrelated police operation (“the damaged police car”). I.P. had ordered the driver of the damaged police car to place it right behind Z.V.’s car after the termination of the police operation of 2 May 2006. Those facts were confirmed to the trial court by the driver of the damaged police car himself.\n43.The Tbilisi City Court further found, on the basis of the statements given by numerous witnesses, including both the participants in the police operation and the independent eyewitnesses to the police operation of 2May 2006, that no shot had ever been fired from inside of Z.V.’s car. The latter fact was further confirmed by the results of a ballistics examination conducted during the reopened investigation. The City Court further established that, in another attempt to fabricate evidence of having been under fire from Z.V.’s car, I.P. had ordered one of his subordinates, L.B., who had participated in the police operation of 2 May 2006, to inflict a light injury on himself, and the latter had duly obeyed. Furthermore, I.P. had ordered his subordinates to plant four different types of guns, balaclavas and police radio scanners in Z.V.’s car immediately after the termination of the police operation. A subsequently conducted ballistics examination confirmed that no shot had ever been fired from any of the four planted guns. The trial court also established that I.P. had made prior arrangements with an undercover police informer, who had been collaborating with the criminal police in a number of unrelated cases, to come forward in the case at hand and pretend to be a victim of the robbery attack purportedly planned by Z.V. and his two friends. Lastly, it was also established that I.P. had induced a former convicted criminal, who had been released on parole and under the criminal police’s close supervision during the probationary period, to claim falsely that he had been the three young men’s fourth accomplice in their intention to commit the robbery.\n(b)Conclusions drawn from the established facts\n44.In the light of the foregoing factual findings, the Tbilisi City Court concluded that, firstly, there had been no lawful grounds for mounting a police operation against Z.V. and his two friends as the criminal police unit had not been in possession of any real information raising a reasonable suspicion that the young men had been planning to commit a criminal offence. I.P. was found to have fabricated, possibly in complicity with other unidentified senior law-enforcement officers of the Ministry of the Interior, the relevant documents in order to justify the mobilisation of police units. The trial court established that the mens rea behind I.P.’s criminal actions had been to take personal revenge against A.Kh. (see paragraphs37‑39 above). The police operation of 2 May 2006 had thus been mounted with the sole aim of assassinating the passengers of Z.V.’s car. The trial court also concluded that G.Ts. had been the direct perpetrator of the killings of the two young men.\n45.Apart from the clearly murderous intent behind I.P.’s and G.Ts.’s actions, the Tbilisi City Court emphasised the shortcomings of the police operation of 2 May 2006, not least the choice to proceed with it on one of the most densely crowded avenues of the capital city during the morning rush hour, thus endangering the lives of passers-by, and the decision to open fire at Z.V.’s car unexpectedly, without giving any prior warning or order to surrender. The trial court also underscored the clearly disproportionate nature of the force used by the police – whilst no resistance whatsoever had been received from the passengers in Z.V.’s car, within the fifteen seconds that followed K.N.’s initial unwarranted gun shots, at least five police officers fired from their Kalashnikov automatic rifles, each of them fully discharging their high-capacity magazines. Overall, more than hundred shots were fired, with some of the stray bullets damaging a public-transport bus. The trial court stated that, even assuming that the passengers of Z.V.’s car had put up resistance to the police’s lawful orders, the use of such overwhelming armed force had been clearly disproportionate.\n46.The Tbilisi City Court also found that I.P. and L.B. had been directly implicated in the intentional misrepresentation of facts and fabrication of evidence with the aim of obstructing the original investigation into the police actions during the police operation of 2 May 2006. When reaching the latter conclusion, the City Court suggested that it was not unreasonable to assume that other officers of the Ministry of the Interior, who had not been identified during the reopened investigation, could have been involved in perverting the course of justice. Furthermore, given that the initiation of the criminal proceedings for attempted robbery and unlawful transport of firearms against the passengers of Z.V.’s car had been unlawful (see paragraph40 above), the trial court concluded that the arrest of B.P., the only survivor, by G.K., the investigator in charge of the fabricated robbery case, had been unlawful. All in all:\n– I.P., born in 1968, was found guilty of aggravated murder (the offence prosecuted under Article 109 (a), (g) and (h) and of the Criminal Code) and sentenced to sixteen years’ imprisonment. Reducing the latter prison sentence by a quarter, pursuant to section 16 of the Amnesty Act of 28December 2012 (“the Amnesty Act”), the court finally fixed his sentence at twelve years;\n– G.Ts., born in 1972, was likewise convicted of murder under Article109 (a) and (h) of the Criminal Code and sentenced to sixteen years in prison. Reducing the latter prison sentence by a quarter, pursuant to section 16 of the Amnesty Act, the court finally fixed his sentence at twelve years;\n– K.N., born in 1976, was convicted of malfeasance (the offence prosecuted under Article 333 § 1, 2 and 3 (b) of the Criminal Code) on account of the disproportionate use of force by the special unit under his command, sentenced to eight years’ imprisonment and banned from public service jobs for a period of two years. Reducing the latter prison sentence by a quarter, pursuant to section 16 of the Amnesty Act, the court finally fixed the convict’s prison sentence at six years;\n– L.B., born in 1975, was convicted of fabrication of evidence with the aim of perverting the course of justice under Article 369 § 3 of the Criminal Code, sentenced to four years in prison and banned from public service jobs for a period of two years and three months. Reducing the latter prison sentence by a quarter, pursuant to section 16 of the Amnesty Act, the court finally fixed his prison sentence at three years;\n– G.K., born in 1978, was convicted of unlawful arrest of B.P. (the offence prosecuted Article 147 § 1 of the Criminal Code), sentenced to six years of imprisonment and banned from holding public service jobs for a period of two years and three months. Reducing the latter prison sentence by a quarter, pursuant to section 16 of the Amnesty Act, the court finally fixed his prison sentence at four years and six months.\n47.In the sentencing part of the judgment of 30 October 2015, the Tbilisi City Court stated that, when imposing the prison sentences, it took into consideration both the aggravating circumstances in which the offences had been committed and a number of mitigating considerations. Amongst the latter, the court referred to the fact that all five individuals to be sentenced had successfully fought criminality, owing to their former status as officers of the Ministry of the Interior, for many years, and that some of the convicted individuals were moreover war veterans who had participated in various armed conflicts and defended the territorial integrity of the country, for which service they should be given credit.\n(c)Termination of the criminal proceedings\n48.The prosecution authority – who requested a more severe punishment – and the five accused – who claimed their innocence – all appealed against the Tbilisi City Court’s judgment of 30 October 2015. The prosecution authority particularly insisted in its appeal that the prison sentences imposed upon the convicted individuals had been manifestly inadequate when compared with the heinous nature of the crimes committed. The authority complained that the lower-instance court had failed to give due consideration to the fact that the offences in question had been committed by former State agents who had used State power for the commission of the crime.\n49.By a decision of 21 June 2017, the Tbilisi Court of Appeal, after having conducted a fully adversarial retrial during which all of the witnesses and material pieces of evidence were examined anew, dismissed the parties’ appeals and upheld the lower-instance judgment in full. With respect to the sentencing part, the appellate court briefly stated that the prison sentences imposed by the lower court had been adequate.\n50.By a decision of 23 January 2018, the Supreme Court rejected appeals on points of law lodged by the parties, thus terminating the criminal proceedings.\n3.Investigation of the first applicant’s assassination\n51.On 20 January 2015 the first applicant was killed in a bomb blast caused by an improvised device planted at his son’s grave. The incident occurred in the village of Karaphila, Kaspi district, where Z.V., had been buried in the family cemetery plot.\n52.On 7 February 2015 G.S., a police officer, was arrested on suspicion of assassination of the first applicant. In a judgment of 6 November 2015 the Tbilisi City Court convicted G.S. as charged. As disclosed by the conviction, his guilt was confirmed by the following facts and inferences.\n(a)Established facts\n53.The Tbilisi City Court established that, after the killing of his son on 2 May 2006, which became one of the most well-known and scandalous examples of police abuse, the first applicant had become actively involved in public life, incessantly demanding an effective investigation into and the bringing to justice of all those police officers who had been implicated in the crime. As part of that public struggle, the first applicant had established a non-governmental organisation, Save a Life (“the NGO”), whose mission had been to shine a light on the activities of numerous high-ranking law‑enforcement officers who had allegedly been involved in various crimes committed by the police. The first applicant and his NGO had been propagating the idea that there had been an administrative practice of tolerance towards and impunity in respect of police abuse in the country.\n54.The Tbilisi City Court noted that the first applicant had become particularly active in 2012, when he had started having private meetings with various decision-makers in the Government and other high-level State officials (see paragraphs 19-29 above). It had been as a result of his constant pressure that the investigation into the police operation of 2 May 2006 had been renewed and that the implicated police officers had been dismissed from the Ministry (see paragraphs 33 above). In 2012 the NGO had published an article in a national newspaper with a long list of all those police officers believed to have been implicated in various criminal offences (hereinafter “the police blacklist”). At the top of the police blacklist there had been the names of I.P. and of two other senior police officers, Z.Tch. and N.S., whilst in the end of the document the name of G.S., the accused, had also appeared.\n55.The trial further established, by reference to witness statements and various Internet news feeds found in G.S.’s electronic possession, that the accused had been closely monitoring the first applicant’s public activities and had been aware of the published police blacklist. Having regard to lawfully wiretapped conversations that G.S. had held with a number of witnesses through an Internet messaging service as well as to the statements that those witnesses had given during the trial, the court established that G.S. had experienced negative personal animosity towards the first applicant because of the threat that the latter had represented for him and his colleagues. It had been further confirmed by various pieces of evidence that G.S. had been on particularly good terms with I.P., Z.Tch. and N.S., the officers at the top of the police blacklist (see the preceding paragraph).\n56.The Tbilisi City Court also established that G.S., who had taken part in the armed conflict between Georgia and the Russian Federation in August 2008, possessed, according to his military records, significant expertise in dealing with explosive materials. The trial court further found that on 12January 2015 G.S. had accessed, using his personal official password, the police national database, which contained certain data of Georgian nationals, and collected all available information about the first applicant and his late son. It had been through the latter database, as well as by placing repeated telephone calls with his acquaintance, a police officer who had worked in the Kaspi police station, that G.S. had learnt that Z.V. had been buried in the village of Karaphila and that the first applicant had visited his son’s grave regularly, at least once every two weeks.\n57.On 18 January 2015 G.S. had driven in his car to the village of Karaphila. His car had been seen on that day by several villagers at the entrance to the local cemetery. As further incriminating evidence, the City Court referred to the fact that (i)traces of G.S.’s DNA had been found on the parts of the bomb found dispersed at the scene of the crime and that (ii)particles of soil from Z.V.’s grave had been found in G.S.’s car, under the driver’s seat, near the accelerator. The City Court also took into account the following facts – as soon as the news about the first applicant’s death had spread, G.S. had not been able to hide his satisfaction in a conversation with his friend and had immediately started promoting, within his professional, police circles, a version of the first applicant’s suicide. Shortly after the investigation into the first applicant’s assassination had been launched, G.S. had started enquiring, using his professional network, as to whether any suspects had already been identified.\n(b)Conclusions drawn from the established facts\n58.In the light of the foregoing conclusions, the Tbilisi City Court found G.S. guilty of the first applicant’s murder, committed in aggravating circumstances (Article 109 of the Criminal Code). The court qualified the method of the assassination to have been particularly vile and cynical given the sanctity and significance that the son’s grave, who had in his turn been killed by police officers, had represented for the mourning father and because G.S. had eagerly assumed the risk of creating an excessive and indiscriminate danger to other peoples’ lives when planting such a large explosive device. The mens rea behind the crime had been G.S.’s wish to punish the first applicant for and/or prevent him from carrying out his public activities that had been directed against the officers appearing on the police blacklist (see paragraph 54 above). In that connection, the City Court noted, as a suspicious fact, that telephone conversations had taken place between I.P. and G.S. both a few days before and after the first applicant’s assassination. However, as they did not know the content of those conversations, the trial court refrained from making any further inferences. G.S. was sentenced to twenty years in prison.\n(c)Termination of the criminal proceedings\n59.By a decision of 24 June 2016, the Tbilisi Court of Appeal upheld G.S.’s conviction and sentence. On 23 December 2016 the Supreme Court, rejected an appeal on points lodged by G.S., finally terminating the criminal proceedings against him.", "6": "Allegation: 2, 3, 6, 14, P1-1\nI.THE CIRCUMSTANCES OF THE CASE\n6.Both applicants were born in 1953. On 20 January 2015 the first applicant died. The second applicant currently lives in Tbilisi.\nA.The situation prior to notification of the case being given on 18March 2013\n7.On 2 May 2006, at around 9.30 a.m., Z.V., the applicants’ son, aged22 at that time, and his friend, A.Kh., aged 25, were shot dead by police as they were driving in Z.V.’s car in a street of Tbilisi (“the police operation of 2 May 2006”). At least fifty police officers, including senior officials from the criminal police unit of the Ministry of the Interior led by that unit’s deputy head, I.P., and masked officers of a riot-police unit, armed with machine guns, participated in that police operation. More than seventy bullets were shot by the police in the direction of Z.V.’s car, with some forty bullets hitting their target. Experts of a subsequent, post-mortem forensic examination were not able to establish, owing to the severity of the injuries, the exact number of bullets that had penetrated the body and skull of the applicants’ son and A.Kh. A third passenger of the car, Mr B.P., aged twenty-two, was seriously wounded during the shooting, but survived.\n8.On the same day, 2 May 2006, the criminal unit of the Ministry of the Interior opened a criminal case against the applicants’ late son and the other passengers of Z.V.’s car for attempted robbery and unlawful possession and transport of firearms. The investigation was led by a senior official of the Ministry who had himself participated in the police operation earlier that day. All the preliminary investigative measures, including those directly relating to the examination of the scene of the shooting, were conducted within the framework of that investigation. The results of the investigation were subsequently transmitted to the Tbilisi city public prosecutor’s office (“the city prosecutor’s office”), which relied on the thus collected evidence in its subsequent probe into the lawfulness of the police actions (see paragraph 10 below).\n9.Later the same day, I.K., the head of the criminal police unit of the Ministry, stated at a press briefing that the applicants’ son and the two other passengers of his car had robbed a pawn shop on 30 April 2006 in Tbilisi. According to “information provided by an anonymous police informant”, the group of young men had been on their way to carry out another robbery of an apartment on 2 May 2006 when the “carefully planned” police operation had intervened, preventing the group from realising their criminal goals. Commenting further on the circumstances of the police operation of 2May 2006, the high-ranking police officer stated that the passengers of the car had opened fire on the police first and that the police had been obliged to return fire.\n10.On 5 May 2006 the Tbilisi city prosecutor’s office opened an investigation under Article 114 of the Criminal Code (killing as a result of the use of force beyond what was required for arresting a wrongdoer) for excessive use of force by the police during the operation of 2 May 2006. The relevant investigation file was mostly based on the evidence that had been collected by the Ministry of the Interior in the immediate aftermath of the police operation in question (see paragraph 8 above).\n11.From the early stages, the applicants complained regularly to the city prosecutor that the investigation was not being conducted thoroughly and impartially. They alleged that the investigators from the city prosecutor’s office who were in charge of the case were ignoring important witness statements which incriminated the police in the intentional killing of their son, and were denying the applicants the possibility to participate effectively in the proceedings, and that they had destroyed and fabricated evidence. In respect of the denial to participate properly in the proceedings, the applicants asserted that the prosecution authority had refused to grant, for several weeks, a request by the second applicant to be recognised a victim in the case. On 7 July 2006, following numerous complaints lodged by the applicants’ lawyers and the involvement of the Public Defender (Ombudsman), the second applicant was at last granted that procedural status. She was subsequently invited to get acquainted with the case file at the office of the prosecutor in charge of the case. As she was denied an opportunity to photocopy case-file material, the second applicant was obliged to rewrite by hand the content of the most significant pieces of evidence, including the forensic report containing the detailed description of the numerous lethal injuries on the body and skull of her late son.\n12.As is apparent from the case-file material, the city prosecutor’s office questioned at that time only two independent eyewitnesses to the police operation of 2 May 2006, M.Ts. and I.G. During interviews with them that took place in February 2007 the witnesses reported that it had been the police who had started firing and that there had been no retaliation from the passengers in Z.V.’s car; the police had continued shooting even after the car had hit the kerb and stopped. In a later prosecutorial resolution on the discontinuation of the investigation into the police’s actions (see paragraph 14 below), the prosecution authority stated that the statements given by the above-mentioned two independent witnesses had not been credible as they had clearly contradicted the opposite statements given by the police officers who had participated in the police operation of 2May 2006.\n13.According to the results of a ballistics test commissioned by the city prosecutor’s office in February-March 2007, the passengers of Z.V.’s car had fired shots at the police from through a hole in the left upper corner of the car’s rear window during the police operation of 2 May 2006.\n14.On 19 April 2007 the city prosecutor’s office quashed its previous decision granting victim status to the second applicant (see paragraph12 above). On the following day, 20 April 2007, the prosecution authority issued a resolution discontinuing the investigation into the police actions for want of a criminal offence. In reaching that decision, the authority mainly relied on the statements of the police officers who had participated in the police operation of 2 May 2006 as well as the results of the relevant ballistics test (see paragraphs 13 above) to conclude that the police had used force only in retaliation to the gunfire from Z.V.’s car and that the use of force had thus been necessary in the circumstances.\n15.Deprived of her victim status (see the preceding paragraph), the second applicant became unable to appeal against the discontinuation of the investigation to a court.\n16.Acting at the request of the first applicant, the Public Defender’s Office conducted, in 2009, its own probe into the circumstances surrounding the police operation of 2 May 2006 and assessed the adequacy of the investigation into the police actions. As part of that probe, the Public Defender commissioned an alternative forensic examination of Z.V.’s car. The results of that examination established that no shot had ever been fired from that car.\n17.On 8 September 2009 the Public Defender’s Office addressed the Chief Public Prosecutor’s Office with a recommendation to reopen the investigation into the police actions during the incident of 2 May 2006. The prosecution authority’s attention was drawn to the fact that the original investigation, which had been discontinued on 20 April 2007, had failed to address such principal aspects of the case as whether or not the use of force by the police during the incident had been proportionate. The Public Defender further called into question the inconclusiveness of a number of findings previously made by the city prosecutor’s office, notably as regards the question of gunfire purportedly originating from Z.V.’s car (see paragraphs 14 and 16 above). The recommendation of the Public Defender’s Office was left unanswered.\n18.The case file contains video footage, filmed by a cameraman of the Ministry of the Interior, showing the state of Z.V.’s car at the scene of the police operation of 2 May 2006 immediately after the shooting had ended. The footage showed the glass of the car’s rear window as wholly intact, without any holes or other damage. A verbatim record of the visual examination of the car after it had been taken from the scene of the shooting to a special parking area of the Ministry of the Interior further attested, similarly to the above-mentioned video footage, that the car’s rear window had been undamaged.\nB.Circumstances revealed after notification of the case being given\n1.Reopening of the investigation into the use of force by the police during the incident of 2 May 2006\n19.On 23 October 2012 the applicants obtained a statement from a former officer of the Ministry of the Interior, V.Kh. According to that witness, several police officers who participated in the police operation of 2May 2006 were instructed by I.P., the senior officer who had set up the police operation (see paragraph 7 above), to fire guns at a police vehicle found at the scene of the police operation of 2 May 2006 in order to be able to claim later that there had been an exchange of fire with the passengers of Z.V’s car. V.Kh. also stated that he had heard how, in the immediate aftermath of the police operation of 2 May 2006, a forensic expert had clearly told I.P. that the bullet holes found on the police car had been inconsistent with the trajectory of shots that could have been fired from where Z.V.’s car had been standing after it had hit the kerb (see paragraphs12, 13 and 16 above).\n20.On 26 October 2012 the applicants were able to approach B.P., the third passenger in the car (see paragraph 7 above), for the first time. They obtained a written statement from him, in which he described details of the police operation of 2 May 2006. He recalled that he and his two friends had been waiting in the relevant street in Tbilisi at a red traffic light in the car driven by Z.V. when suddenly a person in civilian clothes, holding a pistol in his hand, had approached the car from the right side. That person had first attempted to open the front door from the outside, but as the door was locked, the person, without giving any prior warning, had started shooting with his pistol. Z.V. had attempted to manoeuvre the car in order to escape the shooting but the car had veered out of its lane, mounted the kerb and crashed into a lamp post. The relentless shooting towards them had continued even after the crash. B.P. emphasised that not a single shot had ever been fired in the direction of the police from their side. He added that neither he nor his friends had been carrying any firearms with them on the day of the incident.\n21.On 12 November 2012 the applicants obtained written statements from two additional independent eyewitnesses to the police operation of 2May 2006, R.P. and M.P. (see also the statements of two original independent witnesses, described in paragraph 12 above). Those witnesses confirmed that they had seen Z.V.’s car crashing into a lamp post and numerous armed men shooting in the direction of the car after that crash. The shooting had lasted about a minute or so. After it had stopped, the armed men had started collecting the used cartridge cases from the ground.\n22.On 30 October 2012 the applicants, referring to the newly obtained information (see paragraphs 19-21 above), asked the Chief Public Prosecutor’s Office to reopen the investigation into the police actions during the incident of 2 May 2006.\n23.On 14 December 2012 the Chief Public Prosecutor’s Office annulled the prosecutorial resolution of 20 April 2007 (see paragraph 14 above) and reopened the investigation into the police operation of 2 May 2006.\n24.In January 2013, after the first applicant had personally met with the Chief Public Prosecutor, during which the latter had allegedly conceded that the previous investigation had been defective, the applicants again transmitted to the Chief Public Prosecutor’s Office the witness statements that they had recently collected (see paragraphs 19-21 above).\n25.On 18 January 2013 the applicants asked the Chief Public Prosecutor’s Office to conduct a number of specific investigative measures. The prosecution authority replied on 22 January 2013 that the applicants’ request could not be taken into consideration because neither of them had been granted victim status.\n26.On 2 February 2013 the applicants obtained a written statement from another independent eyewitness to the police operation of 2 May 2006, K.M. That witnesses stated that she had seen how, after the police had ended a minute-long cycle of uninterrupted shooting from multiple firearms at Z.V.’s car, a police officer, wearing a balaclava, had approached the front left door of the car and shot into the cabin of the car through the left-side front window.\n27.In July 2013 the first applicant had a meeting with the Tbilisi city prosecutor, during which the latter allegedly promised the former that all the police officers who had been implicated in his son’s murder would be brought to justice.\n28.On 21 July 2013, G.M., a former member of the special police unit, who had personally participated in the police operation of 2 May 2006, convened a press conference. During that press conference, G.M. publicly declared that the order to “liquidate” (ლიკვიდაციის ბრძანება – in Georgian the term implies “lawful force”) the passengers of Z.V.’s car had been given by I.P., the then deputy head of the criminal police unit (see paragraphs 7 and 19 above). G.M. gave an additional explanation as regards the possible motive behind I.P’s order, suggesting that the latter had felt personal animosity towards A.Kh., one of the victims of the incident (for more details, see paragraphs 37, 39 and 44 below).\n29.On 9 August 2013 the first applicant held a press conference, speaking about the reopened investigation into the circumstances surrounding the police operation of 2 May 2006. He declared that sufficient evidence had been obtained to directly incriminate several high-ranking officers of the Ministry of the Interior in the killing of his son and in the subsequent cover-up of the original investigation. Notably, the first applicant publicly mentioned the names of I.P., G.Ts. and K.N. (see paragraph46 below), as well as I.K., the former commanding officer of I.P. at the criminal police unit (see paragraph 9 above). The first applicant stated that he would not stop his public activities until all those implicated officers had been arrested and punished.\n30.On 18 August 2013 the applicants lodged another request with the Chief Public Prosecutor’s Office aimed at obtaining information regarding the progress in the investigation, if any. Their request was left unanswered.\n31.On 18 August, 18 and 23 September and 9 and 11 October 2013 the applicants repeatedly enquired with the prosecution authority about the progress in the investigation and asked to view the available case-file material. They further requested that specific investigative measures be undertaken, such as formal questioning of the witnesses they had already approached themselves (see paragraphs 19-21 above) and a repeat forensic examination of Z.V.’s car with the aim of establishing whether any shots had been fired from inside of it.\n32.In reply, the Tbilisi city prosecutor’s office advised the applicants in letters dated 4 and 14 October 2013, that since victim status had not been granted to either of them, they were not entitled either to make any procedural requests or to view the criminal-case-file material or to receive updates concerning the progress in the investigation. The prosecution authority limited itself to advising the applicants in general terms that the criminal investigation was still ongoing, that important pieces of evidence had already been collected but that a number of additional investigative measures remained to be undertaken.\n33.According to the applicants, in December 2013 the first applicant met personally with the then Minister of the Interior. During a tense conversation, the first applicant complained that one of the high-ranking police officers, G.D., who had participated as a member of the criminal police unit in the police operation of 2 May 2006 was still holding a senior post within the Ministry. The Minister replied that he was aware that G.D. had participated in the incident. However, according to G.D.’s own statements, the latter had never fired shots at Z.V.’s car. That being so, the Minister had not seen any need to dismiss G.D. from his post. On the other hand, the Minister brought the first applicant’s attention to the fact that all the other senior officers implicated in the police operation of 2 May 2006 had already been fired from their positions in the law-enforcement system.\n34.On 14 February 2014 the applicants again requested victim status. The request was left unanswered.\n2.Delivery of the court judgment of 30 October 2015 on the basis of the reopened investigation\n35.Given that the applicants had not been involved in the reopened investigation as victims, it came as a surprise to the second applicant that, after her husband’s death (see paragraph 5 above), on 30 October 2015 the Tbilisi City Court delivered a judgment convicting five former senior officers of the Ministry of the Interior, including I.P., the ex-deputy head of the criminal police unit, of either aggravated murder (Article 109 of the Criminal Code), perverting the course of justice in a criminal case by fabrication of evidence (Article 369 of the Criminal Code), malfeasance by a public official (Article 333 of the Criminal Code) or false arrest(Article147 of the Criminal Code).\n36.As is apparent from the conviction of 30 October 2015, both the prosecution authority and the trial court conducted various investigative actions, including the examination of all those witnesses to whom the applicants had referred during the investigation stage (see paragraphs19‑21 above). As a result, the conviction delivered against the five former high-ranking police officers was confirmed by copious material and documentary evidence, both direct and circumstantial, such as the relevant witnesses’ statements, results of various crime-detection examinations, forensic expert statements given to the trial court, video recordings of the shooting scene in the immediate aftermath of the police operation 2 May 2006, various official documents, inferences drawn from a confrontation during the trial between the accused people and the witnesses for the prosecution, and so on. On the basis of all that evidence examined during the trial with the participation of the parties concerned, the Tbilisi City Court established the following facts, giving them the relevant legal qualifications.\n(a)Established facts\n37.The trial court established that on 7 April 2006 the special investigations unit of the Ministry of the Interior (“the SIU”) had arrested L.P., a younger brother of I.P., the senior officer who had set up the police operation (see paragraphs 7, 19 and 29 above), in relation to drug trafficking. The initiation of the criminal proceedings against L.P. and his arrest had been based on information provided to the SIU by A.Kh., one of the people killed during the police operation of 2 May 2006 (see paragraph7 above). A.Kh. had been a regular client of L.P., frequently buying various narcotic substances from the latter. A.Kh. had decided to act as a police informer owing to the emergence of a personal conflict between him and L.P. It was also reported that A.Kh. had been spreading rumours that L.P. had been procuring drugs for sale from the store of narcotic substances seized by the Ministry of the Interior as evidence in drug‑trafficking cases.\n38.A number of former officers of the Ministry of the Interior testified before the trial court that, when L.P. had been arrested on 7 April 2006, a number of high-ranking officers of the SIU had been involved in a deep organisational feud with their counterparts from the criminal police unit, in particular with I.P., its deputy head. That being so, the SIU was believed to have been interested in using the initiation of the criminal proceedings against L.P. as an opportunity to undermine the authority of I.P., the accused’s brother, in the eyes of the then Minister of the Interior.\n39.Having regard to the arrest of his younger brother as well as the organisational tensions with the competing agency, I.P. had decided to take revenge against A.Kh., who had been at the origin of all his family and professional troubles. Driven by that motive, I.P. had reported on 1May 2006 to his direct superior, the head of the criminal police unit, that he was in possession of anonymously received information that a robbery of a pawn shop had been planned by a small group of “criminals”, led by A.Kh. He had asked for and obtained approval to conduct a police operation against the group. I.P. had also received authorisation to mobilise an armed response squad of the Ministry of the Interior, which had consisted of approximately twenty heavily-armed officers. That squad had been led by K.N. In addition to that, I.P. had mobilised around thirty police officers from the criminal police unit.\n40.Having studied the files of the criminal police unit, the trial court concluded that I.P. had fabricated the so-called “anonymous information” about the planned robbery (see paragraph 9 above) in order to obtain authorisation to conduct a police operation. Furthermore, since I.P. had been tapping, in an unlawful manner, the mobile telephone conversations of A.Kh, he knew about the latter’s plan to meet up with his friends, Z.V. and B.P., on the morning of 2 May 2006. I.P. had ordered a small team of criminal police officers to monitor A.Kh.’s movements starting from the evening of 1 May 2006. With the help of that surveillance team and by tapping A.Kh.’s telephone conversations, I.P. had learnt that, having met with his two friends at 9 a.m. on 2 May 2006, the group had been travelling in a vehicle registered in the name of Z.V. in the direction of Isani-Samgori metro station. To reach the destination, the car had been supposed to pass through the right bank of the River Mtkvari, an extremely busy arterial avenue through the centre of Tbilisi.\n41.The Tbilisi City Court further established that I.P. had considered that the above-mentioned highway had been the most suitable place to conduct a police operation and so had ordered the mobilised police officers to prepare for an ambush there. At around 9.45 a.m., the moment the black car driven by Z.V. had stopped at a red traffic light, and an undercover police van had artificially created a traffic jam ahead of it, I.P. and eight officers of the special unit, led by K.N., had started approaching the car. K.N. had been the first one to reach the car, from the front passenger side, and, after having attempted to open the closed door from the outside, he had started shooting with his service pistol in the direction of the front passenger and the driver. The latter had started manoeuvring his car in order to escape the traffic jam created by the police van. In that manoeuvre, the car had crossed the lane into the traffic lane in the opposing direction; at that moment all the nine officers had opened heavy fire. Eventually, Z.V. had lost control over his vehicle which had crashed into a lamp post on the kerb, but the shooting at the car had continued after the crash. The trial court also established that, after the heavy shooting at Z.V.’s vehicle had stopped, G.Ts., a senior officer of the criminal police unit, who had been I.P.’s closest confidant at work, had approached the car from the driver’s side and fired two shots from his service pistol through the rolled-down window of the car into the heads of the driver, Z.V., and the front passenger, A.Kh. Those two shots were characterised by the trial court as “controlling” (საკონტროლო გასროლა) ones. Notably, as was confirmed by the results of the relevant forensic examination of the two dead bodies, both Z.V. and A.Kh. had been alive prior to those shots. The third passenger of the car, B.P., who had been seated on the rear passenger seat, had been heavily wounded, with more than fifteen bullets having penetrated various parts of his body, but had nevertheless survived.\n42.As a follow-up to its previous finding concerning the fabrication of the anonymous information received at the criminal police unit about the “planned robbery” (see paragraphs 9 and 40 above), the Tbilisi City Court further established, on the basis of the relevant legal documents, that a criminal investigation into conspiracy to commit a robbery by A.Kh., Z.V. and B.P. had been launched after the police operation of 2 May 2006. The trial court concluded that the only reason why the criminal police unit had launched that criminal investigation had been to be able to get control of the very first investigative measures conducted at the scene of the crime, as I.P. had been conspiring to cover up his and his team’s wrongdoings. In that connection, the trial court established, on the basis of the statements received from a number of former officers of the Ministry of the Interior, including those who had participated in the police operation of 2 May 2006, that, when preparing the armed ambush on Z.V.’s car, I.P. had thought of bringing along from the carpark of the Ministry of the Interior a police car that had already received bullet damage in a previous and unrelated police operation (“the damaged police car”). I.P. had ordered the driver of the damaged police car to place it right behind Z.V.’s car after the termination of the police operation of 2 May 2006. Those facts were confirmed to the trial court by the driver of the damaged police car himself.\n43.The Tbilisi City Court further found, on the basis of the statements given by numerous witnesses, including both the participants in the police operation and the independent eyewitnesses to the police operation of 2May 2006, that no shot had ever been fired from inside of Z.V.’s car. The latter fact was further confirmed by the results of a ballistics examination conducted during the reopened investigation. The City Court further established that, in another attempt to fabricate evidence of having been under fire from Z.V.’s car, I.P. had ordered one of his subordinates, L.B., who had participated in the police operation of 2 May 2006, to inflict a light injury on himself, and the latter had duly obeyed. Furthermore, I.P. had ordered his subordinates to plant four different types of guns, balaclavas and police radio scanners in Z.V.’s car immediately after the termination of the police operation. A subsequently conducted ballistics examination confirmed that no shot had ever been fired from any of the four planted guns. The trial court also established that I.P. had made prior arrangements with an undercover police informer, who had been collaborating with the criminal police in a number of unrelated cases, to come forward in the case at hand and pretend to be a victim of the robbery attack purportedly planned by Z.V. and his two friends. Lastly, it was also established that I.P. had induced a former convicted criminal, who had been released on parole and under the criminal police’s close supervision during the probationary period, to claim falsely that he had been the three young men’s fourth accomplice in their intention to commit the robbery.\n(b)Conclusions drawn from the established facts\n44.In the light of the foregoing factual findings, the Tbilisi City Court concluded that, firstly, there had been no lawful grounds for mounting a police operation against Z.V. and his two friends as the criminal police unit had not been in possession of any real information raising a reasonable suspicion that the young men had been planning to commit a criminal offence. I.P. was found to have fabricated, possibly in complicity with other unidentified senior law-enforcement officers of the Ministry of the Interior, the relevant documents in order to justify the mobilisation of police units. The trial court established that the mens rea behind I.P.’s criminal actions had been to take personal revenge against A.Kh. (see paragraphs37‑39 above). The police operation of 2 May 2006 had thus been mounted with the sole aim of assassinating the passengers of Z.V.’s car. The trial court also concluded that G.Ts. had been the direct perpetrator of the killings of the two young men.\n45.Apart from the clearly murderous intent behind I.P.’s and G.Ts.’s actions, the Tbilisi City Court emphasised the shortcomings of the police operation of 2 May 2006, not least the choice to proceed with it on one of the most densely crowded avenues of the capital city during the morning rush hour, thus endangering the lives of passers-by, and the decision to open fire at Z.V.’s car unexpectedly, without giving any prior warning or order to surrender. The trial court also underscored the clearly disproportionate nature of the force used by the police – whilst no resistance whatsoever had been received from the passengers in Z.V.’s car, within the fifteen seconds that followed K.N.’s initial unwarranted gun shots, at least five police officers fired from their Kalashnikov automatic rifles, each of them fully discharging their high-capacity magazines. Overall, more than hundred shots were fired, with some of the stray bullets damaging a public-transport bus. The trial court stated that, even assuming that the passengers of Z.V.’s car had put up resistance to the police’s lawful orders, the use of such overwhelming armed force had been clearly disproportionate.\n46.The Tbilisi City Court also found that I.P. and L.B. had been directly implicated in the intentional misrepresentation of facts and fabrication of evidence with the aim of obstructing the original investigation into the police actions during the police operation of 2 May 2006. When reaching the latter conclusion, the City Court suggested that it was not unreasonable to assume that other officers of the Ministry of the Interior, who had not been identified during the reopened investigation, could have been involved in perverting the course of justice. Furthermore, given that the initiation of the criminal proceedings for attempted robbery and unlawful transport of firearms against the passengers of Z.V.’s car had been unlawful (see paragraph40 above), the trial court concluded that the arrest of B.P., the only survivor, by G.K., the investigator in charge of the fabricated robbery case, had been unlawful. All in all:\n– I.P., born in 1968, was found guilty of aggravated murder (the offence prosecuted under Article 109 (a), (g) and (h) and of the Criminal Code) and sentenced to sixteen years’ imprisonment. Reducing the latter prison sentence by a quarter, pursuant to section 16 of the Amnesty Act of 28December 2012 (“the Amnesty Act”), the court finally fixed his sentence at twelve years;\n– G.Ts., born in 1972, was likewise convicted of murder under Article109 (a) and (h) of the Criminal Code and sentenced to sixteen years in prison. Reducing the latter prison sentence by a quarter, pursuant to section 16 of the Amnesty Act, the court finally fixed his sentence at twelve years;\n– K.N., born in 1976, was convicted of malfeasance (the offence prosecuted under Article 333 § 1, 2 and 3 (b) of the Criminal Code) on account of the disproportionate use of force by the special unit under his command, sentenced to eight years’ imprisonment and banned from public service jobs for a period of two years. Reducing the latter prison sentence by a quarter, pursuant to section 16 of the Amnesty Act, the court finally fixed the convict’s prison sentence at six years;\n– L.B., born in 1975, was convicted of fabrication of evidence with the aim of perverting the course of justice under Article 369 § 3 of the Criminal Code, sentenced to four years in prison and banned from public service jobs for a period of two years and three months. Reducing the latter prison sentence by a quarter, pursuant to section 16 of the Amnesty Act, the court finally fixed his prison sentence at three years;\n– G.K., born in 1978, was convicted of unlawful arrest of B.P. (the offence prosecuted Article 147 § 1 of the Criminal Code), sentenced to six years of imprisonment and banned from holding public service jobs for a period of two years and three months. Reducing the latter prison sentence by a quarter, pursuant to section 16 of the Amnesty Act, the court finally fixed his prison sentence at four years and six months.\n47.In the sentencing part of the judgment of 30 October 2015, the Tbilisi City Court stated that, when imposing the prison sentences, it took into consideration both the aggravating circumstances in which the offences had been committed and a number of mitigating considerations. Amongst the latter, the court referred to the fact that all five individuals to be sentenced had successfully fought criminality, owing to their former status as officers of the Ministry of the Interior, for many years, and that some of the convicted individuals were moreover war veterans who had participated in various armed conflicts and defended the territorial integrity of the country, for which service they should be given credit.\n(c)Termination of the criminal proceedings\n48.The prosecution authority – who requested a more severe punishment – and the five accused – who claimed their innocence – all appealed against the Tbilisi City Court’s judgment of 30 October 2015. The prosecution authority particularly insisted in its appeal that the prison sentences imposed upon the convicted individuals had been manifestly inadequate when compared with the heinous nature of the crimes committed. The authority complained that the lower-instance court had failed to give due consideration to the fact that the offences in question had been committed by former State agents who had used State power for the commission of the crime.\n49.By a decision of 21 June 2017, the Tbilisi Court of Appeal, after having conducted a fully adversarial retrial during which all of the witnesses and material pieces of evidence were examined anew, dismissed the parties’ appeals and upheld the lower-instance judgment in full. With respect to the sentencing part, the appellate court briefly stated that the prison sentences imposed by the lower court had been adequate.\n50.By a decision of 23 January 2018, the Supreme Court rejected appeals on points of law lodged by the parties, thus terminating the criminal proceedings.\n3.Investigation of the first applicant’s assassination\n51.On 20 January 2015 the first applicant was killed in a bomb blast caused by an improvised device planted at his son’s grave. The incident occurred in the village of Karaphila, Kaspi district, where Z.V., had been buried in the family cemetery plot.\n52.On 7 February 2015 G.S., a police officer, was arrested on suspicion of assassination of the first applicant. In a judgment of 6 November 2015 the Tbilisi City Court convicted G.S. as charged. As disclosed by the conviction, his guilt was confirmed by the following facts and inferences.\n(a)Established facts\n53.The Tbilisi City Court established that, after the killing of his son on 2 May 2006, which became one of the most well-known and scandalous examples of police abuse, the first applicant had become actively involved in public life, incessantly demanding an effective investigation into and the bringing to justice of all those police officers who had been implicated in the crime. As part of that public struggle, the first applicant had established a non-governmental organisation, Save a Life (“the NGO”), whose mission had been to shine a light on the activities of numerous high-ranking law‑enforcement officers who had allegedly been involved in various crimes committed by the police. The first applicant and his NGO had been propagating the idea that there had been an administrative practice of tolerance towards and impunity in respect of police abuse in the country.\n54.The Tbilisi City Court noted that the first applicant had become particularly active in 2012, when he had started having private meetings with various decision-makers in the Government and other high-level State officials (see paragraphs 19-29 above). It had been as a result of his constant pressure that the investigation into the police operation of 2 May 2006 had been renewed and that the implicated police officers had been dismissed from the Ministry (see paragraphs 33 above). In 2012 the NGO had published an article in a national newspaper with a long list of all those police officers believed to have been implicated in various criminal offences (hereinafter “the police blacklist”). At the top of the police blacklist there had been the names of I.P. and of two other senior police officers, Z.Tch. and N.S., whilst in the end of the document the name of G.S., the accused, had also appeared.\n55.The trial further established, by reference to witness statements and various Internet news feeds found in G.S.’s electronic possession, that the accused had been closely monitoring the first applicant’s public activities and had been aware of the published police blacklist. Having regard to lawfully wiretapped conversations that G.S. had held with a number of witnesses through an Internet messaging service as well as to the statements that those witnesses had given during the trial, the court established that G.S. had experienced negative personal animosity towards the first applicant because of the threat that the latter had represented for him and his colleagues. It had been further confirmed by various pieces of evidence that G.S. had been on particularly good terms with I.P., Z.Tch. and N.S., the officers at the top of the police blacklist (see the preceding paragraph).\n56.The Tbilisi City Court also established that G.S., who had taken part in the armed conflict between Georgia and the Russian Federation in August 2008, possessed, according to his military records, significant expertise in dealing with explosive materials. The trial court further found that on 12January 2015 G.S. had accessed, using his personal official password, the police national database, which contained certain data of Georgian nationals, and collected all available information about the first applicant and his late son. It had been through the latter database, as well as by placing repeated telephone calls with his acquaintance, a police officer who had worked in the Kaspi police station, that G.S. had learnt that Z.V. had been buried in the village of Karaphila and that the first applicant had visited his son’s grave regularly, at least once every two weeks.\n57.On 18 January 2015 G.S. had driven in his car to the village of Karaphila. His car had been seen on that day by several villagers at the entrance to the local cemetery. As further incriminating evidence, the City Court referred to the fact that (i)traces of G.S.’s DNA had been found on the parts of the bomb found dispersed at the scene of the crime and that (ii)particles of soil from Z.V.’s grave had been found in G.S.’s car, under the driver’s seat, near the accelerator. The City Court also took into account the following facts – as soon as the news about the first applicant’s death had spread, G.S. had not been able to hide his satisfaction in a conversation with his friend and had immediately started promoting, within his professional, police circles, a version of the first applicant’s suicide. Shortly after the investigation into the first applicant’s assassination had been launched, G.S. had started enquiring, using his professional network, as to whether any suspects had already been identified.\n(b)Conclusions drawn from the established facts\n58.In the light of the foregoing conclusions, the Tbilisi City Court found G.S. guilty of the first applicant’s murder, committed in aggravating circumstances (Article 109 of the Criminal Code). The court qualified the method of the assassination to have been particularly vile and cynical given the sanctity and significance that the son’s grave, who had in his turn been killed by police officers, had represented for the mourning father and because G.S. had eagerly assumed the risk of creating an excessive and indiscriminate danger to other peoples’ lives when planting such a large explosive device. The mens rea behind the crime had been G.S.’s wish to punish the first applicant for and/or prevent him from carrying out his public activities that had been directed against the officers appearing on the police blacklist (see paragraph 54 above). In that connection, the City Court noted, as a suspicious fact, that telephone conversations had taken place between I.P. and G.S. both a few days before and after the first applicant’s assassination. However, as they did not know the content of those conversations, the trial court refrained from making any further inferences. G.S. was sentenced to twenty years in prison.\n(c)Termination of the criminal proceedings\n59.By a decision of 24 June 2016, the Tbilisi Court of Appeal upheld G.S.’s conviction and sentence. On 23 December 2016 the Supreme Court, rejected an appeal on points lodged by G.S., finally terminating the criminal proceedings against him.", "7": "Allegation: 2, 3, 6, 14, P1-1\nI.THE CIRCUMSTANCES OF THE CASE\n6.Both applicants were born in 1953. On 20 January 2015 the first applicant died. The second applicant currently lives in Tbilisi.\nA.The situation prior to notification of the case being given on 18March 2013\n7.On 2 May 2006, at around 9.30 a.m., Z.V., the applicants’ son, aged22 at that time, and his friend, A.Kh., aged 25, were shot dead by police as they were driving in Z.V.’s car in a street of Tbilisi (“the police operation of 2 May 2006”). At least fifty police officers, including senior officials from the criminal police unit of the Ministry of the Interior led by that unit’s deputy head, I.P., and masked officers of a riot-police unit, armed with machine guns, participated in that police operation. More than seventy bullets were shot by the police in the direction of Z.V.’s car, with some forty bullets hitting their target. Experts of a subsequent, post-mortem forensic examination were not able to establish, owing to the severity of the injuries, the exact number of bullets that had penetrated the body and skull of the applicants’ son and A.Kh. A third passenger of the car, Mr B.P., aged twenty-two, was seriously wounded during the shooting, but survived.\n8.On the same day, 2 May 2006, the criminal unit of the Ministry of the Interior opened a criminal case against the applicants’ late son and the other passengers of Z.V.’s car for attempted robbery and unlawful possession and transport of firearms. The investigation was led by a senior official of the Ministry who had himself participated in the police operation earlier that day. All the preliminary investigative measures, including those directly relating to the examination of the scene of the shooting, were conducted within the framework of that investigation. The results of the investigation were subsequently transmitted to the Tbilisi city public prosecutor’s office (“the city prosecutor’s office”), which relied on the thus collected evidence in its subsequent probe into the lawfulness of the police actions (see paragraph 10 below).\n9.Later the same day, I.K., the head of the criminal police unit of the Ministry, stated at a press briefing that the applicants’ son and the two other passengers of his car had robbed a pawn shop on 30 April 2006 in Tbilisi. According to “information provided by an anonymous police informant”, the group of young men had been on their way to carry out another robbery of an apartment on 2 May 2006 when the “carefully planned” police operation had intervened, preventing the group from realising their criminal goals. Commenting further on the circumstances of the police operation of 2May 2006, the high-ranking police officer stated that the passengers of the car had opened fire on the police first and that the police had been obliged to return fire.\n10.On 5 May 2006 the Tbilisi city prosecutor’s office opened an investigation under Article 114 of the Criminal Code (killing as a result of the use of force beyond what was required for arresting a wrongdoer) for excessive use of force by the police during the operation of 2 May 2006. The relevant investigation file was mostly based on the evidence that had been collected by the Ministry of the Interior in the immediate aftermath of the police operation in question (see paragraph 8 above).\n11.From the early stages, the applicants complained regularly to the city prosecutor that the investigation was not being conducted thoroughly and impartially. They alleged that the investigators from the city prosecutor’s office who were in charge of the case were ignoring important witness statements which incriminated the police in the intentional killing of their son, and were denying the applicants the possibility to participate effectively in the proceedings, and that they had destroyed and fabricated evidence. In respect of the denial to participate properly in the proceedings, the applicants asserted that the prosecution authority had refused to grant, for several weeks, a request by the second applicant to be recognised a victim in the case. On 7 July 2006, following numerous complaints lodged by the applicants’ lawyers and the involvement of the Public Defender (Ombudsman), the second applicant was at last granted that procedural status. She was subsequently invited to get acquainted with the case file at the office of the prosecutor in charge of the case. As she was denied an opportunity to photocopy case-file material, the second applicant was obliged to rewrite by hand the content of the most significant pieces of evidence, including the forensic report containing the detailed description of the numerous lethal injuries on the body and skull of her late son.\n12.As is apparent from the case-file material, the city prosecutor’s office questioned at that time only two independent eyewitnesses to the police operation of 2 May 2006, M.Ts. and I.G. During interviews with them that took place in February 2007 the witnesses reported that it had been the police who had started firing and that there had been no retaliation from the passengers in Z.V.’s car; the police had continued shooting even after the car had hit the kerb and stopped. In a later prosecutorial resolution on the discontinuation of the investigation into the police’s actions (see paragraph 14 below), the prosecution authority stated that the statements given by the above-mentioned two independent witnesses had not been credible as they had clearly contradicted the opposite statements given by the police officers who had participated in the police operation of 2May 2006.\n13.According to the results of a ballistics test commissioned by the city prosecutor’s office in February-March 2007, the passengers of Z.V.’s car had fired shots at the police from through a hole in the left upper corner of the car’s rear window during the police operation of 2 May 2006.\n14.On 19 April 2007 the city prosecutor’s office quashed its previous decision granting victim status to the second applicant (see paragraph12 above). On the following day, 20 April 2007, the prosecution authority issued a resolution discontinuing the investigation into the police actions for want of a criminal offence. In reaching that decision, the authority mainly relied on the statements of the police officers who had participated in the police operation of 2 May 2006 as well as the results of the relevant ballistics test (see paragraphs 13 above) to conclude that the police had used force only in retaliation to the gunfire from Z.V.’s car and that the use of force had thus been necessary in the circumstances.\n15.Deprived of her victim status (see the preceding paragraph), the second applicant became unable to appeal against the discontinuation of the investigation to a court.\n16.Acting at the request of the first applicant, the Public Defender’s Office conducted, in 2009, its own probe into the circumstances surrounding the police operation of 2 May 2006 and assessed the adequacy of the investigation into the police actions. As part of that probe, the Public Defender commissioned an alternative forensic examination of Z.V.’s car. The results of that examination established that no shot had ever been fired from that car.\n17.On 8 September 2009 the Public Defender’s Office addressed the Chief Public Prosecutor’s Office with a recommendation to reopen the investigation into the police actions during the incident of 2 May 2006. The prosecution authority’s attention was drawn to the fact that the original investigation, which had been discontinued on 20 April 2007, had failed to address such principal aspects of the case as whether or not the use of force by the police during the incident had been proportionate. The Public Defender further called into question the inconclusiveness of a number of findings previously made by the city prosecutor’s office, notably as regards the question of gunfire purportedly originating from Z.V.’s car (see paragraphs 14 and 16 above). The recommendation of the Public Defender’s Office was left unanswered.\n18.The case file contains video footage, filmed by a cameraman of the Ministry of the Interior, showing the state of Z.V.’s car at the scene of the police operation of 2 May 2006 immediately after the shooting had ended. The footage showed the glass of the car’s rear window as wholly intact, without any holes or other damage. A verbatim record of the visual examination of the car after it had been taken from the scene of the shooting to a special parking area of the Ministry of the Interior further attested, similarly to the above-mentioned video footage, that the car’s rear window had been undamaged.\nB.Circumstances revealed after notification of the case being given\n1.Reopening of the investigation into the use of force by the police during the incident of 2 May 2006\n19.On 23 October 2012 the applicants obtained a statement from a former officer of the Ministry of the Interior, V.Kh. According to that witness, several police officers who participated in the police operation of 2May 2006 were instructed by I.P., the senior officer who had set up the police operation (see paragraph 7 above), to fire guns at a police vehicle found at the scene of the police operation of 2 May 2006 in order to be able to claim later that there had been an exchange of fire with the passengers of Z.V’s car. V.Kh. also stated that he had heard how, in the immediate aftermath of the police operation of 2 May 2006, a forensic expert had clearly told I.P. that the bullet holes found on the police car had been inconsistent with the trajectory of shots that could have been fired from where Z.V.’s car had been standing after it had hit the kerb (see paragraphs12, 13 and 16 above).\n20.On 26 October 2012 the applicants were able to approach B.P., the third passenger in the car (see paragraph 7 above), for the first time. They obtained a written statement from him, in which he described details of the police operation of 2 May 2006. He recalled that he and his two friends had been waiting in the relevant street in Tbilisi at a red traffic light in the car driven by Z.V. when suddenly a person in civilian clothes, holding a pistol in his hand, had approached the car from the right side. That person had first attempted to open the front door from the outside, but as the door was locked, the person, without giving any prior warning, had started shooting with his pistol. Z.V. had attempted to manoeuvre the car in order to escape the shooting but the car had veered out of its lane, mounted the kerb and crashed into a lamp post. The relentless shooting towards them had continued even after the crash. B.P. emphasised that not a single shot had ever been fired in the direction of the police from their side. He added that neither he nor his friends had been carrying any firearms with them on the day of the incident.\n21.On 12 November 2012 the applicants obtained written statements from two additional independent eyewitnesses to the police operation of 2May 2006, R.P. and M.P. (see also the statements of two original independent witnesses, described in paragraph 12 above). Those witnesses confirmed that they had seen Z.V.’s car crashing into a lamp post and numerous armed men shooting in the direction of the car after that crash. The shooting had lasted about a minute or so. After it had stopped, the armed men had started collecting the used cartridge cases from the ground.\n22.On 30 October 2012 the applicants, referring to the newly obtained information (see paragraphs 19-21 above), asked the Chief Public Prosecutor’s Office to reopen the investigation into the police actions during the incident of 2 May 2006.\n23.On 14 December 2012 the Chief Public Prosecutor’s Office annulled the prosecutorial resolution of 20 April 2007 (see paragraph 14 above) and reopened the investigation into the police operation of 2 May 2006.\n24.In January 2013, after the first applicant had personally met with the Chief Public Prosecutor, during which the latter had allegedly conceded that the previous investigation had been defective, the applicants again transmitted to the Chief Public Prosecutor’s Office the witness statements that they had recently collected (see paragraphs 19-21 above).\n25.On 18 January 2013 the applicants asked the Chief Public Prosecutor’s Office to conduct a number of specific investigative measures. The prosecution authority replied on 22 January 2013 that the applicants’ request could not be taken into consideration because neither of them had been granted victim status.\n26.On 2 February 2013 the applicants obtained a written statement from another independent eyewitness to the police operation of 2 May 2006, K.M. That witnesses stated that she had seen how, after the police had ended a minute-long cycle of uninterrupted shooting from multiple firearms at Z.V.’s car, a police officer, wearing a balaclava, had approached the front left door of the car and shot into the cabin of the car through the left-side front window.\n27.In July 2013 the first applicant had a meeting with the Tbilisi city prosecutor, during which the latter allegedly promised the former that all the police officers who had been implicated in his son’s murder would be brought to justice.\n28.On 21 July 2013, G.M., a former member of the special police unit, who had personally participated in the police operation of 2 May 2006, convened a press conference. During that press conference, G.M. publicly declared that the order to “liquidate” (ლიკვიდაციის ბრძანება – in Georgian the term implies “lawful force”) the passengers of Z.V.’s car had been given by I.P., the then deputy head of the criminal police unit (see paragraphs 7 and 19 above). G.M. gave an additional explanation as regards the possible motive behind I.P’s order, suggesting that the latter had felt personal animosity towards A.Kh., one of the victims of the incident (for more details, see paragraphs 37, 39 and 44 below).\n29.On 9 August 2013 the first applicant held a press conference, speaking about the reopened investigation into the circumstances surrounding the police operation of 2 May 2006. He declared that sufficient evidence had been obtained to directly incriminate several high-ranking officers of the Ministry of the Interior in the killing of his son and in the subsequent cover-up of the original investigation. Notably, the first applicant publicly mentioned the names of I.P., G.Ts. and K.N. (see paragraph46 below), as well as I.K., the former commanding officer of I.P. at the criminal police unit (see paragraph 9 above). The first applicant stated that he would not stop his public activities until all those implicated officers had been arrested and punished.\n30.On 18 August 2013 the applicants lodged another request with the Chief Public Prosecutor’s Office aimed at obtaining information regarding the progress in the investigation, if any. Their request was left unanswered.\n31.On 18 August, 18 and 23 September and 9 and 11 October 2013 the applicants repeatedly enquired with the prosecution authority about the progress in the investigation and asked to view the available case-file material. They further requested that specific investigative measures be undertaken, such as formal questioning of the witnesses they had already approached themselves (see paragraphs 19-21 above) and a repeat forensic examination of Z.V.’s car with the aim of establishing whether any shots had been fired from inside of it.\n32.In reply, the Tbilisi city prosecutor’s office advised the applicants in letters dated 4 and 14 October 2013, that since victim status had not been granted to either of them, they were not entitled either to make any procedural requests or to view the criminal-case-file material or to receive updates concerning the progress in the investigation. The prosecution authority limited itself to advising the applicants in general terms that the criminal investigation was still ongoing, that important pieces of evidence had already been collected but that a number of additional investigative measures remained to be undertaken.\n33.According to the applicants, in December 2013 the first applicant met personally with the then Minister of the Interior. During a tense conversation, the first applicant complained that one of the high-ranking police officers, G.D., who had participated as a member of the criminal police unit in the police operation of 2 May 2006 was still holding a senior post within the Ministry. The Minister replied that he was aware that G.D. had participated in the incident. However, according to G.D.’s own statements, the latter had never fired shots at Z.V.’s car. That being so, the Minister had not seen any need to dismiss G.D. from his post. On the other hand, the Minister brought the first applicant’s attention to the fact that all the other senior officers implicated in the police operation of 2 May 2006 had already been fired from their positions in the law-enforcement system.\n34.On 14 February 2014 the applicants again requested victim status. The request was left unanswered.\n2.Delivery of the court judgment of 30 October 2015 on the basis of the reopened investigation\n35.Given that the applicants had not been involved in the reopened investigation as victims, it came as a surprise to the second applicant that, after her husband’s death (see paragraph 5 above), on 30 October 2015 the Tbilisi City Court delivered a judgment convicting five former senior officers of the Ministry of the Interior, including I.P., the ex-deputy head of the criminal police unit, of either aggravated murder (Article 109 of the Criminal Code), perverting the course of justice in a criminal case by fabrication of evidence (Article 369 of the Criminal Code), malfeasance by a public official (Article 333 of the Criminal Code) or false arrest(Article147 of the Criminal Code).\n36.As is apparent from the conviction of 30 October 2015, both the prosecution authority and the trial court conducted various investigative actions, including the examination of all those witnesses to whom the applicants had referred during the investigation stage (see paragraphs19‑21 above). As a result, the conviction delivered against the five former high-ranking police officers was confirmed by copious material and documentary evidence, both direct and circumstantial, such as the relevant witnesses’ statements, results of various crime-detection examinations, forensic expert statements given to the trial court, video recordings of the shooting scene in the immediate aftermath of the police operation 2 May 2006, various official documents, inferences drawn from a confrontation during the trial between the accused people and the witnesses for the prosecution, and so on. On the basis of all that evidence examined during the trial with the participation of the parties concerned, the Tbilisi City Court established the following facts, giving them the relevant legal qualifications.\n(a)Established facts\n37.The trial court established that on 7 April 2006 the special investigations unit of the Ministry of the Interior (“the SIU”) had arrested L.P., a younger brother of I.P., the senior officer who had set up the police operation (see paragraphs 7, 19 and 29 above), in relation to drug trafficking. The initiation of the criminal proceedings against L.P. and his arrest had been based on information provided to the SIU by A.Kh., one of the people killed during the police operation of 2 May 2006 (see paragraph7 above). A.Kh. had been a regular client of L.P., frequently buying various narcotic substances from the latter. A.Kh. had decided to act as a police informer owing to the emergence of a personal conflict between him and L.P. It was also reported that A.Kh. had been spreading rumours that L.P. had been procuring drugs for sale from the store of narcotic substances seized by the Ministry of the Interior as evidence in drug‑trafficking cases.\n38.A number of former officers of the Ministry of the Interior testified before the trial court that, when L.P. had been arrested on 7 April 2006, a number of high-ranking officers of the SIU had been involved in a deep organisational feud with their counterparts from the criminal police unit, in particular with I.P., its deputy head. That being so, the SIU was believed to have been interested in using the initiation of the criminal proceedings against L.P. as an opportunity to undermine the authority of I.P., the accused’s brother, in the eyes of the then Minister of the Interior.\n39.Having regard to the arrest of his younger brother as well as the organisational tensions with the competing agency, I.P. had decided to take revenge against A.Kh., who had been at the origin of all his family and professional troubles. Driven by that motive, I.P. had reported on 1May 2006 to his direct superior, the head of the criminal police unit, that he was in possession of anonymously received information that a robbery of a pawn shop had been planned by a small group of “criminals”, led by A.Kh. He had asked for and obtained approval to conduct a police operation against the group. I.P. had also received authorisation to mobilise an armed response squad of the Ministry of the Interior, which had consisted of approximately twenty heavily-armed officers. That squad had been led by K.N. In addition to that, I.P. had mobilised around thirty police officers from the criminal police unit.\n40.Having studied the files of the criminal police unit, the trial court concluded that I.P. had fabricated the so-called “anonymous information” about the planned robbery (see paragraph 9 above) in order to obtain authorisation to conduct a police operation. Furthermore, since I.P. had been tapping, in an unlawful manner, the mobile telephone conversations of A.Kh, he knew about the latter’s plan to meet up with his friends, Z.V. and B.P., on the morning of 2 May 2006. I.P. had ordered a small team of criminal police officers to monitor A.Kh.’s movements starting from the evening of 1 May 2006. With the help of that surveillance team and by tapping A.Kh.’s telephone conversations, I.P. had learnt that, having met with his two friends at 9 a.m. on 2 May 2006, the group had been travelling in a vehicle registered in the name of Z.V. in the direction of Isani-Samgori metro station. To reach the destination, the car had been supposed to pass through the right bank of the River Mtkvari, an extremely busy arterial avenue through the centre of Tbilisi.\n41.The Tbilisi City Court further established that I.P. had considered that the above-mentioned highway had been the most suitable place to conduct a police operation and so had ordered the mobilised police officers to prepare for an ambush there. At around 9.45 a.m., the moment the black car driven by Z.V. had stopped at a red traffic light, and an undercover police van had artificially created a traffic jam ahead of it, I.P. and eight officers of the special unit, led by K.N., had started approaching the car. K.N. had been the first one to reach the car, from the front passenger side, and, after having attempted to open the closed door from the outside, he had started shooting with his service pistol in the direction of the front passenger and the driver. The latter had started manoeuvring his car in order to escape the traffic jam created by the police van. In that manoeuvre, the car had crossed the lane into the traffic lane in the opposing direction; at that moment all the nine officers had opened heavy fire. Eventually, Z.V. had lost control over his vehicle which had crashed into a lamp post on the kerb, but the shooting at the car had continued after the crash. The trial court also established that, after the heavy shooting at Z.V.’s vehicle had stopped, G.Ts., a senior officer of the criminal police unit, who had been I.P.’s closest confidant at work, had approached the car from the driver’s side and fired two shots from his service pistol through the rolled-down window of the car into the heads of the driver, Z.V., and the front passenger, A.Kh. Those two shots were characterised by the trial court as “controlling” (საკონტროლო გასროლა) ones. Notably, as was confirmed by the results of the relevant forensic examination of the two dead bodies, both Z.V. and A.Kh. had been alive prior to those shots. The third passenger of the car, B.P., who had been seated on the rear passenger seat, had been heavily wounded, with more than fifteen bullets having penetrated various parts of his body, but had nevertheless survived.\n42.As a follow-up to its previous finding concerning the fabrication of the anonymous information received at the criminal police unit about the “planned robbery” (see paragraphs 9 and 40 above), the Tbilisi City Court further established, on the basis of the relevant legal documents, that a criminal investigation into conspiracy to commit a robbery by A.Kh., Z.V. and B.P. had been launched after the police operation of 2 May 2006. The trial court concluded that the only reason why the criminal police unit had launched that criminal investigation had been to be able to get control of the very first investigative measures conducted at the scene of the crime, as I.P. had been conspiring to cover up his and his team’s wrongdoings. In that connection, the trial court established, on the basis of the statements received from a number of former officers of the Ministry of the Interior, including those who had participated in the police operation of 2 May 2006, that, when preparing the armed ambush on Z.V.’s car, I.P. had thought of bringing along from the carpark of the Ministry of the Interior a police car that had already received bullet damage in a previous and unrelated police operation (“the damaged police car”). I.P. had ordered the driver of the damaged police car to place it right behind Z.V.’s car after the termination of the police operation of 2 May 2006. Those facts were confirmed to the trial court by the driver of the damaged police car himself.\n43.The Tbilisi City Court further found, on the basis of the statements given by numerous witnesses, including both the participants in the police operation and the independent eyewitnesses to the police operation of 2May 2006, that no shot had ever been fired from inside of Z.V.’s car. The latter fact was further confirmed by the results of a ballistics examination conducted during the reopened investigation. The City Court further established that, in another attempt to fabricate evidence of having been under fire from Z.V.’s car, I.P. had ordered one of his subordinates, L.B., who had participated in the police operation of 2 May 2006, to inflict a light injury on himself, and the latter had duly obeyed. Furthermore, I.P. had ordered his subordinates to plant four different types of guns, balaclavas and police radio scanners in Z.V.’s car immediately after the termination of the police operation. A subsequently conducted ballistics examination confirmed that no shot had ever been fired from any of the four planted guns. The trial court also established that I.P. had made prior arrangements with an undercover police informer, who had been collaborating with the criminal police in a number of unrelated cases, to come forward in the case at hand and pretend to be a victim of the robbery attack purportedly planned by Z.V. and his two friends. Lastly, it was also established that I.P. had induced a former convicted criminal, who had been released on parole and under the criminal police’s close supervision during the probationary period, to claim falsely that he had been the three young men’s fourth accomplice in their intention to commit the robbery.\n(b)Conclusions drawn from the established facts\n44.In the light of the foregoing factual findings, the Tbilisi City Court concluded that, firstly, there had been no lawful grounds for mounting a police operation against Z.V. and his two friends as the criminal police unit had not been in possession of any real information raising a reasonable suspicion that the young men had been planning to commit a criminal offence. I.P. was found to have fabricated, possibly in complicity with other unidentified senior law-enforcement officers of the Ministry of the Interior, the relevant documents in order to justify the mobilisation of police units. The trial court established that the mens rea behind I.P.’s criminal actions had been to take personal revenge against A.Kh. (see paragraphs37‑39 above). The police operation of 2 May 2006 had thus been mounted with the sole aim of assassinating the passengers of Z.V.’s car. The trial court also concluded that G.Ts. had been the direct perpetrator of the killings of the two young men.\n45.Apart from the clearly murderous intent behind I.P.’s and G.Ts.’s actions, the Tbilisi City Court emphasised the shortcomings of the police operation of 2 May 2006, not least the choice to proceed with it on one of the most densely crowded avenues of the capital city during the morning rush hour, thus endangering the lives of passers-by, and the decision to open fire at Z.V.’s car unexpectedly, without giving any prior warning or order to surrender. The trial court also underscored the clearly disproportionate nature of the force used by the police – whilst no resistance whatsoever had been received from the passengers in Z.V.’s car, within the fifteen seconds that followed K.N.’s initial unwarranted gun shots, at least five police officers fired from their Kalashnikov automatic rifles, each of them fully discharging their high-capacity magazines. Overall, more than hundred shots were fired, with some of the stray bullets damaging a public-transport bus. The trial court stated that, even assuming that the passengers of Z.V.’s car had put up resistance to the police’s lawful orders, the use of such overwhelming armed force had been clearly disproportionate.\n46.The Tbilisi City Court also found that I.P. and L.B. had been directly implicated in the intentional misrepresentation of facts and fabrication of evidence with the aim of obstructing the original investigation into the police actions during the police operation of 2 May 2006. When reaching the latter conclusion, the City Court suggested that it was not unreasonable to assume that other officers of the Ministry of the Interior, who had not been identified during the reopened investigation, could have been involved in perverting the course of justice. Furthermore, given that the initiation of the criminal proceedings for attempted robbery and unlawful transport of firearms against the passengers of Z.V.’s car had been unlawful (see paragraph40 above), the trial court concluded that the arrest of B.P., the only survivor, by G.K., the investigator in charge of the fabricated robbery case, had been unlawful. All in all:\n– I.P., born in 1968, was found guilty of aggravated murder (the offence prosecuted under Article 109 (a), (g) and (h) and of the Criminal Code) and sentenced to sixteen years’ imprisonment. Reducing the latter prison sentence by a quarter, pursuant to section 16 of the Amnesty Act of 28December 2012 (“the Amnesty Act”), the court finally fixed his sentence at twelve years;\n– G.Ts., born in 1972, was likewise convicted of murder under Article109 (a) and (h) of the Criminal Code and sentenced to sixteen years in prison. Reducing the latter prison sentence by a quarter, pursuant to section 16 of the Amnesty Act, the court finally fixed his sentence at twelve years;\n– K.N., born in 1976, was convicted of malfeasance (the offence prosecuted under Article 333 § 1, 2 and 3 (b) of the Criminal Code) on account of the disproportionate use of force by the special unit under his command, sentenced to eight years’ imprisonment and banned from public service jobs for a period of two years. Reducing the latter prison sentence by a quarter, pursuant to section 16 of the Amnesty Act, the court finally fixed the convict’s prison sentence at six years;\n– L.B., born in 1975, was convicted of fabrication of evidence with the aim of perverting the course of justice under Article 369 § 3 of the Criminal Code, sentenced to four years in prison and banned from public service jobs for a period of two years and three months. Reducing the latter prison sentence by a quarter, pursuant to section 16 of the Amnesty Act, the court finally fixed his prison sentence at three years;\n– G.K., born in 1978, was convicted of unlawful arrest of B.P. (the offence prosecuted Article 147 § 1 of the Criminal Code), sentenced to six years of imprisonment and banned from holding public service jobs for a period of two years and three months. Reducing the latter prison sentence by a quarter, pursuant to section 16 of the Amnesty Act, the court finally fixed his prison sentence at four years and six months.\n47.In the sentencing part of the judgment of 30 October 2015, the Tbilisi City Court stated that, when imposing the prison sentences, it took into consideration both the aggravating circumstances in which the offences had been committed and a number of mitigating considerations. Amongst the latter, the court referred to the fact that all five individuals to be sentenced had successfully fought criminality, owing to their former status as officers of the Ministry of the Interior, for many years, and that some of the convicted individuals were moreover war veterans who had participated in various armed conflicts and defended the territorial integrity of the country, for which service they should be given credit.\n(c)Termination of the criminal proceedings\n48.The prosecution authority – who requested a more severe punishment – and the five accused – who claimed their innocence – all appealed against the Tbilisi City Court’s judgment of 30 October 2015. The prosecution authority particularly insisted in its appeal that the prison sentences imposed upon the convicted individuals had been manifestly inadequate when compared with the heinous nature of the crimes committed. The authority complained that the lower-instance court had failed to give due consideration to the fact that the offences in question had been committed by former State agents who had used State power for the commission of the crime.\n49.By a decision of 21 June 2017, the Tbilisi Court of Appeal, after having conducted a fully adversarial retrial during which all of the witnesses and material pieces of evidence were examined anew, dismissed the parties’ appeals and upheld the lower-instance judgment in full. With respect to the sentencing part, the appellate court briefly stated that the prison sentences imposed by the lower court had been adequate.\n50.By a decision of 23 January 2018, the Supreme Court rejected appeals on points of law lodged by the parties, thus terminating the criminal proceedings.\n3.Investigation of the first applicant’s assassination\n51.On 20 January 2015 the first applicant was killed in a bomb blast caused by an improvised device planted at his son’s grave. The incident occurred in the village of Karaphila, Kaspi district, where Z.V., had been buried in the family cemetery plot.\n52.On 7 February 2015 G.S., a police officer, was arrested on suspicion of assassination of the first applicant. In a judgment of 6 November 2015 the Tbilisi City Court convicted G.S. as charged. As disclosed by the conviction, his guilt was confirmed by the following facts and inferences.\n(a)Established facts\n53.The Tbilisi City Court established that, after the killing of his son on 2 May 2006, which became one of the most well-known and scandalous examples of police abuse, the first applicant had become actively involved in public life, incessantly demanding an effective investigation into and the bringing to justice of all those police officers who had been implicated in the crime. As part of that public struggle, the first applicant had established a non-governmental organisation, Save a Life (“the NGO”), whose mission had been to shine a light on the activities of numerous high-ranking law‑enforcement officers who had allegedly been involved in various crimes committed by the police. The first applicant and his NGO had been propagating the idea that there had been an administrative practice of tolerance towards and impunity in respect of police abuse in the country.\n54.The Tbilisi City Court noted that the first applicant had become particularly active in 2012, when he had started having private meetings with various decision-makers in the Government and other high-level State officials (see paragraphs 19-29 above). It had been as a result of his constant pressure that the investigation into the police operation of 2 May 2006 had been renewed and that the implicated police officers had been dismissed from the Ministry (see paragraphs 33 above). In 2012 the NGO had published an article in a national newspaper with a long list of all those police officers believed to have been implicated in various criminal offences (hereinafter “the police blacklist”). At the top of the police blacklist there had been the names of I.P. and of two other senior police officers, Z.Tch. and N.S., whilst in the end of the document the name of G.S., the accused, had also appeared.\n55.The trial further established, by reference to witness statements and various Internet news feeds found in G.S.’s electronic possession, that the accused had been closely monitoring the first applicant’s public activities and had been aware of the published police blacklist. Having regard to lawfully wiretapped conversations that G.S. had held with a number of witnesses through an Internet messaging service as well as to the statements that those witnesses had given during the trial, the court established that G.S. had experienced negative personal animosity towards the first applicant because of the threat that the latter had represented for him and his colleagues. It had been further confirmed by various pieces of evidence that G.S. had been on particularly good terms with I.P., Z.Tch. and N.S., the officers at the top of the police blacklist (see the preceding paragraph).\n56.The Tbilisi City Court also established that G.S., who had taken part in the armed conflict between Georgia and the Russian Federation in August 2008, possessed, according to his military records, significant expertise in dealing with explosive materials. The trial court further found that on 12January 2015 G.S. had accessed, using his personal official password, the police national database, which contained certain data of Georgian nationals, and collected all available information about the first applicant and his late son. It had been through the latter database, as well as by placing repeated telephone calls with his acquaintance, a police officer who had worked in the Kaspi police station, that G.S. had learnt that Z.V. had been buried in the village of Karaphila and that the first applicant had visited his son’s grave regularly, at least once every two weeks.\n57.On 18 January 2015 G.S. had driven in his car to the village of Karaphila. His car had been seen on that day by several villagers at the entrance to the local cemetery. As further incriminating evidence, the City Court referred to the fact that (i)traces of G.S.’s DNA had been found on the parts of the bomb found dispersed at the scene of the crime and that (ii)particles of soil from Z.V.’s grave had been found in G.S.’s car, under the driver’s seat, near the accelerator. The City Court also took into account the following facts – as soon as the news about the first applicant’s death had spread, G.S. had not been able to hide his satisfaction in a conversation with his friend and had immediately started promoting, within his professional, police circles, a version of the first applicant’s suicide. Shortly after the investigation into the first applicant’s assassination had been launched, G.S. had started enquiring, using his professional network, as to whether any suspects had already been identified.\n(b)Conclusions drawn from the established facts\n58.In the light of the foregoing conclusions, the Tbilisi City Court found G.S. guilty of the first applicant’s murder, committed in aggravating circumstances (Article 109 of the Criminal Code). The court qualified the method of the assassination to have been particularly vile and cynical given the sanctity and significance that the son’s grave, who had in his turn been killed by police officers, had represented for the mourning father and because G.S. had eagerly assumed the risk of creating an excessive and indiscriminate danger to other peoples’ lives when planting such a large explosive device. The mens rea behind the crime had been G.S.’s wish to punish the first applicant for and/or prevent him from carrying out his public activities that had been directed against the officers appearing on the police blacklist (see paragraph 54 above). In that connection, the City Court noted, as a suspicious fact, that telephone conversations had taken place between I.P. and G.S. both a few days before and after the first applicant’s assassination. However, as they did not know the content of those conversations, the trial court refrained from making any further inferences. G.S. was sentenced to twenty years in prison.\n(c)Termination of the criminal proceedings\n59.By a decision of 24 June 2016, the Tbilisi Court of Appeal upheld G.S.’s conviction and sentence. On 23 December 2016 the Supreme Court, rejected an appeal on points lodged by G.S., finally terminating the criminal proceedings against him.", "8": "Allegation: 2, 3, 6, 14, P1-1\nI.THE CIRCUMSTANCES OF THE CASE\n6.Both applicants were born in 1953. On 20 January 2015 the first applicant died. The second applicant currently lives in Tbilisi.\nA.The situation prior to notification of the case being given on 18March 2013\n7.On 2 May 2006, at around 9.30 a.m., Z.V., the applicants’ son, aged22 at that time, and his friend, A.Kh., aged 25, were shot dead by police as they were driving in Z.V.’s car in a street of Tbilisi (“the police operation of 2 May 2006”). At least fifty police officers, including senior officials from the criminal police unit of the Ministry of the Interior led by that unit’s deputy head, I.P., and masked officers of a riot-police unit, armed with machine guns, participated in that police operation. More than seventy bullets were shot by the police in the direction of Z.V.’s car, with some forty bullets hitting their target. Experts of a subsequent, post-mortem forensic examination were not able to establish, owing to the severity of the injuries, the exact number of bullets that had penetrated the body and skull of the applicants’ son and A.Kh. A third passenger of the car, Mr B.P., aged twenty-two, was seriously wounded during the shooting, but survived.\n8.On the same day, 2 May 2006, the criminal unit of the Ministry of the Interior opened a criminal case against the applicants’ late son and the other passengers of Z.V.’s car for attempted robbery and unlawful possession and transport of firearms. The investigation was led by a senior official of the Ministry who had himself participated in the police operation earlier that day. All the preliminary investigative measures, including those directly relating to the examination of the scene of the shooting, were conducted within the framework of that investigation. The results of the investigation were subsequently transmitted to the Tbilisi city public prosecutor’s office (“the city prosecutor’s office”), which relied on the thus collected evidence in its subsequent probe into the lawfulness of the police actions (see paragraph 10 below).\n9.Later the same day, I.K., the head of the criminal police unit of the Ministry, stated at a press briefing that the applicants’ son and the two other passengers of his car had robbed a pawn shop on 30 April 2006 in Tbilisi. According to “information provided by an anonymous police informant”, the group of young men had been on their way to carry out another robbery of an apartment on 2 May 2006 when the “carefully planned” police operation had intervened, preventing the group from realising their criminal goals. Commenting further on the circumstances of the police operation of 2May 2006, the high-ranking police officer stated that the passengers of the car had opened fire on the police first and that the police had been obliged to return fire.\n10.On 5 May 2006 the Tbilisi city prosecutor’s office opened an investigation under Article 114 of the Criminal Code (killing as a result of the use of force beyond what was required for arresting a wrongdoer) for excessive use of force by the police during the operation of 2 May 2006. The relevant investigation file was mostly based on the evidence that had been collected by the Ministry of the Interior in the immediate aftermath of the police operation in question (see paragraph 8 above).\n11.From the early stages, the applicants complained regularly to the city prosecutor that the investigation was not being conducted thoroughly and impartially. They alleged that the investigators from the city prosecutor’s office who were in charge of the case were ignoring important witness statements which incriminated the police in the intentional killing of their son, and were denying the applicants the possibility to participate effectively in the proceedings, and that they had destroyed and fabricated evidence. In respect of the denial to participate properly in the proceedings, the applicants asserted that the prosecution authority had refused to grant, for several weeks, a request by the second applicant to be recognised a victim in the case. On 7 July 2006, following numerous complaints lodged by the applicants’ lawyers and the involvement of the Public Defender (Ombudsman), the second applicant was at last granted that procedural status. She was subsequently invited to get acquainted with the case file at the office of the prosecutor in charge of the case. As she was denied an opportunity to photocopy case-file material, the second applicant was obliged to rewrite by hand the content of the most significant pieces of evidence, including the forensic report containing the detailed description of the numerous lethal injuries on the body and skull of her late son.\n12.As is apparent from the case-file material, the city prosecutor’s office questioned at that time only two independent eyewitnesses to the police operation of 2 May 2006, M.Ts. and I.G. During interviews with them that took place in February 2007 the witnesses reported that it had been the police who had started firing and that there had been no retaliation from the passengers in Z.V.’s car; the police had continued shooting even after the car had hit the kerb and stopped. In a later prosecutorial resolution on the discontinuation of the investigation into the police’s actions (see paragraph 14 below), the prosecution authority stated that the statements given by the above-mentioned two independent witnesses had not been credible as they had clearly contradicted the opposite statements given by the police officers who had participated in the police operation of 2May 2006.\n13.According to the results of a ballistics test commissioned by the city prosecutor’s office in February-March 2007, the passengers of Z.V.’s car had fired shots at the police from through a hole in the left upper corner of the car’s rear window during the police operation of 2 May 2006.\n14.On 19 April 2007 the city prosecutor’s office quashed its previous decision granting victim status to the second applicant (see paragraph12 above). On the following day, 20 April 2007, the prosecution authority issued a resolution discontinuing the investigation into the police actions for want of a criminal offence. In reaching that decision, the authority mainly relied on the statements of the police officers who had participated in the police operation of 2 May 2006 as well as the results of the relevant ballistics test (see paragraphs 13 above) to conclude that the police had used force only in retaliation to the gunfire from Z.V.’s car and that the use of force had thus been necessary in the circumstances.\n15.Deprived of her victim status (see the preceding paragraph), the second applicant became unable to appeal against the discontinuation of the investigation to a court.\n16.Acting at the request of the first applicant, the Public Defender’s Office conducted, in 2009, its own probe into the circumstances surrounding the police operation of 2 May 2006 and assessed the adequacy of the investigation into the police actions. As part of that probe, the Public Defender commissioned an alternative forensic examination of Z.V.’s car. The results of that examination established that no shot had ever been fired from that car.\n17.On 8 September 2009 the Public Defender’s Office addressed the Chief Public Prosecutor’s Office with a recommendation to reopen the investigation into the police actions during the incident of 2 May 2006. The prosecution authority’s attention was drawn to the fact that the original investigation, which had been discontinued on 20 April 2007, had failed to address such principal aspects of the case as whether or not the use of force by the police during the incident had been proportionate. The Public Defender further called into question the inconclusiveness of a number of findings previously made by the city prosecutor’s office, notably as regards the question of gunfire purportedly originating from Z.V.’s car (see paragraphs 14 and 16 above). The recommendation of the Public Defender’s Office was left unanswered.\n18.The case file contains video footage, filmed by a cameraman of the Ministry of the Interior, showing the state of Z.V.’s car at the scene of the police operation of 2 May 2006 immediately after the shooting had ended. The footage showed the glass of the car’s rear window as wholly intact, without any holes or other damage. A verbatim record of the visual examination of the car after it had been taken from the scene of the shooting to a special parking area of the Ministry of the Interior further attested, similarly to the above-mentioned video footage, that the car’s rear window had been undamaged.\nB.Circumstances revealed after notification of the case being given\n1.Reopening of the investigation into the use of force by the police during the incident of 2 May 2006\n19.On 23 October 2012 the applicants obtained a statement from a former officer of the Ministry of the Interior, V.Kh. According to that witness, several police officers who participated in the police operation of 2May 2006 were instructed by I.P., the senior officer who had set up the police operation (see paragraph 7 above), to fire guns at a police vehicle found at the scene of the police operation of 2 May 2006 in order to be able to claim later that there had been an exchange of fire with the passengers of Z.V’s car. V.Kh. also stated that he had heard how, in the immediate aftermath of the police operation of 2 May 2006, a forensic expert had clearly told I.P. that the bullet holes found on the police car had been inconsistent with the trajectory of shots that could have been fired from where Z.V.’s car had been standing after it had hit the kerb (see paragraphs12, 13 and 16 above).\n20.On 26 October 2012 the applicants were able to approach B.P., the third passenger in the car (see paragraph 7 above), for the first time. They obtained a written statement from him, in which he described details of the police operation of 2 May 2006. He recalled that he and his two friends had been waiting in the relevant street in Tbilisi at a red traffic light in the car driven by Z.V. when suddenly a person in civilian clothes, holding a pistol in his hand, had approached the car from the right side. That person had first attempted to open the front door from the outside, but as the door was locked, the person, without giving any prior warning, had started shooting with his pistol. Z.V. had attempted to manoeuvre the car in order to escape the shooting but the car had veered out of its lane, mounted the kerb and crashed into a lamp post. The relentless shooting towards them had continued even after the crash. B.P. emphasised that not a single shot had ever been fired in the direction of the police from their side. He added that neither he nor his friends had been carrying any firearms with them on the day of the incident.\n21.On 12 November 2012 the applicants obtained written statements from two additional independent eyewitnesses to the police operation of 2May 2006, R.P. and M.P. (see also the statements of two original independent witnesses, described in paragraph 12 above). Those witnesses confirmed that they had seen Z.V.’s car crashing into a lamp post and numerous armed men shooting in the direction of the car after that crash. The shooting had lasted about a minute or so. After it had stopped, the armed men had started collecting the used cartridge cases from the ground.\n22.On 30 October 2012 the applicants, referring to the newly obtained information (see paragraphs 19-21 above), asked the Chief Public Prosecutor’s Office to reopen the investigation into the police actions during the incident of 2 May 2006.\n23.On 14 December 2012 the Chief Public Prosecutor’s Office annulled the prosecutorial resolution of 20 April 2007 (see paragraph 14 above) and reopened the investigation into the police operation of 2 May 2006.\n24.In January 2013, after the first applicant had personally met with the Chief Public Prosecutor, during which the latter had allegedly conceded that the previous investigation had been defective, the applicants again transmitted to the Chief Public Prosecutor’s Office the witness statements that they had recently collected (see paragraphs 19-21 above).\n25.On 18 January 2013 the applicants asked the Chief Public Prosecutor’s Office to conduct a number of specific investigative measures. The prosecution authority replied on 22 January 2013 that the applicants’ request could not be taken into consideration because neither of them had been granted victim status.\n26.On 2 February 2013 the applicants obtained a written statement from another independent eyewitness to the police operation of 2 May 2006, K.M. That witnesses stated that she had seen how, after the police had ended a minute-long cycle of uninterrupted shooting from multiple firearms at Z.V.’s car, a police officer, wearing a balaclava, had approached the front left door of the car and shot into the cabin of the car through the left-side front window.\n27.In July 2013 the first applicant had a meeting with the Tbilisi city prosecutor, during which the latter allegedly promised the former that all the police officers who had been implicated in his son’s murder would be brought to justice.\n28.On 21 July 2013, G.M., a former member of the special police unit, who had personally participated in the police operation of 2 May 2006, convened a press conference. During that press conference, G.M. publicly declared that the order to “liquidate” (ლიკვიდაციის ბრძანება – in Georgian the term implies “lawful force”) the passengers of Z.V.’s car had been given by I.P., the then deputy head of the criminal police unit (see paragraphs 7 and 19 above). G.M. gave an additional explanation as regards the possible motive behind I.P’s order, suggesting that the latter had felt personal animosity towards A.Kh., one of the victims of the incident (for more details, see paragraphs 37, 39 and 44 below).\n29.On 9 August 2013 the first applicant held a press conference, speaking about the reopened investigation into the circumstances surrounding the police operation of 2 May 2006. He declared that sufficient evidence had been obtained to directly incriminate several high-ranking officers of the Ministry of the Interior in the killing of his son and in the subsequent cover-up of the original investigation. Notably, the first applicant publicly mentioned the names of I.P., G.Ts. and K.N. (see paragraph46 below), as well as I.K., the former commanding officer of I.P. at the criminal police unit (see paragraph 9 above). The first applicant stated that he would not stop his public activities until all those implicated officers had been arrested and punished.\n30.On 18 August 2013 the applicants lodged another request with the Chief Public Prosecutor’s Office aimed at obtaining information regarding the progress in the investigation, if any. Their request was left unanswered.\n31.On 18 August, 18 and 23 September and 9 and 11 October 2013 the applicants repeatedly enquired with the prosecution authority about the progress in the investigation and asked to view the available case-file material. They further requested that specific investigative measures be undertaken, such as formal questioning of the witnesses they had already approached themselves (see paragraphs 19-21 above) and a repeat forensic examination of Z.V.’s car with the aim of establishing whether any shots had been fired from inside of it.\n32.In reply, the Tbilisi city prosecutor’s office advised the applicants in letters dated 4 and 14 October 2013, that since victim status had not been granted to either of them, they were not entitled either to make any procedural requests or to view the criminal-case-file material or to receive updates concerning the progress in the investigation. The prosecution authority limited itself to advising the applicants in general terms that the criminal investigation was still ongoing, that important pieces of evidence had already been collected but that a number of additional investigative measures remained to be undertaken.\n33.According to the applicants, in December 2013 the first applicant met personally with the then Minister of the Interior. During a tense conversation, the first applicant complained that one of the high-ranking police officers, G.D., who had participated as a member of the criminal police unit in the police operation of 2 May 2006 was still holding a senior post within the Ministry. The Minister replied that he was aware that G.D. had participated in the incident. However, according to G.D.’s own statements, the latter had never fired shots at Z.V.’s car. That being so, the Minister had not seen any need to dismiss G.D. from his post. On the other hand, the Minister brought the first applicant’s attention to the fact that all the other senior officers implicated in the police operation of 2 May 2006 had already been fired from their positions in the law-enforcement system.\n34.On 14 February 2014 the applicants again requested victim status. The request was left unanswered.\n2.Delivery of the court judgment of 30 October 2015 on the basis of the reopened investigation\n35.Given that the applicants had not been involved in the reopened investigation as victims, it came as a surprise to the second applicant that, after her husband’s death (see paragraph 5 above), on 30 October 2015 the Tbilisi City Court delivered a judgment convicting five former senior officers of the Ministry of the Interior, including I.P., the ex-deputy head of the criminal police unit, of either aggravated murder (Article 109 of the Criminal Code), perverting the course of justice in a criminal case by fabrication of evidence (Article 369 of the Criminal Code), malfeasance by a public official (Article 333 of the Criminal Code) or false arrest(Article147 of the Criminal Code).\n36.As is apparent from the conviction of 30 October 2015, both the prosecution authority and the trial court conducted various investigative actions, including the examination of all those witnesses to whom the applicants had referred during the investigation stage (see paragraphs19‑21 above). As a result, the conviction delivered against the five former high-ranking police officers was confirmed by copious material and documentary evidence, both direct and circumstantial, such as the relevant witnesses’ statements, results of various crime-detection examinations, forensic expert statements given to the trial court, video recordings of the shooting scene in the immediate aftermath of the police operation 2 May 2006, various official documents, inferences drawn from a confrontation during the trial between the accused people and the witnesses for the prosecution, and so on. On the basis of all that evidence examined during the trial with the participation of the parties concerned, the Tbilisi City Court established the following facts, giving them the relevant legal qualifications.\n(a)Established facts\n37.The trial court established that on 7 April 2006 the special investigations unit of the Ministry of the Interior (“the SIU”) had arrested L.P., a younger brother of I.P., the senior officer who had set up the police operation (see paragraphs 7, 19 and 29 above), in relation to drug trafficking. The initiation of the criminal proceedings against L.P. and his arrest had been based on information provided to the SIU by A.Kh., one of the people killed during the police operation of 2 May 2006 (see paragraph7 above). A.Kh. had been a regular client of L.P., frequently buying various narcotic substances from the latter. A.Kh. had decided to act as a police informer owing to the emergence of a personal conflict between him and L.P. It was also reported that A.Kh. had been spreading rumours that L.P. had been procuring drugs for sale from the store of narcotic substances seized by the Ministry of the Interior as evidence in drug‑trafficking cases.\n38.A number of former officers of the Ministry of the Interior testified before the trial court that, when L.P. had been arrested on 7 April 2006, a number of high-ranking officers of the SIU had been involved in a deep organisational feud with their counterparts from the criminal police unit, in particular with I.P., its deputy head. That being so, the SIU was believed to have been interested in using the initiation of the criminal proceedings against L.P. as an opportunity to undermine the authority of I.P., the accused’s brother, in the eyes of the then Minister of the Interior.\n39.Having regard to the arrest of his younger brother as well as the organisational tensions with the competing agency, I.P. had decided to take revenge against A.Kh., who had been at the origin of all his family and professional troubles. Driven by that motive, I.P. had reported on 1May 2006 to his direct superior, the head of the criminal police unit, that he was in possession of anonymously received information that a robbery of a pawn shop had been planned by a small group of “criminals”, led by A.Kh. He had asked for and obtained approval to conduct a police operation against the group. I.P. had also received authorisation to mobilise an armed response squad of the Ministry of the Interior, which had consisted of approximately twenty heavily-armed officers. That squad had been led by K.N. In addition to that, I.P. had mobilised around thirty police officers from the criminal police unit.\n40.Having studied the files of the criminal police unit, the trial court concluded that I.P. had fabricated the so-called “anonymous information” about the planned robbery (see paragraph 9 above) in order to obtain authorisation to conduct a police operation. Furthermore, since I.P. had been tapping, in an unlawful manner, the mobile telephone conversations of A.Kh, he knew about the latter’s plan to meet up with his friends, Z.V. and B.P., on the morning of 2 May 2006. I.P. had ordered a small team of criminal police officers to monitor A.Kh.’s movements starting from the evening of 1 May 2006. With the help of that surveillance team and by tapping A.Kh.’s telephone conversations, I.P. had learnt that, having met with his two friends at 9 a.m. on 2 May 2006, the group had been travelling in a vehicle registered in the name of Z.V. in the direction of Isani-Samgori metro station. To reach the destination, the car had been supposed to pass through the right bank of the River Mtkvari, an extremely busy arterial avenue through the centre of Tbilisi.\n41.The Tbilisi City Court further established that I.P. had considered that the above-mentioned highway had been the most suitable place to conduct a police operation and so had ordered the mobilised police officers to prepare for an ambush there. At around 9.45 a.m., the moment the black car driven by Z.V. had stopped at a red traffic light, and an undercover police van had artificially created a traffic jam ahead of it, I.P. and eight officers of the special unit, led by K.N., had started approaching the car. K.N. had been the first one to reach the car, from the front passenger side, and, after having attempted to open the closed door from the outside, he had started shooting with his service pistol in the direction of the front passenger and the driver. The latter had started manoeuvring his car in order to escape the traffic jam created by the police van. In that manoeuvre, the car had crossed the lane into the traffic lane in the opposing direction; at that moment all the nine officers had opened heavy fire. Eventually, Z.V. had lost control over his vehicle which had crashed into a lamp post on the kerb, but the shooting at the car had continued after the crash. The trial court also established that, after the heavy shooting at Z.V.’s vehicle had stopped, G.Ts., a senior officer of the criminal police unit, who had been I.P.’s closest confidant at work, had approached the car from the driver’s side and fired two shots from his service pistol through the rolled-down window of the car into the heads of the driver, Z.V., and the front passenger, A.Kh. Those two shots were characterised by the trial court as “controlling” (საკონტროლო გასროლა) ones. Notably, as was confirmed by the results of the relevant forensic examination of the two dead bodies, both Z.V. and A.Kh. had been alive prior to those shots. The third passenger of the car, B.P., who had been seated on the rear passenger seat, had been heavily wounded, with more than fifteen bullets having penetrated various parts of his body, but had nevertheless survived.\n42.As a follow-up to its previous finding concerning the fabrication of the anonymous information received at the criminal police unit about the “planned robbery” (see paragraphs 9 and 40 above), the Tbilisi City Court further established, on the basis of the relevant legal documents, that a criminal investigation into conspiracy to commit a robbery by A.Kh., Z.V. and B.P. had been launched after the police operation of 2 May 2006. The trial court concluded that the only reason why the criminal police unit had launched that criminal investigation had been to be able to get control of the very first investigative measures conducted at the scene of the crime, as I.P. had been conspiring to cover up his and his team’s wrongdoings. In that connection, the trial court established, on the basis of the statements received from a number of former officers of the Ministry of the Interior, including those who had participated in the police operation of 2 May 2006, that, when preparing the armed ambush on Z.V.’s car, I.P. had thought of bringing along from the carpark of the Ministry of the Interior a police car that had already received bullet damage in a previous and unrelated police operation (“the damaged police car”). I.P. had ordered the driver of the damaged police car to place it right behind Z.V.’s car after the termination of the police operation of 2 May 2006. Those facts were confirmed to the trial court by the driver of the damaged police car himself.\n43.The Tbilisi City Court further found, on the basis of the statements given by numerous witnesses, including both the participants in the police operation and the independent eyewitnesses to the police operation of 2May 2006, that no shot had ever been fired from inside of Z.V.’s car. The latter fact was further confirmed by the results of a ballistics examination conducted during the reopened investigation. The City Court further established that, in another attempt to fabricate evidence of having been under fire from Z.V.’s car, I.P. had ordered one of his subordinates, L.B., who had participated in the police operation of 2 May 2006, to inflict a light injury on himself, and the latter had duly obeyed. Furthermore, I.P. had ordered his subordinates to plant four different types of guns, balaclavas and police radio scanners in Z.V.’s car immediately after the termination of the police operation. A subsequently conducted ballistics examination confirmed that no shot had ever been fired from any of the four planted guns. The trial court also established that I.P. had made prior arrangements with an undercover police informer, who had been collaborating with the criminal police in a number of unrelated cases, to come forward in the case at hand and pretend to be a victim of the robbery attack purportedly planned by Z.V. and his two friends. Lastly, it was also established that I.P. had induced a former convicted criminal, who had been released on parole and under the criminal police’s close supervision during the probationary period, to claim falsely that he had been the three young men’s fourth accomplice in their intention to commit the robbery.\n(b)Conclusions drawn from the established facts\n44.In the light of the foregoing factual findings, the Tbilisi City Court concluded that, firstly, there had been no lawful grounds for mounting a police operation against Z.V. and his two friends as the criminal police unit had not been in possession of any real information raising a reasonable suspicion that the young men had been planning to commit a criminal offence. I.P. was found to have fabricated, possibly in complicity with other unidentified senior law-enforcement officers of the Ministry of the Interior, the relevant documents in order to justify the mobilisation of police units. The trial court established that the mens rea behind I.P.’s criminal actions had been to take personal revenge against A.Kh. (see paragraphs37‑39 above). The police operation of 2 May 2006 had thus been mounted with the sole aim of assassinating the passengers of Z.V.’s car. The trial court also concluded that G.Ts. had been the direct perpetrator of the killings of the two young men.\n45.Apart from the clearly murderous intent behind I.P.’s and G.Ts.’s actions, the Tbilisi City Court emphasised the shortcomings of the police operation of 2 May 2006, not least the choice to proceed with it on one of the most densely crowded avenues of the capital city during the morning rush hour, thus endangering the lives of passers-by, and the decision to open fire at Z.V.’s car unexpectedly, without giving any prior warning or order to surrender. The trial court also underscored the clearly disproportionate nature of the force used by the police – whilst no resistance whatsoever had been received from the passengers in Z.V.’s car, within the fifteen seconds that followed K.N.’s initial unwarranted gun shots, at least five police officers fired from their Kalashnikov automatic rifles, each of them fully discharging their high-capacity magazines. Overall, more than hundred shots were fired, with some of the stray bullets damaging a public-transport bus. The trial court stated that, even assuming that the passengers of Z.V.’s car had put up resistance to the police’s lawful orders, the use of such overwhelming armed force had been clearly disproportionate.\n46.The Tbilisi City Court also found that I.P. and L.B. had been directly implicated in the intentional misrepresentation of facts and fabrication of evidence with the aim of obstructing the original investigation into the police actions during the police operation of 2 May 2006. When reaching the latter conclusion, the City Court suggested that it was not unreasonable to assume that other officers of the Ministry of the Interior, who had not been identified during the reopened investigation, could have been involved in perverting the course of justice. Furthermore, given that the initiation of the criminal proceedings for attempted robbery and unlawful transport of firearms against the passengers of Z.V.’s car had been unlawful (see paragraph40 above), the trial court concluded that the arrest of B.P., the only survivor, by G.K., the investigator in charge of the fabricated robbery case, had been unlawful. All in all:\n– I.P., born in 1968, was found guilty of aggravated murder (the offence prosecuted under Article 109 (a), (g) and (h) and of the Criminal Code) and sentenced to sixteen years’ imprisonment. Reducing the latter prison sentence by a quarter, pursuant to section 16 of the Amnesty Act of 28December 2012 (“the Amnesty Act”), the court finally fixed his sentence at twelve years;\n– G.Ts., born in 1972, was likewise convicted of murder under Article109 (a) and (h) of the Criminal Code and sentenced to sixteen years in prison. Reducing the latter prison sentence by a quarter, pursuant to section 16 of the Amnesty Act, the court finally fixed his sentence at twelve years;\n– K.N., born in 1976, was convicted of malfeasance (the offence prosecuted under Article 333 § 1, 2 and 3 (b) of the Criminal Code) on account of the disproportionate use of force by the special unit under his command, sentenced to eight years’ imprisonment and banned from public service jobs for a period of two years. Reducing the latter prison sentence by a quarter, pursuant to section 16 of the Amnesty Act, the court finally fixed the convict’s prison sentence at six years;\n– L.B., born in 1975, was convicted of fabrication of evidence with the aim of perverting the course of justice under Article 369 § 3 of the Criminal Code, sentenced to four years in prison and banned from public service jobs for a period of two years and three months. Reducing the latter prison sentence by a quarter, pursuant to section 16 of the Amnesty Act, the court finally fixed his prison sentence at three years;\n– G.K., born in 1978, was convicted of unlawful arrest of B.P. (the offence prosecuted Article 147 § 1 of the Criminal Code), sentenced to six years of imprisonment and banned from holding public service jobs for a period of two years and three months. Reducing the latter prison sentence by a quarter, pursuant to section 16 of the Amnesty Act, the court finally fixed his prison sentence at four years and six months.\n47.In the sentencing part of the judgment of 30 October 2015, the Tbilisi City Court stated that, when imposing the prison sentences, it took into consideration both the aggravating circumstances in which the offences had been committed and a number of mitigating considerations. Amongst the latter, the court referred to the fact that all five individuals to be sentenced had successfully fought criminality, owing to their former status as officers of the Ministry of the Interior, for many years, and that some of the convicted individuals were moreover war veterans who had participated in various armed conflicts and defended the territorial integrity of the country, for which service they should be given credit.\n(c)Termination of the criminal proceedings\n48.The prosecution authority – who requested a more severe punishment – and the five accused – who claimed their innocence – all appealed against the Tbilisi City Court’s judgment of 30 October 2015. The prosecution authority particularly insisted in its appeal that the prison sentences imposed upon the convicted individuals had been manifestly inadequate when compared with the heinous nature of the crimes committed. The authority complained that the lower-instance court had failed to give due consideration to the fact that the offences in question had been committed by former State agents who had used State power for the commission of the crime.\n49.By a decision of 21 June 2017, the Tbilisi Court of Appeal, after having conducted a fully adversarial retrial during which all of the witnesses and material pieces of evidence were examined anew, dismissed the parties’ appeals and upheld the lower-instance judgment in full. With respect to the sentencing part, the appellate court briefly stated that the prison sentences imposed by the lower court had been adequate.\n50.By a decision of 23 January 2018, the Supreme Court rejected appeals on points of law lodged by the parties, thus terminating the criminal proceedings.\n3.Investigation of the first applicant’s assassination\n51.On 20 January 2015 the first applicant was killed in a bomb blast caused by an improvised device planted at his son’s grave. The incident occurred in the village of Karaphila, Kaspi district, where Z.V., had been buried in the family cemetery plot.\n52.On 7 February 2015 G.S., a police officer, was arrested on suspicion of assassination of the first applicant. In a judgment of 6 November 2015 the Tbilisi City Court convicted G.S. as charged. As disclosed by the conviction, his guilt was confirmed by the following facts and inferences.\n(a)Established facts\n53.The Tbilisi City Court established that, after the killing of his son on 2 May 2006, which became one of the most well-known and scandalous examples of police abuse, the first applicant had become actively involved in public life, incessantly demanding an effective investigation into and the bringing to justice of all those police officers who had been implicated in the crime. As part of that public struggle, the first applicant had established a non-governmental organisation, Save a Life (“the NGO”), whose mission had been to shine a light on the activities of numerous high-ranking law‑enforcement officers who had allegedly been involved in various crimes committed by the police. The first applicant and his NGO had been propagating the idea that there had been an administrative practice of tolerance towards and impunity in respect of police abuse in the country.\n54.The Tbilisi City Court noted that the first applicant had become particularly active in 2012, when he had started having private meetings with various decision-makers in the Government and other high-level State officials (see paragraphs 19-29 above). It had been as a result of his constant pressure that the investigation into the police operation of 2 May 2006 had been renewed and that the implicated police officers had been dismissed from the Ministry (see paragraphs 33 above). In 2012 the NGO had published an article in a national newspaper with a long list of all those police officers believed to have been implicated in various criminal offences (hereinafter “the police blacklist”). At the top of the police blacklist there had been the names of I.P. and of two other senior police officers, Z.Tch. and N.S., whilst in the end of the document the name of G.S., the accused, had also appeared.\n55.The trial further established, by reference to witness statements and various Internet news feeds found in G.S.’s electronic possession, that the accused had been closely monitoring the first applicant’s public activities and had been aware of the published police blacklist. Having regard to lawfully wiretapped conversations that G.S. had held with a number of witnesses through an Internet messaging service as well as to the statements that those witnesses had given during the trial, the court established that G.S. had experienced negative personal animosity towards the first applicant because of the threat that the latter had represented for him and his colleagues. It had been further confirmed by various pieces of evidence that G.S. had been on particularly good terms with I.P., Z.Tch. and N.S., the officers at the top of the police blacklist (see the preceding paragraph).\n56.The Tbilisi City Court also established that G.S., who had taken part in the armed conflict between Georgia and the Russian Federation in August 2008, possessed, according to his military records, significant expertise in dealing with explosive materials. The trial court further found that on 12January 2015 G.S. had accessed, using his personal official password, the police national database, which contained certain data of Georgian nationals, and collected all available information about the first applicant and his late son. It had been through the latter database, as well as by placing repeated telephone calls with his acquaintance, a police officer who had worked in the Kaspi police station, that G.S. had learnt that Z.V. had been buried in the village of Karaphila and that the first applicant had visited his son’s grave regularly, at least once every two weeks.\n57.On 18 January 2015 G.S. had driven in his car to the village of Karaphila. His car had been seen on that day by several villagers at the entrance to the local cemetery. As further incriminating evidence, the City Court referred to the fact that (i)traces of G.S.’s DNA had been found on the parts of the bomb found dispersed at the scene of the crime and that (ii)particles of soil from Z.V.’s grave had been found in G.S.’s car, under the driver’s seat, near the accelerator. The City Court also took into account the following facts – as soon as the news about the first applicant’s death had spread, G.S. had not been able to hide his satisfaction in a conversation with his friend and had immediately started promoting, within his professional, police circles, a version of the first applicant’s suicide. Shortly after the investigation into the first applicant’s assassination had been launched, G.S. had started enquiring, using his professional network, as to whether any suspects had already been identified.\n(b)Conclusions drawn from the established facts\n58.In the light of the foregoing conclusions, the Tbilisi City Court found G.S. guilty of the first applicant’s murder, committed in aggravating circumstances (Article 109 of the Criminal Code). The court qualified the method of the assassination to have been particularly vile and cynical given the sanctity and significance that the son’s grave, who had in his turn been killed by police officers, had represented for the mourning father and because G.S. had eagerly assumed the risk of creating an excessive and indiscriminate danger to other peoples’ lives when planting such a large explosive device. The mens rea behind the crime had been G.S.’s wish to punish the first applicant for and/or prevent him from carrying out his public activities that had been directed against the officers appearing on the police blacklist (see paragraph 54 above). In that connection, the City Court noted, as a suspicious fact, that telephone conversations had taken place between I.P. and G.S. both a few days before and after the first applicant’s assassination. However, as they did not know the content of those conversations, the trial court refrained from making any further inferences. G.S. was sentenced to twenty years in prison.\n(c)Termination of the criminal proceedings\n59.By a decision of 24 June 2016, the Tbilisi Court of Appeal upheld G.S.’s conviction and sentence. On 23 December 2016 the Supreme Court, rejected an appeal on points lodged by G.S., finally terminating the criminal proceedings against him.", "9": "Allegation: 6\nI.THE CIRCUMSTANCES OF THE CASE\n5.The applicant was born in 1964 and lives in Quickborn. He was a senior manager and, most recently, managing director of a major retailer for consumer electronics in Germany and other European countries.\nA.Criminal investigation\n6.On 7 February 2011, the Augsburg public prosecutor’s office opened a criminal investigation against the applicant and eight other co-accused for taking bribes in commercial practice, following a criminal charge brought by the applicant’s employer. On 9 November 2011 the applicant was taken into detention on remand. He was initially detained in a prison in Munich and later transferred to Augsburg Prison. The applicant chose three lawyers to conduct his defence. One had his office in Augsburg (subsequently referred to as “the applicant’s lawyer”), whilst the other two were based in Karlsruhe and Neuwied (subsequently referred to as “the other two lawyers”).\n1.Telecommunication surveillance\n7.During the investigation wide-ranging telecommunication surveillance was carried out. A total of around 44,970 telephone calls and about 34,000 other data sets were stored as part of this. The latter included text and multimedia messages, system files or network providers’ report files resulting from technical communication between a device and the provider. The data sets for the individual exchanges over telecommunications media were entered into a special criminal-police database at the Bavarian Office of Criminal Investigation in Munich. They were analysed by the police. Eventually, transcripts of twenty-eight telephone conversations which had been considered relevant were prepared, printed and subsequently included in the (paper) investigation file.\n2.Electronic files\n8.During searches of the applicant’s home and of other premises between 13 July 2011 and 1 February 2012, some 14 million electronic files (for example emails and other text documents), stored on a range of data devices, for example hard discs, were seized. The files of each device were copied as a single “image file”, the devices were returned to the rightful holders, including the applicant, afterwards. Each image file was a full digital clone of each data device, readable with a program available free of charge online. However, the image files were subsequently entered into a special forensic-data-analysis program, after which their content could be retrieved only using that special program, available for 4,031.72 euros (EUR). After the data had been entered into that program, in order to be able to read the data with a program available free of charge online, the data had to be exported from the special forensic-data-analysis program and converted back into an image format. The above-described processing of the data, in particular feeding them into the special forensic-data-analysis program, was finished by the end of February 2012; they were stored at the Bavarian Office of Criminal Investigation in Munich.\n9.The data were analysed by the police; around 1,100 of these electronic files were considered as relevant to the case and were printed and subsequently included in the paper files.\n3.Access during the investigation\n10.On 10 November 2011 the applicant’s lawyer was provided access to the (paper) investigation file – the other two lawyers never requested it. The file contained the information that telecommunication surveillance had taken place. Updates of that paper file, such as the inclusion of transcripts of covertly recorded telephone calls (see paragraph 7 above) and prints of the seized electronic files (see paragraph 9 above), were from then on regularly sent to the applicant’s lawyer. The information that electronic files – apart from his own – had been retrieved had been noted in the paper file, transmitted in the above described manner, in February 2012 at the latest.\n11.On 30 November 2011, after the applicant’s lawyer had become aware that there had been much more telecommunication surveillance than what had been prepared as transcripts and put into the paper file (see paragraph 7 and 10 above), he asked to examine “the audio files obtained from telephone tapping” and copies of the audio files on CD or DVD. On 2December 2011 the public prosecutor’s office decided to grant access. It informed the applicant’s lawyer by telephone that he could examine the data on the premises of the criminal police during regular opening hours (from Monday to Friday, from 9.00 to 11.00 and from 14.00 to 16.00) and under the supervision of a police officer. At the same time, it dismissed the request for copies of the audio files.\n12.The applicant’s lawyer subsequently scheduled two appointments to visit the premises of the criminal police before the end of 2011. Prior to the scheduled appointments, the police asked the applicant’s lawyer which audio files/text messages he wished to examine. He provided the police with the relevant search parameters of his choosing. The police retrieved the files matching the parameters, copied them to a notebook computer, which the lawyer subsequently accessed during the appointment.\n13.On 3 January 2012, the defence asked the Augsburg public prosecutor’s office to provide lists indicating the raw data for the various telephone lines; the dates of the calls; the duration of the calls; the Identnummer (“ID number”); and a “link to each MP3 file with filenames”. The public prosecutor’s office informed the applicant’s lawyer on the same day that his request had been forwarded to the responsible criminal police unit, as the public prosecutor’s office was not aware if providing such lists was technically possible. The public prosecutor’s office did not itself have at its disposal the requested lists.\nB.Indictment and access\n14.On 22 February 2012 the Augsburg public prosecutor’s office indicted the applicant before the Augsburg Regional Court on ninety-one counts of taking bribes in commercial practice. Eight other persons were indicted along with the applicant.\n1.Access to the surveillance data\n15.Between 22 February 2012 and 6 June 2012 the applicant’s lawyer had four more appointments to examine the surveillance data (see paragraph 11 above). At one appointment in April 2012 he was provided with a printed spreadsheet table listing the data sets copied to the notebook according to the chosen parameters. This list contained the dates and the times the conversations had begun, the dates and times the conversations had ended, the number of the tapped line and the “partner line”, an assessment of whether the calls were “relevant” or “not relevant” and a technical identification number which allowed the MP3 file for each conversation to be located and retrieved. The list also showed the stored text messages (or for longer messages, parts thereof).\n16.On 12 March 2012 the applicant’s lawyer applied to the Augsburg Regional Court for access to the audio files of the surveillance data in the form of a read-only copy on DVD or CD, which would be returned after the completion of the criminal proceedings.\n17.On 22 March 2012 the Augsburg Regional Court rejected the application. It essentially referred to the previously filed prosecution’s submissions on that matter, holding that the files themselves were evidence which the defence had no right to have in its possession. This was all the more true as the files contained highly personal data; the prosecution was obliged to delete those files – an obligation it could not anymore fully comply with once copies of the data had been passed on to the defence. Overall, sufficient access had been granted.\n18.On 3 May 2012 the Regional Court, considering an appeal by the applicant of 23 April 2012, extended the access to the telecommunication surveillance files. It ordered that all data sets were to be copied to a notebook computer kept at the prison where the applicant was detained, that the defence could listen to the audio files in prison, together with the applicant and under the supervision of a police officer, to ensure that no access to telephone records which touched on the private life of others was granted. In so far as the applicant’s appeal exceeded the granted access, in particular in so far as the applicant strived for possession of a copy of the files, the Regional Court dismissed it and referred it to the Munich Court of Appeal.\n19.On 9 May 2012, the notebook computer with the copied data was deposited ready for examination during regular visiting hours (from Monday to Friday, from 8.00 to 11.00 and from 13.00 to 16.00) on the premises of the prison the applicant was detained in. The applicant’s lawyer however never made use of the possibility to examine the files on the premises of the prison – he rather arranged for their examination on the premises of the criminal police (see paragraphs 11 et seq., 15 above and 28 below).\n20.On 25 May 2012 the Munich Court of Appeal dismissed the remaining parts of the applicant’s appeal as ill-founded. The court, which referred to prior submissions of the prosecution and the prior decisions of the Regional Court in that matter, held that there was no reason to provide the defence with copies of all the records obtained from telecommunication surveillance in excess of the access already granted. Moreover, while understandable that, from the point of view of the defence, a list showing the details of the respective conversations would enable relevant conversations to be identified and listened to faster, there was no entitlement to such a list being prepared.\n2.Access to electronic files\n21.On 3 April 2012 the applicant’s lawyer applied to be provided a copy of the 14 million electronic files (see paragraphs 8 and 10 above).\n22.On 18 April 2012 the public prosecutor’s office informed the Augsburg Regional Court that it would not be possible to provide the around 14 million files sought, owing to the way the material had been processed and fed into the system at the Bavarian Criminal Police Office (see paragraph 8 above). Nor could the applicant’s lawyer be given remote access to the police data-analysis program. He could, however, approach the police to find a common solution. This information was forwarded to the applicant’s lawyer on 23 April 2012.\n23.On 30 April 2012 the Regional Court informed the applicant’s lawyer that the court had no objection, in principle, to the examination of the 14 million seized files. The court suggested that he should contact the responsible police officer. Given the large volume of data involved, the court was unable to ascertain whether it would be possible to create a copy.\n24.On 3 May 2012 the Regional Court informed the applicant’s lawyer that, according to the information of the responsible police officer, it would be possible to copy the seized emails to an external data-storage device at the Bavarian Criminal Police headquarters, and the files would be copied once a suitable storage device had been supplied.\n25.On 9 May 2012 the applicant’s lawyer provided a hard disc to the police. The same day, he was also informed that a special forensic‑data‑analysis program was needed to read the data, since they had been entered into such a program and were not available in their original format anymore (see paragraph 8 above); he was furthermore supplied with the contact details of a company which provided such software. On 18 May 2012 the disc holding the files was ready for collection and on 22 May 2012 it was collected by the defence.\n26.On 22 May 2012, after having realized that the special forensic‑data‑analysis program cost EUR 4,031.72 (see paragraph 8 above), the applicant’s lawyer applied to the Regional Court to have the prosecution authorities ordered to either acquire and provide the licence for the software or to have the state bear the cost of EUR 4,031.72 needed to purchase the software.\nC.Hearings\n27.From 6 June 2012 until 21 December 2012 the Augsburg Regional Court conducted hearings on twenty-two separate days.\n1.Access to the surveillance data\n28.Until the end of the proceedings, on 21 December 2012, the applicant’s lawyer examined the audio files of the telecommunication surveillance on a further sixteen occasions, none later than 31 October 2012 (see paragraph 11 above).\n29.On 26 June 2012, the day of the second hearing, the applicant’s lawyer applied for the proceedings to be stayed, arguing, inter alia, that only this would allow adequate examination of the data sets obtained by telecommunication surveillance.\n30.On 28 July 2012, another hearing day, the presiding judge informed the applicant’s lawyer of the possibility to seek the support of judicial employees in order to examine the data.\n2.Access to electronic files\n31.The application for a stay of proceedings of 26 June 2012 (see paragraph 29 above) was additionally based on the reason of securing an opportunity to examine and evaluate at least selected samples of the around 14 million electronic files in a manner which would allow for reliable conclusions to be drawn.\n32.On 16 July 2012 the Regional Court decided, with regard to the application of 22 May 2012 (see paragraph 26 above) that the prosecution authorities should not acquire a software licence and that the cost of EUR4,031.72 should not be borne by the state. It held that the program was available on the open market and that it was not the responsibility of the court to provide the applicant’s lawyer with the technical equipment to have access to files or examine evidence. That might, where necessary, only be different, under the principles of the right to a fair trial and the principle of equality of arms, if the defence had otherwise incurred disproportionate expenses, the technical equipment had been unobtainable or the defendant could not advance the cost. This was not the case here. The applicant was able to afford three lawyers for his defence team. It could therefore be assumed that the applicant had at his disposal the necessary financial means to buy a software licence.\n33.On 19 July 2012 the applicant’s lawyer asked to be provided with the data in “unencrypted form”. On 23 July 2012 the public prosecutor’s office informed the defence that it was indeed possible to export the electronic files from the special forensic-data-analysis program and convert them back into an image format, readable with a software available free of charge online (see paragraph 8 above). If the defence wished to receive the data in this format and were to provide hard discs, it would be provided with it. On 31 July 2012 applicant’s lawyer delivered two hard discs to the police, which were sent on to the responsible officer the following day. On 4 September 2012 the two hard discs, containing the data as image files, readable with a software available free of charge online, were given to the applicant’s lawyer.\n3.Dismissal of the application to stay the proceedings\n34.On 14 November 2012, a further day of hearings, the Regional Court dismissed the applicant’s application for a stay of proceedings (see paragraphs 29 and 31 above). In respect of the telecommunication surveillance, it referred to its prior decisions concerning the scope of access, which had been granted sufficiently. It also referred to the fact that the defence had made scant use of the possibility to seek support of judicial employees, that only one of the three lawyers had made use of his right of access at all, and that that lawyer had not attended several appointments for examination of evidence and had not arranged for a substitute when on leave. In respect of the 14 million electronic files, it had, after the lawyer had initially requested access to the investigation file (see paragraph 10 above), at all times been possible for him to examine them on the premises of the police – a possibility which he had not made use of. Moreover, the files had been provided to him, on 22 May 2012 in a format readable only with the special forensic-data-analysis program at the expense of the defence (see paragraphs 8, 25, 26 and 32 above), and on 4 September 2012 in a format readable with freely available software (see paragraph 33 above).\nD.Judgment\n35.On 21 December 2012 the Regional Court rendered its judgment and convicted the applicant and four other accused. The applicant was convicted on sixty-three counts of taking bribes in commercial practice and sentenced to five years and three months’ imprisonment. On the remainder of the charges he was acquitted.\nE.Appeal proceedings\n36.The applicant appealed against the judgment to the Federal Court of Justice. He argued, inter alia, that his defence had been harmed by the refusal to grant a stay of the proceedings because he and his lawyer had not had enough time and opportunities to review the files of the telecommunication surveillance and the seized electronic data.\n37.On 11 February 2014 the Federal Court of Justice quashed the Regional Court’s judgment in respect of three counts of bribery in commercial practice, but dismissed the applicant’s further appeal as ill‑founded.\n1.Access to the surveillance data\n38.In regards to access to the surveillance data the court noted that as of 9 May 2012 the defence had been, in the prison premises, provided with the data on a notebook computer with a list indicating both the date and time the communication took place, as well as the content of text messages (see paragraphs 15 and 19 above). The court also noted that the applicant’s lawyer had not arranged any appointments to listen to audio files after 31October 2012 (see paragraph 28 above). It noted that the lawyer had also been able to listen to all the audio files obtained during the investigation, on the premises of the criminal police. Referring to Article 6 § 1 and 3 (b) of the Convention, the court held that there was thus nothing to indicate that the defence did not have adequate time to listen to the audio files. The Federal Court of Justice emphasised in particular, that the applicant’s lawyer had neither been at fault in not using other people’s help in examining the evidence, nor could he be reproached for the fact that the applicant’s two other lawyers had not made use of their entitlement to examine the evidence. The court specifically stated that the right to examine files in their entirety existed for each lawyer individually. However, the defence had failed to make sufficient use of the provided possibilities to examine the telecommunication-surveillance data.\n2.Access to electronic files\n39.Regarding examination of the data seized during search operations, the court held that it did not have to decide on whether the applicant had been obliged to acquire special software enabling those files to be made readable at his own expense. It clarified, however, that this might be debatable if, as in this instance, the data obtained by the investigating authorities had been in a form readable using standard software and had subsequently been encrypted in a way that had made them readable using only special software (see paragraph 8 above). In sum, the court concluded that since the data had been available to the defence in a form that had been readable with standard software on 4 September 2012 (see paragraph 33 above), they had had sufficient time to examine the files. At this point, there had been three months left before judgment had been rendered.\nF.Constitutional Complaint\n40.On 25 June 2014 the Federal Constitutional Court refused to admit a constitutional complaint by the applicant, without providing reasons (2BvR726/14).\nG.Subsequent events\n41.After criminal proceedings were terminated, the applicant’s former employer lodged a civil action against him for damages and restitution, based on the applicant having taking bribes. On 31 May 2017, after its own taking of evidence and hearing of several witnesses, the Itzehoe Regional Court dismissed the action as it could not establish with sufficient certainty that the applicant had actually been party to any deals concerning bribery or had accepted bribes himself. The difference between the findings of the Augsburg Regional Court and the Itzehoe Regional Court was in essence based on a different assessment of the reliability of the testimony of the main witness for the prosecution, which the latter court did not consider sufficiently reliable.\n42.On 26 February 2019, the Schleswig-Holstein Court of Appeal dismissed an appeal by the employer and confirmed the judgment of Itzehoe Regional Court.\n43.Following the judgment of the Itzehoe Regional Court, the applicant applied for the reopening of the criminal proceedings. On 27 March 2018 the Munich Regional Court dismissed the applicant’s application. The court held that the different assessment of the evidence by the Itzehoe Regional Court did not require a reopening of the criminal proceedings, as the reopening procedure was not an appeal procedure to review previous decisions, but required new facts or evidence. However, as the evidence taken in the civil proceedings had also been taken in the criminal proceedings, no new evidence was available. On 11 April 2018 the applicant appealed against that decision. No information on the progress of those proceedings has been provided to the Court.", "10": "Allegation: 2\n5.The applicants were born in 1974 and 1949 respectively and live in Drobin.\n6.On the night of 26 October 2001 Mr Krzysztof Olewnik, the first applicant’s brother and the second applicant’s son, disappeared from his home in Drobin. He was twenty-five years old. He and his father were businessmen, the latter owning successful butchers’ shops and meat-processing plants. On the day of his kidnapping Krzysztof Olewnik had held a garden party at his house, which was attended by four local police officers, two former police officers, his father and mother, and three of his friends. After the party, Krzysztof Olewnik drove his guests back to their homes and came back. A few hours later, he was kidnapped from his house by A, E, F and G.\n7.The second applicant noticed that his son was missing on the morning of 27 October 2001 and informed the police.\n8.At the same time he contacted a private detective, K.R., whose team arrived at the scene. K.R.’s team investigated the case independently of the police during the years that followed.\n9.On 29 October 2001 the kidnappers contacted the applicants, asking for a ransom. The victim’s family cooperated with the kidnappers, but several attempts to hand over the ransom failed as the kidnappers did not pick up the money. On numerous occasions they contacted the family by telephone and SMS, sent voice messages, and passed on letters handwritten by the victim. Many of those letters included messages indicating that MrOlewnik might be harmed or killed. The applicants provided the following examples of them: “you put us at risk of being caught and Krzysiek being beaten up”, “[it] will have brutal consequences for Krzysiek”, “[this] is consent to Krzysiek’s death”. All the messages and communications received were immediately passed on to the police. On 24July 2003 the first applicant handed over 300,000 euros (EUR) as a ransom to free her brother. However, the kidnappers did not release him.\n10.Mr Krzysztof Olewnik was kept for almost two years by his kidnappers at three different nearby locations. He was hidden in an abandoned house, an underground garage, and an underground septic tank. According to the account given by the kidnappers at their trial, the victim was kept chained to the wall by his neck and his leg. He was drugged, beaten up on a few occasions, poorly fed and generally badly treated (see paragraph 39 below).\n11.On 5 September 2003 Mr Olewnik was murdered in a forest near Dzbądz. The circumstances of his kidnapping and murder were discovered in November 2005 and the site of his death and the burial of his body was discovered in October 2006.\n12.His funeral took place on 4 November 2006.\n13.On 24 October 2001, prior to the kidnapping, the traffic police had stopped A whilst he was driving a car belonging to B. A was a repeat offender released from prison in June 2001.\n14.After the second applicant had reported his son missing, the first police officers arrived at the latter’s house at 9 a.m. on 27 October 2001. The case was handled by the local police in Sierpiec. The house was searched and abundant blood samples belonging to the victim collected, as well as other evidence. The duty prosecutor arrived at the scene but did not enter the house to supervise the police and give them instructions.\n15.A BMW car belonging to a friend of the victim was found burned out. It had been stolen on the night of the kidnapping after being left parked by the owner in the victim’s yard.\n16.On 31 October 2001 the case was transferred to a special team led by police officer R.M. from the Radom Regional Police. The team consisted of twelve police officers, supplemented ‒ following a confidential decision by the chief of that force ‒ by K.K., a police officer who had attended the party at the victim’s house. The investigation was supervised by the Sierpiec District Prosecutor, L.W.\n17.The team led by R.M. had four main working hypotheses. The first three posited that Mr Olewnik had been kidnapped by people linked to organised crime or by husbands of women he had dated. According to the fourth theory, of so-called “self-kidnapping”, the victim had faked his own kidnapping in order to extort money from his father. This was the version favoured by the investigating police.\n18.In November 2001 the police interviewed B, a repeat offender living in the same village as the victim, and released him. In the same month the second applicant handed over to the police further evidence found in the victim’s house which had been overlooked, namely a blood-stained jacket and a mobile telephone.\n19.In January and March 2002 the traffic police on four occasions stopped A driving the same car as before, twice in the presence of B and once in the presence of D (see paragraph 13 above).\n20.The prosecutor L.W. supervised the investigation until 25 November 2002. From then until April 2004 the case was supervised by three successive prosecutors from the financial crime division of the Warsaw Regional Prosecutor’s Office (the case was transferred to the organised crime division in September 2004).\n21.On 15 January 2003 the applicants received an anonymous letter alleging that the kidnappers were a certain D and C. The letter also indicated the geographical location where the victim was being kept and warned that his life was in danger. The applicants passed the letter on to the police, but the information contained therein was not considered meaningful and was not investigated further.\n22.Between 11 March 2002 and 11 June 2003 the kidnappers did not contact the family. On the latter date they called the applicants and reiterated their demand for a ransom in the amount of EUR 300,000. On 25June 2003 the kidnappers sent the family a SIM card; they used the number for future communication with the applicants.\n23.On 26 June 2003 the kidnappers called the applicants and later the Słubice police station. They called from a telephone booth and used a phonecard. The police were able to trace the card to other calls made by the kidnappers to the family. On 4 July 2003 the police established that the person who had called the police station using the phonecard in question had been B. Nevertheless, B was not investigated further or placed under surveillance.\n24.On 24 July 2003 the first applicant handed over a ransom in the amount of EUR 300,000. The police failed to follow the first applicant and intercept the money or identify and arrest the individuals receiving it. The ransom was picked up by A, B, C, D and H.\n25.Between 27 and 30 July 2003 R.M. and M.L. travelled to Berlin to investigate a possible sighting of Mr Olewnik. It turned out to be false information.\n26.On 1 June 2004 the police arrested B in connection with the kidnapping of Mr Olewnik. They searched B’s flat but failed to find EUR40,000 of the ransom hidden under a sofa. Although the police by then had various pieces of evidence linking him with the kidnapping, B was released. The investigators nevertheless ordered that he be followed.\n27.On 7 June 2004 an unmarked police car containing sixteen volumes of original documents comprising the main case file on the investigation was stolen in Warsaw. The prosecutor subsequently charged two police officers in connection with the loss of the file (see paragraph 48 below).\n28.Following the incident involving the loss of the file, the case was removed from the team led by R.M. On 18 August 2004 the Chief of Police in Warsaw created a special investigative team consisting of police officers from the Central Investigative Bureau in Warsaw (Centralne Biuro Śledcze, CBŚ) and from Płock. They were led by G.K.\n29.The team led by G.K. proceeded to analyse the communications made from Mr Olewnik’s mobile telephone in the period after the kidnapping (the telephone had remained active for several months after October 2001).\n30.On 15 April 2005 the police requested and received a CCTV recording from a supermarket showing that A had bought the mobile telephone used by the kidnappers for communication with the applicants on 28October 2001. The prosecutor only decided to start monitoring the communications made from this number in May 2005, even though the IMEI (International Mobile Equipment Identity) number had been known from the start of the investigation. On 5 May 2005 the cashier who had sold the telephone to A was interviewed as a witness for the first time and a facial composite image was made. On the basis of photographs shown by the police, the cashier identified A as the person who had bought the telephone. The cashier also stated that the police had already come to ask her about the telephone in 2001 and taken a CCTV tape. The original video-recording was lost from the file on an unspecified date.\n31.In June 2005 the police conducted searches of the homes of C, D andI, and arrested A. He was released without charge after forty-eight hours.\n32.In November 2005 a witness, P.S., made a statement and gave the names of the individuals who had allegedly kidnapped Mr Olewnik.\n33.Afterwards, B and A were arrested on charges of the kidnapping alleged by the witness.\n34.In January and February 2006 the biological (hair) and olfactory evidence collected at the house of Mr Olewnik directly after his kidnapping in October 2001 was sent for expert examination. A DNA examination of the hair was carried out in July 2006.\n35.On 4 April 2006 the first applicant requested that the investigation be transferred to another prosecution service, alleging that the proceedings up until that point had been manifestly ineffective. On 14 May 2006 another investigative team took over the case, this time composed of officers specialising in organised crime from the Police Headquarters in Warsaw. On 13June 2006, supervision of the investigation was handed over to the Olsztyn Regional Prosecutor.\n36.On 27 October 2006, having been presented with the biological evidence found at the crime scene, B confessed to kidnapping MrOlewnik. He indicated where the body was buried.\n37.Afterwards, other members of the gang were arrested by the police.\n38.On 9 August 2007 the Olsztyn Regional Prosecutor lodged a bill of indictment with the Płock Regional Court against twelve individuals for participation in the kidnapping and murder of Mr Olewnik.\n39.On 31 March 2008 the Płock Regional Court convicted ten individuals of participation in a criminal gang set up with the intention of kidnapping Mr Olewnik, as well as other offences. Among those ten individuals, B and C were convicted of the murder of MrOlewnik and sentenced to life imprisonment. Others were given prison sentences ranging from one to fourteen years (II K 119/07). The conviction was based to a large extent on detailed explanations provided by B, C, D and F, who pleaded guilty. They also described the conditions in which Mr Olewnik had been held (see paragraph 10 above). The court also accepted that the leader of the gang had been A; however, he had died before the trial ended (see paragraph74 below).\nIn addition, the trial court ordered that the seven main members of the gang pay the second applicant 1,200,000 Polish zlotys (PLN) in compensation for pecuniary damage (odszkodowanie) for the ransom which had been paid by him on 24 July 2003 (under Article 415 § 1 of the Code of Criminal Procedure). The court allowed a request by the second applicant for interest to be paid on that sum from the date of the civil claim being lodged, that is to say 11 October 2007. The court calculated the amount of compensation on the basis of the average exchange rate between 2003 and 2008 and considered that it was equivalent to EUR 300,000.\nThe applicants participated in the proceedings as auxiliary prosecutors.\n40.All parties appealed against the judgment.\n41.On 8 December 2008 the Warsaw Court of Appeal amended the judgment but upheld the convictions and sentences of the accused (IIAka306/08).\n42.On 8 January 2010 the Supreme Court upheld the judgment (IIKK153/09).\n43.The second applicant sought the enforcement of the judgment as regards payment of the compensation ordered by the court. However, the court bailiff was unsuccessful in recovering the money from the debtors as they either had no assets or income or died before the enforcement proceedings ended (see paragraphs 74, 75 and 76 below).\n44.On 21 December 2009 the police discovered previously overlooked forensic evidence (blood) at the house of Mr Krzysztof Olewnik. The applicants submitted that there had by then been almost ten searches of the house, each revealing previously overlooked evidence.\n45.In 2010 the body of Mr Olewnik was exhumed from his grave but his identity was later reconfirmed. In 2011 forensic experts prepared opinions answering the prosecutor’s question regarding, in particular, errors committed during the first post-mortem examination (see also paragraph71 below).\n46.An investigation into the participation of other unidentified individuals in the kidnapping and murder of Mr Olewnik is pending before the Gdańsk Prosecutor of Appeal (Ap V Ds 11/09). The investigation is being carried out by a team of police officers from the Central Investigative Bureau at the Police Headquarters in Warsaw. It appears that in the course of the investigation the police questioned and briefly detained J.K., a friend and business partner of Mr Krzysztof Olewnik.\n47.The Government, having been asked, did not provide any significant information pertaining to the further course of the investigation. They submitted that information pertaining to the ongoing investigation was confidential. The applicants submitted that no meaningful steps had been taken by the authorities to clarify the circumstances of the kidnapping and death of MrOlewnik.\n48.Following the loss on 7 June 2004 of the entire sixteen-volume case file, which had been left by two police officers in a car in Warsaw, the prosecutor opened an investigation in respect of them. The investigation was discontinued on 7September 2004.\n49.On 7 February 2005 that decision was quashed by the State Prosecutor, who ordered an investigation into possible negligence on the part of the police officers, which had resulted in the loss of the file.\n50.On 14 May 2005 the investigation was discontinued by the Warsaw District Prosecutor. The Government submitted that the issue remained under examination in the ongoing investigation (see paragraph 47 above).\n(a) M.G.\n51.On 22 March 2006 Police Officer M.G. was arrested and charged with passing on information from police databases to unauthorised persons. The Government submitted that the proceedings were still pending, but were not directly connected to the case of Mr Olewnik.\n(b) Decision of 31 December 2013\n52.On 31 December 2013 the Gdańsk Prosecutor of Appeal (ApVDs12/09) discontinued an investigation into allegations of negligence by various police teams in dealing with the kidnapping of MrOlewnik, including instances of hampering the pending investigation by entering false IMEI numbers in the police database. The prosecutor discontinued as time-barred an investigation into whether the search of the victim’s house had been conducted in breach of the relevant standards. The prosecutor also investigated whether there had been appropriate supervision of the investigative team  at various levels within the police  and considered that no offence had been committed. The prosecutor discontinued an investigation concerning the period between May 2006 and May 2008 on the grounds that the investigation against A, B, C and other members of the gang had been terminated too early and in breach of the relevant provisions, and that no offence had been committed.\n(c) R.M. and M.L.\n53.On 27 June 2007 the Olsztyn Regional Prosecutor opened an investigation into possible negligence on the part of the police officers and prosecutors in the years 2001 to 2005 during the handling of Mr Olewnik’s case (Ap Ds 12/09). The investigation was opened in response to a formal notification made by the second applicant that an offence had been committed.\n54.On 24 April 2008 the Olsztyn Regional Prosecutor took the decision to arrest three police officers: R.M., M.L. and S.C. They were arrested on 28April 2008 but released following a decision of a court. On 29 April 2008 the police officers were charged with, inter alia, negligently performing their duties.\n55.The investigation was transferred to the Gdańsk State Prosecutor and later the Gdańsk Prosecutor of Appeal.\n56.On 21 December 2012 the Gdańsk Prosecutor of Appeal (ApVDs54/12) issued an indictment against R.M. and M.L. The police officers were charged with several counts of abuse of power (proscribed by Article 231 of the Criminal Code), allegedly committed between 31 October 2001 and 17August 2004, when they had been in charge of the investigation into the kidnapping of Krzysztof Olewnik. The prosecutor also considered that the offences amounted to subjecting a person to a risk of danger, an offence proscribed by Article 160 § 1 of the Criminal Code. The bill of indictment itself was 333 pages long and relied on the statements of 655 witnesses who had been interviewed in the course of the investigation. The prosecutor sought the examination by the court of 909 pieces of evidence and the hearing of seventy-one witnesses. The applicants participated in the proceedings as auxiliary prosecutors.\n57.The police officers were charged with abuse of power, in particular: failing to gather evidence that could have been provided by the sales assistant from the supermarket who had been able to identify A; failing to investigate the anonymous letter of January 2003 which had named the individuals involved in the kidnapping as B and C; delays in analysing the calls made by the kidnappers using a known telephone SIM card, which would have linked them to A and C; failing to supervise the handover of the ransom on 24 July 2003; and the destruction of two pieces of evidence resulting from the monitoring of a mobile telephone related to the kidnapping.\n58.On 10 December 2013 the Płock Regional Court acquitted both police officers. The court considered the charges under Article 160 of the Criminal Code to be ill-founded and, moreover, time-barred since September 2013. As regards the offence of abuse of power under Article231 of the Code, the court held that the actions and omissions attributed by the prosecutor to the two accused could only be examined from the perspective of unintentional recklessness or carelessness. Such an offence would fall under Article 231 § 3 of the Criminal Code. The court was of the view that the events with which the defendants had been charged should have been taken as individual offences, which − as such − would have become time-barred on various dates in 2013. In defence of the police officers, the court noted, among other things, that the investigation should have been led by the prosecutor, who should have been instructing the police as to what action to take. In the investigation the prosecutors had mostly been passive. The court further analysed the evidence against the defendants as regards each charge brought against them and concluded that they had not caused serious damage, as required by Article 231 § 3 of the Criminal Code.\n59.On 14 October 2014 the Łódź Court of Appeal upheld the judgment. The offences became time-barred on 17 August 2014, which precluded the court from assessing the case on the merits. The applicant received a copy of that judgment on 1 December 2014.\n(d) H.S.\n60.On 25 January 2013 the Gdańsk Prosecutor of Appeal (ApVDs12/09) discontinued an investigation against H.S., another police officer from Płock who had dealt with the case between 29 October 2001 and May 2006, as no offence had been committed. The police officer had been charged with abuse of power in breach of Article 231 of the Criminal Code for, in particular, failing to adduce as evidence items found by the burned-out BMW car, the video-recording from the supermarket obtained in November 2001 showing one of the kidnappers, and the video-recording from the petrol station where the kidnappers had abandoned the telephone that had been used in their communications with the family, which had delayed the discovery of the perpetrators and hindered the release of MrOlewnik, and had consequently resulted in his death on 5 September 2003. The officer had also been charged with failing to take any action following the anonymous letter of 15 January 2003 which had named the true perpetrators of the crime and described the circumstances thereof.\n61.In the opinion of the prosecutor, the police officer in question either had no information about the events on which the charges were based or his omissions had not been intentional. Given the circumstances of the case, the police officer could not be held criminally liable for the final outcome of the case, namely the murder of the victim by other individuals.\n62.On 22 August 2013 the Płock District Court dismissed an appeal lodged by the first applicant against the decision of 25 January 2013 and upheld it. The court agreed that there had been many mistakes and omissions in the case; however, there had not been enough evidence to consider that police officer H.S. had committed an offence.\n(a) Main investigation\n63.On 18 December 2012 the Gdańsk Prosecutor of Appeal decided to discontinue investigations concerning several prosecutors who had dealt with the case (ApV Ds 12/09). In that set of proceedings no charges had been brought against the prosecutors.\n64.The following allegations of abuse of power, prohibited by Article231 of the Criminal Code and allegedly committed by various prosecutors, to the detriment of Krzysztof Olewnik and the public interest, were not pursued owing to the statute of limitations:\n(i)negligence on the part of A.N. on 27 October 2001 for failing to personally oversee the inspection of the property and supervise the collection of evidence by the police, which he was obliged to do by law;\n(ii)negligence on the part of L.W. in the period from 29 October 2001 to 25November 2002 for, in particular, incorrectly analysing the case, failing to supervise the police’s actions, and following incorrect procedures after obtaining evidence from telephone conversations, leading to substantial delays in the discovery and arrest of the perpetrators of the kidnapping; and\n(iii)negligence on the part of the Płock Regional Prosecutor, who supervised the work of L.W. in the period from 31 October 2001 to 25November 2002, for not following the rules of correct supervision, which had contributed to many of the mistakes that had been committed.\nAllegations of negligence on the part of other prosecutors who had been involved in the case throughout the years were also investigated and dismissed.\n65.As regards point (i) above, concerning the actions of the prosecutor A.N., who had been on duty when the kidnapping was discovered, the investigation revealed that he had committed numerous acts of negligence on 27 October 2001. The seriousness of those acts, in spite of clear legal provisions requiring prosecutors to take the initiative in such circumstances, did not allow them to be classified as unintentional. However, the proceedings to finally establish the criminal liability of A.N. had had to be discontinued owing to the statute of limitations regarding the offences in question.\n66.As regards point (ii) above, concerning the actions of the prosecutor L.W. during a period of over one year, the investigators noted, on the one hand, his low level of involvement, multiple mistakes, and omissions. On the other hand, they acknowledged that he had acted within a legal and organisational framework which had made his work more difficult. L.W. was a district prosecutor with a long list of pending cases, to which even more had been added during the time he had been working on the Olewnik case. When district prosecutors were assessed, particular attention was paid to their output and the number of cases completed. The internal organisation of the prosecution service was such that this prosecutor had received no support from his superiors, even though he had not had any experience of this type of case.\n67.The decision of 18 December 2012 ended with the following conclusion:\n“Summing up the above analysis, one cannot ignore the fact that the causes behind the failures of the police and prosecution service, resulting in the dramatic consequence of the death of Mr Olewnik, lay much deeper than individual errors committed by particular prosecutors (as was also noted by the Parliamentary Commission). The whole system of operation of the prosecution service, as well as the legislative and executive powers, should be held responsible for this failure. They had failed to create a proper legal and financial structure for the prosecution service in which events as important as kidnappings would immediately be transferred to prosecutors and police officers who were prepared for dealing with them. Such a structure would concentrate all measures and attention on freeing the imprisoned victim. The law-enforcement organisation failed in the case of Mr Olewnik, and that assessment cannot be ignored, despite the ultimately successful outcome of the work of the prosecutor R.W. and the team from the Central Investigative Bureau of the Police Headquarters, who were able to initiate, and to a large extent finalise, the discovery and capture of the perpetrators of his kidnap and murder.”\n(b) Other information\n68.On 30 October 2009 the Disciplinary Court within the Prosecutor General’s Office acquitted C.K., the Olsztyn Regional Prosecutor. The disciplinary proceedings had been initiated at the second applicant’s request.\n69.On 16 April 2013 the Gdańsk Prosecutor of Appeal discontinued an investigation (Ap V Ds 12/09) into allegations of negligent performance of official duties in breach of Article 231 of the Criminal Code (niedopełnienie obowiązków służbowych) in the period between 27October 2001 and 10August 2007. The investigation had been directed against representatives of the central administrative authorities of the Republic of Poland, in particular the President, the Prime Minister, the Minister of Justice, the Prosecutor General, the Minister of Internal Affairs and Administration, and members of both chambers of Parliament, on account of their failure to take action aimed at attaining the effective termination of the criminal proceedings in the case of the kidnapping of Krzysztof Olewnik in accordance with the provisions of the Code of Criminal Procedure and other laws. Their lack of action had been to the detriment of Mr Olewnik and his closest relatives and against the public interest, as it had hindered his release, delayed the discovery and arrest of the perpetrators of the kidnapping and murder, and resulted in the loss of certain pieces of evidence.\n70.The prosecutor concluded that, in the light of the facts and the law, there were no grounds for charging the highest-ranking civil servants with any criminal offence. In particular, there were no grounds for examining whether the Minister of Justice could be held criminally liable for the flawed investigation.\n71.On 28 December 2012 the Gdańsk Prosecutor of Appeal indicted a forensic expert, J.D., and the head of the forensic laboratory in Olsztyn, B.Z., before the Elbląg District Court (Ap V Ds 63/12). The charges concerned flaws discovered in 2006 concerning the examination and identification of the body of Krzysztof Olewnik. In particular, the bone and tissue samples taken for DNA testing to confirm the identity of the deceased had afterwards disappeared. All attempts to find those pieces of evidence had failed and it had been necessary to exhume the body in 2010 in order to confirm that it was that of Krzysztof Olewnik (see paragraph 38 above).\n72.The proceedings are pending, with the second applicant participating as an auxiliary prosecutor.\n73.On 12 December 2006 P.S., the main witness who had named the kidnappers, died (see paragraph 26 above). Before his death he had complained about receiving threats which, in the way they were worded, showed that the details of his statements to the authorities could have been leaked to the perpetrators. An investigation was opened into the threatening of a witness, but no action was taken to trace any possible leak from within the investigative team. The witness apparently died of a long-term illness, so his death was not investigated.\n74.On 18 June 2007 A, the alleged leader of the kidnapping gang and owner of the house in which Mr Olewnik had been kept, committed suicide while detained in Olsztyn Remand Centre. Earlier that day he had consulted his case file and had been searched upon returning to his cell; he had been behaving normally.\nA was found hanged in his single cell (in a half-sitting position resembling someone watching television, with one finger of his left hand raised  it had been taped with sellotape to the window bars). He left a will and a letter to his family. The post-mortem examination revealed traces of amphetamine and alcohol in his body.\nOn 31 July 2008 the Olsztyn District Prosecutor decided to discontinue an investigation into the sudden death of A and possible negligence on the part of the prison guards. On 8 March 2010 the Minister of Justice, the Prosecutor General, decided to reopen the investigation into the death. The investigation was eventually discontinued on 29 April 2011.\n75.On 4 April 2008 B, who had been sentenced to life imprisonment for the murder of Mr Olewnik, committed suicide while detained in Płock Prison. The doctor performing the post mortem noted injuries on the deceased’s arms which could have been sustained if he had been held by his arms and forced into a certain position, or caused by blows inflicted just before his death. On 31December 2010 the Ostrołęka Regional Prosecutor discontinued an investigation into the sudden death of B and possible negligence on the part of the prison guards. B’s family did not appeal and the decision became final.\n76.On 19 January 2009 C, who had been sentenced to life imprisonment for the murder of Mr Olewnik, committed suicide while detained in Płock Prison. On 13January 2011 the Ostrołęka Regional Prosecutor discontinued an investigation into the sudden death of C and possible negligence on the part of the prison guards. It was concluded, for instance, that a rib fracture sustained by C could have had happened while attempts were being made to resuscitate him. C’s family did not appeal and the decision became final.\n77.A, B, and C had been declared so-called “dangerous detainees” and had been subjected to various limitations in their contact with other detainees and many other security measures. In particular, they were detained in single cells monitored by CCTV, their contact with other detainees was severely limited, they were subjected to strip searches every time they left the cell and their cells were searched daily.\n78.While detained, B and C refused to go out for their daily walks and remained in their individual cells; it appears that B had refused to go for daily walks since September 2006. C was transferred to Płock Prison only ten days before his death. They indicated to the authorities that they were in fear of their lives.\n79.On 12 July 2009 M.K. committed suicide. He was the prison officer at Olsztyn Remand Centre on duty on the day A had committed suicide.\n80.On 20 January 2009 the Prime Minister accepted the resignation from the post of Minister of Justice of MrZ. Ćwiąkalski, who “as the head of the services responsible for investigating the case of the kidnapping and murder of Mr Olewnik, [bore] direct responsibility for the omissions and failures of those services”.\n81.At the same time the following people were dismissed: the State Prosecutor, the Deputy Minister responsible for the Prison Service, the Head of the Prison Service and the Governor of Płock Prison.\n82.On 13 February 2009 the Polish Sejm (lower house of Parliament) set up a Parliamentary Inquiry Commission (“the Commission”) to investigate the appropriateness of the actions of the public authorities in the criminal proceedings concerning the kidnapping and death of Mr Krzysztof Olewnik (Komisja Śledcza do zbadania prawidłowości działań organów administracji rządowej w sprawie postepowań karnych związanych z uprowadzeniem i zabójstwem Krzysztofa Olewnika). The Commission held 136 sessions, at which it interviewed 109 individuals, some of them several times. The Commission requested information from various ministries and other State entities, as well as various intelligence agencies. It also examined 395 volumes of case files collected in the case concerning the kidnapping of MrOlewnik. Lastly, it examined expert opinions on the police’s work (methodology, cooperation between services, evidence) and on issues relating to the Prison Service.\n83.At the session of 17May 2011 the Sejm adopted an extensive final report (235 pages), which, in so far as relevant, stated:\n“The Sejm outlined to the Commission the following tasks, thereby setting out its remit:\n(1)examination of the appropriateness of the actions of the prosecution service and the police in the criminal proceedings concerning the kidnapping and murder of Krzysztof Olewnik;\n(2)examination of the appropriateness of the actions of the [Prison Service], police and prosecution service as regards the execution of the pre-trial detention and prison sentence in the criminal proceedings referred to in point 1 above;\n(3)examination of the appropriateness of the actions of the public administration bodies when dealing with the criminal proceedings referred to above under point 1 and the execution of the pre-trial detention and prison sentence in the criminal proceedings in question.”\n84.As preliminary remarks the Commission stated:\n“The Commission is aware that procedural and operational activities that are ongoing may change some elements that had been established by the investigators or the courts. They may not challenge, however, the fact that, beyond any doubt, Krzysztof Olewnik was held hostage in order to force [his father] to pay a ransom, [that] his deprivation of liberty involved particular torment, and [that] after ransom money had been transmitted by the family, he was murdered.”\n85.Concerning the initial reaction of the police to the disappearance of MrOlewnik, the Commission noted the following main shortcomings: the police officer leading the forensic team had been inexperienced, had not secured the perimeter of the crime scene, had collected blood samples carelessly, had not fully examined the property and had overlooked many pieces of evidence. As an example of this incompetence the Commission observed that, eight years after the events, a blood sample from an unidentified man had been found under the sofa in the victim’s living room. A further shortcoming was the fact that some of the officers who had attended the party at Mr Olewnik’s house on the night of his kidnapping had been part of the investigation team.\n86.The Commission examined the work of the team led by R.M., who had been appointed to deal with the case between 31 October 2001 and 18August 2004. The analysis, which extended to over forty pages, revealed a multitude of omissions, including basic mistakes in modern policing and the total passivity of the team led by R.M. The police had not used the technical and operational methods available to trace people (for instance, by searching police databases), communications (for instance, monitoring mobile and landlines) and items (such as marking and tracing the banknotes handed over as a ransom). Some of the shortcomings attributed to the team included:\n(a)failure until May and June 2005 to make use of the witness who had sold the telephone to A and of the CCTV footage from the supermarket. Even many years later the witness had still been able to identify A, because he had reminded her of a famous singer. The original video-recording had been obtained by Police Officer M.L. in 2001 but had later been lost in unknown circumstances;\n(b)no real examination of the phonecards and SIM cards used by the kidnappers;\n(c)no meaningful follow-up of the anonymous letter received in January 2003;\n(d)no support offered to the victim’s desperate family, who had been left to negotiate with the kidnappers on their own;\n(e)“improvised and uncontrolled” supervision of the handover of the ransom money on 24 July 2003 even though the police had known about the operation since 11June 2003 and had had time to prepare for it. Moreover, the family had made copies of the banknotes handed over as a ransom, but the police had failed to secure this evidence, so on several occasions when 500-euro notes had been presented in banks or at exchange kiosks, they could not be traced to the case; the serial numbers of the banknotes had not been transferred to the Banking Central Supervision Authority until 21December 2004, when the case had been taken over by a different police team;\n(f)failure to investigate and prosecute those responsible for the loss of the entire case file when the car in which it had been placed had been stolen on 7 June 2004; and\n(g)two documented cases of destruction of important pieces of evidence.\n87.The Commission also commented that the team led by R.M. had not been supervised in any meaningful way by M.K., the Deputy Chief of the Radom Regional Police, even though this had been required by law. Other levels of supervision within the police had also been “indifferent” and tainted by personal friendships and business links.\n88.The Commission noted that the work of the police should be supervised by a prosecutor, who must direct the investigation. In the instant case, the first few years, in particular, had been characterised by the passivity of the various prosecutors. The prosecutor L.W., who had supervised the investigation while it had been handled by the team led by R.M., had been particularly at fault. The Commission concluded that the prosecutor “[had not had] a thorough knowledge of the information collected in the course of the investigation”, “[had been] unaware that the team [had] also included police officers who had attended the party at the victim’s house”, “[had] not check[ed] that his instructions were being carried out”, and had “failed to monitor the handover of the ransom”. He had never visited the victim’s house, had been unaware of the existence of the recording from the supermarket, and so forth. In general terms, he had been inexperienced in cases of this type, and had remained passive.\n89.The Commission also examined the level of supervision within the prosecution service and considered it weak. The case had overwhelmed even the superior prosecutors, who had wanted it to be removed from their sphere of responsibility.\n90.The prosecutors who had taken over the case from L.W. had committed further errors. These included failure to take any action following the anonymous letter of 14January 2003, a lack of supervision of the actions relating to the handover of the ransom, a six-month delay before private operators had been asked for the numbers of the telephone cards used in communications by the kidnappers, and so forth.\n91.The Commission further examined the actions carried out by the second police team led by G.K., which was appointed on 18 August 2004 to investigate the case and which dealt with it until 14 May 2006. It appears that this team was influenced by the theory that Mr Olewnik had faked his own kidnapping in order to extort money from his father. In general terms the Commission noted that the investigation had clearly speeded up and that the new prosecutors who had taken over the case had been diligent. At this stage the prosecutor had examined two theories: one in which Mr Olewnik had been kidnapped by an organised criminal group or a group linked to the police, and a second which posited his “self-kidnapping”.\n92.As regards the subsequent prosecutors and supervising prosecutors, the Commission observed that they had carried out many actions aimed at correcting the errors committed earlier. However, as one of them had stated before the Commission: “in this case the majority of the errors were committed in the initial stages, which in a criminal case of this nature had a decisive impact on the outcome of the case. We will never know what would have happened if all the initial actions had been carried out correctly, starting with the examination of the place [of kidnapping] and the securing of the evidence.”\n93.The Commission also examined how the case had been supervised by the Minister of Justice, the Prosecutor General and the Minister of Internal Affairs, who remained the official supervisors of the police. It noted that the family of the victim had met many ministers and politicians in order to attract their attention to the case. The Commission noted that the system of hierarchical supervision was tainted by “misguided corporate solidarity”. On one occasion, high-ranking prosecutors examining the case on behalf of the Minister of Justice had criticised the ongoing investigation as “dramatic and embarrassing”, and yet no disciplinary or penal consequences had followed. As regards the control of the Minister of Internal Affairs over the police force, the Commission noted that the first of the ministers concerned had been unaware of the extent of his authority in this respect. Subsequent ministers had likewise failed to make use of the legal instruments of control over the police which they had had at their disposal.\n94.The Commission concluded its report by stating that the actions of the police and the prosecutors between 2001 and 2004 had to be “assessed negatively”. The report stated:\n“We find that the police officers who led the investigation and the supervising prosecutors bear legal and moral responsibility for the errors [in the investigation] which were clearly committed during this period.\nIn the Commission’s opinion, there were no decisive actions on the part of the investigative authorities in the period immediately after the kidnapping of Krzysztof Olewnik. Visible sluggishness, errors, recklessness, and a lack of professionalism on the part of the investigators resulted in the failure to discover the perpetrators of the kidnapping, and consequently in the unjustifiable and unimaginable suffering to which [the victim] was subjected, and ultimately, his death.\nThe high number and the nature of the omissions and errors made by some police officers and prosecutors investigating the case led the Commission to explore a hypothesis positing that there had been intentional and purposeful actions by public officials aimed at covering their tracks, destroying evidence, creating false operational versions and, consequently, that some of them had cooperated with the criminal gang which kidnapped and murdered Krzysztof Olewnik. However, this hypothesis can only be verified in criminal proceedings carried out by the Gdańsk Prosecutor of Appeal.\n... taking the so-called Olewnik case as an example of the actions of the central administration could undermine people’s trust in the State.\nThe Commission is persuaded that the behaviour of the central administration could have breached people’s constitutional rights.\nMoreover, it pointed to a lack of skill on the part of those responsible for the security of individuals, revealed shortcomings in procedures concerning the monitoring of law enforcement in Poland, and engendered a sense of helplessness and weakness as regards the State authorities in their attitude to the perpetrators of crime, as well as a sense of injustice.”\nIn its conclusions the Commission also suggested that the question of the criminal liability of some public servants should be examined, but that in most cases the offences would be time-barred.\n95.The Commission lastly welcomed the changes in law and practice following scrutiny of the Krzysztof Olewnik case. In particular, it welcomed the creation of a Council for Victims of Crime, under the auspices of the Minister of Justice, and of the Charter of Victims’ Rights. Moreover, the Prosecutor General decided that all cases concerning kidnappings would automatically be transferred to the investigative branches of the regional prosecution services and examined from the outset with the help of a forensic specialist. A joint team for handling cases of kidnapping involving a ransom was created, grouping together representatives of the Minister of Internal Affairs, Chief of Police and Head of the Internal Security Agency. The Commission also proposed a general reform of the system, with the aim of assisting and protecting witnesses in criminal proceedings.\n96.Lastly, the Commission made a series of proposals for systemic reforms regarding the police and prosecution service. Improvements were needed as regards the manner in which the work of prosecutors was supervised internally. It reiterated the need for prosecutors to specialise to a certain degree and recommended that the divisions dealing with organised crime under the Prosecutor of Appeal should have more independence and be attached directly to the Prosecutor General. It considered that in cases involving the disappearance and abduction of individuals, the police and prosecution service should have a common action plan, with formalised guidelines detailing the recommended action to be taken, which would be distributed to all entities in the country. One of the elements of the plan would be to ensure that when certain criteria were met, the case would immediately be transferred to a specialist prosecutor. The Commission recommended that there should be clear rules regulating when a prosecutor could be removed from a case. It also noted that the prosecutor did not have at his disposal, either previously or at the current time, any legal instrument that would allow him to compel the police, or any other service, to carry out particular investigative (operational) activities or examine their results.\nThe recommendations for the police included training courses, increased supervision, and a restructuring of the internal organisation of the police force and its support services, such as forensic laboratories.\n97.The Committee also presented conclusions regarding the recommended reform of the functioning of the Prison Service so as to offer an effective form of protection to prisoners and to prevent suicides. Lastly, the Commission examined confidentiality laws, finding that far too often the pretext of classification as a “State secret” had been invoked to “protect corrupt and incompetent civil servants”.\n98.17 November 2011 the Gdańsk Prosecutor of Appeal’s Office issued two press releases concerning the pending investigation into the death of MrOlewnik (see paragraph 46 above). The applicants considered that the press releases included statements which hinted that the family had been withholding evidence from the authorities. Both applicants brought civil actions for compensation from the State Treasury for a breach of their personal rights in connection with those statements. Both actions were dismissed.", "11": "Allegation: 5,6\nI.THE CIRCUMSTANCES OF THE CASE\n5.The applicant was born in 1961 and lives in Tbilisi.\nA.Background\n6.During the 1992-93 armed conflict in Abkhazia, Georgia, as a result of which Georgia lost de facto control over a large part of that region, a valley adjacent to the river Kodori known as “the Kodori Gorge” was defended by a local paramilitary group Monadire (“the armed group”) run by Mr E.K. Following a ceasefire agreement concluded in 1994, the Kodori Gorge remained under the control of the central government and E.K. was appointed as the President’s Envoy to the area, while retaining his status as the leader of the armed group. The armed group continued to be active in the Kodori Gorge after the ceasefire with the aim of ensuring the safety in the area and was granted the status of a battalion of the Georgian military forces by the Ministry of Defence.\n7.On 27 May 2005 the Ministry of Defence ordered the dissolution of the armed group but the latter refused to comply with the order.\n8.On 22 July 2006 E.K. gave a televised address declaring the armed group’s insubordination in relation to the central government which, according to him, was planning to forcibly take control of the Kodori Gorge on 27July 2006. He warned that the situation could descend into a civil war.\n9.On 22 July 2006 a preliminary investigation was opened at the Special Operative Department of the Ministry of the Interior in respect of a criminal case no.090060756. The document on the opening of the preliminary investigation indicated that it had concerned “the creation and leadership of an illegal armed group, and the illegal purchase, storage and carrying of firearms” without elaborating on the grounds for opening the investigation, or persons identified as suspects.\n10.On 23 July 2006 the investigating authorities obtained a judicial order permitting the interception and recording of E.K.’s telephone calls. As a result, it was revealed that following his declaration of insubordination, he had been in contact with the applicant, an opposition figure at the time and a former Chairman of the Information-Intelligence Service, who had known E.K. from his role in the 1992-93 armed conflict and the armed group’s subsequent activities in the region. In those telephone conversations the two discussed E.K.’s cause, his further plans (including the need to make another public statement calling on the State armed forces not to use arms on the insurgents), statements made by various opposition politicians, as well as the applicant’s statements to the media outlets.\n11.On 25 and 26 July 2006 the Ministry of the Interior launched a police operation and took control of the Kodori Gorge. Two policemen were injured and one civilian died during the operation. E.K. and members of the armed group went into hiding.\nB.Media coverage of the events\n12.E.K.’s declaration of insubordination and the events in the Kodori Gorge attracted wide media coverage.\n13.On 23 July 2006 the applicant gave an interview to a private television channel Rustavi2 (Rustavi2) in relation to the events in the Kodori Gorge. He noted that fighters who had “heroically defended the Kodori Gorge” together with E.K. in the 1992-93 armed conflict were now gathering to back E.K.’s “just protest” against the political situation in the country. The applicant warned against the government’s alleged plan to quell the protest by force, noting that any such effort would have devastating results for the country, as “blood [would] be spilt amongst brothers”. The applicant stated that the government had to handle the situation with prudence and caution, and to abstain from “labelling the people involved in the protest as criminals and traitors”, as they were in fact “heroes who had defended their homeland [in the past]”.\n14.At 7 p.m. on 25 July 2006 the applicant commented on the Kodori Gorge events on a private television channel, Imedi, and stated, among other things, that “if E.K. is a traitor and G.B. [a member of the ruling political party at the time] is a patriot then this country is doomed ...” The applicant also noted in another interview given to the same television channel an hour later that he had been receiving regular updates from E.K. regarding the tense situation in the region.\n15.At 9 p.m. on 25 July 2006 Rustavi2 broadcast a recording of a telephone conversation between E.K. and the applicant. According to the journalist, the recording had been provided to the television channel by the Ministry of the Interior. The recording as aired by Rustavi2 lasted one minute and forty-four seconds, and contained the following dialogue:\n“[The applicant]: Yes...\n[E.K.]: Yes, I wanted to say that, as they said that [I] met with the [so-called] Minister of Defence of Abkhazia ...\n[The applicant]: [Expletive]\n[E.K.]: Yes, of course, and ... I don’t know the Minister of Defence at all, nor the other one, the Chief of the Peacekeeping Forces, right?\n[The applicant]: Yes, yes\n[E.K]: I don’t know him either and I was called by that K. [representative of the Abkhaz separatist forces] with whom I always maintain ... right?\n[The applicant]: Yes.\n[E.K]: So, he called and asked what was going on.\n[The applicant]: Yes, and now ...\n[E.K]: He offered me, like before, that he will stand by my side with a certain number, he said a considerable number and ... [no sound for 6 seconds]\n[The applicant]: [laughs, followed by no sound for 21 seconds]\n[E.K]: In short you did very well, otherwise the people here were demotivated, saying they did not want Georgia at all.\n[The applicant]: [laughs] Don’t worry, be strong, be strong now ...”\n16.At 11 p.m. on the same evening the applicant denounced the recording on the Imedi television channel, claiming that it had been manipulated to omit the part where E.K. had clearly refused to accept help from K., and that such a manipulation was aimed at conveying the impression that K. and his forces were to be involved alongside E.K. The applicant added that E.K. had not gone into hiding and the government was misleading the population.\n17.On 25 July 2006, while commenting on the events at the Kodori Gorge on Rustavi2, Mr M.M., Deputy Chairman of the Parliament of Georgia, stated the following:\n“If the people have still not understood what this is about, let me repeat that this is a plan that has been elaborated and financed outside our Georgian borders by supporters of the previous government who are opposed to our leadership, one of whom is Batiashvili ...”\n18.On the same evening of 25July 2006 Mr G.T., the Chairman of the Defence and Security Committee of the Parliament of Georgia, commented on the events at the Kodori Gorge on Rustavi 2 and, among other things, stated the following:\n“I understand that Batiashvili wants to justify himself one way or another, but I hope that we will have enough proof for him to be sent to justify himself elsewhere. It is more than a little surprising that he refers to others’ lack of conscience, when he supported [the former President] and the forces which got us into the situation we are in today ... He was indeed moving around with those so-called partisans who, at the time, were involved in smuggling and profited from it. This gentleman and the others made money alongside E.K. Therefore, obviously no ... justification he offers will be accepted. Just how well the armed group led by E.K. protected Georgia’s interests in the valley is illustrated by the statement he made in the recording. He says that, like before, he is friends with and accepts help from our enemies. ... [That] is therefore, I believe, the evidence with which we proved everything we have said in the last few days. There is no longer any doubt, this is treason ... the betrayal of Georgia we were talking about yesterday, and he will be punished accordingly. I believe that first and foremost we must recognise the need for our government to stand firm and stick to its principles ... Anyone who – and I am no longer talking about Batiashvili who is an obvious enemy of the State, but [our] opposition whose position vis-à-vis E.K. is still not entirely clear – ... lay all responsibility at the ruling party’s door ... should be aware that every politician has his responsibilities and will be dealt with accordingly.”\n19.On 26 July 2006 the applicant was questioned by an investigator of the Ministry of the Interior on the premises of the Chief Prosecutor’s Office as a witness in relation to the criminal case no.090060756 (see paragraph9 above). Among other things, the applicant was asked about his knowledge of E.K.’s intentions, whether he had promised to support E.K. through soliciting political and popular support, as well as whether by telling E.K. to “be strong”, as heard in the audio recording of their telephone conversation (see paragraph15 above), the applicant had encouraged E.K. to keep up the insubordination. The applicant answered that from a legal perspective, E.K. and the group did not have a right to take up arms against the Government, but reiterated their role in defending the region, the importance of resolving the differences through peaceful means, and that he had only expressed his moral support to the people of the region. He noted that several political parties had expressed their adequate position on the matter, but he did not remember having solicited their future support. The applicant also noted that the telephone conversation aired by Rustavi2 on 25July 2006 had been edited to omit the part where E.K. had refused to accept K.’s help.\n20.On the same day the applicant made several statements in the media. He stated he had had frequent telephone conversations with E.K., and that he could help defuse the situation if he were to be sent to the Kodori Gorge. He criticised the government for having chosen to resolve the matter with force and warned against a further escalation of the situation.\n21.In the evening of 26 July 2006 the applicant was interviewed by N.T., a journalist of Rustavi 2, as part of an evening programme. The relevant part of the interview went as follows:\n“[N.T.]: ...[if] I am not mistaken, there is a phrase said by you “be strong, be strong” in that telephone conversation concerning [K.’s] military aid which you say was cut...\n[The applicant]: First of all, I would like to tell you, that as a television company with which I believe I cooperate and do not refuse to give an interview, you should not have accepted such a shamelessly mutilated recording without any criticism, where it was obvious that it had been edited...\n...\n[N.T.]: I will answer that, if you allow. In any civilised country, when public interest exists, and you will probably agree that a military rebellion deserves such public interest, any journalist is sometimes led to give up on verifying objectivity in favour of expeditiousness, which has happened in this case and then you were given [time] as part of the Kurieri programme, and I am not planning to justify myself now regarding that.\n[The applicant]: I understand...”\n22.The criminal case file in respect of the applicant contained an official transcript of the intercepted telephone conversation between the applicant and E.K. on 23July 2006 prepared by the Ministry of the Interior on 29July 2006. It is unclear when the applicant was granted access to the document in question. According to the transcript, the telephone conversation between the applicant and E.K. lasted one minute and forty‑four seconds and, in so far as relevant, went as follows [the parts of the conversation that had not been included in the recording as aired by Rustavi2 (see paragraph15 above) are italicised]:\n“[The applicant]: Yes...\n[E.K.]: Yes, I wanted to say that, as they said that [I] met with the [so-called] Minister of Defence of Abkhazia...\n[The applicant]: [Expletive]\n[E.K.]: Yes, of course, and ... I don’t know the Minister of Defence at all, nor the other one, the Chief of the Peacekeeping Forces, right?\n[The applicant]: Yes, yes\n[E.K]: I don’t know him either and I was called by that K. [representative of the Abkhaz separatist forces] with which I always maintain peace, right?\n[The applicant]: Yes.\n[E.K]: So, he called and asked what was going on.\n[The applicant]: Yes, and now...\n[E.K]: He offered me, like before, that he will stand by my side with a certain number, he said a considerable number and I said I would do it myself and when they exterminate us then he could do whatever he wanted, but they will not live to that day.\n[The applicant]: [laughs] Listen, they are spreading that on purpose now...\n[E.K.]: I know, yes, yes.\n[The applicant]: This discre... But you know what, regardless of everything, all that they now showed on television about you still plays in your favour, because it shows that you are a fighter for this [part of the country].\n[E.K.]: In short you did very well, otherwise the people here were demotivated, saying they did not want Georgia at all.\nThe applicant: [laughs] Don’t worry, be strong, be strong now...”\n23.On 1 August 2006 Mr G.T., Chairman of the Defence and Security Committee of the Parliament of Georgia made the following statement at a press conference regarding the applicant which was aired live on Rustavi 2:\n“We have witnessed further evidence presented by the Prosecutor’s Office in relation to the Batiashvili case and I think you have all seen that Mr Irakli Batiashvili was giving advice to [E.K.]. This advice was designed to help the latter with achieving a successful conclusion to the rebellion. ... I think naturally we did not have any questions regarding the guilt of this person [the applicant], and I think if anyone did have [questions], they should no longer have such questions. Accordingly, if there had been a need for ‘lustration’ of those in our political opposition, I think they effectively ‘lustrated themselves’ when they unanimously declared this person to be illegally detained and a political prisoner while he was involved in treason, in the organisation of a rebellion against the State. By this [action] I think they finally revealed their views, their absolutely anti-governmental thinking and turned their backs on their homeland at a decisive moment, and I think society has answered them many times and that finally they will get this answer at the elections.”\nC.Initiation of criminal proceedings against the applicant and his pre‑trial detention\n24.On 27 July 2006 the investigating authorities obtained a judicial order authorising the retrieval of the call logs for the applicant’s incoming and outgoing telephone calls.\n25.On 28July 2006 E.K. was charged in absentia with high treason aimed at overthrowing the constitutional order by force.\n26.On 29 July 2006 the applicant was arrested in relation to the criminal case no.090060756 (see paragraph9 above). He was charged with covering up the preparation of a crime, owing to his failure to inform the relevant authorities of the possible involvement of the Abkhaz separatist forces in the rebellion, and with aiding and abetting high treason aimed at overthrowing the constitutional order by force. The first charge concerning the applicant’s alleged failure to inform the relevant authorities of the possible involvement of the Abkhaz separatist forces in the rebellion was based solely on the applicant’s telephone conversation with E.K. as aired on Rustavi2 on 25July 2006 (see paragraph15 above). As regards the second charge, namely aiding and abetting high treason, it was alleged that the applicant had provided intellectual support to E.K. by giving him instructions, advice, information, and the encouragement necessary to achieve his aims. According to the document containing the charges, the applicant further promised to create a favourable image of E.K. and his plans in public, and called E.K. a hero in one of his public speeches while calling on the government not to forcibly quell the rebellion in another speech. He further advised E.K. on his public speeches and image. The second charge was based on several recordings of telephone conversations between the applicant and E.K. during the period of 23-25July 2006, the applicant’s speeches and comments broadcast by the media, E.K.’s speeches and other evidence.\n27.On 29 July 2006 the investigator lodged an application before the Tbilisi City Court for the applicant’s pre-trial detention. Without specifying the exact date when the applicant came under suspicion, the investigator submitted that the criminal investigation no. 090060756 against E.K. and another person had revealed that the applicant had committed the crimes with which he had been charged. According to the investigator, it was necessary to place the applicant in detention owing to the particular seriousness of the charges, and that there were reasons to believe that, if released, the applicant would continue his criminal activities, impede the course of justice as the other persons implicated in the crimes in question were still at large, and abscond.\n28.On 30 July 2006 the first-instance court ordered the applicant’s pre‑trial detention for two months. It reasoned that the seriousness of the charges against the applicant justified such a decision. Furthermore, noting the applicant’s televised speeches and telephone conversations with E.K., the court concluded that there existed a risk that the applicant would reoffend if he were to be released. The court further noted that there was a risk that the applicant would obstruct justice due to the fact that other suspects were still at large and the applicant could have contacted them, if he were to be released. Finally, the court noted, without elaborating any further, that there was a risk of the applicant absconding. The court also noted that the relevant national legislation was in compliance with the Convention.\n29.On 1 August 2006 the applicant appealed, arguing that the risks cited by the first-instance court to justify his pre-trial detention had been unsubstantiated. He noted that the court had failed to consider the fact that he had voluntarily appeared before the investigating authorities upon being summoned, and had a family, a permanent residence, and a job at a university.\n30.On 3August 2006 the Tbilisi Court of Appeal dismissed the applicant’s appeal of 1August 2006 in a reasoned decision. It endorsed the reasoning of the lower court (see paragraph28 above) and added that the particular public threat posed by the actions ascribed to the applicant, the potentially larger circle of accomplices, the fact that the other identified suspects were still at large, the seriousness of the charges and the severity of the potential sentence all reinforced the suspicion that the applicant would abscond and obstruct justice. The court further noted that considering the swift arrest of the applicant, he had not had the opportunity to interfere with the course of the criminal investigation or tamper with the evidence, and his detention was in order to prevent such a risk from materialising. Accordingly, the fact that the applicant had voluntarily appeared before the investigating authorities before he had been charged could not have served as a sufficient reason for not detaining him pending the outcome of the criminal investigation.\n31.On 29July 2006 an investigator made a report on the applicant’s familiarising himself with the evidence available in the criminal case file. The report was signed by the applicant’s lawyer and the applicant with a handwritten note that the criminal case file was missing the evidence indicated in the statement outlining the suspicion against him. On 31July 2006 the applicant’s lawyer was informed about the possibility to get acquainted with the case file at the Ministry of the Interior. On 4August 2006 the investigator attempted to reach the applicant’s lawyer at the latter’s cell phone without success. On 12August 2006 the applicant’s lawyer familiarised himself with the criminal case file, including transcripts of various telephone conversations, as confirmed by his signature on the relevant document. The lawyer remarked that the file had not contained a recording of the applicant’s interview given to a Russian television channel, and audio recordings of the applicant’s telephone conversations with E.K. On 15August 2006 the applicant’s lawyer familiarised himself with the recordings of the telephone conversations in question. On 21August 2006 the applicant’s lawyer made a complete photocopy of the criminal case file, as confirmed by his signature.\n32.On 22 September 2006 the prosecutor requested an extension of the applicant’s pre-trial detention by one month, noting that a number of witnesses, including E.K.’s brother, had yet to be questioned and the investigation to be finalised.\n33.On 22 September 2006 the Tbilisi City Court held an oral hearing in the presence of the parties and extended the applicant’s pre-trial detention by one month. It reasoned that the case being particularly complex and the investigation being in an active phase, a number of investigative actions such as the questioning of E.K.’s brother and persons identified from the applicant’s phone call logs had not yet been carried out. Furthermore, three out of four charged persons remained at large. Therefore, the reasons to keep the applicant in pre-trial detention persisted.\n34.On 24 September 2006 the applicant appealed against the extension of his pre-trial detention. He submitted that the case materials did not contain cassettes with the recordings of the telephone conversations or the relevant material televised in the media and used as a basis for his charges. Furthermore, he argued that the second charge ought to be dropped as the transcript of the relevant telephone conversation showed that E.K. had refused any help from separatist forces. The applicant further argued that it was unclear why the witnesses had not yet been questioned. Furthermore, E.K.’s brother had been questioned on 11August 2006, yet no questions had been put to him regarding the applicant’s case. He suggested the investigating and prosecuting authorities were stalling the investigation to keep him detained as long as possible. Furthermore, the applicant noted that the need to finalise the case could not have served as a ground for extending his pre-trial detention.\n35.On 27 September 2006 the Tbilisi Court of Appeal upheld the lower court’s decision in a written procedure. According to the court, the applicant’s arguments regarding the persistence of the grounds justifying his pre-trial detention had been duly addressed by the lower court, and no new circumstances justifying the alteration of the preventive measure had emerged. It further noted that the complexity of the case was a ground set out in Article 162 § 3 that could justify the extension of pre-trial detention (see paragraph 47 below). The court reasoned that in addition to the grounds noted by the lower court, the complexity of the case made it difficult to conclude the investigation within the initial pre-trial detention period, and justified, in the absence of arbitrary delays on the part of the investigative authorities, the need for additional time to finish the investigation and implement certain investigative measures, draw up the indictment and send the case for trial.\n36.On 23 October 2006 the investigator applied to the Tbilisi City Court for a second extension of the applicant’s pre-trial detention for one month. He pointed out that a number of persons identified from the applicant’s phone call logs were still to be questioned, the indictment had to be drawn up, and the case was to be sent firstly to the prosecutor and then to the trial court.\n37.On 26 October 2006 the Tbilisi City Court held an oral hearing in the presence of the parties and, agreeing with the investigator’s arguments concerning the need to finalise the investigation, including in respect of persons possibly connected to the applicant and the risk of the obstruction of justice, delivered a decision to extend the applicant’s detention by another month.\n38.The applicant appealed, arguing that the investigating authorities had failed to demonstrate why it had been impossible since 29July 2006 to determine with precision the identity of the relevant witnesses and to question them, and querying which calls in his call logs had been suspicious. Furthermore, the need to finalise the indictment and send the criminal case to the prosecutor did not figure as one of the legitimate grounds for continuing pre-trial detention either in domestic law or the Convention. Nor was the complex nature of a case such a ground. Finally, the court’s conclusion that the risk of the applicant absconding and obstructing justice “was not excluded” had not been based on any reasoned arguments or evidence, especially considering the applicant’s voluntary cooperation with the investigating authorities.\n39.On 1 November 2006, the Tbilisi Court of Appeal examined the applicant’s appeal in a written procedure and upheld the lower court’s findings. The appellate court noted that the criminal case no.090060756 concerned the applicant “and other individuals”. The court reasoned that considering the particular complexity of the case and the investigative measures that remained to be carried out, and in the absence of arbitrary delays, extra time was objectively necessary for the authorities to conclude the investigation. The appellate court further reasoned, regarding the possible use of non-custodial measures of restraint, that factors such as the factual circumstances of the case, the nature of the charges, the severity of the penalty and the existence of co-perpetrators that needed to be identified, in their totality created a reasonable doubt that, without the use of pre-trial detention, the applicant would abscond, tamper with the evidence, and reoffend. The court further noted that in accordance with the domestic legislation on the matter (see paragraph48 below) it was within an appellate court’s discretion to dispense with an oral hearing.\n40.On 24 November 2006, the indictment which reproduced the charges of 29July 2006 (see paragraph26 above) was approved by a prosecutor as part of a criminal case no.090061129 and the applicant was committed for trial in the Tbilisi City Court. The indictment did not provide an explanation as to the change of the criminal case number.\nD.Disputed authenticity of the recording of the intercepted telephone conversation aired on Rustavi2\n41.On 18September 2006 the applicant lodged a complaint with the Chief Prosecutor’s Office regarding the tampering with evidence and requested that a criminal investigation be opened into the matter. He submitted that the recording of the telephone conversation between him and E.K. aired on Rustavi2 had been disseminated by government authorities in a manipulated form to conceal the part where E.K. had refused to accept K.’s offer. It was aimed at creating an impression that the applicant had been complicit in a crime, and had failed to report K.’s involvement in the rebellion.\n42.On 2 October 2006 the Chief Prosecutor’s Office rejected the applicant’s application, noting the absence of a crime. It indicated that the criminal case file had contained a full transcript of the telephone conversation in question and it appeared that the television company had shortened the conversation on their own initiative, given the limited airtime available.\n43.On 14 February 2007, while the criminal proceedings against the applicant were pending before the first-instance court, the applicant requested that N.T., the former director of the Rustavi2 channel, be questioned as a witness. The applicant referred to N.T.’s statement on 26July 2006 stating that sometimes journalists have to prioritise delivering information without delay over verifying the objectivity of such information (see paragraph21 above) and submitted that N.T. would have confirmed before the court that the recording of the applicant’s telephone conversation with E.K. had been given to the media outlet in question in an already manipulated form, with the parts of the conversation where E.K. had refused to agree to the involvement of Abkhaz separatist forces being muted. The court granted the applicant’s request to question N.T. as a witness.\n44.On 3 May 2007 the applicant requested to question K.K., the deputy head of Rustavi2’s Information Service instead of N.T., who had apparently moved to the US and who it was impossible to locate. The prosecutor moved to reject the application as being irrelevant since the relevant charge concerning the failure to report a crime (see paragraph26 above) had since been dropped, without specifying the date when this happened. The first‑instance court rejected the applicant’s request as being aimed at unduly delaying the proceedings.\nE.Subsequent developments\n45.As it appears from the parties’ submissions, the applicant was found guilty by the court of first instance and the appellate court on 23May and 13September 2007 respectively. However, on 28January 2008 the Supreme Court discontinued its consideration of an appeal on points of law lodged by the applicant in view of an earlier presidential pardon, granted on an unspecified date.", "12": "Allegation: 5,6\nI.THE CIRCUMSTANCES OF THE CASE\n5.The applicant was born in 1961 and lives in Tbilisi.\nA.Background\n6.During the 1992-93 armed conflict in Abkhazia, Georgia, as a result of which Georgia lost de facto control over a large part of that region, a valley adjacent to the river Kodori known as “the Kodori Gorge” was defended by a local paramilitary group Monadire (“the armed group”) run by Mr E.K. Following a ceasefire agreement concluded in 1994, the Kodori Gorge remained under the control of the central government and E.K. was appointed as the President’s Envoy to the area, while retaining his status as the leader of the armed group. The armed group continued to be active in the Kodori Gorge after the ceasefire with the aim of ensuring the safety in the area and was granted the status of a battalion of the Georgian military forces by the Ministry of Defence.\n7.On 27 May 2005 the Ministry of Defence ordered the dissolution of the armed group but the latter refused to comply with the order.\n8.On 22 July 2006 E.K. gave a televised address declaring the armed group’s insubordination in relation to the central government which, according to him, was planning to forcibly take control of the Kodori Gorge on 27July 2006. He warned that the situation could descend into a civil war.\n9.On 22 July 2006 a preliminary investigation was opened at the Special Operative Department of the Ministry of the Interior in respect of a criminal case no.090060756. The document on the opening of the preliminary investigation indicated that it had concerned “the creation and leadership of an illegal armed group, and the illegal purchase, storage and carrying of firearms” without elaborating on the grounds for opening the investigation, or persons identified as suspects.\n10.On 23 July 2006 the investigating authorities obtained a judicial order permitting the interception and recording of E.K.’s telephone calls. As a result, it was revealed that following his declaration of insubordination, he had been in contact with the applicant, an opposition figure at the time and a former Chairman of the Information-Intelligence Service, who had known E.K. from his role in the 1992-93 armed conflict and the armed group’s subsequent activities in the region. In those telephone conversations the two discussed E.K.’s cause, his further plans (including the need to make another public statement calling on the State armed forces not to use arms on the insurgents), statements made by various opposition politicians, as well as the applicant’s statements to the media outlets.\n11.On 25 and 26 July 2006 the Ministry of the Interior launched a police operation and took control of the Kodori Gorge. Two policemen were injured and one civilian died during the operation. E.K. and members of the armed group went into hiding.\nB.Media coverage of the events\n12.E.K.’s declaration of insubordination and the events in the Kodori Gorge attracted wide media coverage.\n13.On 23 July 2006 the applicant gave an interview to a private television channel Rustavi2 (Rustavi2) in relation to the events in the Kodori Gorge. He noted that fighters who had “heroically defended the Kodori Gorge” together with E.K. in the 1992-93 armed conflict were now gathering to back E.K.’s “just protest” against the political situation in the country. The applicant warned against the government’s alleged plan to quell the protest by force, noting that any such effort would have devastating results for the country, as “blood [would] be spilt amongst brothers”. The applicant stated that the government had to handle the situation with prudence and caution, and to abstain from “labelling the people involved in the protest as criminals and traitors”, as they were in fact “heroes who had defended their homeland [in the past]”.\n14.At 7 p.m. on 25 July 2006 the applicant commented on the Kodori Gorge events on a private television channel, Imedi, and stated, among other things, that “if E.K. is a traitor and G.B. [a member of the ruling political party at the time] is a patriot then this country is doomed ...” The applicant also noted in another interview given to the same television channel an hour later that he had been receiving regular updates from E.K. regarding the tense situation in the region.\n15.At 9 p.m. on 25 July 2006 Rustavi2 broadcast a recording of a telephone conversation between E.K. and the applicant. According to the journalist, the recording had been provided to the television channel by the Ministry of the Interior. The recording as aired by Rustavi2 lasted one minute and forty-four seconds, and contained the following dialogue:\n“[The applicant]: Yes...\n[E.K.]: Yes, I wanted to say that, as they said that [I] met with the [so-called] Minister of Defence of Abkhazia ...\n[The applicant]: [Expletive]\n[E.K.]: Yes, of course, and ... I don’t know the Minister of Defence at all, nor the other one, the Chief of the Peacekeeping Forces, right?\n[The applicant]: Yes, yes\n[E.K]: I don’t know him either and I was called by that K. [representative of the Abkhaz separatist forces] with whom I always maintain ... right?\n[The applicant]: Yes.\n[E.K]: So, he called and asked what was going on.\n[The applicant]: Yes, and now ...\n[E.K]: He offered me, like before, that he will stand by my side with a certain number, he said a considerable number and ... [no sound for 6 seconds]\n[The applicant]: [laughs, followed by no sound for 21 seconds]\n[E.K]: In short you did very well, otherwise the people here were demotivated, saying they did not want Georgia at all.\n[The applicant]: [laughs] Don’t worry, be strong, be strong now ...”\n16.At 11 p.m. on the same evening the applicant denounced the recording on the Imedi television channel, claiming that it had been manipulated to omit the part where E.K. had clearly refused to accept help from K., and that such a manipulation was aimed at conveying the impression that K. and his forces were to be involved alongside E.K. The applicant added that E.K. had not gone into hiding and the government was misleading the population.\n17.On 25 July 2006, while commenting on the events at the Kodori Gorge on Rustavi2, Mr M.M., Deputy Chairman of the Parliament of Georgia, stated the following:\n“If the people have still not understood what this is about, let me repeat that this is a plan that has been elaborated and financed outside our Georgian borders by supporters of the previous government who are opposed to our leadership, one of whom is Batiashvili ...”\n18.On the same evening of 25July 2006 Mr G.T., the Chairman of the Defence and Security Committee of the Parliament of Georgia, commented on the events at the Kodori Gorge on Rustavi 2 and, among other things, stated the following:\n“I understand that Batiashvili wants to justify himself one way or another, but I hope that we will have enough proof for him to be sent to justify himself elsewhere. It is more than a little surprising that he refers to others’ lack of conscience, when he supported [the former President] and the forces which got us into the situation we are in today ... He was indeed moving around with those so-called partisans who, at the time, were involved in smuggling and profited from it. This gentleman and the others made money alongside E.K. Therefore, obviously no ... justification he offers will be accepted. Just how well the armed group led by E.K. protected Georgia’s interests in the valley is illustrated by the statement he made in the recording. He says that, like before, he is friends with and accepts help from our enemies. ... [That] is therefore, I believe, the evidence with which we proved everything we have said in the last few days. There is no longer any doubt, this is treason ... the betrayal of Georgia we were talking about yesterday, and he will be punished accordingly. I believe that first and foremost we must recognise the need for our government to stand firm and stick to its principles ... Anyone who – and I am no longer talking about Batiashvili who is an obvious enemy of the State, but [our] opposition whose position vis-à-vis E.K. is still not entirely clear – ... lay all responsibility at the ruling party’s door ... should be aware that every politician has his responsibilities and will be dealt with accordingly.”\n19.On 26 July 2006 the applicant was questioned by an investigator of the Ministry of the Interior on the premises of the Chief Prosecutor’s Office as a witness in relation to the criminal case no.090060756 (see paragraph9 above). Among other things, the applicant was asked about his knowledge of E.K.’s intentions, whether he had promised to support E.K. through soliciting political and popular support, as well as whether by telling E.K. to “be strong”, as heard in the audio recording of their telephone conversation (see paragraph15 above), the applicant had encouraged E.K. to keep up the insubordination. The applicant answered that from a legal perspective, E.K. and the group did not have a right to take up arms against the Government, but reiterated their role in defending the region, the importance of resolving the differences through peaceful means, and that he had only expressed his moral support to the people of the region. He noted that several political parties had expressed their adequate position on the matter, but he did not remember having solicited their future support. The applicant also noted that the telephone conversation aired by Rustavi2 on 25July 2006 had been edited to omit the part where E.K. had refused to accept K.’s help.\n20.On the same day the applicant made several statements in the media. He stated he had had frequent telephone conversations with E.K., and that he could help defuse the situation if he were to be sent to the Kodori Gorge. He criticised the government for having chosen to resolve the matter with force and warned against a further escalation of the situation.\n21.In the evening of 26 July 2006 the applicant was interviewed by N.T., a journalist of Rustavi 2, as part of an evening programme. The relevant part of the interview went as follows:\n“[N.T.]: ...[if] I am not mistaken, there is a phrase said by you “be strong, be strong” in that telephone conversation concerning [K.’s] military aid which you say was cut...\n[The applicant]: First of all, I would like to tell you, that as a television company with which I believe I cooperate and do not refuse to give an interview, you should not have accepted such a shamelessly mutilated recording without any criticism, where it was obvious that it had been edited...\n...\n[N.T.]: I will answer that, if you allow. In any civilised country, when public interest exists, and you will probably agree that a military rebellion deserves such public interest, any journalist is sometimes led to give up on verifying objectivity in favour of expeditiousness, which has happened in this case and then you were given [time] as part of the Kurieri programme, and I am not planning to justify myself now regarding that.\n[The applicant]: I understand...”\n22.The criminal case file in respect of the applicant contained an official transcript of the intercepted telephone conversation between the applicant and E.K. on 23July 2006 prepared by the Ministry of the Interior on 29July 2006. It is unclear when the applicant was granted access to the document in question. According to the transcript, the telephone conversation between the applicant and E.K. lasted one minute and forty‑four seconds and, in so far as relevant, went as follows [the parts of the conversation that had not been included in the recording as aired by Rustavi2 (see paragraph15 above) are italicised]:\n“[The applicant]: Yes...\n[E.K.]: Yes, I wanted to say that, as they said that [I] met with the [so-called] Minister of Defence of Abkhazia...\n[The applicant]: [Expletive]\n[E.K.]: Yes, of course, and ... I don’t know the Minister of Defence at all, nor the other one, the Chief of the Peacekeeping Forces, right?\n[The applicant]: Yes, yes\n[E.K]: I don’t know him either and I was called by that K. [representative of the Abkhaz separatist forces] with which I always maintain peace, right?\n[The applicant]: Yes.\n[E.K]: So, he called and asked what was going on.\n[The applicant]: Yes, and now...\n[E.K]: He offered me, like before, that he will stand by my side with a certain number, he said a considerable number and I said I would do it myself and when they exterminate us then he could do whatever he wanted, but they will not live to that day.\n[The applicant]: [laughs] Listen, they are spreading that on purpose now...\n[E.K.]: I know, yes, yes.\n[The applicant]: This discre... But you know what, regardless of everything, all that they now showed on television about you still plays in your favour, because it shows that you are a fighter for this [part of the country].\n[E.K.]: In short you did very well, otherwise the people here were demotivated, saying they did not want Georgia at all.\nThe applicant: [laughs] Don’t worry, be strong, be strong now...”\n23.On 1 August 2006 Mr G.T., Chairman of the Defence and Security Committee of the Parliament of Georgia made the following statement at a press conference regarding the applicant which was aired live on Rustavi 2:\n“We have witnessed further evidence presented by the Prosecutor’s Office in relation to the Batiashvili case and I think you have all seen that Mr Irakli Batiashvili was giving advice to [E.K.]. This advice was designed to help the latter with achieving a successful conclusion to the rebellion. ... I think naturally we did not have any questions regarding the guilt of this person [the applicant], and I think if anyone did have [questions], they should no longer have such questions. Accordingly, if there had been a need for ‘lustration’ of those in our political opposition, I think they effectively ‘lustrated themselves’ when they unanimously declared this person to be illegally detained and a political prisoner while he was involved in treason, in the organisation of a rebellion against the State. By this [action] I think they finally revealed their views, their absolutely anti-governmental thinking and turned their backs on their homeland at a decisive moment, and I think society has answered them many times and that finally they will get this answer at the elections.”\nC.Initiation of criminal proceedings against the applicant and his pre‑trial detention\n24.On 27 July 2006 the investigating authorities obtained a judicial order authorising the retrieval of the call logs for the applicant’s incoming and outgoing telephone calls.\n25.On 28July 2006 E.K. was charged in absentia with high treason aimed at overthrowing the constitutional order by force.\n26.On 29 July 2006 the applicant was arrested in relation to the criminal case no.090060756 (see paragraph9 above). He was charged with covering up the preparation of a crime, owing to his failure to inform the relevant authorities of the possible involvement of the Abkhaz separatist forces in the rebellion, and with aiding and abetting high treason aimed at overthrowing the constitutional order by force. The first charge concerning the applicant’s alleged failure to inform the relevant authorities of the possible involvement of the Abkhaz separatist forces in the rebellion was based solely on the applicant’s telephone conversation with E.K. as aired on Rustavi2 on 25July 2006 (see paragraph15 above). As regards the second charge, namely aiding and abetting high treason, it was alleged that the applicant had provided intellectual support to E.K. by giving him instructions, advice, information, and the encouragement necessary to achieve his aims. According to the document containing the charges, the applicant further promised to create a favourable image of E.K. and his plans in public, and called E.K. a hero in one of his public speeches while calling on the government not to forcibly quell the rebellion in another speech. He further advised E.K. on his public speeches and image. The second charge was based on several recordings of telephone conversations between the applicant and E.K. during the period of 23-25July 2006, the applicant’s speeches and comments broadcast by the media, E.K.’s speeches and other evidence.\n27.On 29 July 2006 the investigator lodged an application before the Tbilisi City Court for the applicant’s pre-trial detention. Without specifying the exact date when the applicant came under suspicion, the investigator submitted that the criminal investigation no. 090060756 against E.K. and another person had revealed that the applicant had committed the crimes with which he had been charged. According to the investigator, it was necessary to place the applicant in detention owing to the particular seriousness of the charges, and that there were reasons to believe that, if released, the applicant would continue his criminal activities, impede the course of justice as the other persons implicated in the crimes in question were still at large, and abscond.\n28.On 30 July 2006 the first-instance court ordered the applicant’s pre‑trial detention for two months. It reasoned that the seriousness of the charges against the applicant justified such a decision. Furthermore, noting the applicant’s televised speeches and telephone conversations with E.K., the court concluded that there existed a risk that the applicant would reoffend if he were to be released. The court further noted that there was a risk that the applicant would obstruct justice due to the fact that other suspects were still at large and the applicant could have contacted them, if he were to be released. Finally, the court noted, without elaborating any further, that there was a risk of the applicant absconding. The court also noted that the relevant national legislation was in compliance with the Convention.\n29.On 1 August 2006 the applicant appealed, arguing that the risks cited by the first-instance court to justify his pre-trial detention had been unsubstantiated. He noted that the court had failed to consider the fact that he had voluntarily appeared before the investigating authorities upon being summoned, and had a family, a permanent residence, and a job at a university.\n30.On 3August 2006 the Tbilisi Court of Appeal dismissed the applicant’s appeal of 1August 2006 in a reasoned decision. It endorsed the reasoning of the lower court (see paragraph28 above) and added that the particular public threat posed by the actions ascribed to the applicant, the potentially larger circle of accomplices, the fact that the other identified suspects were still at large, the seriousness of the charges and the severity of the potential sentence all reinforced the suspicion that the applicant would abscond and obstruct justice. The court further noted that considering the swift arrest of the applicant, he had not had the opportunity to interfere with the course of the criminal investigation or tamper with the evidence, and his detention was in order to prevent such a risk from materialising. Accordingly, the fact that the applicant had voluntarily appeared before the investigating authorities before he had been charged could not have served as a sufficient reason for not detaining him pending the outcome of the criminal investigation.\n31.On 29July 2006 an investigator made a report on the applicant’s familiarising himself with the evidence available in the criminal case file. The report was signed by the applicant’s lawyer and the applicant with a handwritten note that the criminal case file was missing the evidence indicated in the statement outlining the suspicion against him. On 31July 2006 the applicant’s lawyer was informed about the possibility to get acquainted with the case file at the Ministry of the Interior. On 4August 2006 the investigator attempted to reach the applicant’s lawyer at the latter’s cell phone without success. On 12August 2006 the applicant’s lawyer familiarised himself with the criminal case file, including transcripts of various telephone conversations, as confirmed by his signature on the relevant document. The lawyer remarked that the file had not contained a recording of the applicant’s interview given to a Russian television channel, and audio recordings of the applicant’s telephone conversations with E.K. On 15August 2006 the applicant’s lawyer familiarised himself with the recordings of the telephone conversations in question. On 21August 2006 the applicant’s lawyer made a complete photocopy of the criminal case file, as confirmed by his signature.\n32.On 22 September 2006 the prosecutor requested an extension of the applicant’s pre-trial detention by one month, noting that a number of witnesses, including E.K.’s brother, had yet to be questioned and the investigation to be finalised.\n33.On 22 September 2006 the Tbilisi City Court held an oral hearing in the presence of the parties and extended the applicant’s pre-trial detention by one month. It reasoned that the case being particularly complex and the investigation being in an active phase, a number of investigative actions such as the questioning of E.K.’s brother and persons identified from the applicant’s phone call logs had not yet been carried out. Furthermore, three out of four charged persons remained at large. Therefore, the reasons to keep the applicant in pre-trial detention persisted.\n34.On 24 September 2006 the applicant appealed against the extension of his pre-trial detention. He submitted that the case materials did not contain cassettes with the recordings of the telephone conversations or the relevant material televised in the media and used as a basis for his charges. Furthermore, he argued that the second charge ought to be dropped as the transcript of the relevant telephone conversation showed that E.K. had refused any help from separatist forces. The applicant further argued that it was unclear why the witnesses had not yet been questioned. Furthermore, E.K.’s brother had been questioned on 11August 2006, yet no questions had been put to him regarding the applicant’s case. He suggested the investigating and prosecuting authorities were stalling the investigation to keep him detained as long as possible. Furthermore, the applicant noted that the need to finalise the case could not have served as a ground for extending his pre-trial detention.\n35.On 27 September 2006 the Tbilisi Court of Appeal upheld the lower court’s decision in a written procedure. According to the court, the applicant’s arguments regarding the persistence of the grounds justifying his pre-trial detention had been duly addressed by the lower court, and no new circumstances justifying the alteration of the preventive measure had emerged. It further noted that the complexity of the case was a ground set out in Article 162 § 3 that could justify the extension of pre-trial detention (see paragraph 47 below). The court reasoned that in addition to the grounds noted by the lower court, the complexity of the case made it difficult to conclude the investigation within the initial pre-trial detention period, and justified, in the absence of arbitrary delays on the part of the investigative authorities, the need for additional time to finish the investigation and implement certain investigative measures, draw up the indictment and send the case for trial.\n36.On 23 October 2006 the investigator applied to the Tbilisi City Court for a second extension of the applicant’s pre-trial detention for one month. He pointed out that a number of persons identified from the applicant’s phone call logs were still to be questioned, the indictment had to be drawn up, and the case was to be sent firstly to the prosecutor and then to the trial court.\n37.On 26 October 2006 the Tbilisi City Court held an oral hearing in the presence of the parties and, agreeing with the investigator’s arguments concerning the need to finalise the investigation, including in respect of persons possibly connected to the applicant and the risk of the obstruction of justice, delivered a decision to extend the applicant’s detention by another month.\n38.The applicant appealed, arguing that the investigating authorities had failed to demonstrate why it had been impossible since 29July 2006 to determine with precision the identity of the relevant witnesses and to question them, and querying which calls in his call logs had been suspicious. Furthermore, the need to finalise the indictment and send the criminal case to the prosecutor did not figure as one of the legitimate grounds for continuing pre-trial detention either in domestic law or the Convention. Nor was the complex nature of a case such a ground. Finally, the court’s conclusion that the risk of the applicant absconding and obstructing justice “was not excluded” had not been based on any reasoned arguments or evidence, especially considering the applicant’s voluntary cooperation with the investigating authorities.\n39.On 1 November 2006, the Tbilisi Court of Appeal examined the applicant’s appeal in a written procedure and upheld the lower court’s findings. The appellate court noted that the criminal case no.090060756 concerned the applicant “and other individuals”. The court reasoned that considering the particular complexity of the case and the investigative measures that remained to be carried out, and in the absence of arbitrary delays, extra time was objectively necessary for the authorities to conclude the investigation. The appellate court further reasoned, regarding the possible use of non-custodial measures of restraint, that factors such as the factual circumstances of the case, the nature of the charges, the severity of the penalty and the existence of co-perpetrators that needed to be identified, in their totality created a reasonable doubt that, without the use of pre-trial detention, the applicant would abscond, tamper with the evidence, and reoffend. The court further noted that in accordance with the domestic legislation on the matter (see paragraph48 below) it was within an appellate court’s discretion to dispense with an oral hearing.\n40.On 24 November 2006, the indictment which reproduced the charges of 29July 2006 (see paragraph26 above) was approved by a prosecutor as part of a criminal case no.090061129 and the applicant was committed for trial in the Tbilisi City Court. The indictment did not provide an explanation as to the change of the criminal case number.\nD.Disputed authenticity of the recording of the intercepted telephone conversation aired on Rustavi2\n41.On 18September 2006 the applicant lodged a complaint with the Chief Prosecutor’s Office regarding the tampering with evidence and requested that a criminal investigation be opened into the matter. He submitted that the recording of the telephone conversation between him and E.K. aired on Rustavi2 had been disseminated by government authorities in a manipulated form to conceal the part where E.K. had refused to accept K.’s offer. It was aimed at creating an impression that the applicant had been complicit in a crime, and had failed to report K.’s involvement in the rebellion.\n42.On 2 October 2006 the Chief Prosecutor’s Office rejected the applicant’s application, noting the absence of a crime. It indicated that the criminal case file had contained a full transcript of the telephone conversation in question and it appeared that the television company had shortened the conversation on their own initiative, given the limited airtime available.\n43.On 14 February 2007, while the criminal proceedings against the applicant were pending before the first-instance court, the applicant requested that N.T., the former director of the Rustavi2 channel, be questioned as a witness. The applicant referred to N.T.’s statement on 26July 2006 stating that sometimes journalists have to prioritise delivering information without delay over verifying the objectivity of such information (see paragraph21 above) and submitted that N.T. would have confirmed before the court that the recording of the applicant’s telephone conversation with E.K. had been given to the media outlet in question in an already manipulated form, with the parts of the conversation where E.K. had refused to agree to the involvement of Abkhaz separatist forces being muted. The court granted the applicant’s request to question N.T. as a witness.\n44.On 3 May 2007 the applicant requested to question K.K., the deputy head of Rustavi2’s Information Service instead of N.T., who had apparently moved to the US and who it was impossible to locate. The prosecutor moved to reject the application as being irrelevant since the relevant charge concerning the failure to report a crime (see paragraph26 above) had since been dropped, without specifying the date when this happened. The first‑instance court rejected the applicant’s request as being aimed at unduly delaying the proceedings.\nE.Subsequent developments\n45.As it appears from the parties’ submissions, the applicant was found guilty by the court of first instance and the appellate court on 23May and 13September 2007 respectively. However, on 28January 2008 the Supreme Court discontinued its consideration of an appeal on points of law lodged by the applicant in view of an earlier presidential pardon, granted on an unspecified date.", "13": "Allegation: 6,10\n4.The applicant was born in 1951 and lives in Sochi.\n5.At the material time, the applicant was leader of the local branch of the Democratic Party of Russia and founder of Sochi–Drugoy Vzglyad, a local newspaper with a circulation of 8,000. He also occasionally published articles in other local newspapers, apparently as a freelancer.\n6.On 1 March 2008 Lazarevskaya Panorama, a local newspaper with a circulation of 10,000, published an article by the applicant headlined “Why I will not vote in these elections”, in which the applicant stated why he would abstain in the presidential election that was due to take place on 2March 2008.\n7.The article was placed on the front page of the newspaper that had a headline in large red type saying “Time to vote”. There were two sub‑headings (“Yes!” in red and “No...” in black). The text was divided into two columns: the left side gave the statements of five people who were going to vote while the right side contained the applicant’s article.\n8.The applicant’s article read, in its relevant parts, as follows:\n“We are going to have a presidential election soon. It is difficult to grasp the game between good and evil this time ... So, here is my decision.\nFirst of all, I am not a puppet in the hands of political gangs who are making a farce out of the presidential election. They only need our participation in the election for the sake of giving it an impression of a legal process, one which will result in the dislocation of Russia. This might explain the sad results of government by the two recent rulers of the State. As a result, we have what we have: widespread corruption on a broad platform of lies created by the press under the control of the State and oligarchs. Platitudes, depravity, and aggressive propaganda in favour of violence flow out at us from our television screens ...\nThat is how it all goes. However, it is all depicted as the reconstruction of the State, the strengthening of the economy and the rule of law on the background of growing wealth for the People.\n‘Which people?’ I suddenly thought. ‘Does it really matter?’, was the answer from the television screen, ‘It would not be politically correct to give a specific answer to that, to avoid complaints ...’.\nSecondly, in fifteen years of ‘new style’ democracy no Russian person [русский человек] has seen anything good. He has been pushed down to the level of a simpleton who is to serve various small ethnic groupings that call themselves ‘republics’, within Russia or elsewhere ... In the Russia destroyed by the Bolsheviks they were called ‘non-Russians’ or the ‘non-Russian population’ ... And no one took offence at the time. Everyone stayed within his own locality, doing his best to make it wealthy. No one was irritated by that.\nSo what happened? Where do we stand today?\nThose who on account of their ethnic [национальные] characteristics had engaged in criminal activities or tended their sheep or goats or prayed to their god abandoned their motherland and came here. They now call themselves builders, entrepreneurs, cultural workers or whatever is needed to get their hands into others’ pockets.\nJust look around and you will see crowds of them staring at you greedily at every corner ...\n‘We will be victorious over you all. We hold all these Kuban people,’ they say during their closed meetings in their own language that 99% of Russians do not understand.\nBut they will speak Russian later, when they have totally paralysed our will. That is when they will start to burn, slaughter, rape, rob and enslave, in line with their barbaric ideas, as it was in Chechnya.\nBut for the time being, it is all ‘friendship and solidarity between nations’. For the time being that is. And the President of Russia is handing out Hero of Russia decorations to slave traffickers! ...\nThey participate in the destruction of the country ... Various processes of destruction dominate our society today. That is why I will not take part in the election ...\nHowever, I express my hope that when taking his decisions the new President will take into account the views I have expressed for myself and for those who are not going to vote on 2 March 2008.”\n9.The article was accompanied by the applicant’s photograph and indicated that he was leader of the local branch of the Democratic Party of Russia.\n10.The same text was reprinted in Sochi–Drugoy Vzglyad on 25December 2009. The front page of the newspaper had an article titled “A campaign of criminal prosecutions on political motives has started in Sochi” about the criminal proceedings against the applicant for that text (see below). The article was repeated in small print at the bottom of the same page.\n11.This issue of Sochi–Drugoy Vzglyad also contained a separate page with varying opinions expressed by various people in relation to the applicant’s text and his ongoing criminal prosecution. One comment was made by a lawyer who considered that the main thread of the article concerned various destructive processes in the country arising, for instance, from inefficient migration policies adversely affected by widespread corruption; at the same time, the article contained no calls to action, in particular violent actions, and could not be classified as “extremist activity”. The article also contained a statement by the leader of the Lazarevskoyedistrict branch of the Armenian Union of Russia. It also contained the applicant’s “open letter” in reply to that statement. It was specified in the article that on 17 December 2009 the applicant had had a meeting with the Lazarevskoye district branch.\n12.It appears that both newspapers were distributed for free by being put into people’s letter boxes within several streets in the Sochi area, including Lazarevskoye village for the second publication.\n13.In the meantime, a criminal pre-investigation inquiry was opened on suspicion of inciting hatred and enmity, and at debasing the human dignity of a person or group of people on account of their ethnicity. In this connection, in August 2009 an investigator sought an opinion from professionals in language and psychology.\n14.Ms B. and Ms R., professionals in language and psychology, issued their joint report on 5 November 2009. The report concluded as follows: the text contained statements disclosing a negative attitude toward a social group on the basis of its ethnicity, language and religion; some phrases extended certain negative characteristics of some members of a non-Slavic group to the entire group as such; the text contained no phrases calling for violence against them.\n15.On 24 November 2009 and then in January 2010 the applicant was accused of an offence under Article 282 § 1 of the Criminal Code in relation to each publication. That offence was punishable by, inter alia, a fine from 100,000 to 300,000 Russian roubles (RUB); a court could also prohibit a person from exercising a certain activity for a period up to three years. The applicant was charged with committing actions aimed at inciting hatred and enmity, and at debasing the human dignity of a person or group of people on account of their ethnicity (национальность), language, origin and religious beliefs.\n16.During the preliminary investigation Mr F., a specialist in philology, also issued a specialist report (заключение специалиста).\n17.According to F.’s report, the article contained an implicit incitement to violent acts against people of a certain social group on account of their ethnicity, race, religion or other social characteristics.\n18.The investigator in the case commissioned another expert report (заключение эксперта).\n19.Ms L. and (again) Ms R., professionals in linguistics and psychology, issued their joint report on 29 January 2010.\n(a)The linguistics part of the report stated as follows: the content of the applicant’s text concerned political and social issues addressed to a large audience; the main part of the text started at the phrase “Which people?” that introduced his subsequent discussion based on the opposition between the Russian people and the population of the non-Russian origin; the author presented their “ethnic characteristics” as the reasons for the suffering of the Russian people; the author had used what could be described in linguistics as “hate speech” or aggressive language creating an enemy image; he had used expressions that would be insulting to any ethnic group; while he had not named any specific group, it was clear from the context that he meant (essentially non-Slavic) ethnicities of Central Asia, Northern Caucasus and Transcaucasia; from certain parts of the text it became clear that he was talking about the Armenian ethnicity, among others; the text did not contain phrases calling for violent actions against a person or a group of people on account of his/her/their social status, race, ethnicity, language, gender or religion.\n(b)The psychology part of the report concluded as follows: the article contained phrases disclosing a negative attitude toward a social group on the basis of its ethnicity, language and religion; those phrases could be perceived as inciting readers to feel hatred and enmity; the text did not contain phrases calling for violent actions against a person or a group of people on account of his/her/their social status, race, ethnicity, language, gender or religion.\n20.The criminal case against the applicant was sent for trial before the Lazarevskiy District Court of Sochi. The applicant pleaded not guilty and affirmed that the text represented his own personal views and opinions.[1] After some minor stylistic changes on the part of the newspaper’s editor the applicant had approved the publication by way of his signature of the newspaper issue’s layout. The applicant also argued that he had not had anything to do with the publication of his text on 25December 2009 (see paragraph 10 above).\n21.The court examined the documentary evidence, including the expert opinions, and heard several witnesses for the defence. The court dismissed an application by the applicant to summon F. for questioning in court about his report. Apparently, neither the prosecution nor the defence deemed it necessary to obtain oral submissions from the other experts whose reports had been admitted in evidence.\n22.By a judgment of 19 July 2010, the District Court convicted the applicant of inciting hatred and enmity, debasing the human dignity of a person or group of people on account of their ethnicity, language, origin and religious beliefs. The trial court phrased the accusation against the applicant as follows:\n“In an intentional and premediated manner [the applicant] worded the main part of his text by way of an opposition between the people of Russian ethnicity [русский народ] and members of other ethnicities [национальности] residing in Russia, while making statements that would be insulting and degrading to the dignity of any ethnicity; he indicated that the troubles of the Russian population lay in the non‑Russian groups’ ethnic characteristics, thus creating an image of enemies.\nMoreover, [the applicant’s] assessment of the situation of the people of the Russian origin is intentionally provocative, being aimed at inciting hatred within the people of Russian ethnicity toward other ethnicities.\nGiving a negative assessment of any group on account of its origin, non-Russian ethnicity or on account of their language or religious beliefs, [the applicant] made statements about criminal propensity of those groups and affirmed the existence of their conspiracy against the Kubans [that is to say residents of Krasnodar Region]. He attributed to the non-Russian residents bad intentions toward the Russian population thereby creating a negative image of people prone to commit crimes in Kuban ...\nMoreover, in his article [the applicant] characterised people of non-Russian origin as inherently ignorant, rude, cruel, inhuman, aggressive and prone to crime against the Russian population, having secrets plans and conspiracies against people of Russian ethnicity.\n[The applicant’s] statements about future violent actions on the part of non-Russian ethnicities toward the Russian people are phrased as statements that cannot be verified as to their veracity because they have no factual basis and do not go beyond his own speculations ...\nClearly being aware that Krasnodar Region is a multi-ethnic region and that newspaper articles have an active influence on many people, [the applicant] disseminated his strong views, thereby undermining the confidence and respect toward a certain ethnicity, a certain religion and inciting hatred and enmity toward a certain way of life, culture, traditions and religious cults of the non-Russian population ...”\nReproducing the concluding remarks from the expert opinions, F.’s report and listing other evidence for each count of the accusation, the court concluded that the applicant was guilty as charged.\n23.As to the publication of the applicant’s article in Sochi–Drugoy Vzglyad on 25 December 2009, the court noted that the applicant was the founder of that newspaper, that he had signed a contract for printing the relevant issue and paid for it, and had then received the whole issue and had distributed it.\n24.The trial court sentenced the applicant to a fine of RUB 200,000 (5,086 euros (EUR) at the time) for each time the article had been published. It also imposed an additional sentence prohibiting the applicant from exercising any journalistic or publishing activities for two years. Noting the expiry of the prosecution period in respect of the first article, the court ordered that the related sentences were not to be enforced as regards the first article.\n25.The court also held as follows:\n“The author made manifestly provocative statements when assessing the situation of the Russian people, thus inciting his readers of Russian origin to feel hatred towards other ethnicities [nationalities].\nThe author made a negative statement about various groups on account of their origin being different from that of Russians ... Thereby, the author made intentional statements concerning the criminal propensities of certain groups, asserted that there was a plot by non-Russians against the population of the Kuban area (that is to say Russians living in Krasnodar Region) ... He said non-Russians had plans to harm Russians, thus creating a negative image of non-Russians ... He described non‑Russians as ignorant, rude, cruel or inhuman ... Those are conjectures that are aimed at instilling fear ...\nAs regards the type of sentence and its severity, the court takes into account the nature and degree of dangerousness of the relevant offences, the information about the defendant’s personality, the circumstances that plead for mitigating or aggravating the sentence and the sentence’s potential for correcting the defendant’s behaviour.\nPursuant to Article 15 of the Criminal Code, the two offences committed by the defendant are offences of minor gravity. The defendant has been given average reviews from his neighbours. No mitigating or aggravating circumstances ... have been established ... In view of the foregoing and bearing in mind the aim of restoring the justice and the principle of proportionality, [the following elements are taken into account:] the influence of the sentence in terms of correcting the defendant’s behaviour and noting that it was the first time he had committed those offences of minor gravity, that he has been taking care of an elderly mother, that he is self‑employed as an entrepreneur. Thus the court imposes the sentence in the form of a fine. Given that all the offences concerned a journalistic activity, the court finds it necessary to impose an additional sentence consisting in prohibiting him from carrying out a certain type of activity ...”\n26.The applicant appealed, stating, inter alia, that the trial court’s refusal to summon “defence witness” F. had undermined the defence’s rights. The applicant indicated that F. had been interviewed during the preliminary investigation as a “specialist” and had then submitted a report (see paragraph17 above).\n27.On 8 September 2010 the Krasnodar Regional Court upheld the judgment, relying on the expert reports. It made no findings relating to the lack of opportunity to put questions to F. during the trial.\n28.For unspecified reasons the applicant did not pay the fine. On 22August 2011 the Lazarevskiy District Court of Sochi examined a bailiff’s request, found that the applicant had manifestly evaded payment of the fine and replaced the fine with two hundred hours of community work.", "14": "Allegation: 6,10\n4.The applicant was born in 1951 and lives in Sochi.\n5.At the material time, the applicant was leader of the local branch of the Democratic Party of Russia and founder of Sochi–Drugoy Vzglyad, a local newspaper with a circulation of 8,000. He also occasionally published articles in other local newspapers, apparently as a freelancer.\n6.On 1 March 2008 Lazarevskaya Panorama, a local newspaper with a circulation of 10,000, published an article by the applicant headlined “Why I will not vote in these elections”, in which the applicant stated why he would abstain in the presidential election that was due to take place on 2March 2008.\n7.The article was placed on the front page of the newspaper that had a headline in large red type saying “Time to vote”. There were two sub‑headings (“Yes!” in red and “No...” in black). The text was divided into two columns: the left side gave the statements of five people who were going to vote while the right side contained the applicant’s article.\n8.The applicant’s article read, in its relevant parts, as follows:\n“We are going to have a presidential election soon. It is difficult to grasp the game between good and evil this time ... So, here is my decision.\nFirst of all, I am not a puppet in the hands of political gangs who are making a farce out of the presidential election. They only need our participation in the election for the sake of giving it an impression of a legal process, one which will result in the dislocation of Russia. This might explain the sad results of government by the two recent rulers of the State. As a result, we have what we have: widespread corruption on a broad platform of lies created by the press under the control of the State and oligarchs. Platitudes, depravity, and aggressive propaganda in favour of violence flow out at us from our television screens ...\nThat is how it all goes. However, it is all depicted as the reconstruction of the State, the strengthening of the economy and the rule of law on the background of growing wealth for the People.\n‘Which people?’ I suddenly thought. ‘Does it really matter?’, was the answer from the television screen, ‘It would not be politically correct to give a specific answer to that, to avoid complaints ...’.\nSecondly, in fifteen years of ‘new style’ democracy no Russian person [русский человек] has seen anything good. He has been pushed down to the level of a simpleton who is to serve various small ethnic groupings that call themselves ‘republics’, within Russia or elsewhere ... In the Russia destroyed by the Bolsheviks they were called ‘non-Russians’ or the ‘non-Russian population’ ... And no one took offence at the time. Everyone stayed within his own locality, doing his best to make it wealthy. No one was irritated by that.\nSo what happened? Where do we stand today?\nThose who on account of their ethnic [национальные] characteristics had engaged in criminal activities or tended their sheep or goats or prayed to their god abandoned their motherland and came here. They now call themselves builders, entrepreneurs, cultural workers or whatever is needed to get their hands into others’ pockets.\nJust look around and you will see crowds of them staring at you greedily at every corner ...\n‘We will be victorious over you all. We hold all these Kuban people,’ they say during their closed meetings in their own language that 99% of Russians do not understand.\nBut they will speak Russian later, when they have totally paralysed our will. That is when they will start to burn, slaughter, rape, rob and enslave, in line with their barbaric ideas, as it was in Chechnya.\nBut for the time being, it is all ‘friendship and solidarity between nations’. For the time being that is. And the President of Russia is handing out Hero of Russia decorations to slave traffickers! ...\nThey participate in the destruction of the country ... Various processes of destruction dominate our society today. That is why I will not take part in the election ...\nHowever, I express my hope that when taking his decisions the new President will take into account the views I have expressed for myself and for those who are not going to vote on 2 March 2008.”\n9.The article was accompanied by the applicant’s photograph and indicated that he was leader of the local branch of the Democratic Party of Russia.\n10.The same text was reprinted in Sochi–Drugoy Vzglyad on 25December 2009. The front page of the newspaper had an article titled “A campaign of criminal prosecutions on political motives has started in Sochi” about the criminal proceedings against the applicant for that text (see below). The article was repeated in small print at the bottom of the same page.\n11.This issue of Sochi–Drugoy Vzglyad also contained a separate page with varying opinions expressed by various people in relation to the applicant’s text and his ongoing criminal prosecution. One comment was made by a lawyer who considered that the main thread of the article concerned various destructive processes in the country arising, for instance, from inefficient migration policies adversely affected by widespread corruption; at the same time, the article contained no calls to action, in particular violent actions, and could not be classified as “extremist activity”. The article also contained a statement by the leader of the Lazarevskoyedistrict branch of the Armenian Union of Russia. It also contained the applicant’s “open letter” in reply to that statement. It was specified in the article that on 17 December 2009 the applicant had had a meeting with the Lazarevskoye district branch.\n12.It appears that both newspapers were distributed for free by being put into people’s letter boxes within several streets in the Sochi area, including Lazarevskoye village for the second publication.\n13.In the meantime, a criminal pre-investigation inquiry was opened on suspicion of inciting hatred and enmity, and at debasing the human dignity of a person or group of people on account of their ethnicity. In this connection, in August 2009 an investigator sought an opinion from professionals in language and psychology.\n14.Ms B. and Ms R., professionals in language and psychology, issued their joint report on 5 November 2009. The report concluded as follows: the text contained statements disclosing a negative attitude toward a social group on the basis of its ethnicity, language and religion; some phrases extended certain negative characteristics of some members of a non-Slavic group to the entire group as such; the text contained no phrases calling for violence against them.\n15.On 24 November 2009 and then in January 2010 the applicant was accused of an offence under Article 282 § 1 of the Criminal Code in relation to each publication. That offence was punishable by, inter alia, a fine from 100,000 to 300,000 Russian roubles (RUB); a court could also prohibit a person from exercising a certain activity for a period up to three years. The applicant was charged with committing actions aimed at inciting hatred and enmity, and at debasing the human dignity of a person or group of people on account of their ethnicity (национальность), language, origin and religious beliefs.\n16.During the preliminary investigation Mr F., a specialist in philology, also issued a specialist report (заключение специалиста).\n17.According to F.’s report, the article contained an implicit incitement to violent acts against people of a certain social group on account of their ethnicity, race, religion or other social characteristics.\n18.The investigator in the case commissioned another expert report (заключение эксперта).\n19.Ms L. and (again) Ms R., professionals in linguistics and psychology, issued their joint report on 29 January 2010.\n(a)The linguistics part of the report stated as follows: the content of the applicant’s text concerned political and social issues addressed to a large audience; the main part of the text started at the phrase “Which people?” that introduced his subsequent discussion based on the opposition between the Russian people and the population of the non-Russian origin; the author presented their “ethnic characteristics” as the reasons for the suffering of the Russian people; the author had used what could be described in linguistics as “hate speech” or aggressive language creating an enemy image; he had used expressions that would be insulting to any ethnic group; while he had not named any specific group, it was clear from the context that he meant (essentially non-Slavic) ethnicities of Central Asia, Northern Caucasus and Transcaucasia; from certain parts of the text it became clear that he was talking about the Armenian ethnicity, among others; the text did not contain phrases calling for violent actions against a person or a group of people on account of his/her/their social status, race, ethnicity, language, gender or religion.\n(b)The psychology part of the report concluded as follows: the article contained phrases disclosing a negative attitude toward a social group on the basis of its ethnicity, language and religion; those phrases could be perceived as inciting readers to feel hatred and enmity; the text did not contain phrases calling for violent actions against a person or a group of people on account of his/her/their social status, race, ethnicity, language, gender or religion.\n20.The criminal case against the applicant was sent for trial before the Lazarevskiy District Court of Sochi. The applicant pleaded not guilty and affirmed that the text represented his own personal views and opinions.[1] After some minor stylistic changes on the part of the newspaper’s editor the applicant had approved the publication by way of his signature of the newspaper issue’s layout. The applicant also argued that he had not had anything to do with the publication of his text on 25December 2009 (see paragraph 10 above).\n21.The court examined the documentary evidence, including the expert opinions, and heard several witnesses for the defence. The court dismissed an application by the applicant to summon F. for questioning in court about his report. Apparently, neither the prosecution nor the defence deemed it necessary to obtain oral submissions from the other experts whose reports had been admitted in evidence.\n22.By a judgment of 19 July 2010, the District Court convicted the applicant of inciting hatred and enmity, debasing the human dignity of a person or group of people on account of their ethnicity, language, origin and religious beliefs. The trial court phrased the accusation against the applicant as follows:\n“In an intentional and premediated manner [the applicant] worded the main part of his text by way of an opposition between the people of Russian ethnicity [русский народ] and members of other ethnicities [национальности] residing in Russia, while making statements that would be insulting and degrading to the dignity of any ethnicity; he indicated that the troubles of the Russian population lay in the non‑Russian groups’ ethnic characteristics, thus creating an image of enemies.\nMoreover, [the applicant’s] assessment of the situation of the people of the Russian origin is intentionally provocative, being aimed at inciting hatred within the people of Russian ethnicity toward other ethnicities.\nGiving a negative assessment of any group on account of its origin, non-Russian ethnicity or on account of their language or religious beliefs, [the applicant] made statements about criminal propensity of those groups and affirmed the existence of their conspiracy against the Kubans [that is to say residents of Krasnodar Region]. He attributed to the non-Russian residents bad intentions toward the Russian population thereby creating a negative image of people prone to commit crimes in Kuban ...\nMoreover, in his article [the applicant] characterised people of non-Russian origin as inherently ignorant, rude, cruel, inhuman, aggressive and prone to crime against the Russian population, having secrets plans and conspiracies against people of Russian ethnicity.\n[The applicant’s] statements about future violent actions on the part of non-Russian ethnicities toward the Russian people are phrased as statements that cannot be verified as to their veracity because they have no factual basis and do not go beyond his own speculations ...\nClearly being aware that Krasnodar Region is a multi-ethnic region and that newspaper articles have an active influence on many people, [the applicant] disseminated his strong views, thereby undermining the confidence and respect toward a certain ethnicity, a certain religion and inciting hatred and enmity toward a certain way of life, culture, traditions and religious cults of the non-Russian population ...”\nReproducing the concluding remarks from the expert opinions, F.’s report and listing other evidence for each count of the accusation, the court concluded that the applicant was guilty as charged.\n23.As to the publication of the applicant’s article in Sochi–Drugoy Vzglyad on 25 December 2009, the court noted that the applicant was the founder of that newspaper, that he had signed a contract for printing the relevant issue and paid for it, and had then received the whole issue and had distributed it.\n24.The trial court sentenced the applicant to a fine of RUB 200,000 (5,086 euros (EUR) at the time) for each time the article had been published. It also imposed an additional sentence prohibiting the applicant from exercising any journalistic or publishing activities for two years. Noting the expiry of the prosecution period in respect of the first article, the court ordered that the related sentences were not to be enforced as regards the first article.\n25.The court also held as follows:\n“The author made manifestly provocative statements when assessing the situation of the Russian people, thus inciting his readers of Russian origin to feel hatred towards other ethnicities [nationalities].\nThe author made a negative statement about various groups on account of their origin being different from that of Russians ... Thereby, the author made intentional statements concerning the criminal propensities of certain groups, asserted that there was a plot by non-Russians against the population of the Kuban area (that is to say Russians living in Krasnodar Region) ... He said non-Russians had plans to harm Russians, thus creating a negative image of non-Russians ... He described non‑Russians as ignorant, rude, cruel or inhuman ... Those are conjectures that are aimed at instilling fear ...\nAs regards the type of sentence and its severity, the court takes into account the nature and degree of dangerousness of the relevant offences, the information about the defendant’s personality, the circumstances that plead for mitigating or aggravating the sentence and the sentence’s potential for correcting the defendant’s behaviour.\nPursuant to Article 15 of the Criminal Code, the two offences committed by the defendant are offences of minor gravity. The defendant has been given average reviews from his neighbours. No mitigating or aggravating circumstances ... have been established ... In view of the foregoing and bearing in mind the aim of restoring the justice and the principle of proportionality, [the following elements are taken into account:] the influence of the sentence in terms of correcting the defendant’s behaviour and noting that it was the first time he had committed those offences of minor gravity, that he has been taking care of an elderly mother, that he is self‑employed as an entrepreneur. Thus the court imposes the sentence in the form of a fine. Given that all the offences concerned a journalistic activity, the court finds it necessary to impose an additional sentence consisting in prohibiting him from carrying out a certain type of activity ...”\n26.The applicant appealed, stating, inter alia, that the trial court’s refusal to summon “defence witness” F. had undermined the defence’s rights. The applicant indicated that F. had been interviewed during the preliminary investigation as a “specialist” and had then submitted a report (see paragraph17 above).\n27.On 8 September 2010 the Krasnodar Regional Court upheld the judgment, relying on the expert reports. It made no findings relating to the lack of opportunity to put questions to F. during the trial.\n28.For unspecified reasons the applicant did not pay the fine. On 22August 2011 the Lazarevskiy District Court of Sochi examined a bailiff’s request, found that the applicant had manifestly evaded payment of the fine and replaced the fine with two hundred hours of community work.", "15": "Allegation: 6, P1-1\n6.Details of the applicants are set out in the Annex.\n7.The applicants are owners of commercial properties nos. 1 to 5 in StGeorge’s Square, Valletta and nos.132 to 135 Strait Street, Valletta (hereinafter jointly referred to as “the property”).\n8.On 30 July 1958 the applicants’ ancestor (the late Marquis JohnScicluna) leased the premises no. 1 to 5 in St George’s Square, Valletta, to Scicluna’s Bank for ten years starting on 1 January 1959 for the annual rent of 800 pounds sterling (GBP).\n9.In March 1968, the premises no. 132 to 135 Strait Street, Valletta, adjacent to the other premises, were incorporated into the lease contract for use by Scicluna’s Bank. Thereinafter the lease was renewed every year.\n10.On an unspecified date, Scicluna’s Bank was merged with the NationalBank of Malta Ltd, and the contract of lease was renewed. The conditions imposed in the lease contracts of 1958 and 1968 et sequi stipulated that the property would be used as the seat of Scicluna’s Bank and that it could not be sublet or used for other purposes.\n11.By means of Act XLV of 1973 as amended by Act IX of 1974 the Bank of Valletta (hereinafter “the Bank”) was established and the lease of the property was transferred in the name of the Bank by operation of law. The Bank was wholly owned by the Government.\n12.The applicants objected to the transfer, considering it a breach of contract. Following numerous requests for the return of the property and futile attempts to agree over a new lease contract with appropriate conditions, in 1989 the applicants instituted ordinary proceedings (no.926/1989) before the civil courts, in their ordinary jurisdiction, to regain possession of the property. In the applicants’ view, since it was a business lease and therefore a going concern which could be terminated at any time, the special rent laws under Chapter 69 of the Laws of Malta did not apply to it.\n13.Twenty‑one years later, the case was determined by a final judgment of the Court of Appeal of 25 June 2010, whereby the court found that the lease in favour of the Bank was protected under Chapter69 of the Laws of Malta (until 2028) and therefore that the ordinary courts were not the competent forum to address the applicants’ complaints.\n14.Over time the Government reduced its stake in the Bank by selling shares to private third parties.\n15.On 11 November 2010 the applicants instituted constitutional redress proceedings relying on, inter alia, Article 1 of Protocol No. 1 to the Convention and Article 6 § 1 of the Convention (fair trial within a reasonable time).\n16.By a judgment of 9 February 2016 the Civil Court (First Hall) in its constitutional competence upheld the applicants’ claims in part. It found a violation of Article 1 of Protocol No. 1 to the Convention and a breach of the reasonable time requirement under Article 6 of the Convention in relation to proceedings no. 926/1989, and awarded the applicants 1,000,000euros (EUR) in compensation. Costs were to be paid by the defendants.\n17.In so far as relevant, the court rejected i) the defendant’s plea that the applicants had not presented proof of their title to the property ii) the defendant’s objection ratione temporis and iii) the defendant’s objection of non-exhaustion of ordinary remedies. The court noted that previous judicial action had recognised the applicants’ interest; that the situation complained of was a continuous one; and that the applicants had no ordinary remedies available to them given that the Rent Regulation Board (RRB) was not an effective remedy.\n18.On the merits, the court found that the applicants had been deprived of their possessions, but the legislative intervention had been lawful (the lease at issue was valid at law and the Bank remained protected) and pursued the public interest in view of the economic climate at the time. Nevertheless, in the absence of adequate compensation there had been a breach of the applicants’ property rights. The court noted that, according to the court‑appointed expert, the estimated rental value of the property in 2014 was EUR159,350 [annually]. The rent received by the applicants was thus derisory and as a result they were suffering an excessive burden.\n19.The court found a violation of the reasonable time requirement under Article 6 § 1 of the Convention in the light of the twenty‑one year duration of the civil proceedings instituted by the applicants.\n20.The Government and the applicants appealed.\n21.By a judgment of 24 June 2016, the Constitutional Court upheld only in a limited part both appeals and confirmed the first‑instance judgment, with a varied reasoning in part, but reduced the compensation to EUR25,000.\n22.In particular, the Constitutional Court confirmed the first‑instance court’s rejection of the claim of non‑exhaustion of ordinary remedies, noting that it had not been clear whether the competent forum to determine the matter was the civil courts or the RRB. The applicants pursued the remedy before the civil courts and it took the latter twenty‑one years to come to the conclusion that they were not the competent forum. The first‑instance court had thus been correct in looking into the merits of the case.\n23.As to the merits, the Constitutional Court confirmed that the measure was disproportionate given the striking difference between the rent the applicants received, EUR 4,277.80 annually, and its rental value on the market, EUR 159,350 annually. The amendments as a result of ActX of 2009 [which amended the Civil Code and was aimed at ameliorating the position of land owners who were subject to controlled rents] were of little comfort given that the applicants had been suffering a breach for a long time and would continue to do so for another twelve years given that Article1531I of the Civil Code resulting from the 2009 amendments ‑ which provided for a possibility of owners regaining their property ‑ could only come to play after twenty years from 2008. Furthermore, the fact that the applicants had not lodged proceedings before the RRB could not play in their disfavour given that the RRB was bound by law and therefore it could not award an amount of rent which would have fulfilled the proportionality requirement.\n24.As to the violation of Article 6, the Constitutional Court noted, in brief, that the case had started in 1989 and the submission of evidence came to an end in 1994. It then took four years for the applicants to file their submissions. At that stage the court accepted the applicants’ request to nominate a court-appointed expert, but it then took six years, until 2006, for a court‑appointed expert to submit a technical report, which was confirmed on oath in January 2007, and a first‑instance judgment was delivered on 28March 2008. During that time, in 2003 the court had asked the parties for submissions and the applicants had presented their submissions only a year later in 2004. The proceedings before the appeal court had not been excessively long, while it was true that the appeal was lodged on 16April 2008 and was appointed for hearing on 12April 2010, the final judgment had been issued just two months later. It was thus clear that most of the delay was due to the applicants, namely, four years for their submissions, and then six years for the additional technical experts’ report ‑ although the latter’s delay was justified given that two of the experts had to be replaced. However, given that the case was of average complexity the State could not be exonerated from its responsibility of an overall twenty‑one‑year delay. Nevertheless, given the responsibility of the applicants for part of the delay, in the Constitutional Court’s view a finding of a violation was sufficient just satisfaction in the present case.\n25.As to redress, the Constitutional Court considered that it was not the adequate forum to decide on the eviction of a tenant, which was the competence of the ordinary courts or the RRB. However, given that the application of Chapter 69 of the Laws of Malta, in combination with ActXLV of 1973 as amended by Act IX of 1974 had breached the applicants’ human rights, the Constitutional Court ordered that such laws could no longer be relied on as a basis for the occupation of the premises in the present case. As to compensation, having considered that the applicants had waited twenty‑three years to lodge constitutional redress proceedings and the disproportion of the rent received by the applicants in the light of the market value, as well as the order invalidating the effects of the impugned laws between the parties at issue, the Constitutional Court awarded EUR25,000. Costs were to be paid in the ratio of 3/5 by the applicants (amounting to EUR 4,620.43) and 2/5 by the Government.", "16": "Allegation: 6, P1-1\n6.Details of the applicants are set out in the Annex.\n7.The applicants are owners of commercial properties nos. 1 to 5 in StGeorge’s Square, Valletta and nos.132 to 135 Strait Street, Valletta (hereinafter jointly referred to as “the property”).\n8.On 30 July 1958 the applicants’ ancestor (the late Marquis JohnScicluna) leased the premises no. 1 to 5 in St George’s Square, Valletta, to Scicluna’s Bank for ten years starting on 1 January 1959 for the annual rent of 800 pounds sterling (GBP).\n9.In March 1968, the premises no. 132 to 135 Strait Street, Valletta, adjacent to the other premises, were incorporated into the lease contract for use by Scicluna’s Bank. Thereinafter the lease was renewed every year.\n10.On an unspecified date, Scicluna’s Bank was merged with the NationalBank of Malta Ltd, and the contract of lease was renewed. The conditions imposed in the lease contracts of 1958 and 1968 et sequi stipulated that the property would be used as the seat of Scicluna’s Bank and that it could not be sublet or used for other purposes.\n11.By means of Act XLV of 1973 as amended by Act IX of 1974 the Bank of Valletta (hereinafter “the Bank”) was established and the lease of the property was transferred in the name of the Bank by operation of law. The Bank was wholly owned by the Government.\n12.The applicants objected to the transfer, considering it a breach of contract. Following numerous requests for the return of the property and futile attempts to agree over a new lease contract with appropriate conditions, in 1989 the applicants instituted ordinary proceedings (no.926/1989) before the civil courts, in their ordinary jurisdiction, to regain possession of the property. In the applicants’ view, since it was a business lease and therefore a going concern which could be terminated at any time, the special rent laws under Chapter 69 of the Laws of Malta did not apply to it.\n13.Twenty‑one years later, the case was determined by a final judgment of the Court of Appeal of 25 June 2010, whereby the court found that the lease in favour of the Bank was protected under Chapter69 of the Laws of Malta (until 2028) and therefore that the ordinary courts were not the competent forum to address the applicants’ complaints.\n14.Over time the Government reduced its stake in the Bank by selling shares to private third parties.\n15.On 11 November 2010 the applicants instituted constitutional redress proceedings relying on, inter alia, Article 1 of Protocol No. 1 to the Convention and Article 6 § 1 of the Convention (fair trial within a reasonable time).\n16.By a judgment of 9 February 2016 the Civil Court (First Hall) in its constitutional competence upheld the applicants’ claims in part. It found a violation of Article 1 of Protocol No. 1 to the Convention and a breach of the reasonable time requirement under Article 6 of the Convention in relation to proceedings no. 926/1989, and awarded the applicants 1,000,000euros (EUR) in compensation. Costs were to be paid by the defendants.\n17.In so far as relevant, the court rejected i) the defendant’s plea that the applicants had not presented proof of their title to the property ii) the defendant’s objection ratione temporis and iii) the defendant’s objection of non-exhaustion of ordinary remedies. The court noted that previous judicial action had recognised the applicants’ interest; that the situation complained of was a continuous one; and that the applicants had no ordinary remedies available to them given that the Rent Regulation Board (RRB) was not an effective remedy.\n18.On the merits, the court found that the applicants had been deprived of their possessions, but the legislative intervention had been lawful (the lease at issue was valid at law and the Bank remained protected) and pursued the public interest in view of the economic climate at the time. Nevertheless, in the absence of adequate compensation there had been a breach of the applicants’ property rights. The court noted that, according to the court‑appointed expert, the estimated rental value of the property in 2014 was EUR159,350 [annually]. The rent received by the applicants was thus derisory and as a result they were suffering an excessive burden.\n19.The court found a violation of the reasonable time requirement under Article 6 § 1 of the Convention in the light of the twenty‑one year duration of the civil proceedings instituted by the applicants.\n20.The Government and the applicants appealed.\n21.By a judgment of 24 June 2016, the Constitutional Court upheld only in a limited part both appeals and confirmed the first‑instance judgment, with a varied reasoning in part, but reduced the compensation to EUR25,000.\n22.In particular, the Constitutional Court confirmed the first‑instance court’s rejection of the claim of non‑exhaustion of ordinary remedies, noting that it had not been clear whether the competent forum to determine the matter was the civil courts or the RRB. The applicants pursued the remedy before the civil courts and it took the latter twenty‑one years to come to the conclusion that they were not the competent forum. The first‑instance court had thus been correct in looking into the merits of the case.\n23.As to the merits, the Constitutional Court confirmed that the measure was disproportionate given the striking difference between the rent the applicants received, EUR 4,277.80 annually, and its rental value on the market, EUR 159,350 annually. The amendments as a result of ActX of 2009 [which amended the Civil Code and was aimed at ameliorating the position of land owners who were subject to controlled rents] were of little comfort given that the applicants had been suffering a breach for a long time and would continue to do so for another twelve years given that Article1531I of the Civil Code resulting from the 2009 amendments ‑ which provided for a possibility of owners regaining their property ‑ could only come to play after twenty years from 2008. Furthermore, the fact that the applicants had not lodged proceedings before the RRB could not play in their disfavour given that the RRB was bound by law and therefore it could not award an amount of rent which would have fulfilled the proportionality requirement.\n24.As to the violation of Article 6, the Constitutional Court noted, in brief, that the case had started in 1989 and the submission of evidence came to an end in 1994. It then took four years for the applicants to file their submissions. At that stage the court accepted the applicants’ request to nominate a court-appointed expert, but it then took six years, until 2006, for a court‑appointed expert to submit a technical report, which was confirmed on oath in January 2007, and a first‑instance judgment was delivered on 28March 2008. During that time, in 2003 the court had asked the parties for submissions and the applicants had presented their submissions only a year later in 2004. The proceedings before the appeal court had not been excessively long, while it was true that the appeal was lodged on 16April 2008 and was appointed for hearing on 12April 2010, the final judgment had been issued just two months later. It was thus clear that most of the delay was due to the applicants, namely, four years for their submissions, and then six years for the additional technical experts’ report ‑ although the latter’s delay was justified given that two of the experts had to be replaced. However, given that the case was of average complexity the State could not be exonerated from its responsibility of an overall twenty‑one‑year delay. Nevertheless, given the responsibility of the applicants for part of the delay, in the Constitutional Court’s view a finding of a violation was sufficient just satisfaction in the present case.\n25.As to redress, the Constitutional Court considered that it was not the adequate forum to decide on the eviction of a tenant, which was the competence of the ordinary courts or the RRB. However, given that the application of Chapter 69 of the Laws of Malta, in combination with ActXLV of 1973 as amended by Act IX of 1974 had breached the applicants’ human rights, the Constitutional Court ordered that such laws could no longer be relied on as a basis for the occupation of the premises in the present case. As to compensation, having considered that the applicants had waited twenty‑three years to lodge constitutional redress proceedings and the disproportion of the rent received by the applicants in the light of the market value, as well as the order invalidating the effects of the impugned laws between the parties at issue, the Constitutional Court awarded EUR25,000. Costs were to be paid in the ratio of 3/5 by the applicants (amounting to EUR 4,620.43) and 2/5 by the Government.", "17": "Allegation: P1-1\n1.The first and second applicants were born in 1952 and 1948, respectively, and live in the Panevėžys Region. The third applicant was born in 1978 and lives in Panevėžys. The first and second applicants are husband and wife, and the third applicant is their son. The applicants were represented by Mr D. Staškevičius, a lawyer practising in Panevėžys.\n2.The Government were represented by their Agent, Ms L. Urbaitė.\n3.In the early morning of 30 May 2013 the first and second applicants’ house caught fire. The firefighters who extinguished the fire established that it had been started intentionally.\n4.On 30 May 2013 the Panevėžys district police office (hereinafter “the police”) opened a pre-trial investigation into the destruction of or infliction of damage to another person’s property in a dangerous manner, under Article187§2 of the Criminal Code (see paragraph 41 below). The decision to open the investigation stated:\n“On 30 May 2013, around 3.15 a.m., ... while at home, [the first applicant] noticed a sudden outbreak of fire ... [H]e suspected an arson attack. The pecuniary damage sustained will be specified later.”\nThe first and second applicants explained that after the fire had broken out, they had escaped from the house through a window. They suspected that the house had been set on fire by their neighbour, P.K., with whom they had been having an ongoing conflict.\n5.On the same day the police inspected the applicants’ house and took a sample of the fire debris. Some footprints were found in front of the house, but they did not contain any specific characteristics that would have made it possible to identify the person who had left them.\n6.On the same day a police dog handler was called to the applicants’ house. With the help of a police dog, he began tracking (by scent) a trail leading away from footprints that had been found at the back of the house. The dog followed the scent to P.K.’s house, but stopped at the yard in front of the house; the circumstances under which it stopped were subsequently disputed (see paragraphs 21 and 28 below). The dog handler took the dog around to the back of P.K.’s house, but the dog did not react to any footprints that may have been left there.\n7.On the same day P.K. was arrested, taken to the police station and served with an official notice that he was a suspect. The police took swab samples from his hands. P.K. denied his guilt and stated that he had been asleep when the fire had broken out. He submitted that he often walked by the applicants’ house in order to get to the pasture where he kept his cattle.\n8.On the same day, approximately ten hours after the fire, the police carried out a search of P.K.’s house but did not find any flammable liquids, clothes bearing traces of such liquids, or any other objects that might have been related to the fire.\n9.On 31 May 2013 the police asked P.K. to provide the clothes that he had worn on the day of the fire. P.K. provided a pair of trousers, a shirt and a pair of shoes.\n10.On 5 June 2013 the police took soil samples near the applicants’ and P.K.’s houses and ordered that they be forensically examined by an expert. The expert report, delivered on 23 July 2013, found that the soil that had been found on P.K.’s shoes had not corresponded to the soil sample taken near the applicants’ house.\n11.On 6 June 2013 the police ordered a forensic examination of the above-mentioned sample of fire debris, of the clothes and shoes that P.K. had provided to the police, and of his hand swabs (see paragraphs 5, 7 and 9 above). The expert report, delivered on 30 October 2013, stated that the sample of fire debris had been presented to the expert in special plastic packaging, but that P.K.’s clothes, shoes and hand swabs had been wrapped in paper and had not been hermetically sealed (rankų nuoplovų, kelnių, marškinių ir batų pakuotės yra nehermetiškos). The report found traces of machine oil on P.K.’s clothes and shoes but no traces of any flammable liquid on the fire debris or the hand swabs. It also stated that most flammable liquids were very volatile; therefore – depending on the type and amount of the liquid, the circumstances of the fire and whether the packaging of the samples had been hermetically sealed – the liquid could have burned completely away during the fire or been washed away in the course of the fire being extinguished, or traces of the liquid on the samples could have evaporated before they were examined.\n12.On various dates in June and July 2013 the police inspected the record of telephone calls made and received by P.K. but did not obtain any useful information.\n13.In August 2013 some of the applicants’ neighbours were questioned as witnesses, but they were unable to provide any information about the fire.\n14.On various dates the police questioned the applicants, P.K. and the dog handler.\n15.On various dates the applicants were granted the status of victims and civil claimants.\n16.On 7 January 2014 the Panevėžys district prosecutor (hereinafter “the prosecutor”) discontinued the part of the pre-trial investigation relating to P.K. The prosecutor’s decision stated that all the necessary investigative measures had been carried out but there was no direct and indisputable evidence that P.K. might have set fire to the applicants’ house. There was no forensic evidence linking him to the crime and no direct witnesses, and P.K. had denied his guilt. The suspicion against him had been essentially based on the applicants’ statements, but in view of the ongoing conflict between them and P.K., those statements could not be considered credible.\n17.On 8 January 2014 the prosecutor suspended the pre-trial investigation on the grounds that, after all the necessary investigative measures had been carried out, it had not been possible to identify the perpetrator.\n18.The applicants were informed of the aforementioned decisions and of their right to appeal against them to a senior prosecutor. They did not appeal against either decision.\n19.In March 2014 the applicants lodged a complaint with the prosecutor against the police. They submitted that the pre-trial investigation into the arson attack had been carried out incompetently and that certain investigative measures had been taken too late, as a result of which important evidence might have been lost. They stated that the fire had destroyed their property, causing damage to the value of 500,000 Lithuanian litai (LTL, approximately 144,810 euros (EUR)).\n20.The prosecutor conducted a disciplinary inquiry and, by a decision dated 27 June 2014, found that some of the investigative measures had not been carried out properly, as presented below.\n21.Firstly, the dog handler had not acted in accordance with the relevant regulations when following the trail from the applicants’ house (see paragraph 6 above). In particular, when he and the police dog had arrived at the yard of P.K.’s house, the dog had stopped and the dog handler had ceased following the trail because there had been some cattle loose in the yard. The prosecutor considered that the tracking had not been carried out properly, because the dog handler should have had the cattle removed from the yard and continued the tracking to the front of P.K.’s house.\n22.Secondly, the search of P.K.’s house had been carried out approximately ten hours after the fire (see paragraph 8 above). Before starting the search, the police officers had not taken any measures to verify what clothes P.K. had been wearing on the day of the fire, and they had not seized the clothes that he had been wearing when he had been arrested (see paragraph 7 above). Moreover, during the search they had not seized any clothes or other items that might have been linked to the fire. Furthermore, during the search P.K. had not been in the house, as required by law, but he had been outside milking cows. The prosecutor therefore considered that the search had not been carried out properly and had not complied with the law.\n23.Thirdly, according to the expert report (see paragraph 11 above), P.K.’s clothes, shoes and hand swabs had been wrapped in paper and had not been hermetically sealed. During the disciplinary inquiry the police officers had submitted that airtight plastic packaging might have caused the deterioration of non-volatile materials on the hand swabs, and that was why they had been wrapped in paper. Furthermore, the clothes and shoes had been dirty and damp and they would have become stale if packaged in plastic. However, the prosecutor held that the police officers had breached the relevant regulations, which required that objects that might include traces of flammable liquids be placed in special plastic, glass or metal containers and hermetically sealed.\n24.At the same time, the prosecutor observed that the mistakes made by the police officers “had not necessarily affected” the outcome of the pre-trial investigation. He did not impose disciplinary penalties on any officers because such penalties could not be imposed more than one year after the commission of the disciplinary violation in question.\n25.The applicants were informed of the prosecutor’s decision and of their right to appeal against it to a senior prosecutor. They did not appeal.\n26.In March 2015 the applicants, represented by a lawyer, lodged a civil claim against the State (see paragraph 42 below). They submitted that the pre-trial investigation concerning the arson attack on their house had been carried out improperly and in violation of the relevant law. They argued that the mistakes made by the police officers (see paragraphs20-23 above) had led to the loss of important evidence, and that as a result it was no longer possible to identify the perpetrator of the arson. Accordingly, the applicants submitted that the State had to compensate them for the damage that they had sustained. The first and second applicants claimed approximately EUR31,400 jointly in respect of pecuniary damage, amounting to the value of their property, which had been destroyed or damaged during the fire; the third applicant claimed approximately EUR2,600 under that head. They also claimed EUR3,000 each in respect of non-pecuniary damage caused by the allegedly unprofessional actions of the police officers.\n27.On 16 March 2016 the Panevėžys District Court dismissed the applicants’ claim.\n28.The court firstly found that, according to the official report submitted by the dog handler (see paragraph 6 above), the police dog had followed the trail from the back of the applicants’ house to the yard of P.K.’s house, but that it had stopped in the yard because it had lost the trail. Since there had been cattle loose in the yard, the dog handler and the dog had walked around the house, but the dog had not picked up any fresh trail. According to the dog handler, if the dog had sensed the presence of the person who had left the footprints, it would have barked. However, it had not barked either in the yard or near P.K.’s house, which indicated that the person who had left the footprints had not been there. Furthermore, when the dog handler and the dog had returned to the applicants’ house, he had been informed that the suspect, P.K., had already been arrested; thus, he had not had any further reason to continue the tracking. In the court’s view, the dog handler had carried out his duties properly and there were no grounds to find that any important evidence had been lost because of his actions.\n29.The court further noted that the expert who had examined the fire debris had not found any traces of flammable liquids on that debris (see paragraph 11 above); accordingly, it had not been possible to identify what flammable material had been used to start the fire. In such circumstances, the court considered that it was immaterial whether P.K.’s clothes, shoes and hand swabs had been properly packaged or not, because even if any flammable liquids had been found on them, that could not have proved that P.K. had had any link to the fire. Therefore, the court ruled that the officers who had taken P.K.’s clothes, shoes and hand swabs had not lost any important evidence.\n30.It also stated that, according to the testimony given at the hearing by the police officers and P.K., on the day of the fire P.K. had been wearing the same clothes that he had been wearing when he had been arrested, and he had afterwards provided those clothes to the police (see paragraph 9 above). Furthermore, during the search P.K. had been present inside the house and not milking cows (see paragraphs 8 and 20 above). The officers had searched the house but had not detected the smell of any flammable liquids and had not found any relevant objects. The court considered that there was no reason to doubt the officers’ and P.K.’s testimony. It also noted that P.K. lived alone and that he had been arrested soon after the fire; therefore, even though the search of his house had not been carried out immediately after the fire, there was no indication that somebody could have entered the house and hidden or destroyed any relevant items.\n31.The court lastly observed that many other investigative measures had been carried out promptly after the fire (see paragraphs 10 and 12-14 above), and the fact that it had not been possible to identify the perpetrator did not suffice for it to find that the police officers had failed to act with due diligence and in accordance with the law.\n32.The applicants lodged an appeal against the aforementioned decision. They presented essentially the same arguments as in their initial claim (see paragraph 26 above), and submitted that the arson attack and the ensuing ineffective investigation had caused them great psychological and moral suffering.\n33.On 7 September 2016 the Panevėžys Regional Court allowed the appeal in part. The court reached essentially the same conclusions as those reached by the prosecutor during the disciplinary inquiry (see paragraphs20-23 above), and held that the officers had failed to fulfil their duties with the requisite degree of diligence. In the court’s view, it could not be denied that if the officers had acted properly, more of the circumstances surrounding the arson would have been determined.\n34.The court awarded EUR 900 to each of the first and second applicants and EUR 200 to the third applicant in respect of non-pecuniary damage that they had suffered as a result of the ineffective investigation. However, it considered that there had been no direct causal link between the mistakes made by the police officers and the pecuniary damage sustained by the applicants because of the fire, and dismissed their claims under that head.\n35.The State, represented by the Panevėžys district police office, lodged an appeal on points of law against the aforementioned decision. The applicants also lodged an appeal on points of law, submitting that their claims in respect of pecuniary and non-pecuniary damage (see paragraph 26 above) should have been allowed in full, in view of the fact that their only home had been severely damaged in the fire, and also taking into account their age, financial situation and other relevant circumstances.\n36.On 6 April 2017 the Supreme Court dismissed the appeal lodged by the applicants and allowed that lodged by the State. It quashed the decision of the Panevėžys Regional Court (see paragraphs 33 and 34 above) and upheld that of the Panevėžys District Court (see paragraphs 27-31 above).\n37.The Supreme Court referred to the judgment of the European Court of Human Rights in the case of Blumberga v. Latvia (no. 70930/01, 14October 2008) and emphasised that the State had a positive obligation to ensure that property rights were sufficiently protected by law and that adequate remedies were provided to the victim of an interference. However, the obligation to investigate was less exacting with regard to crimes involving property than with regard to more serious ones, such as violent crimes. In the former cases, the State would only fail to fulfil its positive obligation in the event that flagrant and serious deficiencies in the criminal investigation or prosecution could be identified.\n38.The Supreme Court considered that the investigation at hand had not contained flagrant and serious deficiencies, and that any mistakes or shortcomings alleged by the applicants had not been significant or decisive (see paragraph 44 below).\n39.Firstly, it held that the appellate court had not examined whether the dog handler had had any realistic possibility of removing the loose cattle from P.K.’s yard and continuing to follow the trail to the front of P.K.’s house (see paragraphs 21, 28 and 33 above). In the view of the Supreme Court, the dog handler – faced with an obstacle (the cattle) – had made a rational decision to take the dog to the back of P.K.’s house and to continue tracking there. It further observed that even if the footprints followed by the police dog had been identified as belonging to P.K., that would have only proved that P.K. had walked by the applicants’ house, but not that he had set their house on fire. The Supreme Court thus concluded that the dog handler’s actions had not led to the loss of any essential evidence.\n40.The Supreme Court also noted that it had not been possible to identify the flammable liquid that had been used to start the fire (see paragraph 11 above). In such circumstances, even if the search of P.K.’s house had been carried out properly and if his clothes, shoes and hand swabs had been hermetically sealed (see paragraphs 22, 23, 29, 30 and 33 above), it would have nonetheless been impossible to establish a link between him and the fire. Thus, there had not been a causal link between the mistakes made during the investigation and the fact that the perpetrator of the arson had not been identified (see paragraph 43 below).", "18": "Allegation: 3, 8, 14\nI.THE CIRCUMSTANCES OF THE CASE\nA.The applicants in case no. 24816/14\n5.Mr Branko Hudorovič (the first applicant) was born in 1959 and lives in the informal Roma settlement of Goriča vas in the Ribnica Municipality. Mr Aleks Kastelic (the second applicant) is the first applicant’s son, born in 2007, who initially applied to the Court under the name Aleks Hudorovič. Following the Government’s objection, lodged on 2 November 2015, his name was corrected to Aleks Kastelic.\n6.On 26 May 2011 the first applicant and the second applicant’s mother, Ms Marija Kastelic, reached a court settlement whereby the second applicant resides in the custody of his mother at a different address from that submitted by the first applicant. According to the information about the first and second applicants’ family situation provided to the Government by the Ribnica Social Work Centre on 22 June 2015, the first applicant maintained contact with the second applicant under the terms agreed upon with the latter’s mother. According to the first applicant, the second applicant lives mostly with him in the Goriča vas settlement.\n7.More than 10% of the population residing in the Ribnica Municipality do not have access to drinking water from the public water-distribution system. The public sewage system for the discharge of urban wastewater was built solely in the town of Ribnica and the Hrastje area, while all other housing facilities must be equipped with their own septic tanks or individual water treatment plants installed at the expense of each facility or investor.\n8.On 31 December 2014 there were forty-three public housing units at a subsidised rent rate provided to people with low incomes in the Ribnica Municipality. Another fourteen public housing units were provided at the market rate.\n9.The land on which the Roma community settled thirty years ago is owned by the Republic of Slovenia. This marshy agricultural land is categorised in the Municipal Spatial Plan of the Ribnica Municipality as the best category of agricultural land, where construction of residential buildings is not allowed. Moreover, the Goriča vas settlement is located outside of settlement areas under high-voltage power lines where construction is not allowed owing to electromagnetic radiation.\n10.In the early period of the settlement, the inhabitants lived there in tents, but later some more permanent dwellings were constructed. Today most residents live in wooden huts, some of which have stonework or brick inside. Today some eighty people reside in the settlement. Demolition orders were issued in respect of five such illegally constructed huts, including one built by the first applicant. He received an order to remove the building then under construction in 2000, which came into effect in 2005. None of the demolition orders was, however, executed, one of the reasons being that alternative accommodation would have had to be provided to the Roma children living on the premises.\n11.The buildings in the Goriča vas settlement are not equipped with plumbing, nor is there any sewage piping. As regards electricity, the residents rely on illegal connections to electricity poles. The collection and transport of municipal waste is regularly performed by the public municipal utility service, and it is no longer charged to the residents since they have failed to pay their bills.\n12.The first applicant initially submitted that he lived in a caravan. He subsequently informed the Court that he had moved into a simple wooden hut where he lives with his son. The hut has no access to water, sewage and sanitation. According to the first applicant, they collect water from the cemetery or the nearby polluted stream or else they acquire it from other houses. Moreover, owing to the lack of sanitation services, the applicants use the area around the caravan for defecation.\n13.The applicants, together with other inhabitants of the settlement, have for a number of years been seeking to obtain access to public utilities. They attended a number of meetings with the mayor of the Ribnica Municipality and the governmental Office for Minorities (Urad za manjšine). However, as the Goriča vas settlement was established in an irregular manner, the residents have no possibility of acquiring building permits and the other documents necessary for obtaining access to the public infrastructure.\n14.In 1996, the Ribnica Municipality drew up a plan to relocate the residents of the Goriča vas settlement to the Lepovče Roma settlement. Several terraced houses were to be constructed and equipped with the necessary infrastructure. The Roma from the Goriča vas settlement initially agreed to the Municipality’s plan and expressed their readiness to contribute their labour to the project. However, in May 1997 the non-Roma residents of Lepovče expressed their opposition to the enlargement of the Roma settlement in their village, fearing that the proximity of the settlement would cause “further complications”. Later in May 1997, the first applicant, in his capacity as representative of the Roma living in Goriča vas, declared in writing that the group was not willing to move to the proposed location. It appears from the internal communications of the Municipality that the opposition to the proposed plan partly resulted from the fact that two separate Roma groups, between whom disagreements existed, were to be settled in Lepovče. The Municipality subsequently abandoned the resettlement plan.\n15.On 14 April 1999 the first applicant met the mayor of Ribnica and requested that basic utilities, specifically drinking-water supply and an electricity generator, be provided for the Goriča vas Roma settlement. The first applicant and the mayor concluded that a diesel generator and a water tank of 2,000-3,000 litres were to be purchased and placed in the Roma settlement; a regular water supply was to be provided by the local fire brigade, with the cost of the water deliveries being borne by the residents. According to the minutes of the meeting, the Roma residents would bear the costs of adequate sanitation (chemical toilets) and arrange for the clean-up of the surrounding area.\n16.Subsequently, on 26 July 1999 the Ribnica Municipality and the first applicant, representing the Roma residing in Goriča vas, signed a co‑financing agreement whereby each of the parties undertook to cover 50% of the costs of the purchase of a water tank and a diesel generator. The pro forma value of the two infrastructure items, as set out in the agreement, amounted to 294,546 Slovenian tolars (SIT) (which according to the then applicable exchange rate amounted to 1,504 euros (EUR)). The Municipality committed itself to carrying out the purchase and delivering the water tank and the generator to the Goriča vas settlement. The individual Roma residents who had financially contributed to the purchase assumed ownership of the infrastructure items, and all the Roma residents of the Goriča vas settlement acquired the right to access water and electricity. In addition to the purchases, the Ribnica Municipality provided some landfill material used for the rehabilitation of the environment in the settlement.\n17.It is undisputed between the parties that the water tank was purchased as part of a co-financing agreement. However, they disagreed on the subsequent course of events and the current situation as regards access to drinking water in the settlement.\n18.According to the applicants, after a number of years the water tank became unusable due to mould and other fungi and they had no choice but to replace it. The tank had not been dug into the ground and therefore was not protected from the weather. Also, the applicants did not know whether the quality of water was being monitored at all. The Government, however, relying on the written testimony of a local resident, submitted that both the diesel generator and the water tank had subsequently been sold. The applicants contested that submission, arguing that “most of [the tanks]” could not have been sold as they had become unsuitable for use.\n19.Regarding the water deliveries, in the period from 30 January 2010 until 1 January 2016 there were thirty-one deliveries of water to the Goriča vas settlement; each time the residents requested it, 5,000 litres of water were delivered and the cost of an individual delivery amounted to EUR 35. The Roma residents were obliged to pay the costs of transporting the water, while the costs of the water itself were borne by the Ribnica Municipality. The Government, relying on information provided by the Ribnica fire brigade, submitted that the supplies of water had been poured into a large water tank installed in the settlement; when the tank was full, other containers had also been filled.\n20.According to the applicants, the water delivered by the Ribnica fire brigade was used to fill private water tanks and pools where children bathed in the summer.\n21.The Government further submitted that the Roma from the Goriča vas settlement had supplied themselves with water at the nearby Hrovača Cemetery, which was approximately 1 km away from the settlement. The applicants confirmed that they collected water wherever they could, including at cemeteries.\n22.As regards the financial situation of the applicants, in the period from 1 May to 31 October 2015 the first applicant was entitled to monthly social assistance in the amount of EUR 269.20. The second applicant, in his mother’s custody, was financially supported through her monthly social security allowance amounting to EUR 331.12, and a monthly child allowance in the amount of EUR 114.31. In addition, based on a friendly settlement between the parents, the first applicant had a duty to pay monthly child support to the second applicant in the amount of EUR 61.99.\n23.On 13 October 2015 the Human Rights Ombudsman submitted a request to the Government to urgently adopt all necessary measures for the Goriča vas settlement to be connected to the public water supply system. In the meantime, a water tank had to be installed in the settlement. The Government replied that a water tank had already been installed and that spatial planning at the local level was the responsibility of the Ribnica Municipality. In reply, the Human Rights Ombudsman, noting that the Goriča vas residents had not reported the presence of a water tank, critically assessed the situation and took the view that the Ribnica Municipality had not effectively engaged with the Roma community to provide them with water and sanitation. The Ombudsman considered that the Government were violating the Roma residents’ human right to water and sanitation and noted that a violation would persist until a connection to the public water supply and sanitation system was ensured.\nB.The applicants in case no. 25140/14\n24.The applicants, a family of fourteen, live in the informal Roma settlement at Dobruška vas 41 in the Škocjan Municipality, which is composed of approximately twenty housing units for two hundred and fifty people. Mr Ljubo Novak (the first applicant) was born in the settlement, MsDunja Kočevar (the second applicant) has been living there for twenty years and all of their children were born there, too.\n25.The Dobruška vas 41 settlement is located on land belonging mostly to the Škocjan Municipality and the local Krka Agricultural Cooperative. According to the Roma residents and a report of the Human Rights Ombudsman, members of the Roma community were moved to the area by the local authorities of the then Novo mesto Municipality in 1963, and have lived there ever since. Construction of residential houses in the Dobruška vas 41 settlement is possible under certain conditions and subject to approval by two environmental agencies owing to the fact that the land is partially located in a flood area and an area of natural interest. However, the Škocjan Municipality spatial plan provides for construction of a wastewater treatment plant and the transformation of the entire area in question into a business zone. The municipal authorities have on several occasions expressed expectations that the Roma residents of Dobruška vas 41 settlement should be relocated, while arguing at the same time that there was no appropriate area for an alternative settlement in the Škocjan Municipality.\n26.In the period from 2004 until 2015 several residents of Dobruška vas41, but not the applicants, were ordered to suspend construction and remove all structures already built in the settlement. Demolition orders were also issued in respect of a few of them; however, they were not executed.\n27.In 2013 the Municipality lodged criminal complaints against a number of Roma residents, including the first applicant, for unlawful occupation of real property under Article 338 of the Criminal Code. In the first-instance criminal proceedings, the defendants were found guilty and given suspended sentences of three months’ imprisonment, with three years’ probation. The first applicant did not provide any information on whether he had appealed and whether that conviction had become final.\n28.At the date of the lodging of the application, the applicants lived in an illegally built wooden hut located on land owned by the Krka Agricultural Cooperative, without access to water, sanitation or electricity. Subsequently the applicants informed the Court that they had moved into a wooden hut they had built approximately 200 m away from the previous dwelling owing to disagreements with their neighbours which had escalated into destruction of their property and physical aggression against them. They continued to live without a proper water supply and sanitation. The Government supplemented this information, adding that the first and second applicants had bought two plots of land and illegally constructed a building and two animal sheds without a building permit.\n29.In discussions between the Škocjan Municipality and the relevant State authorities it was decided that the Municipality could not ensure individual water connections to illegally built buildings, since such a solution would contravene the domestic legal order. However, in order to comply with the national and international standards of access to water, it was decided that a group water-distribution connection would be built in the settlement, on land belonging to the Municipality. The residents would be able to install individual water connections at their own expense, as provided by the relevant legislation. As regards water bills, it was agreed that a local commission on Roma issues should be engaged in a process of mediation to find a suitable solution.\n30.The Dobruška vas 41 settlement where the applicants reside has been connected to the public water supply system since 2011. The water supply system consists of one group water-distribution connection (a group water‑access point) installed on the initiative and at the expense of the Škocjan Municipality. Nine individual connections were installed from the distribution connection to the individual users’ homes. In 2015 water was supplied to seven individual connections.\n31.Initially, nineteen households were interested in obtaining individual connections, including the applicants’. Only nine households subsequently joined the water supply system by committing to pay their respective shares of the total consumption. In 2015 the average monthly cost of water for a household amounted to approximately EUR 9.\n32.The applicants did not apply to join the water supply system. According to them, while living at a previous location, they had been denied access to the group water-distribution connection by their neighbours, who had not allowed them to lay a water pipe under “their” land. This issue had also been raised in a letter sent to the mayor of the Škocjan Municipality by the Human Rights Ombudsman in December 2012. The Government submitted that the applicants could have avoided the neighbours’ property and laid the pipes along the road, to which the applicants responded that they had not been informed of the possibility of connecting to the water system in this way. The Government also submitted that, after the move to the new location, the applicants had neither applied for an individual water connection, nor verified whether their new building could be connected to the group water-distribution connection.\n33.The residents of the Škocjan Municipality also have drinking water available from the village fountain. The fountain, where the applicants obtain their drinking water, is approximately 1.8 km away from the applicants’ hut; it is fitted with a tap and the water has a constant temperature of 14˚C. According to an analysis by the National Laboratory for Health, the Environment and Food, the water complies with the applicable standards and is considered safe, that is to say fit to use for drinking, cooking or washing. Some residents of the Škocjan Municipality (Vinji Vrh), whose households are not connected to the public water‑distribution system, supply themselves with water from the fountain, while for sanitary purposes they use rainwater or water supplied by the fire brigade.\n34.As regards the sewerage system, at the material time the Škocjan Municipality had no public discharge or facility for treatment of urban wastewater. Buildings producing urban wastewater were equipped with septic tanks or cesspits, while newer buildings had small wastewater treatment plants. Septic tanks and small wastewater plants were funded by the owners of buildings where urban wastewater was produced. The public municipal utility service carried out the emptying of cesspits and small wastewater treatment plants (taking out mud and sludge). A wastewater treatment plant was under construction.\n35.As regards the financial situation of the applicants, at the material time the first and second applicants were receiving monthly child benefit in the amount of EUR 1,556.97, social assistance in the amount of EUR868.80, and a parental benefit in the amount of EUR 252.04. Their two adult daughters, Ms Pamela Novak (the third applicant) and Julija Novak (the fourth applicant), were receiving monthly social assistance in the amount of 269.20 EUR each. The applicants were therefore receiving social benefits in the monthly amount of EUR 2,947.01. In 2016, however, those benefits were increased to EUR 3,299.85 per month. Moreover, the applicants were receiving EUR 120-130 per month as reimbursement for the costs of transporting their four children from their home to a bus station about 10 km away, from where they continued their journey to school by local bus.", "19": "Allegation: 3, 8, 14\nI.THE CIRCUMSTANCES OF THE CASE\nA.The applicants in case no. 24816/14\n5.Mr Branko Hudorovič (the first applicant) was born in 1959 and lives in the informal Roma settlement of Goriča vas in the Ribnica Municipality. Mr Aleks Kastelic (the second applicant) is the first applicant’s son, born in 2007, who initially applied to the Court under the name Aleks Hudorovič. Following the Government’s objection, lodged on 2 November 2015, his name was corrected to Aleks Kastelic.\n6.On 26 May 2011 the first applicant and the second applicant’s mother, Ms Marija Kastelic, reached a court settlement whereby the second applicant resides in the custody of his mother at a different address from that submitted by the first applicant. According to the information about the first and second applicants’ family situation provided to the Government by the Ribnica Social Work Centre on 22 June 2015, the first applicant maintained contact with the second applicant under the terms agreed upon with the latter’s mother. According to the first applicant, the second applicant lives mostly with him in the Goriča vas settlement.\n7.More than 10% of the population residing in the Ribnica Municipality do not have access to drinking water from the public water-distribution system. The public sewage system for the discharge of urban wastewater was built solely in the town of Ribnica and the Hrastje area, while all other housing facilities must be equipped with their own septic tanks or individual water treatment plants installed at the expense of each facility or investor.\n8.On 31 December 2014 there were forty-three public housing units at a subsidised rent rate provided to people with low incomes in the Ribnica Municipality. Another fourteen public housing units were provided at the market rate.\n9.The land on which the Roma community settled thirty years ago is owned by the Republic of Slovenia. This marshy agricultural land is categorised in the Municipal Spatial Plan of the Ribnica Municipality as the best category of agricultural land, where construction of residential buildings is not allowed. Moreover, the Goriča vas settlement is located outside of settlement areas under high-voltage power lines where construction is not allowed owing to electromagnetic radiation.\n10.In the early period of the settlement, the inhabitants lived there in tents, but later some more permanent dwellings were constructed. Today most residents live in wooden huts, some of which have stonework or brick inside. Today some eighty people reside in the settlement. Demolition orders were issued in respect of five such illegally constructed huts, including one built by the first applicant. He received an order to remove the building then under construction in 2000, which came into effect in 2005. None of the demolition orders was, however, executed, one of the reasons being that alternative accommodation would have had to be provided to the Roma children living on the premises.\n11.The buildings in the Goriča vas settlement are not equipped with plumbing, nor is there any sewage piping. As regards electricity, the residents rely on illegal connections to electricity poles. The collection and transport of municipal waste is regularly performed by the public municipal utility service, and it is no longer charged to the residents since they have failed to pay their bills.\n12.The first applicant initially submitted that he lived in a caravan. He subsequently informed the Court that he had moved into a simple wooden hut where he lives with his son. The hut has no access to water, sewage and sanitation. According to the first applicant, they collect water from the cemetery or the nearby polluted stream or else they acquire it from other houses. Moreover, owing to the lack of sanitation services, the applicants use the area around the caravan for defecation.\n13.The applicants, together with other inhabitants of the settlement, have for a number of years been seeking to obtain access to public utilities. They attended a number of meetings with the mayor of the Ribnica Municipality and the governmental Office for Minorities (Urad za manjšine). However, as the Goriča vas settlement was established in an irregular manner, the residents have no possibility of acquiring building permits and the other documents necessary for obtaining access to the public infrastructure.\n14.In 1996, the Ribnica Municipality drew up a plan to relocate the residents of the Goriča vas settlement to the Lepovče Roma settlement. Several terraced houses were to be constructed and equipped with the necessary infrastructure. The Roma from the Goriča vas settlement initially agreed to the Municipality’s plan and expressed their readiness to contribute their labour to the project. However, in May 1997 the non-Roma residents of Lepovče expressed their opposition to the enlargement of the Roma settlement in their village, fearing that the proximity of the settlement would cause “further complications”. Later in May 1997, the first applicant, in his capacity as representative of the Roma living in Goriča vas, declared in writing that the group was not willing to move to the proposed location. It appears from the internal communications of the Municipality that the opposition to the proposed plan partly resulted from the fact that two separate Roma groups, between whom disagreements existed, were to be settled in Lepovče. The Municipality subsequently abandoned the resettlement plan.\n15.On 14 April 1999 the first applicant met the mayor of Ribnica and requested that basic utilities, specifically drinking-water supply and an electricity generator, be provided for the Goriča vas Roma settlement. The first applicant and the mayor concluded that a diesel generator and a water tank of 2,000-3,000 litres were to be purchased and placed in the Roma settlement; a regular water supply was to be provided by the local fire brigade, with the cost of the water deliveries being borne by the residents. According to the minutes of the meeting, the Roma residents would bear the costs of adequate sanitation (chemical toilets) and arrange for the clean-up of the surrounding area.\n16.Subsequently, on 26 July 1999 the Ribnica Municipality and the first applicant, representing the Roma residing in Goriča vas, signed a co‑financing agreement whereby each of the parties undertook to cover 50% of the costs of the purchase of a water tank and a diesel generator. The pro forma value of the two infrastructure items, as set out in the agreement, amounted to 294,546 Slovenian tolars (SIT) (which according to the then applicable exchange rate amounted to 1,504 euros (EUR)). The Municipality committed itself to carrying out the purchase and delivering the water tank and the generator to the Goriča vas settlement. The individual Roma residents who had financially contributed to the purchase assumed ownership of the infrastructure items, and all the Roma residents of the Goriča vas settlement acquired the right to access water and electricity. In addition to the purchases, the Ribnica Municipality provided some landfill material used for the rehabilitation of the environment in the settlement.\n17.It is undisputed between the parties that the water tank was purchased as part of a co-financing agreement. However, they disagreed on the subsequent course of events and the current situation as regards access to drinking water in the settlement.\n18.According to the applicants, after a number of years the water tank became unusable due to mould and other fungi and they had no choice but to replace it. The tank had not been dug into the ground and therefore was not protected from the weather. Also, the applicants did not know whether the quality of water was being monitored at all. The Government, however, relying on the written testimony of a local resident, submitted that both the diesel generator and the water tank had subsequently been sold. The applicants contested that submission, arguing that “most of [the tanks]” could not have been sold as they had become unsuitable for use.\n19.Regarding the water deliveries, in the period from 30 January 2010 until 1 January 2016 there were thirty-one deliveries of water to the Goriča vas settlement; each time the residents requested it, 5,000 litres of water were delivered and the cost of an individual delivery amounted to EUR 35. The Roma residents were obliged to pay the costs of transporting the water, while the costs of the water itself were borne by the Ribnica Municipality. The Government, relying on information provided by the Ribnica fire brigade, submitted that the supplies of water had been poured into a large water tank installed in the settlement; when the tank was full, other containers had also been filled.\n20.According to the applicants, the water delivered by the Ribnica fire brigade was used to fill private water tanks and pools where children bathed in the summer.\n21.The Government further submitted that the Roma from the Goriča vas settlement had supplied themselves with water at the nearby Hrovača Cemetery, which was approximately 1 km away from the settlement. The applicants confirmed that they collected water wherever they could, including at cemeteries.\n22.As regards the financial situation of the applicants, in the period from 1 May to 31 October 2015 the first applicant was entitled to monthly social assistance in the amount of EUR 269.20. The second applicant, in his mother’s custody, was financially supported through her monthly social security allowance amounting to EUR 331.12, and a monthly child allowance in the amount of EUR 114.31. In addition, based on a friendly settlement between the parents, the first applicant had a duty to pay monthly child support to the second applicant in the amount of EUR 61.99.\n23.On 13 October 2015 the Human Rights Ombudsman submitted a request to the Government to urgently adopt all necessary measures for the Goriča vas settlement to be connected to the public water supply system. In the meantime, a water tank had to be installed in the settlement. The Government replied that a water tank had already been installed and that spatial planning at the local level was the responsibility of the Ribnica Municipality. In reply, the Human Rights Ombudsman, noting that the Goriča vas residents had not reported the presence of a water tank, critically assessed the situation and took the view that the Ribnica Municipality had not effectively engaged with the Roma community to provide them with water and sanitation. The Ombudsman considered that the Government were violating the Roma residents’ human right to water and sanitation and noted that a violation would persist until a connection to the public water supply and sanitation system was ensured.\nB.The applicants in case no. 25140/14\n24.The applicants, a family of fourteen, live in the informal Roma settlement at Dobruška vas 41 in the Škocjan Municipality, which is composed of approximately twenty housing units for two hundred and fifty people. Mr Ljubo Novak (the first applicant) was born in the settlement, MsDunja Kočevar (the second applicant) has been living there for twenty years and all of their children were born there, too.\n25.The Dobruška vas 41 settlement is located on land belonging mostly to the Škocjan Municipality and the local Krka Agricultural Cooperative. According to the Roma residents and a report of the Human Rights Ombudsman, members of the Roma community were moved to the area by the local authorities of the then Novo mesto Municipality in 1963, and have lived there ever since. Construction of residential houses in the Dobruška vas 41 settlement is possible under certain conditions and subject to approval by two environmental agencies owing to the fact that the land is partially located in a flood area and an area of natural interest. However, the Škocjan Municipality spatial plan provides for construction of a wastewater treatment plant and the transformation of the entire area in question into a business zone. The municipal authorities have on several occasions expressed expectations that the Roma residents of Dobruška vas 41 settlement should be relocated, while arguing at the same time that there was no appropriate area for an alternative settlement in the Škocjan Municipality.\n26.In the period from 2004 until 2015 several residents of Dobruška vas41, but not the applicants, were ordered to suspend construction and remove all structures already built in the settlement. Demolition orders were also issued in respect of a few of them; however, they were not executed.\n27.In 2013 the Municipality lodged criminal complaints against a number of Roma residents, including the first applicant, for unlawful occupation of real property under Article 338 of the Criminal Code. In the first-instance criminal proceedings, the defendants were found guilty and given suspended sentences of three months’ imprisonment, with three years’ probation. The first applicant did not provide any information on whether he had appealed and whether that conviction had become final.\n28.At the date of the lodging of the application, the applicants lived in an illegally built wooden hut located on land owned by the Krka Agricultural Cooperative, without access to water, sanitation or electricity. Subsequently the applicants informed the Court that they had moved into a wooden hut they had built approximately 200 m away from the previous dwelling owing to disagreements with their neighbours which had escalated into destruction of their property and physical aggression against them. They continued to live without a proper water supply and sanitation. The Government supplemented this information, adding that the first and second applicants had bought two plots of land and illegally constructed a building and two animal sheds without a building permit.\n29.In discussions between the Škocjan Municipality and the relevant State authorities it was decided that the Municipality could not ensure individual water connections to illegally built buildings, since such a solution would contravene the domestic legal order. However, in order to comply with the national and international standards of access to water, it was decided that a group water-distribution connection would be built in the settlement, on land belonging to the Municipality. The residents would be able to install individual water connections at their own expense, as provided by the relevant legislation. As regards water bills, it was agreed that a local commission on Roma issues should be engaged in a process of mediation to find a suitable solution.\n30.The Dobruška vas 41 settlement where the applicants reside has been connected to the public water supply system since 2011. The water supply system consists of one group water-distribution connection (a group water‑access point) installed on the initiative and at the expense of the Škocjan Municipality. Nine individual connections were installed from the distribution connection to the individual users’ homes. In 2015 water was supplied to seven individual connections.\n31.Initially, nineteen households were interested in obtaining individual connections, including the applicants’. Only nine households subsequently joined the water supply system by committing to pay their respective shares of the total consumption. In 2015 the average monthly cost of water for a household amounted to approximately EUR 9.\n32.The applicants did not apply to join the water supply system. According to them, while living at a previous location, they had been denied access to the group water-distribution connection by their neighbours, who had not allowed them to lay a water pipe under “their” land. This issue had also been raised in a letter sent to the mayor of the Škocjan Municipality by the Human Rights Ombudsman in December 2012. The Government submitted that the applicants could have avoided the neighbours’ property and laid the pipes along the road, to which the applicants responded that they had not been informed of the possibility of connecting to the water system in this way. The Government also submitted that, after the move to the new location, the applicants had neither applied for an individual water connection, nor verified whether their new building could be connected to the group water-distribution connection.\n33.The residents of the Škocjan Municipality also have drinking water available from the village fountain. The fountain, where the applicants obtain their drinking water, is approximately 1.8 km away from the applicants’ hut; it is fitted with a tap and the water has a constant temperature of 14˚C. According to an analysis by the National Laboratory for Health, the Environment and Food, the water complies with the applicable standards and is considered safe, that is to say fit to use for drinking, cooking or washing. Some residents of the Škocjan Municipality (Vinji Vrh), whose households are not connected to the public water‑distribution system, supply themselves with water from the fountain, while for sanitary purposes they use rainwater or water supplied by the fire brigade.\n34.As regards the sewerage system, at the material time the Škocjan Municipality had no public discharge or facility for treatment of urban wastewater. Buildings producing urban wastewater were equipped with septic tanks or cesspits, while newer buildings had small wastewater treatment plants. Septic tanks and small wastewater plants were funded by the owners of buildings where urban wastewater was produced. The public municipal utility service carried out the emptying of cesspits and small wastewater treatment plants (taking out mud and sludge). A wastewater treatment plant was under construction.\n35.As regards the financial situation of the applicants, at the material time the first and second applicants were receiving monthly child benefit in the amount of EUR 1,556.97, social assistance in the amount of EUR868.80, and a parental benefit in the amount of EUR 252.04. Their two adult daughters, Ms Pamela Novak (the third applicant) and Julija Novak (the fourth applicant), were receiving monthly social assistance in the amount of 269.20 EUR each. The applicants were therefore receiving social benefits in the monthly amount of EUR 2,947.01. In 2016, however, those benefits were increased to EUR 3,299.85 per month. Moreover, the applicants were receiving EUR 120-130 per month as reimbursement for the costs of transporting their four children from their home to a bus station about 10 km away, from where they continued their journey to school by local bus.", "20": "Allegation: 3, 8, 14\nI.THE CIRCUMSTANCES OF THE CASE\nA.The applicants in case no. 24816/14\n5.Mr Branko Hudorovič (the first applicant) was born in 1959 and lives in the informal Roma settlement of Goriča vas in the Ribnica Municipality. Mr Aleks Kastelic (the second applicant) is the first applicant’s son, born in 2007, who initially applied to the Court under the name Aleks Hudorovič. Following the Government’s objection, lodged on 2 November 2015, his name was corrected to Aleks Kastelic.\n6.On 26 May 2011 the first applicant and the second applicant’s mother, Ms Marija Kastelic, reached a court settlement whereby the second applicant resides in the custody of his mother at a different address from that submitted by the first applicant. According to the information about the first and second applicants’ family situation provided to the Government by the Ribnica Social Work Centre on 22 June 2015, the first applicant maintained contact with the second applicant under the terms agreed upon with the latter’s mother. According to the first applicant, the second applicant lives mostly with him in the Goriča vas settlement.\n7.More than 10% of the population residing in the Ribnica Municipality do not have access to drinking water from the public water-distribution system. The public sewage system for the discharge of urban wastewater was built solely in the town of Ribnica and the Hrastje area, while all other housing facilities must be equipped with their own septic tanks or individual water treatment plants installed at the expense of each facility or investor.\n8.On 31 December 2014 there were forty-three public housing units at a subsidised rent rate provided to people with low incomes in the Ribnica Municipality. Another fourteen public housing units were provided at the market rate.\n9.The land on which the Roma community settled thirty years ago is owned by the Republic of Slovenia. This marshy agricultural land is categorised in the Municipal Spatial Plan of the Ribnica Municipality as the best category of agricultural land, where construction of residential buildings is not allowed. Moreover, the Goriča vas settlement is located outside of settlement areas under high-voltage power lines where construction is not allowed owing to electromagnetic radiation.\n10.In the early period of the settlement, the inhabitants lived there in tents, but later some more permanent dwellings were constructed. Today most residents live in wooden huts, some of which have stonework or brick inside. Today some eighty people reside in the settlement. Demolition orders were issued in respect of five such illegally constructed huts, including one built by the first applicant. He received an order to remove the building then under construction in 2000, which came into effect in 2005. None of the demolition orders was, however, executed, one of the reasons being that alternative accommodation would have had to be provided to the Roma children living on the premises.\n11.The buildings in the Goriča vas settlement are not equipped with plumbing, nor is there any sewage piping. As regards electricity, the residents rely on illegal connections to electricity poles. The collection and transport of municipal waste is regularly performed by the public municipal utility service, and it is no longer charged to the residents since they have failed to pay their bills.\n12.The first applicant initially submitted that he lived in a caravan. He subsequently informed the Court that he had moved into a simple wooden hut where he lives with his son. The hut has no access to water, sewage and sanitation. According to the first applicant, they collect water from the cemetery or the nearby polluted stream or else they acquire it from other houses. Moreover, owing to the lack of sanitation services, the applicants use the area around the caravan for defecation.\n13.The applicants, together with other inhabitants of the settlement, have for a number of years been seeking to obtain access to public utilities. They attended a number of meetings with the mayor of the Ribnica Municipality and the governmental Office for Minorities (Urad za manjšine). However, as the Goriča vas settlement was established in an irregular manner, the residents have no possibility of acquiring building permits and the other documents necessary for obtaining access to the public infrastructure.\n14.In 1996, the Ribnica Municipality drew up a plan to relocate the residents of the Goriča vas settlement to the Lepovče Roma settlement. Several terraced houses were to be constructed and equipped with the necessary infrastructure. The Roma from the Goriča vas settlement initially agreed to the Municipality’s plan and expressed their readiness to contribute their labour to the project. However, in May 1997 the non-Roma residents of Lepovče expressed their opposition to the enlargement of the Roma settlement in their village, fearing that the proximity of the settlement would cause “further complications”. Later in May 1997, the first applicant, in his capacity as representative of the Roma living in Goriča vas, declared in writing that the group was not willing to move to the proposed location. It appears from the internal communications of the Municipality that the opposition to the proposed plan partly resulted from the fact that two separate Roma groups, between whom disagreements existed, were to be settled in Lepovče. The Municipality subsequently abandoned the resettlement plan.\n15.On 14 April 1999 the first applicant met the mayor of Ribnica and requested that basic utilities, specifically drinking-water supply and an electricity generator, be provided for the Goriča vas Roma settlement. The first applicant and the mayor concluded that a diesel generator and a water tank of 2,000-3,000 litres were to be purchased and placed in the Roma settlement; a regular water supply was to be provided by the local fire brigade, with the cost of the water deliveries being borne by the residents. According to the minutes of the meeting, the Roma residents would bear the costs of adequate sanitation (chemical toilets) and arrange for the clean-up of the surrounding area.\n16.Subsequently, on 26 July 1999 the Ribnica Municipality and the first applicant, representing the Roma residing in Goriča vas, signed a co‑financing agreement whereby each of the parties undertook to cover 50% of the costs of the purchase of a water tank and a diesel generator. The pro forma value of the two infrastructure items, as set out in the agreement, amounted to 294,546 Slovenian tolars (SIT) (which according to the then applicable exchange rate amounted to 1,504 euros (EUR)). The Municipality committed itself to carrying out the purchase and delivering the water tank and the generator to the Goriča vas settlement. The individual Roma residents who had financially contributed to the purchase assumed ownership of the infrastructure items, and all the Roma residents of the Goriča vas settlement acquired the right to access water and electricity. In addition to the purchases, the Ribnica Municipality provided some landfill material used for the rehabilitation of the environment in the settlement.\n17.It is undisputed between the parties that the water tank was purchased as part of a co-financing agreement. However, they disagreed on the subsequent course of events and the current situation as regards access to drinking water in the settlement.\n18.According to the applicants, after a number of years the water tank became unusable due to mould and other fungi and they had no choice but to replace it. The tank had not been dug into the ground and therefore was not protected from the weather. Also, the applicants did not know whether the quality of water was being monitored at all. The Government, however, relying on the written testimony of a local resident, submitted that both the diesel generator and the water tank had subsequently been sold. The applicants contested that submission, arguing that “most of [the tanks]” could not have been sold as they had become unsuitable for use.\n19.Regarding the water deliveries, in the period from 30 January 2010 until 1 January 2016 there were thirty-one deliveries of water to the Goriča vas settlement; each time the residents requested it, 5,000 litres of water were delivered and the cost of an individual delivery amounted to EUR 35. The Roma residents were obliged to pay the costs of transporting the water, while the costs of the water itself were borne by the Ribnica Municipality. The Government, relying on information provided by the Ribnica fire brigade, submitted that the supplies of water had been poured into a large water tank installed in the settlement; when the tank was full, other containers had also been filled.\n20.According to the applicants, the water delivered by the Ribnica fire brigade was used to fill private water tanks and pools where children bathed in the summer.\n21.The Government further submitted that the Roma from the Goriča vas settlement had supplied themselves with water at the nearby Hrovača Cemetery, which was approximately 1 km away from the settlement. The applicants confirmed that they collected water wherever they could, including at cemeteries.\n22.As regards the financial situation of the applicants, in the period from 1 May to 31 October 2015 the first applicant was entitled to monthly social assistance in the amount of EUR 269.20. The second applicant, in his mother’s custody, was financially supported through her monthly social security allowance amounting to EUR 331.12, and a monthly child allowance in the amount of EUR 114.31. In addition, based on a friendly settlement between the parents, the first applicant had a duty to pay monthly child support to the second applicant in the amount of EUR 61.99.\n23.On 13 October 2015 the Human Rights Ombudsman submitted a request to the Government to urgently adopt all necessary measures for the Goriča vas settlement to be connected to the public water supply system. In the meantime, a water tank had to be installed in the settlement. The Government replied that a water tank had already been installed and that spatial planning at the local level was the responsibility of the Ribnica Municipality. In reply, the Human Rights Ombudsman, noting that the Goriča vas residents had not reported the presence of a water tank, critically assessed the situation and took the view that the Ribnica Municipality had not effectively engaged with the Roma community to provide them with water and sanitation. The Ombudsman considered that the Government were violating the Roma residents’ human right to water and sanitation and noted that a violation would persist until a connection to the public water supply and sanitation system was ensured.\nB.The applicants in case no. 25140/14\n24.The applicants, a family of fourteen, live in the informal Roma settlement at Dobruška vas 41 in the Škocjan Municipality, which is composed of approximately twenty housing units for two hundred and fifty people. Mr Ljubo Novak (the first applicant) was born in the settlement, MsDunja Kočevar (the second applicant) has been living there for twenty years and all of their children were born there, too.\n25.The Dobruška vas 41 settlement is located on land belonging mostly to the Škocjan Municipality and the local Krka Agricultural Cooperative. According to the Roma residents and a report of the Human Rights Ombudsman, members of the Roma community were moved to the area by the local authorities of the then Novo mesto Municipality in 1963, and have lived there ever since. Construction of residential houses in the Dobruška vas 41 settlement is possible under certain conditions and subject to approval by two environmental agencies owing to the fact that the land is partially located in a flood area and an area of natural interest. However, the Škocjan Municipality spatial plan provides for construction of a wastewater treatment plant and the transformation of the entire area in question into a business zone. The municipal authorities have on several occasions expressed expectations that the Roma residents of Dobruška vas 41 settlement should be relocated, while arguing at the same time that there was no appropriate area for an alternative settlement in the Škocjan Municipality.\n26.In the period from 2004 until 2015 several residents of Dobruška vas41, but not the applicants, were ordered to suspend construction and remove all structures already built in the settlement. Demolition orders were also issued in respect of a few of them; however, they were not executed.\n27.In 2013 the Municipality lodged criminal complaints against a number of Roma residents, including the first applicant, for unlawful occupation of real property under Article 338 of the Criminal Code. In the first-instance criminal proceedings, the defendants were found guilty and given suspended sentences of three months’ imprisonment, with three years’ probation. The first applicant did not provide any information on whether he had appealed and whether that conviction had become final.\n28.At the date of the lodging of the application, the applicants lived in an illegally built wooden hut located on land owned by the Krka Agricultural Cooperative, without access to water, sanitation or electricity. Subsequently the applicants informed the Court that they had moved into a wooden hut they had built approximately 200 m away from the previous dwelling owing to disagreements with their neighbours which had escalated into destruction of their property and physical aggression against them. They continued to live without a proper water supply and sanitation. The Government supplemented this information, adding that the first and second applicants had bought two plots of land and illegally constructed a building and two animal sheds without a building permit.\n29.In discussions between the Škocjan Municipality and the relevant State authorities it was decided that the Municipality could not ensure individual water connections to illegally built buildings, since such a solution would contravene the domestic legal order. However, in order to comply with the national and international standards of access to water, it was decided that a group water-distribution connection would be built in the settlement, on land belonging to the Municipality. The residents would be able to install individual water connections at their own expense, as provided by the relevant legislation. As regards water bills, it was agreed that a local commission on Roma issues should be engaged in a process of mediation to find a suitable solution.\n30.The Dobruška vas 41 settlement where the applicants reside has been connected to the public water supply system since 2011. The water supply system consists of one group water-distribution connection (a group water‑access point) installed on the initiative and at the expense of the Škocjan Municipality. Nine individual connections were installed from the distribution connection to the individual users’ homes. In 2015 water was supplied to seven individual connections.\n31.Initially, nineteen households were interested in obtaining individual connections, including the applicants’. Only nine households subsequently joined the water supply system by committing to pay their respective shares of the total consumption. In 2015 the average monthly cost of water for a household amounted to approximately EUR 9.\n32.The applicants did not apply to join the water supply system. According to them, while living at a previous location, they had been denied access to the group water-distribution connection by their neighbours, who had not allowed them to lay a water pipe under “their” land. This issue had also been raised in a letter sent to the mayor of the Škocjan Municipality by the Human Rights Ombudsman in December 2012. The Government submitted that the applicants could have avoided the neighbours’ property and laid the pipes along the road, to which the applicants responded that they had not been informed of the possibility of connecting to the water system in this way. The Government also submitted that, after the move to the new location, the applicants had neither applied for an individual water connection, nor verified whether their new building could be connected to the group water-distribution connection.\n33.The residents of the Škocjan Municipality also have drinking water available from the village fountain. The fountain, where the applicants obtain their drinking water, is approximately 1.8 km away from the applicants’ hut; it is fitted with a tap and the water has a constant temperature of 14˚C. According to an analysis by the National Laboratory for Health, the Environment and Food, the water complies with the applicable standards and is considered safe, that is to say fit to use for drinking, cooking or washing. Some residents of the Škocjan Municipality (Vinji Vrh), whose households are not connected to the public water‑distribution system, supply themselves with water from the fountain, while for sanitary purposes they use rainwater or water supplied by the fire brigade.\n34.As regards the sewerage system, at the material time the Škocjan Municipality had no public discharge or facility for treatment of urban wastewater. Buildings producing urban wastewater were equipped with septic tanks or cesspits, while newer buildings had small wastewater treatment plants. Septic tanks and small wastewater plants were funded by the owners of buildings where urban wastewater was produced. The public municipal utility service carried out the emptying of cesspits and small wastewater treatment plants (taking out mud and sludge). A wastewater treatment plant was under construction.\n35.As regards the financial situation of the applicants, at the material time the first and second applicants were receiving monthly child benefit in the amount of EUR 1,556.97, social assistance in the amount of EUR868.80, and a parental benefit in the amount of EUR 252.04. Their two adult daughters, Ms Pamela Novak (the third applicant) and Julija Novak (the fourth applicant), were receiving monthly social assistance in the amount of 269.20 EUR each. The applicants were therefore receiving social benefits in the monthly amount of EUR 2,947.01. In 2016, however, those benefits were increased to EUR 3,299.85 per month. Moreover, the applicants were receiving EUR 120-130 per month as reimbursement for the costs of transporting their four children from their home to a bus station about 10 km away, from where they continued their journey to school by local bus.", "21": "Allegation: 9\nI.THE CIRCUMSTANCES OF THE CASE\n6.The applicant was born in 1990 and lives in St Petersburg.\n7.In 2014 the applicant graduated with a master’s degree in philosophy from the Herzen State Pedagogical University of Russia (РГПУ им.А.И.Герцена). He then became liable to be called up for military service.\n8.At the end of August 2014, in an attempt to find what he described as “a lawful way to avoid military service”, the applicant attended a legal seminar organised by the Committee of Soldiers’ Mothers (Комитет солдатских матерей) in St Petersburg. He submitted that his participation in the seminar had finally allowed him to understand his adherence to pacifist philosophy.\n9.On 4 September 2014 the applicant applied to the local military commissariat to be assigned to civilian service instead of compulsory military service. In support of his application, the applicant attached his curriculum vitae and a letter of recommendation from his place of work.\n10.His application was examined by a military recruitment commission composed of seven members: a deputy head of the administration of the Frunzenskiy district of St Petersburg (the president of the commission); a head of the military commissariat of the Frunzenskiy district of StPetersburg; the secretary of the commission (an employee of the military commissariat); a medical officer of the military commissariat responsiblefor the medical certification of individuals liable to be called up for military service; a deputy head of the local department of neighbourhood and juvenile police; a head of the educational department of the administration of the Frunzenskiy district of St Petersburg; and a deputy head of the employment office of the Frunzenskiy district of St Petersburg.\n11.On 25 November 2014 the applicant’s application was dismissed. According to the minutes of the relevant meeting of the commission, the documents and information provided by the applicant were not sufficiently persuasive for it to conclude that he was a genuine pacifist.\n12.On the following day the applicant brought a court action challenging that decision. The applicant attached his curriculum vitae and a letter of recommendation.\n13.On 9 February 2015, while the judicial proceedings were still pending, the applicant lodged a second application to be assigned to civilian service instead of military service. That application was rejected as repetitive without having been considered on the merits.\n14.On 25 February 2015 the Frunzenskiy District Court of St Petersburg dismissed a complaint lodged by the applicant, reasoning as follows:\n“[The] court does not determine the existence of humanist or pacifist convictions from the personal file of the conscript, since [such convictions] are not mentioned in his curriculum vitae or [letter of recommendation from his place of work]. His views regarding the impossibility of his performing military service should have been formed over a period of time ... spontaneously crystallised convictions cannot serve as grounds for requesting permission to perform alternative civilian service.\nConsidering all the items of evidence provided and their intertwined nature, the court finds the circumstances relied on by the applicant to be not proven.”\n15.On 12 August 2015 the St Petersburg City Court upheld the judgment of 25 February 2015 on appeal. The applicant did not participate in the appeal hearing for unspecified reasons. He did not adduce any new evidence before the appeal court. The relevant parts of the judgment read as follows:\n“... the right to have compulsory military service replaced with its civilian alternative does not imply that a citizen can unconditionally choose between the military and civilian types of service, and it does not mean that an individual’s negative attitude towards military service in itself ... guarantees the right to have compulsory military service replaced.\nThis position is also reflected in the practice of the European Court of Human Rights, which has stated that only when opposition to military service is motivated by a serious and insurmountable conflict between the obligation to serve in the army and a person’s conscience or his deeply and genuinely held religious or other beliefs does it constitute a conviction or belief of sufficient cogency, seriousness, cohesion and importance to attract the guarantees of Article 9 [of the Convention] ...\n[The court] finds that it is not sufficient for a citizen to simply indicate that his personal convictions conflict with his obligation to serve in the army in order to have compulsory military service replaced.\nAn individual must substantiate such an assertion, indicate the reasons and circumstances that impelled him to ask for the replacement [of military by civilian service], list facts confirming those of his deep beliefs that conflict with the [the obligation to perform] military service, and adduce relevant evidence.\n...\nAs can be seen from the facts of the case, [the applicant] ... presented his curriculum vitae, in which he listed his main periods of education, ... stated that his beliefs about human beings and their place in the world had been formed under the influence of several philosophers, and [stated] that his views on the army and the military way of life had been affected by his brother’s stories about his own army service. According to the applicant, his convictions had finally crystallised after he had attended a legal seminar organised by the Committee of Soldiers’ Mothers in St Petersburg.\nA personal reference given to the applicant [by his employer] listed both his negative and positive qualities; however, like his curriculum vitae, it did not contain information demonstrating the existence of any deep convictions preventing him from performing military service.\n[The applicant] did not present any additional information [...] before either the military recruitment commission, the first instance or the appeal court.\n[The applicant] has failed to prove ... the existence of a serious and insurmountable conflict between the obligation to serve in the army and his convictions ...\n...\n[The applicant] was given an opportunity to bring to the attention of the military recruitment commission arguments [supporting] the existence of [his] convictions or religious beliefs... However, no convictions objectively preventing him from performing compulsory military service were established.”\n16.Subsequent cassation appeals lodged by the applicant were dismissed on 3November 2015 by the St Petersburg City Court and on 24March 2016 by the Supreme Court. The cassation courts fully endorsed the appeal court’s reasoning.", "22": "Allegation: P1-1, 8, 10\n1.The applicant was born in 1986 and lives in Plovdiv. He was represented by Mr M. Ekimdzhiev and Ms K. Boncheva, lawyers practising in Plovdiv.\n2.The Bulgarian Government (“the Government”) were represented by their Agent, Ms I. Stancheva-Chinova of the Ministry of Justice.\n3.In 2010 a publishing house complained to the police that a book published by it had been made available on the Internet, in breach of copyright – allegedly an offence under Article 172a of the Criminal Code (see paragraph 18 below). The ensuing investigation showed that the site which had uploaded the book was partially hosted on a server owned by the applicant. The investigation also established the premises where the server at issue was being kept.\n4.At that time the server hosted a number of other websites as well, including one dedicated to Japanese anime culture owned and administered by the applicant.\n5.Following an application by the police, on 18 June 2010 a judge at the Sofia District Court issued a search warrant authorising the search of the premises where the applicant’s server was being kept. She considered that there were sufficient grounds to believe that such a search would yield evidence relevant for the investigation.\n6.The search was carried out on 21 June 2010 by the police in Sofia. The officers seized and removed the applicant’s server. The applicant was not present, and the person who was principally using the premises and was present explained that the applicant’s server mainly hosted his anime site.\n7.The applicant was not given copies of the search warrant issued in the case or of the record of search and seizure. On 23 June 2010 he was interviewed by the police.\n8.On 23 July 2010 the applicant submitted to the Sofia district public prosecutor’s office a request for the return of his server, under Article 111 of the Code of Criminal Procedure (see paragraph 20 below). He pointed out that the information necessary for the criminal investigation of the third parties involved could be copied and the server could be returned to him, and explained that the server also hosted several other sites, including his own. That site had stopped functioning owing to the seizure, and some of the services it offered, such as its chat service, could not be restored without the data contained on the server. The applicant considered that the closure of his site had “discredited” him in the eyes of the users and his colleagues. He also pointed out that he had invested a lot of personal effort and financial resources in it. He stated that the site had previously been visited by between 500 and 600 users per day.\n9.On 10 August 2010 the applicant submitted to the Sofia district public prosecutor’s office a further request for the return of his property, explaining additionally that personal correspondence of the users of his site had been stored on the server and that the seizure of that correspondence should not have been permitted. The server also contained “objects of copyright”. The applicant stated that the unavailability of his site had caused him “significant damage”, including of a financial nature. He considered it unjust that he had had to suffer such “harsh consequences”, seeing that there had been no complaints with regard to his own site.\n10.On 16 October 2010 the applicant wrote to the Chief Public Prosecutor’s Office. He complained about the seizure of his server, which he considered unlawful, and pointed out that the server had not been returned to him, even though it was not being examined by experts (see below). He explained once again that the server hosted other sites as well as his own site, and that it also contained the correspondence of that site’s users. He stated that he had incurred significant losses, including from the retention of a software product he had been developing. On 27 October 2010 he stated additionally that the server contained his and other people’s “objects of copyright”. In a further letter dated 18 January 2011 and addressed to the Chief Public Prosecutor’s Office the applicant pointed out, without further explanations, that the authorities’ actions had breached his rights to private life and correspondence guaranteed under Article 8 of the Convention.\n11.In the meantime, on 29 June 2010 a police investigator commissioned an expert report to establish whether the applicant’s server had hosted the site under investigation. She stated that, in the event that relevant information was found, the expert was to copy it on a storage device.\n12.However, since it transpired that criminal proceedings with regard to the same facts had already been opened by the prosecution authorities in another town, Troyan, the expert examination was not carried out and on 6August 2010 the proceedings in Sofia were discontinued. The decision ordering the discontinuation stated that the Troyan district public prosecutor’s office was to be informed that physical evidence relevant to the case was being kept in Sofia.\n13.After the applicant wrote to the Chief Public Prosecutor’s Office in October 2010 (see paragraph 10 above), that body made enquiries. On 2November 2010 the Sofia district public prosecutor’s office informed it of the discontinuation of the proceedings which had been opened in Sofia and of the placement of the physical evidence at the disposal of the Troyan district public prosecutor’s office. The Troyan office, in a letter of 14January 2011, stated that it had no information on the whereabouts of the evidence at issue.\n14.In a letter dated 10 January 2011 the Chief Public Prosecutor’s Office asked the two district offices to establish where the physical evidence was being kept and, if it was not necessary for the investigation, to release it.\n15.The evidence was released following a decision of the Sofia district public prosecutor’s office of 2 February 2011.\n16.The applicant’s server was returned to him on 8 February 2011.\n17.The applicant’s own website, which at that time had been operating for more than four years, stopped functioning after the seizure of his server on 21 June 2010. On 23 June 2010, using another server, the applicant managed to publish on the site a statement urging the prosecution authorities to correct the “mistake” they had made. On 27 July 2010, again using another server which he described as having “very limited capacity”, he activated a “minimal” version of the site, mostly with the aim of explaining to its users what had happened. This version was created on the basis of “partial old archives” and, according to the applicant, had “severely limited and extremely insufficient” functionality: in particular, its forum, chat service and image-hosting service were completely unavailable. The website was only restored to full functionality after the server had been returned to the applicant. However, according to him, it never returned to its previous popularity. Currently, the website is active, but “infrequently visited”. After being unavailable for some time, its chat service is no longer in use.", "23": "Allegation: P1-1, 8, 10\n1.The applicant was born in 1986 and lives in Plovdiv. He was represented by Mr M. Ekimdzhiev and Ms K. Boncheva, lawyers practising in Plovdiv.\n2.The Bulgarian Government (“the Government”) were represented by their Agent, Ms I. Stancheva-Chinova of the Ministry of Justice.\n3.In 2010 a publishing house complained to the police that a book published by it had been made available on the Internet, in breach of copyright – allegedly an offence under Article 172a of the Criminal Code (see paragraph 18 below). The ensuing investigation showed that the site which had uploaded the book was partially hosted on a server owned by the applicant. The investigation also established the premises where the server at issue was being kept.\n4.At that time the server hosted a number of other websites as well, including one dedicated to Japanese anime culture owned and administered by the applicant.\n5.Following an application by the police, on 18 June 2010 a judge at the Sofia District Court issued a search warrant authorising the search of the premises where the applicant’s server was being kept. She considered that there were sufficient grounds to believe that such a search would yield evidence relevant for the investigation.\n6.The search was carried out on 21 June 2010 by the police in Sofia. The officers seized and removed the applicant’s server. The applicant was not present, and the person who was principally using the premises and was present explained that the applicant’s server mainly hosted his anime site.\n7.The applicant was not given copies of the search warrant issued in the case or of the record of search and seizure. On 23 June 2010 he was interviewed by the police.\n8.On 23 July 2010 the applicant submitted to the Sofia district public prosecutor’s office a request for the return of his server, under Article 111 of the Code of Criminal Procedure (see paragraph 20 below). He pointed out that the information necessary for the criminal investigation of the third parties involved could be copied and the server could be returned to him, and explained that the server also hosted several other sites, including his own. That site had stopped functioning owing to the seizure, and some of the services it offered, such as its chat service, could not be restored without the data contained on the server. The applicant considered that the closure of his site had “discredited” him in the eyes of the users and his colleagues. He also pointed out that he had invested a lot of personal effort and financial resources in it. He stated that the site had previously been visited by between 500 and 600 users per day.\n9.On 10 August 2010 the applicant submitted to the Sofia district public prosecutor’s office a further request for the return of his property, explaining additionally that personal correspondence of the users of his site had been stored on the server and that the seizure of that correspondence should not have been permitted. The server also contained “objects of copyright”. The applicant stated that the unavailability of his site had caused him “significant damage”, including of a financial nature. He considered it unjust that he had had to suffer such “harsh consequences”, seeing that there had been no complaints with regard to his own site.\n10.On 16 October 2010 the applicant wrote to the Chief Public Prosecutor’s Office. He complained about the seizure of his server, which he considered unlawful, and pointed out that the server had not been returned to him, even though it was not being examined by experts (see below). He explained once again that the server hosted other sites as well as his own site, and that it also contained the correspondence of that site’s users. He stated that he had incurred significant losses, including from the retention of a software product he had been developing. On 27 October 2010 he stated additionally that the server contained his and other people’s “objects of copyright”. In a further letter dated 18 January 2011 and addressed to the Chief Public Prosecutor’s Office the applicant pointed out, without further explanations, that the authorities’ actions had breached his rights to private life and correspondence guaranteed under Article 8 of the Convention.\n11.In the meantime, on 29 June 2010 a police investigator commissioned an expert report to establish whether the applicant’s server had hosted the site under investigation. She stated that, in the event that relevant information was found, the expert was to copy it on a storage device.\n12.However, since it transpired that criminal proceedings with regard to the same facts had already been opened by the prosecution authorities in another town, Troyan, the expert examination was not carried out and on 6August 2010 the proceedings in Sofia were discontinued. The decision ordering the discontinuation stated that the Troyan district public prosecutor’s office was to be informed that physical evidence relevant to the case was being kept in Sofia.\n13.After the applicant wrote to the Chief Public Prosecutor’s Office in October 2010 (see paragraph 10 above), that body made enquiries. On 2November 2010 the Sofia district public prosecutor’s office informed it of the discontinuation of the proceedings which had been opened in Sofia and of the placement of the physical evidence at the disposal of the Troyan district public prosecutor’s office. The Troyan office, in a letter of 14January 2011, stated that it had no information on the whereabouts of the evidence at issue.\n14.In a letter dated 10 January 2011 the Chief Public Prosecutor’s Office asked the two district offices to establish where the physical evidence was being kept and, if it was not necessary for the investigation, to release it.\n15.The evidence was released following a decision of the Sofia district public prosecutor’s office of 2 February 2011.\n16.The applicant’s server was returned to him on 8 February 2011.\n17.The applicant’s own website, which at that time had been operating for more than four years, stopped functioning after the seizure of his server on 21 June 2010. On 23 June 2010, using another server, the applicant managed to publish on the site a statement urging the prosecution authorities to correct the “mistake” they had made. On 27 July 2010, again using another server which he described as having “very limited capacity”, he activated a “minimal” version of the site, mostly with the aim of explaining to its users what had happened. This version was created on the basis of “partial old archives” and, according to the applicant, had “severely limited and extremely insufficient” functionality: in particular, its forum, chat service and image-hosting service were completely unavailable. The website was only restored to full functionality after the server had been returned to the applicant. However, according to him, it never returned to its previous popularity. Currently, the website is active, but “infrequently visited”. After being unavailable for some time, its chat service is no longer in use.", "24": "Allegation: P1-1, 8, 10\n1.The applicant was born in 1986 and lives in Plovdiv. He was represented by Mr M. Ekimdzhiev and Ms K. Boncheva, lawyers practising in Plovdiv.\n2.The Bulgarian Government (“the Government”) were represented by their Agent, Ms I. Stancheva-Chinova of the Ministry of Justice.\n3.In 2010 a publishing house complained to the police that a book published by it had been made available on the Internet, in breach of copyright – allegedly an offence under Article 172a of the Criminal Code (see paragraph 18 below). The ensuing investigation showed that the site which had uploaded the book was partially hosted on a server owned by the applicant. The investigation also established the premises where the server at issue was being kept.\n4.At that time the server hosted a number of other websites as well, including one dedicated to Japanese anime culture owned and administered by the applicant.\n5.Following an application by the police, on 18 June 2010 a judge at the Sofia District Court issued a search warrant authorising the search of the premises where the applicant’s server was being kept. She considered that there were sufficient grounds to believe that such a search would yield evidence relevant for the investigation.\n6.The search was carried out on 21 June 2010 by the police in Sofia. The officers seized and removed the applicant’s server. The applicant was not present, and the person who was principally using the premises and was present explained that the applicant’s server mainly hosted his anime site.\n7.The applicant was not given copies of the search warrant issued in the case or of the record of search and seizure. On 23 June 2010 he was interviewed by the police.\n8.On 23 July 2010 the applicant submitted to the Sofia district public prosecutor’s office a request for the return of his server, under Article 111 of the Code of Criminal Procedure (see paragraph 20 below). He pointed out that the information necessary for the criminal investigation of the third parties involved could be copied and the server could be returned to him, and explained that the server also hosted several other sites, including his own. That site had stopped functioning owing to the seizure, and some of the services it offered, such as its chat service, could not be restored without the data contained on the server. The applicant considered that the closure of his site had “discredited” him in the eyes of the users and his colleagues. He also pointed out that he had invested a lot of personal effort and financial resources in it. He stated that the site had previously been visited by between 500 and 600 users per day.\n9.On 10 August 2010 the applicant submitted to the Sofia district public prosecutor’s office a further request for the return of his property, explaining additionally that personal correspondence of the users of his site had been stored on the server and that the seizure of that correspondence should not have been permitted. The server also contained “objects of copyright”. The applicant stated that the unavailability of his site had caused him “significant damage”, including of a financial nature. He considered it unjust that he had had to suffer such “harsh consequences”, seeing that there had been no complaints with regard to his own site.\n10.On 16 October 2010 the applicant wrote to the Chief Public Prosecutor’s Office. He complained about the seizure of his server, which he considered unlawful, and pointed out that the server had not been returned to him, even though it was not being examined by experts (see below). He explained once again that the server hosted other sites as well as his own site, and that it also contained the correspondence of that site’s users. He stated that he had incurred significant losses, including from the retention of a software product he had been developing. On 27 October 2010 he stated additionally that the server contained his and other people’s “objects of copyright”. In a further letter dated 18 January 2011 and addressed to the Chief Public Prosecutor’s Office the applicant pointed out, without further explanations, that the authorities’ actions had breached his rights to private life and correspondence guaranteed under Article 8 of the Convention.\n11.In the meantime, on 29 June 2010 a police investigator commissioned an expert report to establish whether the applicant’s server had hosted the site under investigation. She stated that, in the event that relevant information was found, the expert was to copy it on a storage device.\n12.However, since it transpired that criminal proceedings with regard to the same facts had already been opened by the prosecution authorities in another town, Troyan, the expert examination was not carried out and on 6August 2010 the proceedings in Sofia were discontinued. The decision ordering the discontinuation stated that the Troyan district public prosecutor’s office was to be informed that physical evidence relevant to the case was being kept in Sofia.\n13.After the applicant wrote to the Chief Public Prosecutor’s Office in October 2010 (see paragraph 10 above), that body made enquiries. On 2November 2010 the Sofia district public prosecutor’s office informed it of the discontinuation of the proceedings which had been opened in Sofia and of the placement of the physical evidence at the disposal of the Troyan district public prosecutor’s office. The Troyan office, in a letter of 14January 2011, stated that it had no information on the whereabouts of the evidence at issue.\n14.In a letter dated 10 January 2011 the Chief Public Prosecutor’s Office asked the two district offices to establish where the physical evidence was being kept and, if it was not necessary for the investigation, to release it.\n15.The evidence was released following a decision of the Sofia district public prosecutor’s office of 2 February 2011.\n16.The applicant’s server was returned to him on 8 February 2011.\n17.The applicant’s own website, which at that time had been operating for more than four years, stopped functioning after the seizure of his server on 21 June 2010. On 23 June 2010, using another server, the applicant managed to publish on the site a statement urging the prosecution authorities to correct the “mistake” they had made. On 27 July 2010, again using another server which he described as having “very limited capacity”, he activated a “minimal” version of the site, mostly with the aim of explaining to its users what had happened. This version was created on the basis of “partial old archives” and, according to the applicant, had “severely limited and extremely insufficient” functionality: in particular, its forum, chat service and image-hosting service were completely unavailable. The website was only restored to full functionality after the server had been returned to the applicant. However, according to him, it never returned to its previous popularity. Currently, the website is active, but “infrequently visited”. After being unavailable for some time, its chat service is no longer in use.", "25": "Allegation: 2\nI.THE CIRCUMSTANCES OF THE CASE\nA. Background\n5.Ms S. Kukhalashvili (“the first applicant”), Ms M. Gordadze (“the second applicant”) and Ms R. Chitashvili (“the third applicant”) were born in 1977, 1956 and 1938 respectively and live in Georgia.\n6.The first and second applicants are the sister and mother, respectively, of Z.K., a detainee aged twenty-three who died during an armed operation carried out on 27 March 2006 (hereinafter “the anti-riot operation of 27March 2006”) in Tbilisi Prison no. 5 (“Prison no. 5”) by a special anti‑riot squad of the Ministry of Justice (hereinafter “the anti-riot squad”).\n7.The third applicant is the mother of A.B., a twenty-nine-year-old detainee at Prison no. 5 who died during the same operation.\n8.Prior to the anti-riot operation of 27 March 2006, Z.K. and A.B. had been detained in, respectively, cells nos. 81 and 76 of Prison no. 5.\n9.Human Rights Watch (HRW), an organisation which conducted a fact-finding mission in Georgia in May 2006 for the purposes of documenting abuses against prisoners, reported the following on the origins of the riot of 27 March 2006 that took place in Prison no. 5 (see paragraph 110 below):\n“Much controversy surrounds the exact nature of the disturbance in Tbilisi Prison no. 5. What is clear is that in the very early morning hours of March 27, government authorities arrived at the Republican Prison Hospital to transfer to Tbilisi Prison no.7six alleged crime bosses who, according to the government, were attempting to instigate riots in the prison system. People interviewed by Human Rights Watch and others state that these six individuals were beaten during this operation; the government denies that they were ill-treated. As the authorities removed these men from the prison hospital, other detainees began to make noise and burn sheets and other items. This disturbance quickly spread to the nearby Tbilisi Prison no. 1 and Prison no. 5, where many detainees made noise, set fire to linens, escaped from their cells, and barricaded the doors of the prison. Ministry of Justice and Ministry of Interior troops conducted a special operation to end the disturbance in Prison no. 5, resulting in at least seven deaths and numerous injuries.”\nB.Facts known to the first and second applicants prior to notice of their application being given to the Government\n10.The first applicant, represented by her lawyer (the same person who represented the applicants in the present case, see paragraph 2 above, hereinafter “the lawyer”), applied to the Prisons Department of the Ministry of Justice (“the Prisons Department”) on 12 April 2006, asking for her brother’s autopsy report and for information about any investigative measure taken in relation to the killing of Z.K. during the anti-riot operation of 27March 2006.\n11.No reply was received, so the lawyer made the same application on 11May 2006. He also asked to be informed about the late Z.K.’s status in the proceedings: whether he was a civil party or an accused.\n12.On 15 May 2006 an investigator from the Prisons Department replied to the lawyer, saying that Z.K. did not yet have any status in the proceedings concerned and that the autopsy report could be consulted on the premises.\n13.According to that report, dated 18 April 2006, there was a bullet wound on the right side of Z.K.’s body, behind the armpit, and a bullet wound on the left hip. The first bullet had pierced the ribs and pleura before becoming lodged in the right lung. The second bullet had pierced the left hip from bottom to top, and entered the stomach and damaged the intestines and diaphragm before becoming lodged in and shattering the thorax bone. Severe haemorrhaging that had occurred after these injuries had caused his death.\n14.On 11 July 2006 the lawyer contacted the General Public Prosecutor’s Office (“the GPPO”), challenging the investigator’s reply of 15May 2006. Observing that nearly four months had elapsed since Z.K.’s death, he requested access to the file and asked to be informed of progress in the investigation. Pointing out that, according to the autopsy report – the only document in his possession – Z.K.’s death had been caused by firearm injuries, the lawyer requested that Z.K. be granted victim status on account of the armed operation of 27 March 2006.\n15.In his reply of 29 July 2006, D.Z., a prosecutor from the GPPO in charge of supervising investigations by the Ministry of Justice, stated that civil-party status could not be granted to a deceased person. Even if a relative of the deceased could be granted such status, this could not happen in Z.K.’s case, because the lethal force used against him had been used by representatives of the State “in a moment of extreme urgency in order to quell the rioting by the prisoners and prevent them from committing crimes”. As Z.K. had therefore not been injured as a result of an unlawful act, there were no grounds under Article 68 § 1 of the Code of Criminal Procedure (“the CCP”) to grant his relatives civil-party status in the case.\n16.On 14 August 2006 the lawyer wrote to the GPPO again, addressing the prosecutors who were hierarchically superior to D.Z., stating that it was important for the first and second applicants to know about the exact circumstances of their family member’s death. The lawyer accordingly requested access to the file and permission to inspect the document concluding that lethal force had been used against Z.K. “in a moment of extreme urgency in order to quell the rioting by the prisoners and prevent them from committing crimes”.\n17.On 17 August 2006 D.Z. refused the request, reiterating his reasoning of 29 July 2006 and adding that persons who were not party to the trial could not inspect material in the case file.\n18.On 24 August 2006 the lawyer applied to Tbilisi City Court on behalf of the first and second applicants under Article 242 § 1 of the CCP, requesting that the reply from D.Z. of 17 August 2006 be declared unlawful, that civil-party status be granted to the first applicant, and that she be given permission to inspect the file. As he received no reply, the lawyer wrote to the Tbilisi City Court again, requesting that his application be examined immediately and in his presence, at a hearing.\n19.Ruling in the absence of the parties on 10 October 2006, the Tbilisi City Court declared the application inadmissible on the grounds that, under Article 242 § 1 of the CCP, only a decision to terminate criminal proceedings or a preliminary investigation, or a refusal to order an expert report could be the subject of an appeal to the courts. That decision was final.\n20.The lawyer appealed nonetheless. He pointed out that the prosecuting authorities’ refusal and the court decision of 10 October 2006 amounted to a violation of Article 2 of the Convention.\n21.On 19 October 2006 the Tbilisi City Court reiterated that no appeal lay against the decision of 10 October 2006.\n22.On 1 November 2006, the lawyer applied personally to the General Public Prosecutor, pointing out that the first applicant was entitled to detailed information about the investigative measures implemented in the case and the evidence gathered that had led to the conclusion that the State had not violated its obligations under Article 2 of the Convention. He observed that, according to the news reported in a number of national newspapers, the force used against the inmates of Prison no. 5 had been excessive.\n23.D.Z. replied on 7 November 2006, repeating the same arguments as those set out in his letter of 29 July 2006 (see paragraph 15 above).\nC.Facts known to the third applicant prior to notice of her application being given to the Government\n24.According to a death certificate issued on 30 March 2006 by the relevant office of the Health Ministry, the third applicant’s son died on 27March 2006 “during the unrest in Tbilisi Prison no. 5” for “reasons unknown”. According to that certificate, numerous bullet wounds had damaged his internal organs and brain.\n25.On 16 February 2007 the third applicant wrote to the Tbilisi city prosecutor’s office saying that, in her view, the use of lethal force against her son had been excessive and unlawful, given the many injuries found on his body. She sought leave to take part in the proceedings and also asked for the documents pertaining to the investigation to be sent to her. The third applicant specified that the interests of her deceased son could not be properly defended without her participation.\n26.As she received no reply, the third applicant reiterated her request on 20March 2007 before the GPPO, the body which was hierarchically superior to the city prosecutor’s office.\n27.When she still received no reply, the third applicant applied to the Tbilisi City Court on 3 April 2007. Reiterating her arguments of 16February and 20 March 2007, she complained of the lack of a response from the GPPO, a lack of response that she said that she was challenging under Article 242 § 1 of the CCP. Relying on Article 2 of the Convention, she sought an order that the GPPO grant her leave to take part in the proceedings and send her the documents in the investigation file.\n28.In a letter of 5 April 2007, the Tbilisi City Court replied to the third applicant saying that, in accordance with Article 242 of the CCP, only an order by the public prosecutor’s office to terminate criminal proceedings or a preliminary investigation, or a refusal by an investigator to order an expert report could be the subject of an appeal to the courts. It also reiterated that it did not have power to order the GPPO to grant civil-party status to anyone.\n29.On 1 May 2007 the third applicant applied to the GPPO again, repeating her request of 16 February 2007.\n30.On 15 May 2007 D.Z. (see paragraph 15 above) replied that the third applicant could not claim to have civil-party status in the case because none of the grounds under Article 68 § 1 of the CCP applied. Indeed, “the investigation had established” that lethal force had been used against her son “in a moment of extreme urgency” in order to quell the riot and to prevent inmates from committing crimes.\n31.On 22 May 2007 the third applicant asked the GPPO if she could have access to the documents in the file for the investigation which, according to the letter of 15 May 2007, the authorities had carried out before concluding that the use of lethal force had been necessary. She repeated her request for civil-party status in the case.\n32.On 19 June 2007 D.Z.’s hierarchical superior replied in identical terms to those stated in the letter of 15 May 2007.\n33.On 22 May 2007 the third applicant applied to the Tbilisi City Court, challenging the decision contained in D.Z.’s letter of 15 May 2007 under Article 242 of the CCP.\n34.On 28 May 2007 she received the same reply from the City Court as that of 5 April 2007.\nD.Facts and evidence adduced by the Government after notice of the applications being given to them\n1.Criminal investigation no. 073060138 launched against the organisers of the prison riot\n(a)Investigation by the Ministry of Justice\n35.On 25 March 2006 the Prisons Department received an “operational briefing” that riots were being prepared in various prisons in the country in an effort to reinstate the authority of criminal bosses. M.Z., P.M. and N.M.– three criminal bosses or “thieves in law” (see Ashlarba v.Georgia,no.45554/08, §§ 21-24, 15 July 2014) being held in Tbilisi prison hospital – were the organisers of the riots, and they had instructed Z.V., G.A. and L.Ts. – three makurebelis, influential prisoners overseeing the activities of other inmates (see Tsintsabadze v. Georgia, no.35403/06, §43, 15February 2011), who were being held in the same hospital – to incite all their fellow inmates to deliberately injure themselves so that the prison authority would lose control of the situation. Notably, as there had been a crackdown on the criminal underworld after the “Rose Revolution” (see paragraph 140 below), the three criminal bosses in question hoped that the head of the Prisons Department, B.A., would be held responsible for failing to control the situation in the prisons and dismissed from his post, whereupon the reforms which were under way would be stopped.\n36.After the Prisons Department received the briefing, criminal proceedings were instituted on 25 March 2006 by the Investigations Department of the Ministry of Justice in respect of charges of attempting to disrupt order in prison. On the same day audio and video-recordings were secretly made in the prison hospital (see paragraphs 61 and 86 below). An order was given for security measures to be reinforced in relation to the six above-mentioned detainees – the three criminal bosses and the three makurebelis – being transferred to Tbilisi Prison no. 7 and held in solitary confinement. The transfer was to take place at night “in order to avoid complications”.\n37.Accordingly, during the night of 27 March 2006 B.A, the head of the Prisons Department, and his colleagues went to the prison hospital. Thetransfer operation began at 12.45 a.m. Once out of the hospital, the above-mentioned six detainees refused to comply, physically resisting the prison officers and succeeding in inciting the other inmates to rebel in support. The transfer was carried out nonetheless, but the prisoners who remained at the prison hospital continued to riot. They started shouting, setting fire to various objects, forcing windows open, and so on. Upon hearing the noise, the inmates in the adjoining prisons, Prisons nos. 1 and 5, began to riot in turn.\n38.The rioting was particularly bad in Prison no. 5, and required intervention by the anti-riot squad in order for the situation to be broughtunder control. During that armed operation seven inmates died, and twenty-two inmates and two prison officers were injured.\n(b)Initial investigative measures implemented by the Ministry of Justice (inspection of the scene of the rioting in Prison no. 5)\n39.Between 6.10 and 9.05 a.m. on 27 March 2006 a group of five investigators from the Ministry of Justice carried out an inspection of the scene of the rioting in Prison no. 5. According to the relevant investigation report, the group came out onto the first floor of the prison through a metal door on which the lock had been neither damaged nor forced. They made the following findings in respect of the upper floors.\n(i)Second floor – dormitory no. 3\n40.The investigators entered the first corridor of dormitory no.3through a metal door that was in working order. In the corridor, they saw iron beds and pieces of wire meshing on the floor. The four cells in the corridor had no doors and they saw prisoners inside them being guarded by armed and hooded officers. The investigators seized two rubber bullet cases (38 mm calibre) found in the corridor.\n41.In the second corridor of dormitory no. 3, dismantled metal beds and doors lay on the floor. Only two out of eleven cells had doors on them, and these were closed. In the cells without doors, the investigators saw prisoners being guarded by armed and hooded officers. The investigators seized six rubber bullet cases (38 mm calibre) found in this corridor. At the end of the corridor a metal door opened out onto the staircase to dormitories nos. 2 and4. The ground was covered with bits of paper and fragments of metal objects, and four metal doors and an iron bed lay on the ground. According to the report, it was “clear that the prisoners [had] attempted to barricade access to dormitory no. 3 with those objects”.\n42.Of the four cells in the third corridor of dormitory no. 3, two had doors and these were closed. In the cells without doors, the investigators could see prisoners being guarded by armed and hooded officers. In this corridor, rubber bullet cases lay “scattered” on the ground. There were also metal objects on the ground and a dismantled iron bed.\n(ii)Third floor – dormitory no. 4\n43.The above-mentioned staircase (see paragraph 41 in fine above) led to the third floor. The metal door to dormitory no. 4 was in place, but did not fully open because of barricades that had been put up behind it. The lock was in working order and did not appear to have been forced. The four cells in the first corridor had no doors. The prisoners there were being guarded by armed and hooded officers. In the corridor, two dismantled iron beds were visible, in addition to mattresses and duvets. The investigators found a pistol (serial number BA7812) with a magazine and four bullets lying in front of cell no. 74a. In front of cell no. 87a, they also found a Magnum pistol (serial number 77311) with a magazine and a bullet, as well as a Valtro Combat pistol with a magazine and two bullets. The investigators also seized bullet cases from automatic weapons, three bullet cases from pistols and fragments of various metal objects.\n44.The eleven cells in the second corridor of dormitory no. 4 were missing doors. The prisoners in those cells were being guarded by armed and hooded officers. Two iron beds and various objects lay on the floor in that corridor. An Adler and a Makarov pistol with a magazine and three bullets were found in front of cell no. 71. A Valtro-2000 pistol and a magazine and three bullets were found in front of cell no. 76. The investigators seized four bullet cases (9 mm calibre), thirty-seven bullet cases from automatic weapons and fragments of various metal objects\n45.Four cells in the third corridor of dormitory no. 4 were missing doors. The inmates in the cells were being guarded by armed and hooded officers. An iron bed and fragments of metal objects were lying on the floor in the corridor. The investigators seized six bullet cases from automatic weapons (9 mm calibre).\n46.At the end of the second corridor of dormitory no. 4, a metal door, which was still in place, opened onto staircases leading to dormitories nos. 3and 5. Objects of all kinds could be seen in the staircase, including two metal doors and two iron beds. The investigators seized a bullet case (9 mm calibre).\n(iii)Fourth floor – dormitory no. 5\n47.The metal door to the first corridor of dormitory no. 5 was in place. Of the four cells in the corridor, one had no door. Inmates in this cell could be seen being guarded by armed and hooded guards. The three other cells were closed. Two dismantled iron beds could be seen in the corridor.\n48.In the second corridor of dormitory no. 5, two out of eleven cells were missing doors. Two dismantled metal beds and various objects could be seen on the floor in the corridor. Rubber bullet cases (38 mm calibre) lay scattered on the floor, and the investigators seized seven of these.\n49.In the third corridor of dormitory no. 5, one cell had no door. The three other cells were closed.\n(c)Further investigative measures implemented by the Ministry of Justice\n50.Between 9.30 and 11.15 a.m. on 27 March 2006 two inspectors from the Ministry of Justice inspected the scene of the rioting in Prison no. 1. The damage observed in the corridors of the prison appeared to be less serious than that described above. However, the relevant report indicates that the prison warden’s office in dormitory no. 4, the watchtower of the top floor exercise yard and the upstairs loft had been burnt.\n51.A forensic examination of the body of A.B., the third applicant’s son, was carried out on 27 March 2006. According to the expert who carried out the examination, the body had: four injuries to the left thigh, one of which was a long thin wound and still bloody, and another of which revealed fragments of broken bone; two injuries to a toe on the right foot and a fracture in the same place; two injuries and a fracture to the left elbow; and an injury to the right side of the back. The back injury extended to the pleura and the spine, and entered the skull via the neck. The skull was fractured. A piece of yellow metal was removed from the skull and “sent to the investigating authorities”. There were numerous red lesions on the lower back, the nose, the forehead, around the left eye and on the left hand, and the right nostril was torn. The internal organs were examined. It was established that various types of alcohol were present in the blood. The expert concluded that death had occurred between six and eight hours before the autopsy, and had been caused by numerous firearm injuries. The bullets had damaged the internal organs and the spine and had caused broken bones. With regard to the many red lesions observed on the body, the expert concluded that they had been sustained when A.B. had still been alive and had been caused by a blunt object or blunt objects.\n52.Two prison officers were injured during the anti-riot operation of 27March 2006 – K.M. and M.S., heads of two dormitories, who participated in the operation. According to medical reports of 30 March 2006, K.M. presented a non-perforating wound to the left forearm, caused by a firearm, whilst M.S. had a perforating wound to the thigh, also caused by a firearm. The injury sustained by M.S. was classified as a minor injury resulting in him being unfit to work for a short period of time.\n53.In the course of the investigation in the case, evidence from various prison officers was heard, and the officers made the following statements.\n(i)Statements of K.M. and M.S., two injured prison officers\n54.K.M. (see paragraph 52 above) was questioned on 5 April 2006 and his version of events was as follows. He was on duty in Prison no. 5 during the night of 26-27 March 2006 and after 1 a.m. a colleague informed him that a disturbance had started at the prison hospital. He immediately informed the deputy director of the Prisons Department, who left for the hospital. K.M. himself went to Prison no. 5 to reinforce the outside security arrangements and prepare for a possible attempted breakout. Shortly afterwards the disturbance spread to Prison no. 5. Amongst the shouting and noise, the prisoners were throwing burning mattresses, sheets and clothes out of the windows. Prison officers and police officers arrived. A while later the directors of the Prisons Department also arrived. K.M. went up onto watchtower no. 1, from where one could see into Prison no. 5, and observed that the inmates were moving freely about the building and even trying to get out. The roof of Prison no. 1 caught fire. The police drove a car equipped with a loudspeaker into the yard of Prison no. 5 to address the inmates. Each appeal for calm was greeted by louder noise from the inmates. The Prisons Department then urgently summoned all off-duty officers. Security was reinforced on every watchtower around the prison. At the same time firefighters and the anti-riot squad of the Ministry of Justice arrived. The anti-riot forces were deployed at a distance of 30-40 metres from the building, as burning objects and metal objects were falling from the windows. During that time the President of the Parliamentary Human Rights Committee spoke to the inmates through a loudspeaker, appealing for calm.\n55.At one point the governor of Prison no. 5 came to tell K.M. that he was going to go into the prison to talk to the inmates. K.M. and M.S. (see paragraph 52 above) decided to go with him. They could not gain access to the dormitories through the main entrance, as the door was blocked from the inside. They therefore used a back door. When they got to the first floor the officers of the anti-riot squad were already there. It was relatively calm on the first and second floors, but loud noise could be heard coming from the third floor (dormitory no. 4), to which they had no access as the door had been barricaded from the inside. They therefore went up to the fourth floor before going back down to the third floor and using another door to get to dormitory no. 4. The prison governor, who was first in line, was followed by K.M., M.S. and several other prison officers, who were themselves followed by anti-riot officers. Unlike the anti-riot officers, the prison officers were not armed and were not carrying truncheons or wearing hoods. K.M. and the governor were wearing black uniforms, and M.S. was in civilian clothes. The group entered the corridor, with the governor appealing to the inmates for calm and explaining that the old prison building might collapse and kill thousands of people. When the group turned right in the corridor, they were confronted with barricades. The prison officers attempted to dismantle them, but the inmates started throwing pieces of brick and iron in their direction. The anti-riot officers then fired rubber bullets. In response, five or six shots rang out very close by. M.S. fell down. Other shots rang out and K.M. felt his arm go warm. He did not realise that he had been injured until he was out in the prison yard. When M.S. and K.M. were injured, the anti-riot squad passed in front of them, shouting that some of their men had been injured, and opened fire with their automatic weapons.\n56.When giving evidence on 11 April 2006, M.S. said that as the appeals for calm issued in the prison yard had been unsuccessful, a decision had been taken to “take the prison by storm”. Apart from that, he related the same facts as K.M. Unlike G.P. (see the following paragraphs), M.S. stated that he had not seen in which direction the anti-riot officers had fired their automatic weapons.\n(ii)Statements of the governor of Prison no. 5\n57.G.P., the governor of Prison no. 5, gave evidence on 7 April 2006. According to him, at approximately 2.15 a.m. on 27 March 2006 inmates at his prison started a disturbance, following the unrest in the prison hospital. Considering that the disturbance could spread throughout the prison, he telephoned B.A, the head of the Prisons Department, to tell him that he did not have the means to bring the situation under control alone and was therefore declaring a state of emergency in the prison and requesting assistance. While waiting for help, G.P. decided to allow the guards of all the dormitories to leave their post, close the doors of their dormitories and the entrances to the building, and distribute weapons to their officers. The security around the prison was reinforced to bar any escape attempt. In the meantime, the inmates had succeeded in getting out of their cells and were freely circulating in the corridors of the dormitories. Burning objects and pieces of brick and iron were falling from the windows. The anti-riot squad, B.A., firefighters and the police arrived. At about 2.45 a.m. the decision was taken to take the prison by storm. G.P. then suggested to his deputies and other colleagues that they should get ahead of the anti-riot squad in order to avoid the members of the squad having direct contact with the inmates. He hoped that once they saw familiar faces, the inmates would become more compliant. The prison officers opened the main door and entered the building, accompanied by the anti-riot officers. The lower floors of the prison were empty. The entrance to the third floor (dormitory no. 4) was barricaded. The prison officers started to take down the barricades. While doing so, G.P. appealed to the inmates on the other side of the barricades for calm. In reply, the inmates swore at them, throwing pieces of brick and iron, whereupon the anti-riot officers fired rubber bullets at them. In response, four or five shots rang out on the inmates’ side and M.S. fell down. K.M. was also injured. G.P. and a member of the anti-riot squad took M.S. out of the corridor. At that moment the anti-riot squad, who were positioned in the stairway, moved into the corridor and opened fire using their automatic weapons. According to G.P., the officers aimed at the ceiling and the walls. The inmates scattered and returned to their cells.\n(iii)Statements of the dormitory guards of Prison no. 5\n58.When questioned on 8 April 2006, R.O., the guard of dormitoryno.3, gave the same description of the general situation as the other above-mentioned prison officers. He stated that he had been told by his colleagues from dormitories nos. 4 and 5 that five inmates, including A.B. (the third applicant’s son), had been behaving particularly aggressively and had been seen destroying the cells.\n59.When giving evidence on 8 April 2006, Z.D., the guard of dormitory no. 4, stated that on 27 March 2006 the nineteen cells of the dormitory had housed 900 inmates. He explained that guards such as himself were never armed and, moreover, did not have the keys to the dormitories where they were shut in with the inmates. The doors to the dormitories were locked from the outside after each round. That was why when the riot had broken out in dormitory no. 4, which housed the “toughest” inmates, his life had been in danger. Z.D. said that when he had gone on duty at 8 p.m. on 26March 2006 he had checked all the locks on the cell doors. At about 1.30 a.m. he had heard noises coming from the prison hospital. The inmates had been shouting “they’re duffing up the [criminal] bosses!” and urging all the prisoners to riot. A few seconds later the inmates of dormitory no. 4 had started banging on their cell doors. Z.D. had had the impression that they were using iron beds or tables to force open their cell doors which opened onto the corridor. In about five minutes the guard from dormitory no. 2 had come to open the door to let Z.D. out. They had closed the door behind him from the outside. Z.D. explained that all the cell doors were made of wood reinforced with metal sheets. The door frames were also made of wood. These old doors could only be locked with padlocks, and it was not difficult to break them down. Z.D. stated that in dormitory no. 4 two inmates from cell no. 76, A.B. (the second applicant’s son) and G.Dj., and an inmate from cell no. 78, K.Q., had been the first to start rioting following the rioting that had started in the prison hospital. They had been the first to break the window bars in their cell doors before putting their heads out and urging the prisoners to riot.\n(d)Charges against the organisers of the prison riot and the transfer of the case to the prosecuting authority\n60.The investigative measures detailed above gave rise to charges being filed against M.Z., P.M. and N.M., the three criminal bosses or “thieves in law”, and against Z.V., G.A. and L.Ts., the three makurebelis who were subordinate to the bosses (hereinafter “the six riot organisers”, see paragraph36 above). Those charges were filed on 13 April 2006.\n61.According to an expert report issued on 4 May 2006, a secret video‑recording of a meeting between several organisers of the riot lasted about twenty-five minutes and showed no signs of having been edited (see paragraph 36 above). According to a transcript of the intelligible parts of the conversation, the organisers agreed that they would lie by saying that during an inspection the prison officers had started beating them. They would then ring the emergency number for prisoners’ rights and various NGOs and journalists, so that the following day there would be twenty-four-hour reports on a television channel renowned for its criticism of the authorities. This would, they said, allow them to “get on their feet again”. It was not possible to decipher the rest of the conversation because of substantial background noise.\n62.By a decision of 19 May 2006 the GPPO decided to relieve the investigators of the Ministry of Justice of the criminal case. The decision does not state the reasons for the transfer of the case. However, the following information is mentioned. After hearing the appeals for calm by the prison officers who preceded the anti-riot squad in the corridor, the prisoners “came towards [the prison officers and the anti-riot squad]”, “which obliged the anti-riot forces to fire rubber bullets”. The inmates responded to those shots with “a number of” shots, injuring two prison officers. “The decision was then immediately taken to open fire in response. Following a mutual exchange of shots, seven inmates died and twenty-two were injured.” After that, “the situation returned to normal and the inmates returned to their cells and stopped resisting the officers.” This also had a positive effect on the inmates of Prison no. 1, who calmed down without any recourse to force being necessary.\n63.According to a ballistics report of 25 May 2006, two of the six pistols seized on 27 March 2006 (see paragraphs 39-49 above) with magazines and seven bullets were Makarov pistols (9 mm calibre); one had no serial number and the other was numbered BA7812. The weapons had been used since they had last been cleaned. The seven bullets were projectiles for Makarov or Stechkin-APS pistols. Eight 9 mm cases corresponded to the Makarov and Stechkin-APS bullets; four of these had been fired by the Makarov with no serial number, two others by the Makarov BA7812, and the two last ones by an unidentified Makarov. The four other pistols seized were special defence weapons (9 mm calibre) for blank cartridges, rubber bullets, or gas or lead bullets. These weapons were in working order and had been used since they had last been cleaned, since traces of powder had been found in the barrels. Three bullets (9 mm calibre) found with one of the weapons were usable in one of the weapons; two of them were rubber bullets and the third an irritant (CS gas).\n64.By a decision of 21 June 2006 an investigator from the GPPO noted that part of the case – the part relating to the six riot organisers – was ready and should be set down for trial. However, in his view, it was necessary to verify whether the order to open fire on the inmates had been lawful. He therefore decided to sever the aspects relating to a possible abuse of power by the prison and law-enforcement officers from the criminal case relating to the six organisers of the riot, and to open a new case in order to investigate that possible charge (see paragraphs 76-84 below). According to the statement of facts given in that decision, on 27 March 2006 there was a risk of a breakout by the inmates of Prison no. 5 and a danger to the prisoners’ lives on account of the fire that had been started. While the prison officers forming a barrier between the anti-riot squad and the inmates were appealing for calm, the prisoners “were throwing pieces of brick and iron at them”, “which was why the anti-riot squad fired rubber bullets at the inmates”. The inmates responded by firing “Makarov and gas pistols”, slightly injuring two prison officers. Despite “subsequent attempts by the prison officers and the anti-riot officers to quell the violence”, the prisoners continued “firing their two Makarov [pistols] and four [other] pistols”, which “obliged the anti-riot forces to open fire”. This meant that the situation could be brought under control.\n65.By a decision of 23 October 2006 the GPPO decided to sever the case relating to the deaths of Z.K. and A.B. from the case concerning possible abuse of power by the law-enforcement officers (see paragraph 64 above and paragraphs 76-84 below), in order to determine the causes and circumstances of their death (see also paragraph 85 below). In that new case, criminal proceedings for murder were instituted (an offence prosecuted under Article 108 of the Criminal Code).\n66.In the meantime, the six riot organisers had been committed for trial.\n67.On 22 January 2007 B.A., the head of the Prisons Department, was questioned by the GPPO within the framework of the criminal case directed against the six riot organisers. The record of the interview states that at approximately 1 a.m. on 27 March 2006 B.A. went to the prison hospital after learning that a riot was being fomented (see paragraph 57 above). At 1a.m. he reported to the Minister of Justice that the six riot organisers had physically resisted prison officers while being transferred, that they had urged the other inmates to rebel, and that the situation had degenerated. He described the conduct of the inmates who had started rioting, informed the minister that they had started a fire, and suggested that there was a risk of a breakout. On the basis of that information, a state of emergency “was declared” by the Ministry of Justice, in accordance with a ministerial order of 12 February 2001 (“order no. 60”), and a crisis unit composed of the Minister of Justice, two Deputy Ministers of Justice and B.A. himself was “set up”. The Minister of Justice went to Prison no. 5 to examine the situation and hear B.A.’s explanation. According to B.A., when appeals for calm issued by the Ombudsman, the President of the Human Rights Parliamentary Committee, police officers and prison officers were unsuccessful, and when the fire that had been started in “Prison no.5took hold”, the lives of 4,000 prison inmates were in danger, and the risk of a massive prison breakout became real. A decision was then taken to intervene.\n68.With regard to the conduct of the inmates of Prison no. 5 and the order in which shots were heard on both sides, B.A. related the same facts as K.M. and M.S. (see paragraphs 54-56 above). According to B.A., once K.M. and M.S. were injured, the situation “spiralled out of control”. In his view, the likelihood of a massive breakout and the death of inmates in the fire increased. The crisis unit then decided to order the anti-riot squad to “take all necessary measures in accordance with the law to reinstate order, and if necessary use firearms within the statutory limits in force”. Following the measures taken, and “with the use of firearms”, according to B.A., “the mass disorder and insurrection by the prisoners were quelled” by about 4a.m. The damage suffered by the Prisons Department amounted to 50,737 Georgian laris (GEL – approximately 16,500 euros (EUR)). In answer to the only question asked by the investigator, B.A. replied that in similar situations the crisis unit acted in accordance with the rules on detention and weapons, order no. 60, the joint action plan of January 2003, and the rules governing anti-riot forces (see paragraphs 96-107 below).\n(e)Trial stage of the case brought against the six riot organisers\n69.Between February and March 2007 the Tbilisi City Court held several trial hearings in the case brought against the six riot organisers. The following witnesses were heard by the trial court.\n70.B.A, the head of the Prisons Department, when giving evidence in court, said that once he had been informed by the hospital authorities that the six riot organisers had been taken away and were waiting in the corridor for their transfer to Tbilisi Prison no. 7, he had ordered them to be put in a van parked in the hospital yard for that purpose. He claimed that none of them had been taken to the hospital director’s office (compare paragraphs71-73 below). A few minutes later B.A. had been informed that the inmates in question were refusing to be transferred. At the same time, rioting could be heard. He had then summoned the anti-riot officers, who had formed a corridor along which the six inmates had passed before being transferred. With regard to the remaining events, he related the same facts as those recounted on 22 January 2007 (see paragraph 67-68 above).\n71.Z.V. and G.A., two of the six riot organisers (see paragraph 35 above), claimed before the court that on the night of 27 March 2006 they had been woken by a guard who had summoned them to the hospital director’s office for a meeting with B.A. In that office they had met B.A., who had been accompanied by the prison governor of Prison no. 7, a number of people wearing hoods, P.M. (another co-accused), and several prison officers, one of whom had been filming the meeting. B.A. had questioned Z.V. and G.A. “about the date [of the meeting between the organisers of the riot]”. The two inmates had replied that “they could not remember”. B.A. had then struck G.A., who had hit him back. The people wearing hoods had then started kicking and punching Z.V. and G.A. and beating them with their truncheons and the barrel of their guns. The two inmates had been unconscious when they had been transferred to Prison no. 7, where they had been beaten again.\n72.L.Ts., another of the six riot organisers, stated that, having been woken by a guard, he had been summoned to the hospital director’s office. He had seen a lot of people in the corridor and anti-riot officers, who had started beating him with their truncheons. At the same time Z.V. and G.A. were being beaten in the hospital director’s office (see the preceding paragraph). After being transferred to Prison no. 7 at the same time as the other two inmates, L.Ts. had been stripped naked and again kicked, punched and beaten with a truncheon. According to L.Ts., he and Z.V. had had marks on their body as a result of the violence, and G.A. had had such marks on his face.\n73.The director of the prison hospital stated before the court that with the aid of informers among the inmates, he had learnt that a riot was being prepared. He had informed B.A. accordingly, who on 27 March 2006 at about 1 a.m. had come to the hospital and ordered the director to bring the six riot organisers to the director’s office, with a view to transferring them. When the trouble had started, B.A. had summoned thirty members of the anti-riot squad to assist with the transfer. The anti-riot officers had not stayed at the hospital because the situation there had quickly returned to normal. They and B.A. had gone to Prisons nos. 1 and 5, which had also started to have problems.\n74.By a judgment of 2 April 2007 the Tbilisi City Court convicted M.Z., Z.V., G.A. and L.Ts. of refusing to obey the lawful orders of prison officers, disrupting order in prison, and assaulting prison officers or creating a group for that purpose and actively participating in that group (Article 378 §§1 and 3 of the Criminal Code). They were sentenced tosixyears’ imprisonment each. N.M. was sentenced to seven years’ imprisonment for the same offences and for illegal possession of a mobile telephone (an offence committed in June 2006). P.M. was sentenced to twelve years’ imprisonment for the same offences as those committed by the first four inmates and for being a criminal boss (Article 2231 § 1 of the Criminal Code).\n75.In its statement of the facts, the Tbilisi City Court considered that the following facts had been established. As witnessed by the prison officers followed by the anti-riot squad, the inmates of dormitory no. 4 had started throwing pieces of brick and iron in their direction. For that reason, the anti‑riot squad had fired rubber bullets back at them. In response, the inmates had opened fire using Makarov pistols and gas weapons. They had carried on resisting until they had been brought under control by the measures implemented by the prison officers and the anti-riot forces.\n2.Criminal proceedings brought against the prison officers for abuse of power (case no. 74068237)\n76.This case against the prison officers was instituted on 21 June 2006 (see paragraph 64 above), and the following investigative measures were carried out.\n77.When questioned on 9 October 2006, the expert who had produced the autopsy report of 27 March 2006 (see paragraph 51 above) stated that the tear in A.B.’s right nostril and the many red lesions on his body had been sustained when he had been alive, and could have been caused by rubber bullets. The expert further stated, for comparison purposes, that there had been no such lesions on the body of G.Y., an inmate who had also died, and only firearm injuries could be observed on his body.\n78.On 10 October 2006 the expert who had examined the bodies of three other inmates who had died stated that, apart from firearm injuries, the inmates had sustained lesions and bruises that had left red marks on various parts of their bodies while they had still been alive, and very shortly before their death. The lesions could have been caused by rubber bullets.\n79.Between 24 and 26 October 2006 four inmates of Prison no. 5 were questioned in the absence of a lawyer. According to the relevant records, three of those inmates claimed that they did not require legal assistance. None of them had been injured during the events in question. A brief summary of their statements is reproduced below.\n80.G.S., an inmate in cell no. 56, stated that at about 2 a.m. on 27March 2006 he had heard inmates screaming and swearing, and that when he had looked out of the window he had seen burning objects falling into the prison yard. Shortly afterwards the lock on his door had been broken and he and his cellmates had gone out into the corridor. On account of the smoke, they had all gone up to the second floor. Shortly afterwards the anti-riot forces had arrived, but they had been kept back by the barricades. A shot had rung out on the inmates’ side. In response, the anti‑riot officers had fired rubber bullets and G.S. had hidden in a cell. The anti-riot forces had dismantled the barricades and the situation had returned to normal.\n81.R.Ch., an inmate in cell no. 70a, gave a similar description. He explained that the anti-riot forces had “had no means of targeting” the inmates individually, and the sound of shots ricocheting off surfaces could be heard. An inmate next to him had sustained minor injuries as a result of a stray bullet.\n82.B.Sh., an inmate in cell no. 71, gave a similar description, saying that inmates from all floors had gathered together in their dormitory (no. 4). He had seen pistols in the hands of two inmates, but could not identify the persons in question. Later the anti-riot forces had arrived, but as they had had “no means of targeting inmates” they had been randomly firing rubber bullets.\n83.G.T., an inmate in cell no. 104 (dormitory no. 5), gave a similar description, adding that at about 1.10 a.m. on 27 March 2006 he had heard the prison hospital inmates shouting out that the criminal bosses were being attacked and inciting other inmates to riot. After his cell door had been opened from outside, he had gone down to the third and fourth dormitories. The inmates from the fourth dormitory had been barricading the entrances with the cell doors. A group of prison officers had then arrived. A shot had rung out and someone had shouted that a prison officer had been injured. Further shots had followed and he had no longer known who was firing at whom or from where.\n84.According to the case file as it stands at hand, the investigation into the possible abuse of power by the law-enforcement officers has not been terminated to date. It does not transpire from the available materials whether, apart from the measures mentioned above (see paragraphs 77-83), any other investigative steps have been made.\n3.Criminal proceedings concerning the murder of Z.K. and A.B. (case nos. 74068394 and 74068398)\n85.There is no information in the file on the investigative measures, if any, taken to date in the criminal proceedings initiated on 23 October 2006 (see paragraph 65 above).\n4.Content of the video-recording produced by the Government\n86.The Government have submitted a video-recording. The first sequence would appear to correspond to the secret recording of the meeting between the organisers of the riot. The content of the surtitles of their conversation is the same as that set out in paragraph 61above.\n87.The second sequence shows a police car parked in a place that is not a prison yard, but could be an entrance to the perimeter of the prison area. A police officer in the car is holding a loudspeaker and saying “Stop the riot! Prisoners, stop rioting! I repeat, stop rioting!”\n88.The third sequence shows a prison yard in which several dozen people are running, wearing hoods. The building has a ground floor and three upper floors. Burning objects fall from the windows and shouting and disturbances can be heard coming from the cells. Several windows on the second floor are lit up on the inside by flames.\n89.The fourth sequence shows the firemen extinguishing the fire on the roof of the same building.\n90.The fifth sequence shows two people in camouflage and a man in a black jacket coming down the staircase of a building wearing a hood. They say that an ambulance should be called.\n91.The sixth sequence shows doctors treating the thigh of a man dressed in civilian clothes (see paragraphs 55 and 56 above) and the left forearm of a man in a black pullover.\n92.The seventh sequence shows a number of people in camouflage attempting to clear a barricaded entrance.", "26": "Allegation: 9,8\n2.The first and second applicants were born in 1961, and the third applicant was born in 2007. The applicants live in Oxford, United Kingdom. They were represented by the first applicant and by MrS.Skliris, lawyers practising in Oxford and Athens respectively.\n3.The Government were represented by their Agent’s delegate, MsO.Patsopoulou, Senior Advisor at the State Legal Council.\n4.The facts of the case, as submitted by the parties, may be summarised as follows.\n5.On 17 August 2007 the first applicant, in his capacity as father of the third applicant and having been authorised by the second applicant, in her capacity as mother of the third applicant, went to the Amarousio registry office to register the birth of their daughter, the third applicant.\n6.The registry office employee entered the third applicant’s name in the birth register. Next to her name he included a note in parentheses indicating “naming” in abbreviated form.\n7.On 19 October 2007 the applicants applied to the Supreme Administrative Court for the annulment of the third applicant’s birth registration, in so far as it concerned the note “naming”. They argued that it constituted a reference to the fact that their child had not been christened and thereby revealed their religious beliefs. On 6 March 2018 the Supreme Administrative Court, after citing Articles 25 and 26 of Law no.344/1976 (see paragraph 8 below), rejected the application as inadmissible, holding that the applicants lacked legal interest to act. In particular, Law no.344/1976 provided that the first name of a child could be registered only by naming, that is to say by the parents or the child’s official guardians declaring the name of the child before the competent registry office, irrespective of whether the child would later be christened. Therefore, the note “naming” next to the third applicant’s name merely repeated the title of Article25 of Law no. 344/1976, and was the only legal way of acquiring a name. It could not therefore be claimed that it constituted grounds for discrimination and caused the applicants the alleged harm.", "27": "Allegation: 9,8\n2.The first and second applicants were born in 1961, and the third applicant was born in 2007. The applicants live in Oxford, United Kingdom. They were represented by the first applicant and by MrS.Skliris, lawyers practising in Oxford and Athens respectively.\n3.The Government were represented by their Agent’s delegate, MsO.Patsopoulou, Senior Advisor at the State Legal Council.\n4.The facts of the case, as submitted by the parties, may be summarised as follows.\n5.On 17 August 2007 the first applicant, in his capacity as father of the third applicant and having been authorised by the second applicant, in her capacity as mother of the third applicant, went to the Amarousio registry office to register the birth of their daughter, the third applicant.\n6.The registry office employee entered the third applicant’s name in the birth register. Next to her name he included a note in parentheses indicating “naming” in abbreviated form.\n7.On 19 October 2007 the applicants applied to the Supreme Administrative Court for the annulment of the third applicant’s birth registration, in so far as it concerned the note “naming”. They argued that it constituted a reference to the fact that their child had not been christened and thereby revealed their religious beliefs. On 6 March 2018 the Supreme Administrative Court, after citing Articles 25 and 26 of Law no.344/1976 (see paragraph 8 below), rejected the application as inadmissible, holding that the applicants lacked legal interest to act. In particular, Law no.344/1976 provided that the first name of a child could be registered only by naming, that is to say by the parents or the child’s official guardians declaring the name of the child before the competent registry office, irrespective of whether the child would later be christened. Therefore, the note “naming” next to the third applicant’s name merely repeated the title of Article25 of Law no. 344/1976, and was the only legal way of acquiring a name. It could not therefore be claimed that it constituted grounds for discrimination and caused the applicants the alleged harm.", "28": "Allegation: 2\n5.The facts of the case, as submitted by the parties and as established in the domestic proceedings, may be summarised as follows.\n6.The applicants are relatives of individuals who were killed in a school shooting in Kauhajoki on 23 September 2008. The tragedy took place at a vocational institute attended by young adults. The perpetrator, a 22-year-old student of the institute, killed ten people, of whom nine were students and one was a teacher, and then killed himself. The attack attracted wide publicity both in Finland and internationally.\n7.Following the fatal attack, the factual background to the shooting was clarified after the fatal attack in the pre-trial investigation and established in the subsequent criminal proceedings against the Detective Chief Inspector involved in the licensing of the perpetrator’s weapon (see paragraphs 19-35 below) as well as in the proceedings conducted by an investigation commission set up by the Government (see paragraph 38 below). The facts, as established by the investigations and proceedings, are as follows.\n8.On 25 June 2008 the perpetrator applied at the local police station for a licence to acquire and carry a weapon. In his application he indicated that he needed a weapon for practising precision shooting at the local shooting range and that he had already practised shooting at his summer house with his father’s weapon. In reality his father – or rather his stepfather – had never shot with him, nor did they have a weapon or a firearms licence at that time. This fact was not known to the police at the relevant time. The perpetrator attached to his application for a firearms licence a receipt showing that he had paid a “membership fee” of 10euros (EUR) to the local shooting club which entitled him to practise at the local shooting range. The regular membership fee was EUR26 and this would also have entitled him to participate in competitions, but the perpetrator did not choose that option. He was thus not a member of the local shooting club.\n9.On 21 July 2008 the perpetrator visited a psychologist at the local health centre for panic attacks and fits of aggression. From 11 August 2008 he saw a nurse specialising in depression about once a week, five times in total, the last session being on 9 September 2008. On 13 August 2008 he was prescribed medication to help treat his severe depression and panic attacks. The police did not have that piece of information on file before the shooting.\n10.On 7 August 2008, after interviewing the perpetrator, the Detective Chief Inspector granted him permission to acquire a weapon. On 12August 2008 the perpetrator purchased a weapon in another part of the country. On 2 September 2008 a police officer approved the perpetrator’s weapon at the local police station.\n11.During the night of 17-18 September 2008, an attempt was made to explode the letter box of a local teacher. No evidence has ever been found to link the perpetrator to that event.\n12.In the early morning of Friday, 19 September 2008 a cleaning lady at a local high school, situated approximately one kilometre away from the vocational institute attended by the perpetrator, saw a grave candle that had been lit in the proximity of the high school. She told two individuals about the candle, one of whom discovered a few hours later three video clips posted on the Internet in which the perpetrator was seen firing a weapon at a shooting range. It later transpired that he had been filmed by a friend of his who also practised shooting. In addition, the material posted on the Internet contained pictures in which the perpetrator was holding a handgun as well as texts in English about war and dying. This information was submitted to the police the same day. Also on the same day, another concerned citizen informed the local police in the neighbouring town about the same postings on the Internet by the perpetrator, but this information never reached the police officers involved in the present case.\n13.After receiving the above-mentioned information, several police officers viewed the video clips. They found out that the videos had been posted under a pseudonym which the perpetrator used. These postings contained only small amounts of text and no references to a school shooting. The same pseudonym had also been used on a social media website (IRC-Galleria) as a member of a community called “Zero Hour: Massacre at Columbine High”. The perpetrator had also commented on a television documentary of the same name as “entertainment at its best” on 18 August 2008. On the basis of these materials, several police officers had started to suspect that the perpetrator might commit a school killing since, given the way he was dressed and his gestures, he seemed to be imitating the perpetrator of a previous school killing which had taken place in Finland less than a year earlier. Since the Detective Chief Inspector was off duty that day, the police officers contacted his replacement and requested permission to temporarily seize the perpetrator’s weapon. That request was granted at 3.40 p.m. When the police officers went to execute this assignment about ten minutes later, they could no longer find the perpetrator at home or at school since he had left to visit his home town for the weekend.\n14.On Saturday, 20 September 2008 the Detective Chief Inspector learnt about the events of the previous day during a social event attended by him and some of the police officers.\n15.On Monday, 22 September 2008 the Detective Chief Inspector was told in more detail about the observations made, and he himself viewed the videos and read the texts in English. It appears that he was also aware of the reference to the massacre at Columbine High School in the United States in 1999. The Detective Chief Inspector called in the perpetrator for an interview the same afternoon, which lasted approximately a quarter of an hour. The perpetrator explained to the Detective Chief Inspector, inter alia, that the English texts were the lyrics of a song by a certain band. He was given a verbal warning. Following the interview, the Detective Chief Inspector concluded that “no such circumstances [had] appeared in this matter on the basis of which [the perpetrator’s] weapon and his firearms licence should be withdrawn at this stage”. After this decision was taken, the police officers sent him three more pages from the IRC-Galleria website at 3.20 p.m.\n16.That same evening and on the following morning the perpetrator purchased some tools which were used in the killing. A few hours before the act, he also made video clips in which he indicated his intention to carry out killings. He filmed these video clips himself. According to the investigation commission, that material was subsequently discovered in deleted camera files, and it had probably not been posted or shown anywhere.\n17.On Tuesday, 23 September 2008 the school killings took place at 10.42 a.m.\n18.During the investigations it transpired that the perpetrator had been discharged from his military service in August 2006 owing to mental health problems. It was also established that the perpetrator had as early as 2002 planned a school shooting, which had come to the knowledge of a local police department in another part of the country. It appears from the pre-trial investigation material that that piece of information came to the knowledge of the police officers involved in the present case only on 23September 2008, several hours after the school killing had taken place. The perpetrator also wrote in his farewell letter that he had been planning such a killing since 2002.\n19.Criminal proceedings were instituted against the Detective Chief Inspector who had been responsible for the decisions concerning the licensing of the weapon used by the perpetrator. The case was investigated by the National Bureau of Investigation (Keskusrikospoliisi, Centralkriminalpolisen). The pre-trial investigation against the Detective Chief Inspector was concluded on 8 December 2008.\n20.The public prosecutor pressed charges against the Detective Chief Inspector on 16 February 2009. He was charged with negligent breach of an official duty (tuottamuksellinen virkavelvollisuuden rikkominen, brott mot tjänsteplikt av oaktsamhet) by the public prosecutor for having decided not to seize the firearm from the perpetrator on 22 September 2008, the date on which he was called in for questioning by the police. He was also charged by the applicants with breach of an official duty (virkavelvollisuuden rikkominen, brott mot tjänsteplikt) covering the period of 22 June 2008 to 23 September 2008, and on ten counts of grossly negligent homicide (törkeä kuolemantuottamus, grovt dödsvållande) covering the period from 25 June to 23 September 2008. The applicants also joined the charges brought by the public prosecutor and presented their compensation claims against the Finnish State.\n21.On 29 January 2010 the Kauhajoki District Court (käräjäoikeus, tingsrätten) dismissed in part the charges brought by the public prosecutor and the applicants and dismissed in part, without examining the merits, the charges brought by the applicants in so far as they concerned a time that was too distant from the shooting. The applicants’ compensation claims were also rejected.\n22.The court found that the firearms licence had been issued to the perpetrator in accordance with the law at the time as he had fulfilled the legal requirements for such a licence. The first suspicions of a possible risk of a shooting had arisen only a few days before it took place. It was shown that the day before the school shooting the Detective Chief Inspector had been aware of the material that the perpetrator had posted on the Internet but had not found it threatening. However, he had called the perpetrator in for questioning on the same day. As the interview with the perpetrator had not revealed any clear reason to withdraw his firearms licence, the Detective Chief Inspector had only given him a verbal warning. The court found that the Detective Chief Inspector had had all relevant material in his possession and he had discussed the situation with his colleagues. He had questioned the perpetrator in person, and found nothing unusual in his behaviour. The decision had been within his discretion and there was no evidence of any negligence. He had thus not breached his official duties.\n23.By a letter dated 30 April 2010 the applicants appealed against the District Court’s judgment to the Vaasa Court of Appeal (hovioikeus, hovrätten), requesting that it be overturned and that the Detective Chief Inspector be convicted. The public prosecutor also lodged an appeal.\n24.On 19 January 2011 the Vaasa Court of Appeal made a procedural decision concerning the locus standi of the applicants as far as the charges of negligent breach of official duty and breach of official duty were concerned. It found that the applicants could not be considered directly concerned by these counts and that they did not therefore have any locus standi in this respect.\n25.On 15 April 2011 the Vaasa Court of Appeal convicted the Detective Chief Inspector of negligent breach of official duty for having failed to confiscate the perpetrator’s gun temporarily the day before the shooting.\n26.The court found that the firearms licence had been issued in accordance with the law as the perpetrator had fulfilled the legal requirements applicable at the time for such a licence and he had been personally interviewed by the Detective Chief Inspector before obtaining it. The Detective Chief Inspector had acted in accordance with the practice at the time. Having examined all the circumstances and the evidence relating to the granting of the licence, the Court of Appeal concluded that there had been no negligence in this context.\n27.Concerning the question of whether the Detective Chief Inspector had had reasoned grounds to consider that the perpetrator had been misusing his gun, the court found that such misuse had already taken place a few days before the school shooting and that the Detective Chief Inspector should have temporarily seized the perpetrator’s gun. In this connection, the court noted that such a seizure was a precautionary measure with a low threshold and that such a measure was not conditional upon any unlawful conduct having occurred, nor on any suspicion that unlawful conduct might follow; it was sufficient that the weapon had been involved when its holder had behaved disturbingly.\n28.The court noted that the material posted on the Internet showed the perpetrator posing with a gun and shooting at a shooting range. This in itself could not be regarded as misuse of firearms. A separate posting cited the lyrics of a song dealing with war, dying children and crying mothers. In addition, the perpetrator’s profile on IRC-Galleria contained some pictures and comments which led the court to consider that the perpetrator’s Internet postings, taken as a whole, had constituted disturbing behaviour of a kind that warranted temporary seizure of his gun. The court therefore considered that, under the circumstances, the Detective Chief Inspector’s decision to refrain from seizing the gun had not been within his discretion and that he was guilty of negligent breach of official duty.\n29.As to the charges of grossly negligent homicide, the court found that the Detective Chief Inspector had not had any concrete grounds to suspect that the perpetrator would commit a murderous attack. The court noted that the subordinate police officers, based on the evidence collected prior to the interview conducted by their superior, had expressed mutually differing views concerning the risk posed by the perpetrator. The court found it likely that their perceptions, as reflected in their testimonies, might in part have been affected by the shock of the subsequent events, reinforcing a sense of risk. On the evidence the court found that neither the circumstances relating to the perpetrator’s prior behaviour, nor his behaviour in the context of the interview, had been of a kind to give the Detective Chief Inspector reasonable grounds for suspecting that the perpetrator might commit a school shooting. In fact, it was possible that it had been only after the interview and the verbal warning that the perpetrator had decided to commit such an act. This hypothesis was supported by the fact that nothing in the extensive evidence adduced in the case suggested that the perpetrator had had an intention to commit such an attack, and that it had been only following his encounter with the Detective Chief Inspector and shortly before the attack that he had uploaded material to the Internet indicating his intention to carry out the attack.\n30.Therefore, the court concluded that, when taking the decision not to seize the weapon, the Detective Chief Inspector had not had any probable cause to suspect that the perpetrator would commit a school shooting. The risk he had taken and the negligence he had committed in deciding not to seize the gun had not been causally relevant to the criminal acts subsequently committed by the perpetrator. The Detective Chief Inspector was thus not, through his negligence, responsible for the homicides.\n31.When assessing the punishment, the court took into account the harm caused to the Detective Chief Inspector by the extremely wide media publicity of the incident, mainly caused by the acts of the perpetrator, and found that this publicity had been disproportionate vis-à-vis the Detective Chief Inspector’s negligence. He was therefore given a warning.\n32.The Court of Appeal also examined the applicants’ compensation claims against the State. Taking into account the conclusions it had reached concerning the criminal charges against the Detective Chief Inspector, the court concluded that, as the negligence attributable to him was not causally related to the criminal acts committed by the perpetrator, that negligence did not engage the liability of the State vis-à-vis the applicants. The court further examined whether the liability of the State was engaged on the grounds of cumulative negligence on the part of the authorities. In this context, the court considered, inter alia, the significance of the applicants’ allegations according to which the perpetrator had already in 2002, together with another pupil, planned to carry out a school shooting in his previous school in another part of the country. The court stated that no evidence had been adduced regarding the timing, circumstances, content or seriousness of the alleged threat, or regarding the authorities’ reaction in respect of the perpetrator. The court concluded that the liability of the State was not engaged on the grounds of negligence on the part of the authorities.\n33.Furthermore, the Court of Appeal examined whether the liability of the State was engaged on the grounds of a violation of Article 2 of the Convention. Having analysed the Court’s case-law in Osman v. the United Kingdom (28 October 1998, Reports of Judgments and Decisions 1998‑VIII) and subsequently in cases such as Mastromatteo v. Italy ([GC], no.37703/97, ECHR 2002‑VIII), Kontrová v. Slovakia (no. 7510/04, 31May 2007) and Güngör v. Turkey (no. 28290/95, 22 March 2005), the court found that the circumstances of the case did not give rise to any liability on the part of the State on this basis.\n34.By a letter dated 13 June 2011, the applicants appealed to the Supreme Court (korkein oikeus, högsta domstolen), reiterating the grounds of appeal already presented before the Court of Appeal.\n35.On 30 March 2012 the Supreme Court refused the applicants leave to appeal.\n36.By a letter dated 1 June 2012 the applicants lodged an extraordinary appeal with the Supreme Court, alleging that one of the Supreme Court justices had been biased as he had been working at the Office of the Prosecutor General (valtakunnansyyttäjänvirasto, riksåklagarämbetet) at the time when the charges had been brought.\n37.On 25 April 2014 the Supreme Court rejected the applicants’ application. It found that it could not be shown that the judge in question had been involved in the matter when charges had been brought. He had not even had any competence to influence the prosecutor’s decision. The sole fact that he had worked at the Office of the Prosecutor General at the time when charges had been brought did not give any reason to doubt his impartiality or independence as a judge. Nor was there any other reason to doubt his impartiality.\n38.In November 2008 the Government appointed an investigation commission to inquire into the Kauhajoki school killing (Kauhajoen koulusurmien tutkintalautakunta, Kommissionen för undersökning av skolmorden i Kauhajoki). On 17 February 2010 the commission issued nine recommendations concerning, inter alia, the availability of firearms, mental-health services for young people, comprehensive security planning in educational institutions, cooperation between authorities in preventing similar incidents, and coordination of psychosocial support. According to the commission, attempts to identify potential criminal intentions in an interview conducted by the police or a doctor had proved unreliable as evidenced by the fact that in school killings the perpetrators had been able to behave inconspicuously when the need arose. A person could not be deemed suitable or unsuitable to possess a firearm on the basis of mental health diagnoses either.", "29": "Allegation: 6,10\n5.The first applicant was born in 1965 and at the material time lived in Novorossiysk, Krasnodar Region. The third applicant was then an NGO operating in Novorossiysk.\n6.At the relevant time, the first and second applicants were the NCHR’s deputy chief officer and chief officer respectively.\n7.On 21 July 2008 the Krasnodar Regional Law on preventive measures against misconduct on the part of minors (“the Minors Protection Act”) was adopted. It provided, inter alia, that parents were required to ensure that their children did not go to public places at night without being accompanied by an adult.\n8.The first and second applicants staged public protests in Novorossiysk against the Minors Protection Act, which, in their opinion, was too restrictive and unconstitutional, particularly because it prevented adolescents from going out in order to get medication for their sick parents. It appears that all their public protests were preceded by notice being given to the local authorities, as required by the applicable legislation on public events.\n9.On 4 April 2009 the first and second applicants staged a static demonstration. A poster stating “Freedom is not granted, it has to be taken”[1] was publicly exhibited during this demonstration.\n10.On 18 April 2009 they staged another static demonstration near the Novorossiyskaya Respublika monument. V. and K., aged fifteen and sixteen, approached the applicants and had a short conversation with them (see also paragraphs 13-17 below). According to the applicants, on that occasion, the above-mentioned poster was not used (see, however, the findings of the domestic court in paragraph 26 below).\n11.On 22 April 2009 V. and K.’s parents lodged complaints with the Novorossiysk prosecutor’s office. In particular, they alleged that the first and second applicants had conducted propagandistic activity (агитационные действия) among minors, including activity on the premises of secondary school no. 22, and that, during the demonstration of 18April 2009, the first applicant had invited V. and K. and their friends to participate in future demonstrations calling for the abolition of the Minors Protection Act (see also paragraphs 15-17 below).\n12.On 27 April 2009 the first and second applicants were summoned to the prosecutor’s office for the purpose of giving statements. They insisted that the NCHR had had nothing to do with their protest actions, including those of 18 April 2009.\n13.The first applicant stated that he and his wife (the second applicant) had not carried out any work with school children in relation to their opposition to the Minors Protection Act and that the protest actions taken by him and his wife as private citizens in relation to that Act between January and April 2009 had been notified to the local authorities in compliance with the Public Events Act. He indicated that during the protest on 18 April 2009 two adolescents had approached him and his wife and, in reply to their questions, he had told them that it was a protest against the Minors Protection Act and had pointed to the poster(s) displayed at the venue of the protest. Thereafter, the adolescents had been called over by a woman standing across the road (possibly the mother of one of them) and they had left.\n14.The second applicant made a similar statement, corroborating the first applicant’s statement.\n15.V., aged fifteen, was interviewed by an assistant prosecutor, and stated that he had heard about a forthcoming demonstration from a friend and had decided “to have a look”. He confirmed that during the demonstration he and his friend K. had approached a woman (the second applicant) and had asked her why she did not like the Minors Protection Act, and upon her suggestion he had taken posters and had taken a photograph. The woman had told him that if the Act were to be repealed, he could walk outside after 10 p.m. without any fear of the police who would not “touch them”. He stated that no one had come to his school or invited him to any demonstrations.\n16.K., aged sixteen, was also interviewed and made a statement in similar terms. He had talked to a man (the first applicant) who had suggested that they should bring their friends along to another demonstration; if the Minors Protection Act were to be repealed the police would not bother the young people who would be able to spend time outside at night. K. had been content with that approach but at the same time had considered that it could lead to disorder. He had disagreed with the poster stating “Freedom is not granted, it has to be taken” because nobody had taken his freedom. In K.’s view, the first applicant’s negative attitude toward the police, together with his actions during the demonstration, had amounted to calls to carry out anti-social activities consisting of disobeying the law and the public authorities. Without the Minors Protection Act, there would be a rise in drug consumption, alcoholism, hooliganism and other crimes.\n17.Subsequently, V. amended his statement to bring it in line with K.’s statement.\n18.On 12 May 2009 the municipal authority lodged a complaint against all three applicants because their activity had allegedly been of a “destructive nature” and asked the prosecutor’s office to take the requisite measures, including dissolving the NCHR.\n19.On 21 May 2009 the prosecutor’s office issued four documents under three legal procedures.\n(a)Two separate written warnings (предостережения) concerning the unacceptability of violating the law were issued, based on section 25.1 of the Prosecutors Act (see paragraph 40 below). Those warnings were addressed to the first and second applicants in their capacity as NCHR officials – they were warned that failure to comply with the terms of the warnings could result in their personal liability for an administrative offence. According to the prosecutor’s office in subsequent proceedings (see paragraph 26 below), the warning to the second applicant was not formally served on her and thus did not entail any legal consequences for her.\n(b)A caution (предупреждение) indicating the unacceptability of extremist activities was issued to the NGO, based on section 7 of the Suppression of Extremism Act (see paragraph 38 below). That document was addressed to the second applicant as the NCHR’s chief officer and it indicated that if within twelve months of the caution new facts came to light indicating possible extremist activity, the NCHR could be dissolved by a court order; and\n(c)An order (представление) seemingly requiring the third applicant to remedy violations of the legislation to counteract extremist activities (see paragraph 41 below) was issued. It pointed out that extremist activities on the part of an NGO could entail its dissolution. The order required the second and third applicants to “take measures in order to remedy the violations of the law and to remove the reasons and grounds for such violations” and to report back to the prosecutor’s office within a month confirming the measures taken (see also paragraphs 31-32 below).\nIn all the above-mentioned documents the prosecutor indicated, in nearly identical terms, that the first and second applicants’ calls for minors to attend protest actions against the Minors Protection Act amounted to calls to carry out anti-social actions consisting of disobedience to the law and the public authorities and that such conduct might, in future, entail extremist actions consisting of obstructing the work of the public authorities in Novorossiysk.\n20.The warnings issued to the first and second applicants read as follows:\n“The parents of minors V. and K. complained to the town prosecutor’s office of [the first and second applicants’] propagandistic actions calling for participation in protests against the Minors Protection Act and of their calls for persons to carry out anti-social activities.\nSpecifically, it follows from the complaints that [the first/second applicant] carried out propagandistic actions among school pupils, inviting them to take part in protests against the Minors Protection Act. Minors V. and K. were interviewed by the prosecutor in the presence of their parents and a school official and stated that on 18April 2009 [the first and second applicants] had invited them to bring their friends along to similar protests seeking to obtain the revocation of the Act.\nThe minors stated that they had perceived [the first/second applicant’s] actions as calls to carry out anti-social actions consisting of disobeying the law and the public authorities.\nThus, it should be concluded that [the first/second applicant’s] conduct may in future entail extremist activities aimed at obstructing the lawful activity of the State authorities in Novorossiysk.\nSection 9 of the Suppression of Extremism Act prohibits the creation and functioning of non-governmental organisations aimed at carrying out extremist activities ... Where such activities or actions entail violations of individual rights or freedoms, damage to a person, his or her life or limb, the social order, public safety ... or create a real threat of such damage, the organisation may be dissolved ... Thus, as a preventive measure, under sections 22(2) and 25.1 of the Prosecutors Act, I warn [the first/second applicant] that it is not acceptable to violate the anti-extremist legislation. I inform [the first/second applicant that his/her] failure to comply with the present requirement (требование) may entail [his/her] liability for an administrative offence.”\n21.The order read as follows:\n“The parents of minors V. and K. complained to the town prosecutor’s office of [the first and second applicants’] propagandistic actions calling for participation in protests against the Minors Protection Act and of their calls for persons to carry out anti-social activities. The investigation disclosed violations of the Suppression of Extremism Act.\nSpecifically, it follows from the complaints that [the second applicant] carried out propagandistic actions among school pupils, inviting them to take part in protests against the Minors Protection Act. Minors V. and K. were interviewed by the prosecutor in the presence of their parents and a school official and stated that on 18April 2009 [the first and second applicants] had invited them to bring their friends along to similar protests seeking to obtain the revocation of the Act. Moreover, K. and V. stated that they had perceived [the first and second applicants’] actions as calls to carry out anti-social actions consisting of disobeying the law and authorities.\nThus, it is possible to conclude that such conduct may in future entail extremist actions aimed at obstructing the lawful activities of the public authorities in Novorossiysk.\nSection 9 of the Suppression of Extremism Act prohibits organisations from aiming to commit extremist activities or acting in such a manner. Where such activities or actions entail violations of individual rights or freedoms, damage to a person, his or her life or limb, the social order, public safety ... or create a real threat of such damage, the organisation may be dissolved ... Thus, under section 24 of the Prosecutors Act, I invite you to consider this order and to take effective actions to remedy the violation of the law that we have identified, the related reasons and grounds for it, to conduct enquiries into the persons concerned and decide whether they should be subjected to disciplinary penalties, and to report back to the prosecutor’s office within a month.”\n22.On 29 May and 5 June 2009, after the warnings, the caution and the order had been issued, the poster “Freedom is not given, it has to be taken” was examined, apparently at the request of the prosecutor’s office, by:\n(i) a holder of a PhD degree in philosophy, Mr R., who concluded that the poster was of an extremist nature;\n(ii) the head of the municipal medical and social centre, Ms G., who stated in her findings that the poster contained a provocative statement that could be perceived by minors as a call for active resistance against the authorities.\n23.On 3 June 2009 the first applicant requested permission from the prosecutor’s office to examine the investigation file which formed the basis for issuing him with the written warning. On 15 June 2009 that request was refused.\n24.In June 2009 the second applicant lodged a complaint with the Oktyabrskiy District Court of Novorossiysk, contesting the warning issued to her, as well as the caution and the prosecutor’s order which had been addressed to her as the chief officer of the NCHR, all of which were dated 21 May 2009.\n25.It is apparent from the written record of the trial that at the last hearing on 24June 2009 the prosecutor adduced in evidence the reports issued by Ms G. and Mr R.\n26.In a judgment delivered on 24 June 2009, the District Court dismissed the complaint. The court found the warning, the caution and the order well-founded and endorsed the conclusions of the expert reports by Ms G. and Mr R. In particular, the court confirmed that the poster “Freedom is not given, it has to be taken” was of an extremist nature, noting that it contained a provocative statement which “could be perceived by adolescents as an appeal to exercise active resistance against the authorities and statutes”. The court held as follows:\n“The Suppression of Extremism Act sets out the legal basis for organising the fight against extremist activities and provides for liability for that type of activity, with the aim of protecting human rights and freedoms and the foundations of the constitutional regime, and for the purpose of ensuring national integrity and security. Measures aimed at preventing (предупреждение) extremist activity form part of the main principles of this fight ... ‘Extremist activity’ [under the Act] includes the obstruction of the lawful activities of State authorities ... combined with violence or threats of violence ... The poster used by [the first and second applicants] during the demonstration was described by the experts [Ms G. and Mr R.] as contributing to opposition to the activities of State authorities ... ‘A human being has inherent inalienable rights of natural law such as freedom of thought, freedom to express his opinion, freedom to live and so on. Thus, one cannot wait for such rights to be granted “from above”; they need to be taken by force ...’ ... The call to ‘take’ freedom from outside the framework of the statutory rules is interpreted as a call by the organisers of the demonstration to engage in active opposition to the existing legislation, namely the ‘Minors Protection Act’ ...\nThe prosecutor’s office considered that [the first and second applicants] had carried out campaigning (propagandistic) activities calling on pupils to take part in action against the ‘Minors Protection Act’ ... and that [the first and second applicants] had issued calls to carry out anti-social activities ... The specialists concluded that the poster and the [first and second applicants’] actions could be perceived by adolescents as incitement to engage in active opposition to the State authorities ... A call to ‘take’ freedom means prioritising human rights over the State’s interests. Thus, the slogan ‘Freedom is not granted, it has to be taken’ is of an extremist nature ...”\n27.The second applicant lodged an appeal with the Krasnodar Regional Court. She argued as follows.\n(a)The adolescents could not have seen the poster referred to because no such poster had been used during the demonstration in question, as confirmed by the electronically date-stamped photographic evidence in the case file, and in any event the experts and the court had reached contradictory conclusions regarding the utterances made and the details of who had been holding the poster at the material time – whether it was the second applicant or the first applicant (who, in any event, was not a party to the case before the domestic courts at that time).\n(b)The court had not assessed the argument and the supporting evidence suggesting that during the demonstration the second applicant had acted as a private person and not as an official of the NGO.\n(c)The report by Ms G. was a specialist report obtained by the prosecutor’s office rather than an expert report commissioned by the court, meaning that the second applicant had not been afforded an opportunity to suggest which expert institution to consult or what questions should be raised before the chosen expert. It had not been adduced as evidence during the trial and had therefore not been examined in adversarial proceedings that would have offered the opportunity to comment or to interview Ms G. Further, the Code of the Civil Procedure did not allow for evidence such as a specialist’s report. Despite those factors, the court had used that report to justify its judgment.\n28.On 3 September 2009 the Regional Court upheld the judgment of 24June 2009, although it removed a reference to the first applicant from that judgment.\n29.The first applicant sought a supervisory review of the court decisions of 24 June and 3 September 2009. His application was rejected as inadmissible.\n30.In the meantime, on 23 July 2009 the first applicant complained to the Primorskiy District Court of Novorossiysk about the warning issued to him on 21 May 2009. On 14August 2009 the District Court issued a decision discontinuing the proceedings because the same subject-matter had already been determined by the judgment of 24June 2009 by the Oktyabrskiy District Court (see paragraph 26 above). On 17November 2009 the Regional Court upheld that procedural decision.\n31.In order to comply with the requirements of the order of 21May 2009, on 3 August 2009 the second applicant – representing the NCHR – requested that the prosecutor’s office clarify its requirements because the documents had not explained how exactly the applicants’ alleged actions had breached the law. The second applicant also argued that the prosecutor’s office had failed to refer to the relevant law in its warnings.On 20 August 2009 the prosecutor’s office issued a clarification of the order of 21 May 2009, indicating that it might be appropriate to subject the first and second applicants to disciplinary sanctions.On 14 September 2009 the second applicant, representing the NCHR, replied to the prosecutor’s office, explaining that measures had been undertaken by the NCHR in order to comply with the prosecutor’s order. Namely, the second applicant had resigned from her position as the NCHR’s chief officer.\n32.On 15 June 2009 – and thus after the prosecutor had issued the warnings of 21May 2009 to the applicants – the headmaster of school no.22 complained to the prosecutor’s office of another instance of propagandistic activity and incitement to anti-social activity on the part of the first and second applicants (in their capacity as NCHR’s officials) which had allegedly been carried out on the school’s premises on 25 and 26May 2009. On 7 August and 7 September 2009 the prosecutor’s office sought the dissolution of the NCHR because the first and second applicants had “repeatedly engaged in unlawful activity” after the warnings issued on 21May 2009. Subsequently, the prosecutor’s office asked the court to discontinue the proceedings seeking the dissolution of the NCHR because the procedure for submitting such a request had not been complied with. The court agreed to that request and discontinued the proceedings.", "30": "Allegation: 6,10\n5.The first applicant was born in 1965 and at the material time lived in Novorossiysk, Krasnodar Region. The third applicant was then an NGO operating in Novorossiysk.\n6.At the relevant time, the first and second applicants were the NCHR’s deputy chief officer and chief officer respectively.\n7.On 21 July 2008 the Krasnodar Regional Law on preventive measures against misconduct on the part of minors (“the Minors Protection Act”) was adopted. It provided, inter alia, that parents were required to ensure that their children did not go to public places at night without being accompanied by an adult.\n8.The first and second applicants staged public protests in Novorossiysk against the Minors Protection Act, which, in their opinion, was too restrictive and unconstitutional, particularly because it prevented adolescents from going out in order to get medication for their sick parents. It appears that all their public protests were preceded by notice being given to the local authorities, as required by the applicable legislation on public events.\n9.On 4 April 2009 the first and second applicants staged a static demonstration. A poster stating “Freedom is not granted, it has to be taken”[1] was publicly exhibited during this demonstration.\n10.On 18 April 2009 they staged another static demonstration near the Novorossiyskaya Respublika monument. V. and K., aged fifteen and sixteen, approached the applicants and had a short conversation with them (see also paragraphs 13-17 below). According to the applicants, on that occasion, the above-mentioned poster was not used (see, however, the findings of the domestic court in paragraph 26 below).\n11.On 22 April 2009 V. and K.’s parents lodged complaints with the Novorossiysk prosecutor’s office. In particular, they alleged that the first and second applicants had conducted propagandistic activity (агитационные действия) among minors, including activity on the premises of secondary school no. 22, and that, during the demonstration of 18April 2009, the first applicant had invited V. and K. and their friends to participate in future demonstrations calling for the abolition of the Minors Protection Act (see also paragraphs 15-17 below).\n12.On 27 April 2009 the first and second applicants were summoned to the prosecutor’s office for the purpose of giving statements. They insisted that the NCHR had had nothing to do with their protest actions, including those of 18 April 2009.\n13.The first applicant stated that he and his wife (the second applicant) had not carried out any work with school children in relation to their opposition to the Minors Protection Act and that the protest actions taken by him and his wife as private citizens in relation to that Act between January and April 2009 had been notified to the local authorities in compliance with the Public Events Act. He indicated that during the protest on 18 April 2009 two adolescents had approached him and his wife and, in reply to their questions, he had told them that it was a protest against the Minors Protection Act and had pointed to the poster(s) displayed at the venue of the protest. Thereafter, the adolescents had been called over by a woman standing across the road (possibly the mother of one of them) and they had left.\n14.The second applicant made a similar statement, corroborating the first applicant’s statement.\n15.V., aged fifteen, was interviewed by an assistant prosecutor, and stated that he had heard about a forthcoming demonstration from a friend and had decided “to have a look”. He confirmed that during the demonstration he and his friend K. had approached a woman (the second applicant) and had asked her why she did not like the Minors Protection Act, and upon her suggestion he had taken posters and had taken a photograph. The woman had told him that if the Act were to be repealed, he could walk outside after 10 p.m. without any fear of the police who would not “touch them”. He stated that no one had come to his school or invited him to any demonstrations.\n16.K., aged sixteen, was also interviewed and made a statement in similar terms. He had talked to a man (the first applicant) who had suggested that they should bring their friends along to another demonstration; if the Minors Protection Act were to be repealed the police would not bother the young people who would be able to spend time outside at night. K. had been content with that approach but at the same time had considered that it could lead to disorder. He had disagreed with the poster stating “Freedom is not granted, it has to be taken” because nobody had taken his freedom. In K.’s view, the first applicant’s negative attitude toward the police, together with his actions during the demonstration, had amounted to calls to carry out anti-social activities consisting of disobeying the law and the public authorities. Without the Minors Protection Act, there would be a rise in drug consumption, alcoholism, hooliganism and other crimes.\n17.Subsequently, V. amended his statement to bring it in line with K.’s statement.\n18.On 12 May 2009 the municipal authority lodged a complaint against all three applicants because their activity had allegedly been of a “destructive nature” and asked the prosecutor’s office to take the requisite measures, including dissolving the NCHR.\n19.On 21 May 2009 the prosecutor’s office issued four documents under three legal procedures.\n(a)Two separate written warnings (предостережения) concerning the unacceptability of violating the law were issued, based on section 25.1 of the Prosecutors Act (see paragraph 40 below). Those warnings were addressed to the first and second applicants in their capacity as NCHR officials – they were warned that failure to comply with the terms of the warnings could result in their personal liability for an administrative offence. According to the prosecutor’s office in subsequent proceedings (see paragraph 26 below), the warning to the second applicant was not formally served on her and thus did not entail any legal consequences for her.\n(b)A caution (предупреждение) indicating the unacceptability of extremist activities was issued to the NGO, based on section 7 of the Suppression of Extremism Act (see paragraph 38 below). That document was addressed to the second applicant as the NCHR’s chief officer and it indicated that if within twelve months of the caution new facts came to light indicating possible extremist activity, the NCHR could be dissolved by a court order; and\n(c)An order (представление) seemingly requiring the third applicant to remedy violations of the legislation to counteract extremist activities (see paragraph 41 below) was issued. It pointed out that extremist activities on the part of an NGO could entail its dissolution. The order required the second and third applicants to “take measures in order to remedy the violations of the law and to remove the reasons and grounds for such violations” and to report back to the prosecutor’s office within a month confirming the measures taken (see also paragraphs 31-32 below).\nIn all the above-mentioned documents the prosecutor indicated, in nearly identical terms, that the first and second applicants’ calls for minors to attend protest actions against the Minors Protection Act amounted to calls to carry out anti-social actions consisting of disobedience to the law and the public authorities and that such conduct might, in future, entail extremist actions consisting of obstructing the work of the public authorities in Novorossiysk.\n20.The warnings issued to the first and second applicants read as follows:\n“The parents of minors V. and K. complained to the town prosecutor’s office of [the first and second applicants’] propagandistic actions calling for participation in protests against the Minors Protection Act and of their calls for persons to carry out anti-social activities.\nSpecifically, it follows from the complaints that [the first/second applicant] carried out propagandistic actions among school pupils, inviting them to take part in protests against the Minors Protection Act. Minors V. and K. were interviewed by the prosecutor in the presence of their parents and a school official and stated that on 18April 2009 [the first and second applicants] had invited them to bring their friends along to similar protests seeking to obtain the revocation of the Act.\nThe minors stated that they had perceived [the first/second applicant’s] actions as calls to carry out anti-social actions consisting of disobeying the law and the public authorities.\nThus, it should be concluded that [the first/second applicant’s] conduct may in future entail extremist activities aimed at obstructing the lawful activity of the State authorities in Novorossiysk.\nSection 9 of the Suppression of Extremism Act prohibits the creation and functioning of non-governmental organisations aimed at carrying out extremist activities ... Where such activities or actions entail violations of individual rights or freedoms, damage to a person, his or her life or limb, the social order, public safety ... or create a real threat of such damage, the organisation may be dissolved ... Thus, as a preventive measure, under sections 22(2) and 25.1 of the Prosecutors Act, I warn [the first/second applicant] that it is not acceptable to violate the anti-extremist legislation. I inform [the first/second applicant that his/her] failure to comply with the present requirement (требование) may entail [his/her] liability for an administrative offence.”\n21.The order read as follows:\n“The parents of minors V. and K. complained to the town prosecutor’s office of [the first and second applicants’] propagandistic actions calling for participation in protests against the Minors Protection Act and of their calls for persons to carry out anti-social activities. The investigation disclosed violations of the Suppression of Extremism Act.\nSpecifically, it follows from the complaints that [the second applicant] carried out propagandistic actions among school pupils, inviting them to take part in protests against the Minors Protection Act. Minors V. and K. were interviewed by the prosecutor in the presence of their parents and a school official and stated that on 18April 2009 [the first and second applicants] had invited them to bring their friends along to similar protests seeking to obtain the revocation of the Act. Moreover, K. and V. stated that they had perceived [the first and second applicants’] actions as calls to carry out anti-social actions consisting of disobeying the law and authorities.\nThus, it is possible to conclude that such conduct may in future entail extremist actions aimed at obstructing the lawful activities of the public authorities in Novorossiysk.\nSection 9 of the Suppression of Extremism Act prohibits organisations from aiming to commit extremist activities or acting in such a manner. Where such activities or actions entail violations of individual rights or freedoms, damage to a person, his or her life or limb, the social order, public safety ... or create a real threat of such damage, the organisation may be dissolved ... Thus, under section 24 of the Prosecutors Act, I invite you to consider this order and to take effective actions to remedy the violation of the law that we have identified, the related reasons and grounds for it, to conduct enquiries into the persons concerned and decide whether they should be subjected to disciplinary penalties, and to report back to the prosecutor’s office within a month.”\n22.On 29 May and 5 June 2009, after the warnings, the caution and the order had been issued, the poster “Freedom is not given, it has to be taken” was examined, apparently at the request of the prosecutor’s office, by:\n(i) a holder of a PhD degree in philosophy, Mr R., who concluded that the poster was of an extremist nature;\n(ii) the head of the municipal medical and social centre, Ms G., who stated in her findings that the poster contained a provocative statement that could be perceived by minors as a call for active resistance against the authorities.\n23.On 3 June 2009 the first applicant requested permission from the prosecutor’s office to examine the investigation file which formed the basis for issuing him with the written warning. On 15 June 2009 that request was refused.\n24.In June 2009 the second applicant lodged a complaint with the Oktyabrskiy District Court of Novorossiysk, contesting the warning issued to her, as well as the caution and the prosecutor’s order which had been addressed to her as the chief officer of the NCHR, all of which were dated 21 May 2009.\n25.It is apparent from the written record of the trial that at the last hearing on 24June 2009 the prosecutor adduced in evidence the reports issued by Ms G. and Mr R.\n26.In a judgment delivered on 24 June 2009, the District Court dismissed the complaint. The court found the warning, the caution and the order well-founded and endorsed the conclusions of the expert reports by Ms G. and Mr R. In particular, the court confirmed that the poster “Freedom is not given, it has to be taken” was of an extremist nature, noting that it contained a provocative statement which “could be perceived by adolescents as an appeal to exercise active resistance against the authorities and statutes”. The court held as follows:\n“The Suppression of Extremism Act sets out the legal basis for organising the fight against extremist activities and provides for liability for that type of activity, with the aim of protecting human rights and freedoms and the foundations of the constitutional regime, and for the purpose of ensuring national integrity and security. Measures aimed at preventing (предупреждение) extremist activity form part of the main principles of this fight ... ‘Extremist activity’ [under the Act] includes the obstruction of the lawful activities of State authorities ... combined with violence or threats of violence ... The poster used by [the first and second applicants] during the demonstration was described by the experts [Ms G. and Mr R.] as contributing to opposition to the activities of State authorities ... ‘A human being has inherent inalienable rights of natural law such as freedom of thought, freedom to express his opinion, freedom to live and so on. Thus, one cannot wait for such rights to be granted “from above”; they need to be taken by force ...’ ... The call to ‘take’ freedom from outside the framework of the statutory rules is interpreted as a call by the organisers of the demonstration to engage in active opposition to the existing legislation, namely the ‘Minors Protection Act’ ...\nThe prosecutor’s office considered that [the first and second applicants] had carried out campaigning (propagandistic) activities calling on pupils to take part in action against the ‘Minors Protection Act’ ... and that [the first and second applicants] had issued calls to carry out anti-social activities ... The specialists concluded that the poster and the [first and second applicants’] actions could be perceived by adolescents as incitement to engage in active opposition to the State authorities ... A call to ‘take’ freedom means prioritising human rights over the State’s interests. Thus, the slogan ‘Freedom is not granted, it has to be taken’ is of an extremist nature ...”\n27.The second applicant lodged an appeal with the Krasnodar Regional Court. She argued as follows.\n(a)The adolescents could not have seen the poster referred to because no such poster had been used during the demonstration in question, as confirmed by the electronically date-stamped photographic evidence in the case file, and in any event the experts and the court had reached contradictory conclusions regarding the utterances made and the details of who had been holding the poster at the material time – whether it was the second applicant or the first applicant (who, in any event, was not a party to the case before the domestic courts at that time).\n(b)The court had not assessed the argument and the supporting evidence suggesting that during the demonstration the second applicant had acted as a private person and not as an official of the NGO.\n(c)The report by Ms G. was a specialist report obtained by the prosecutor’s office rather than an expert report commissioned by the court, meaning that the second applicant had not been afforded an opportunity to suggest which expert institution to consult or what questions should be raised before the chosen expert. It had not been adduced as evidence during the trial and had therefore not been examined in adversarial proceedings that would have offered the opportunity to comment or to interview Ms G. Further, the Code of the Civil Procedure did not allow for evidence such as a specialist’s report. Despite those factors, the court had used that report to justify its judgment.\n28.On 3 September 2009 the Regional Court upheld the judgment of 24June 2009, although it removed a reference to the first applicant from that judgment.\n29.The first applicant sought a supervisory review of the court decisions of 24 June and 3 September 2009. His application was rejected as inadmissible.\n30.In the meantime, on 23 July 2009 the first applicant complained to the Primorskiy District Court of Novorossiysk about the warning issued to him on 21 May 2009. On 14August 2009 the District Court issued a decision discontinuing the proceedings because the same subject-matter had already been determined by the judgment of 24June 2009 by the Oktyabrskiy District Court (see paragraph 26 above). On 17November 2009 the Regional Court upheld that procedural decision.\n31.In order to comply with the requirements of the order of 21May 2009, on 3 August 2009 the second applicant – representing the NCHR – requested that the prosecutor’s office clarify its requirements because the documents had not explained how exactly the applicants’ alleged actions had breached the law. The second applicant also argued that the prosecutor’s office had failed to refer to the relevant law in its warnings.On 20 August 2009 the prosecutor’s office issued a clarification of the order of 21 May 2009, indicating that it might be appropriate to subject the first and second applicants to disciplinary sanctions.On 14 September 2009 the second applicant, representing the NCHR, replied to the prosecutor’s office, explaining that measures had been undertaken by the NCHR in order to comply with the prosecutor’s order. Namely, the second applicant had resigned from her position as the NCHR’s chief officer.\n32.On 15 June 2009 – and thus after the prosecutor had issued the warnings of 21May 2009 to the applicants – the headmaster of school no.22 complained to the prosecutor’s office of another instance of propagandistic activity and incitement to anti-social activity on the part of the first and second applicants (in their capacity as NCHR’s officials) which had allegedly been carried out on the school’s premises on 25 and 26May 2009. On 7 August and 7 September 2009 the prosecutor’s office sought the dissolution of the NCHR because the first and second applicants had “repeatedly engaged in unlawful activity” after the warnings issued on 21May 2009. Subsequently, the prosecutor’s office asked the court to discontinue the proceedings seeking the dissolution of the NCHR because the procedure for submitting such a request had not been complied with. The court agreed to that request and discontinued the proceedings.", "31": "Allegation: 9\n2.The applicants’ dates of birth appear in the annexed table. The applicants, who live in the settlement of Gribanovskiy in the Voronezh Region, were represented by Ms O. Gnezdilova, a lawyer practising in Voronezh.\n3.The Government were represented by MrG.Matyushkin, Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.\n4.The facts of the case, as submitted by the parties, may be summarised as follows.\n5.The first and second applicants are spouses. They are the parents of the third applicant. The second applicant is a priest (cвященник) of the Church of the Community of Christ.\n6.In 2007, having reached the age of seven, the third applicant was enrolled in municipal school no. 3 of the settlement of Gribanovskiy (“the school”). The first applicant informed Ms S., the teacher in charge of the new intake (“the teacher”), that her son was being raised according to the teachings of the Church of the Community of Christ and not of the Russian Orthodox Church.\n7.On Saturday 1 September 2007 the applicants attended a “first day of school” ceremony held at the school for the new intake of pupils. No regular classes were scheduled on that day.\n8.After the ceremony, most of the parents of the third applicant’s classmates stayed for a parent-teacher meeting with Ms S. The first and second applicants had to leave early to tend to their younger children and thus missed the meeting.\n9.The participants in the parent-teacher meeting decided to invite FrM., a priest of the Russian Orthodox Church and the father of one of the new pupils, to perform the rite of blessing (освящение) of the classroom. No attempts were made afterwards to notify parents who had been absent from the meeting of the decision.\n10.On the morning of Monday 3 September 2007, the day on which regular schooling was due to begin, the second applicant accompanied the third applicant to the school. Having greeted Ms S., he left at 7.50 a.m.\n11.At 8.15 a.m. Fr M. began the rite of blessing in the presence of MsS., the third applicant and eighteen other pupils, and the parents of some pupils. The teacher told Fr M. that one of the children was of a different faith, without disclosing the child’s identity. Fr M. replied that there was no problem and that the boy could just be present during the rite.\n12.Fr M., who was wearing a cassock, distributed small paper icons among the children and sang prayers in Church Slavonic. Candles were lit; Fr M. used a censer to burn incense and sprinkled the classroom with holy water. Certain children and adults made the sign of the cross as per the Russian Orthodox tradition. Fr M. then invited the children to kiss a crucifix; they did so in turns.\n13.The rite of blessing lasted for some fifteen to twenty minutes. During the rite the third applicant picked up a small paper icon which the priest had put on his desk, but neither kissed the crucifix nor made the sign of the cross.\n14.In the applicants’ submission, the third applicant felt very uncomfortable during the rite because other children were putting pressure on him to kiss the crucifix and laughed at him for not knowing how to make the sign of the cross as per the Russian Orthodox tradition. The applicants alleged that some classmates had beaten him up later in the day for his failure to make the sign of the cross “like everyone else”. According to the second applicant, when he came to pick up his son after classes at 9.45 a.m., he found the boy hiding under a staircase and crying. According to the first applicant, the third applicant told him that the rite of blessing of the classroom had caused him profound distress.\n15.On 3 September 2007 the second applicant complained of the incident to the prosecutor’s office of the Voronezh Region (“the prosecutor’s office”), requesting that a criminal investigation be opened into the alleged beating of the third applicant by his classmates.\n16.On 4 September 2007 the first applicant complained to the school administration that her son had been beaten up by his classmates. The third applicant was transferred to another class and allowed a week off school. On the same day the first applicant lodged a complaint against the school administration with the local department of education.\n17.On 12 September 2007 the prosecutor’s office issued a decision (представление) finding that the performance of a religious rite without the consent of all the parents had violated the international, constitutional, federal and regional norms and rules, which guarantee the secular character of state educational programmes, religious freedom and the right of parents to raise their children in accordance with their convictions. It further found that the violation had been facilitated by the teacher in the absence of appropriate supervision from the school administration, and ordered that disciplinary proceedings be instituted against the teacher.\n18.The prosecutor’s office repeatedly dismissed requests by the second applicant for criminal proceedings to be instituted with regard to the beating of the third applicant.\n19.On 14 September 2007 the local department of education officially reprimanded the principal of the school for breaching a pupil’s constitutional right to freedom of religion.\n20.On 31 October 2007 the applicants lodged a statement of claims with the Gribanovskiy District Court of the Voronezh Region (“the District Court”), seeking compensation in respect of non‑pecuniary damage from the school.\n21.On 26 December 2007 the District Court suspended the proceedings pending the examination of a concurrent civil dispute. The applicants appealed against the ruling.\n22.On 14 February 2008 the Voronezh Regional Court (“the Regional Court”) overturned the ruling of 26 December 2007, noting that there were no concurrent civil proceedings pending, but rather a criminal inquiry into the facts following publication of the media account of the events.\n23.On 4 December 2008 the District Court, having heard all of the three applicants, the representative of the municipal education authorities, the school representative, the teacher Ms S., the priest Fr M. and other witnesses, and having examined the documentary evidence, dismissed the applicants’ claims in full. It pointed out that the rite of blessing had taken place outside of school hours, that it had been the pupils’ parents who had volunteered to organise it, and that the allegations concerning the beating of the third applicant had not been substantiated. The District Court reasoned, in particular, as follows:\n“...\nAt the claimants’ request the minor D. Perov [the third applicant] was interviewed during the hearing ... [He stated that on the first day of school] he had been greeted by the teacher. In the classroom the boys and girls were behind their desks. A priest in a robe was present. The priest was saying something, but he did not remember specific words. Then the priest lit the incense burner, attached small icons, approached [the children] and put the small icons on the desks. [The third applicant] picked up that icon and put it in his schoolbag. Then the priest invited everyone to kiss the crucifix. All those who wanted to went to kiss it, but he did not. The priest was putting small icons on the desks. [The third applicant] picked his up because he wanted to read it ... When the priest [used the incense burner] he felt uncomfortable. The priest seemed to be a kind person ... During the break the boys had beaten him. He did not know who or why ... Later that day he played with modelling clay at home, did some drawing and played with kids on the street, everything was normal. He did not go to school for a week because his mother told him not to ...\nAs was established at the hearing [the rite indeed took place]. [The rite] was not related to the educational process in the school and was performed on the initiative of the Orthodox parents, it was performed before the classes started and was not [a part of the curriculum]. [Of the school employees] only the teacher had been aware of the rite. The initiative to hold it came not from the teacher but from the parents ... she simply agreed to it. The priest Fr M. had not been invited specially to perform the blessing of the classroom, since he himself was one of the parents of the children in the class and had been present at the parent-teacher meeting at which the decision was made.\nIt was established at the hearing that all the parents had been informed of [the parent-teacher meeting on 1 September 2007] ... but that [the first and second applicants] were absent for unspecified reasons and, naturally, were not informed about the [planned rite]. The specific date for the holding of the rite had not been decided and depended on the availability of Fr M. ... The teacher, who had been aware of [the third applicant’s] faith, informed the priest of the fact without identifying the child. The priest did not enquire about the identity of the child and stated that the boy could just stay present ... There was no coercion or violence against any of the children. The existence of the beatings alleged by the claimants was not proven at the hearing.\nIt was established at the court hearing that [the fact of] holding this rite [of blessing] did not breach [the third applicant]’s rights as a child or [the rights] of his parents. The rite of blessing is of a general nature, and according to the [Russian] Orthodox doctrine is not one of the acts connected to a specific individual such as, for example, baptism, confirmation, communion, and confession. Therefore, objectively [speaking], there could be no violation of rights and freedoms [or] offence or damage to dignity. Moreover, in this case holding the rite of blessing of the classroom in the aforementioned circumstances did not breach the requirements of Article 9 of the European Convention on Human Rights or of Article 55 of the Russian Constitution.\n...\nHolding the rite of blessing of the classroom did not breach the right of [the first applicant] and [the second applicant] as parents to ensure the education and teaching of their children in conformity with their own religious and philosophical beliefs (Article2 of Protocol No. 1 to the European Convention on Human Rights) because the respondent, municipal school no. 3 in Gribanovskiy, did not in any way prevent the claimants from ensuring the education and teaching of their children in conformity with their own religious and philosophical beliefs; the claimants have not provided the court with any evidence [to the contrary].”\n24.On 26 February 2009 the Regional Court dismissed the applicants’ appeal and upheld the District Court’s judgment in full. It reasoned, in particular, as follows:\n“The holding of [the rite] in itself cannot disclose a violation of [the parents’ rights to raise their children in accordance with their convictions or the child’s religious freedom], since there was no coercion for him to take any action.\n[The child, when examined by the court, stated that he had not kissed the crucifix.]\nThere is no evidence of any actions directed against his beliefs during the rite.\nThe holding of the rite was a personal initiative on the part of the priest, who happened to be a parent of [the third applicant’s] classmate, and was approved at the parents’ meeting.\nFailure to notify [the third applicant]’s parents of the forthcoming religious rite was an omission on the part of the class teacher but does not disclose any errors in the adopted [first-instance] judgment, because the claimants have not proved that their right to freedom of religion and that of their child was breached by the mere fact of holding the rite of [Russian] Orthodox blessing of the classroom.\nMoreover, the teacher in question has already been subjected to disciplinary measures for failing to notify the parents of [the third applicant] of the upcoming rite. However, there was nothing stopping the parents of [the third applicant] from being with their child on the first day of the new school year and, if need be, from following their religious conviction by taking him out [of the classroom] for the duration of the [Russian] Orthodox rite of blessing of the classroom.”", "32": "Allegation: 5\n2.The applicant was born in 1982 and lives in Alvesta (Sweden). He was represented by Ms I. Rajtáková, a lawyer practising in Košice.\n3.The Government were represented by their Agent, Ms M. Pirošíková, from the Ministry of Justice.\n4.The facts of the case, as submitted by the parties, may be summarised as follows.\n5.On 12 July 2007 the Zavodskoy District Court of Grozny (Chechen Republic) issued an international arrest warrant against the applicant on account of his criminal prosecution for acts of terrorism that he had allegedly committed in 2004 in Grozny as a member of an armed group and in respect of which, if convicted, he faced a sentence of life imprisonment.\n6.Between 2010 and 2011 the applicant was the subject of extradition proceedings in Ukraine, but fled to Sweden.\n7.On 6 December 2011 he was granted asylum in Sweden on the grounds of his political opinions and granted permanent leave to remain.\n8.On 15 January 2015 at 8.45 p.m., when he was on his way to Ukraine, the applicant was apprehended by the Slovak border police as a person appearing on Interpol’s list of wanted persons; he was then taken to the Vyšné Nemecké border police station. The relevant police report cited section 17b(1) of the Police Corps Act (Law no. 171/1993).\n9.He was arrested the next day (16 January 2015) at 1 a.m. under Article 504 § 2 of the Code of Criminal Procedure (hereinafter “the CCP”), on the basis of the international arrest warrant that had been issued against him on 12 July 2007. The relevant police report noted that the Košice regional prosecutor (hereinafter “the prosecutor”) had authorised the arrest at 1 a.m.\n10.Later the same day the applicant was placed in a police detention cell in Košice; he was assigned a lawyer by the Košice Regional Court (hereinafter “the Regional Court”). At 1 p.m. he was interviewed by the prosecutor and informed of the reasons for his arrest. It was noted on that occasion that Interpol had confirmed that the applicant was still a wanted person (whose arrest and extradition had been requested by Russia), and that the Russian authorities had undertaken to send extradition documents to the Slovak authorities in good time. The applicant denied having committed any crime in Russia, contending that he was being persecuted because of his brother’s activities in Chechnya. In response to his statement that he had been granted asylum in Sweden, the prosecutor indicated that the circumstances leading to the granting of asylum to the applicant were being verified.\n11.On 17 January 2015 the prosecutor lodged an application with the Regional Court for the applicant to be placed in preliminary detention under Article 504 § 3 of the CCP. It stated that, at that stage, the applicant’s refugee status in Sweden, which had been confirmed by Interpol in Stockholm, was not an obstacle to the launching of a preliminary investigation in respect of his possible extradition, given that asylum policy was not standardised throughout the European Union (EU). It was thus necessary, pursuant to the European Convention on Extradition of 1957 and the CCP, to secure the applicant’s presence in Slovakia until it was established whether his extradition to Russia was admissible.\n12.On 19 January 2015 the Regional Court heard the applicant, who reiterated that he had been granted asylum in Sweden. Observing that the process of granting asylum was subject to proceedings that differed from extradition proceedings and that preliminary investigations within extradition proceedings (under Article 502 of the CCP) were to be carried out by the prosecutor, the Regional Court considered that it was necessary to secure the applicant’s presence on Slovak territory until the State requesting extradition had submitted a request for that extradition, as provided by Article 505 § 3 of the CCP. Pursuant to Article 505 § 1 of the CCP, it thus decided to allow the prosecutor’s application and to place the applicant in preliminary detention pending the extradition proceedings, with effect from 15 January 2015 at 8.45 p.m.\n13.The applicant lodged an interlocutory appeal, which he later completed through a new lawyer of his choice. He mainly asserted that in view of the fact that he had been granted asylum in Sweden, Article 501 (b) of the CCP prohibited his extradition to another country. He also submitted that the authorisation of the prosecutor had been needed for his apprehension on 15 January 2015 and that Russia had not requested (as required under Article 16 of the European Convention on Extradition) that he be placed in preliminary detention.\n14.By a letter of 27 January 2015, the prosecutor asked the Swedish authorities to provide more information about the applicant’s status in Sweden.\n15.On 9 February 2015 the Fifth Chamber of the Supreme Court dismissed the applicant’s interlocutory appeal. Referring to the arrest warrant and to the documents relating to the applicant’s ongoing criminal prosecution sent via Interpol by the Russian authorities, it considered that the conditions set by the CCP for the preliminary detention had been met. The fact that the applicant had been granted asylum in Sweden (which was to be further investigated by the prosecutor with regard to the exclusion provision of Article 1F of the 1951 Geneva Convention – see paragraph 22 below) did not prevent such detention. It was indeed impossible at that stage to assess whether the extradition would eventually be admissible or not.\n16.On 19 February 2015 the applicant lodged a constitutional complaint challenging the Supreme Court’s decision. Citing his right not to be deprived of his liberty without a legal basis, he pointed out that the State that had issued the international arrest warrant in respect of him had not requested that he be placed in preliminary detention, and submitted that his refugee status automatically excluded any extradition. He also asserted that several of his procedural rights, as enshrined in Article 6 §§ 1 and 3 (c) of the Convention, had been violated during the proceedings regarding the imposition of his preliminary detention.\n17.After a public hearing held on 26 January 2016, the Constitutional Court issued a judgment on 28 January 2016 (no. II. ÚS 352/2015, served on the applicant’s lawyer on 22 March 2016) in which it held that the applicant’s rights, as guaranteed by Articles 5 and 6 of the Convention, had not been breached. It stated that the initial limitation of the applicant’s liberty had been based on the Police Corps Act and had not required the authorisation of the prosecutor; under Article504 § 2 of the CCP, only after the authorities had verified that the applicant was still the subject of an international search could he be arrested, with the prior authorisation of the prosecutor. His subsequent placement in preliminary detention had been conditional only on the relevant request being lodged by the prosecutor, pursuant to Article 504 § 3 of the CCP; indeed, Article 16 § 1 of the European Convention on Extradition could not be interpreted to mean that such a request had to be lodged by the State requesting extradition. The Constitutional Court furthermore observed that a translation of the decision on the refugee status granted to the applicant by the Swedish authorities had been submitted by the applicant only after the Supreme Court had decided on the matter, and that the conditions regarding the admissibility of his extradition were subject to a preliminary investigation by the prosecutor, the purpose of which could be challenged without placing the applicant in preliminary detention.\n18.On 20 February 2015, the prosecutor lodged an application for the applicant to be placed in detention pending extradition, pursuant to Article505 § 5 and Article506 § 1 of the CCP. He noted that preliminary detention could not last more than forty days, which would elapse on 23February 2015, and that the aim of that detention had been attained, since a request for the applicant’s extradition (containing the necessary assurances concerning the applicant’s treatment and proceedings in respect of him in the event of his extradition) had been lodged by the Russian Prosecutor General’s Office on 17 February 2015. The prosecutor noted that during the subsequent proceedings the circumstances surrounding the recognition in Sweden of the applicant’s refugee status and the impact of those circumstances on the outcome of the preliminary investigation would be duly examined and that reports would be requested from the Slovak Ministry of Foreign Affairs and the Office of the United Nations High Commissioner for Refugees (UNHCR) regarding the security situation in Russia and whether the above-mentioned assurances were likely to be honoured.\n19.On 23 February 2015, the Regional Court allowed the above-mentioned application, pursuant to Article 506 § 1 of the CCP, holding that, while the aim of the preliminary detention had been attained with the service of the extradition request, the aim of the extradition proceedings could not be achieved without placing the applicant in detention pending extradition and thus preventing him from absconding. Noting that the Swedish authorities had not (according to their response to the above-mentioned enquiry lodged by the prosecutor) verified during the asylum proceedings whether the applicant appeared on Interpol’s list of wanted persons, the court indicated that the relevant circumstances and their impact on the preliminary investigation would be duly reviewed.\n20.The applicant lodged an interlocutory appeal in which he contended, citing Directive 2011/95/EU, that Slovakia was bound by the decision of the Swedish authorities to grant him asylum.\n21.On 10 March 2015, the applicant was heard by the prosecutor and informed of the request for his extradition lodged by Russia; he did not consent to his extradition.\n22.On 16 March 2015, the Fifth Chamber of the Supreme Court dismissed the applicant’s interlocutory appeal against the decision of 23February 2015. It noted that the extradition request (accompanied by the necessary documents) had been submitted by Russia on 17 February 2015, and that the purpose of the preliminary detention had thereby been achieved; however, the applicant’s release at that stage would frustrate the completion of the preliminary investigation and, consequently, the aim of the extradition proceedings. Referring to (i) the exclusion provision of Article1F(b) of the 1951 Geneva Convention, which specified that the provisions of that convention should not apply to any person in respect of whom there are serious reasons for considering that he has committed a serious non-political crime outside his country of refuge prior to his admission to that country as a refugee, and (ii) a similar exclusion provision set out in Article 12 § 2 (b) of Directive 2011/95/EU, the Supreme Court considered that the latter provision, although disregarded by Sweden when granting asylum to the applicant, precluded the Slovak Republic from accepting and applying refugee status in his case (together “the exclusion provisions”).\n23.In May 2015 the applicant lodged a constitutional complaint against the Supreme Court’s decision. Relying on Article 5 § 1 and Article 6 § 1 of the Convention, he asserted that the Slovak authorities were bound by the decision of the Swedish authorities to grant him asylum and that there were no grounds to consider that he had committed the acts listed in Article12 §2(b) of Directive 2011/95/EU. Subsequently, the complaint was admitted for examination under no. II. ÚS 53/2016, and a public hearing was held before the Constitutional Court.\n24.On 9 October 2015, the prosecutor asked the Regional Court to allow the applicant’s extradition to Russia. He referred to (i)the fact that the Swedish authorities had not, before granting asylum to the applicant, verified whether the latter’s name appeared in Interpol’s database of wanted persons, (ii)the statement of UNHCR, according to which the protection conferred on the applicant owing to his refugee status was not unconditional and (iii)the assurances made by Russia concerning the applicant’s treatment and proceedings in respect of him in the event of his extradition.\n25.A public hearing held before the Regional Court on 26 January 2016 was adjourned with a view to requesting additional information from the Russian authorities as to the existence of further written evidence that might complement the extradition request. It can be seen from the case file that, in response, the Russian Prosecutor General’s Office stated that the above-mentioned extradition request had been based mainly on the fact that the preliminary investigation had led to the issuance of an international search and arrest warrant; the Russian Prosecutor General’s Office added that Russian law did not require, for an international warrant to be issued, firm evidence giving rise to the suspicion of a crime having been committed.\n26.On 8 September 2016, the Regional Court decided that the applicant’s extradition to Russia was admissible. It noted that refugees did not automatically enjoy immunity from criminal prosecution, as provided by Article 1F of the 1951 Geneva Convention and in Article 12 § 2 (b) of Directive 2011/95/EU. In the instant case, given that the applicant was suspected of having committed a serious non-political crime, the latter provision prevented Slovakia – as concluded by the Supreme Court in its decision of 16 March 2015 – from applying refugee status in his respect. Moreover, Russia, as a Contracting Party to the Convention, had provided concrete and specified guarantees that the applicant would not be subjected to any treatment that was contrary to Article 3 of the Convention.\n27.By a judgment of 13 October 2016, the Constitutional Court dismissed the applicant’s constitutional complaint (no. II. ÚS 53/2016). It observed that a guarantee of non-refoulement was not unconditional, since the relevant exclusion provisions allowed for persons who did not deserve refugee protection to be excluded from such protection, and as such did not constitute an obstacle to the requested State undertaking certain actions in the course of extradition proceedings (including proceedings in respect of detention pending extradition) involving such persons. Consequently, Article 14 § 3 (a) of Directive 2011/95/EU obliged member States to revoke the refugee status of a person if they had established that he or she should have been excluded from being accorded the status of refugee under Article12. The imposition of detention pending extradition was thus a procedural tool allowing the interests at stake to be weighed proportionally. In the instant case there was no reason not to accept at that stage the Supreme Court’s conclusions; the general courts were nevertheless called on, in the subsequent proceedings, to examine and take into account all the relevant circumstances (including the Court’s case-law in respect of Article3 of the Convention) before deciding whether to “revoke” the applicant’s refugee status and whether to extradite him to Russia.\nAccording to the dissenting opinion of one of the judges, the Constitutional Court should have declared that the applicant’s rights had been violated, given that the decision of the Swedish authorities should have been accepted (if need be, after lodging a request with the Court of Justice of the European Union for a preliminary ruling on the acceptance of the Swedish decision), or that, in any event, the risk that the applicant might be subjected to ill-treatment in the event of his extradition to Russia should have been assessed as required by the Court’s case-law, namely M.G. v.Bulgaria (no. 59297/12, 25 March 2014).\n28.After the applicant lodged an interlocutory appeal against the decision of 8 September 2016 (see paragraph 26 above), the Fourth Chamber of the Supreme Court reversed the Regional Court’s decision of 8September 2016 and decided, on 2 November 2016, that the applicant’s extradition to Russia was inadmissible, mainly under Article 501 (b) of the CCP. It gave as the main reason for that decision the fact that, having been granted asylum in Sweden, the applicant enjoyed refugee protection on the territory of all EU member States, despite the fact that the Swedish authorities had not been aware of the criminal charge facing him in Russia. It also concluded that neither the exclusion clause contained in the 1951 Geneva Convention nor the one contained in Directive 2011/95/EU were applicable in the instant case. It further observed, after reviewing all the relevant circumstances (including the general human rights situation in Russia and the reliability of the assurances offered by Russia), that the applicant’s extradition would in any event not be admissible (i)on humanitarian grounds, (ii)owing to a lack of reliable evidence to support the slightest plausibility of the suspicion against him and (iii)in the light of numerous inaccuracies and contradictions contained in the extradition documents. Lastly, the Supreme Court noted that the action serving as the initial impetus for the applicant’s criminal prosecution had to be regarded as “political” and that his political views (together with his brother’s political activities) could give rise to bias on the part of the requesting State’s authorities, within the meaning of Article3 §§1 and 2 of the European Convention on Extradition.\nBy the same decision the Supreme Court ordered the applicant’s release from detention pending extradition, with immediate effect.\n29.On 2 December 2016, the Slovak Minister of Justice decided not to authorise the applicant’s extradition to Russia, pursuant to Article 510 § 1 of the CCP.\n30.Upon the applicant’s release from detention pending extradition on 2November 2016, the border police initiated proceedings aimed at securing his administrative expulsion to Sweden and decided to place him in administrative detention, pursuant to section 88(1)(a) of Law no. 404/2011.\n31.On 4 November 2016 the border police ordered the applicant’s administrative expulsion to Sweden, which took place on 1 December 2016.\n32.The applicant challenged this order, upon which the Supreme Court decided, by a judgment of 22 October 2019, to quash the decision on the applicant’s expulsion to Sweden and to send the matter back to the border police.", "33": "Allegation: 3,8,14\n2.The applicant was born in 1982 and lives in Zagreb. She was represented by Ms A. Bandalo and Ms N. Labavić, lawyers practising in Zagreb.\n3.The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.\n4.The facts of the case, as submitted by the parties, may be summarised as follows.\n5.On 13 January 2010 the applicant was physically attacked in a nightclub in Zagreb where she was with several of her friends. The attack ceased only after one of the applicant’s friends, I.K., used her gas pistol to frighten off the attacker.\n6.At about 6.00 a.m. a local police station of the Zagreb Police Department (Policijska uprava zagrebačka, hereinafter: the “police”) was informed of the incident and two police officers immediately responded at the scene.\n7.The relevant part of the police report on the findings at the scene of the incident reads:\n“When we came at the scene ... we found Pavla Sabalić ..., I.K. ..., I.D. ..., K.F. ..., E.N. ... and A.B. ... [personal details omitted].\nBy interviewing them and observing the scene of the incident we established that the above-mentioned persons had come to [the nightclub] at around 4.00 a.m., where they stayed for about one and a half hours. While they were in the nightclub [the applicant] was approached by an unidentified man who started flirting with her but she was constantly refusing him. After the nightclub closed they were all standing in front of it and the man continued pressing [the applicant] to be with him. When she said that she was a ‘lesbian’ he grabbed her with both of his arms and pushed her against a wall. He then started hitting her all over her body and when she fell to the ground he continued kicking her. ...” \n8.The police soon identified the man as M.M. through the licence plates of a car he had used for fleeing from the scene. He was immediately apprehended and interviewed.\n9.According to a police report of 13 January 2010, M.M. confirmed having met the applicant but then he had learned that she was in the nightclub with her girlfriend. When the nightclub closed he had seen several girls having some dispute with his friend and as he tried to calm them all down he pushed them with his hands. M.M. did not provide any further details, alleging that he could not remember them as he had been drunk at the time of the incident. The police also established that at the time of the incident M.M. had been in the nightclub with his friends, J.V. and A.K.\n10.On the same day, at around 7.00 a.m., the applicant was examined in the accident and emergency department. The examination indicated a contusion on the head, a haematoma on the forehead, abrasions of the face, forehead and area around the lips, neck strain, contusion on the chest and abrasions of both palms and knees. The injuries were qualified as minor bodily injuries.\n11.Following the incident the police interviewed the applicant and M.M. and the other participants in the event in connection with M.M.’s physical attack.\n12.On 14 January 2010 the police instituted minor offences proceedings in the Minor Offences Court (Prekršajni sud u Zagrebu) against M.M. for breach of public peace and order. The relevant part of the indictment reads:\n“On 13 January 2010, at around 5.45 a.m., in Zagreb ..., on the street in front of [the nightclub], according to the statements of the victim Pavla Sabalić ... and the witnesses I.K. ..., E.N. ..., K.F. ..., A.B. ... and I.D. [personal details omitted], the accused physically attacked Pavla Sabalić by grabbing her with his both arms and throwing her against a wall.\nThe accused then started hitting Pavla Sabalić with his fists all over her body and afterwards he knocked her to the ground and continued to kick her. His further actions were constrained by I.K. and then he left the scene by using the car ...\nThe victim Pavla Sabalić sustained visible injuries on her head, which were qualified by a doctor [in the emergency] as minor bodily injuries.\nThereby, a minor offence under section 13 §§ 1 and 2 of the Minor Offences against Public Order and Peace Act was committed.”\n13.At a hearing on 20 April 2010 before the Minor Offences Court, M.M. confessed to the charges against him. No further evidence was taken and the applicant was not informed of the proceedings.\n14.On the same day the Minor Offences Court found M.M. guilty as charged of breach of public peace and order and fined him 300 Croatian kunas (approximately 40 Euros (EUR)).\n15.No appeal was lodged against the judgment and it became final on 15 May 2010.\n16.After having realised that the police had failed to institute a criminal investigation, on 29 December 2010 the applicant lodged a criminal complaint with the Zagreb Municipal State Attorney’s Office (Općinsko državno odvjetništvo u Zagrebu; hereinafter “the State Attorney’s Office”) against M.M. for the offences of attempted grave bodily injury (Article 99 §§ 1 and 4 of the Criminal Code) and violent behaviour (Article 331 § 2 of the Criminal Code), motivated by the hate crime element (Article 89(36) of the Criminal Code), and the criminal offence of discrimination (Article 174 § 1 of the Criminal Code). The relevant part of the applicant’s criminal complaint reads:\n“On 13 January 2010, after he was flirting with Pavla Sabalić and after she had refused him saying that she had a girlfriend, around 5.45 a.m., in Zagreb [in front of the nightclub] [M.M.] physically attacked Pavla Sabalić by grabbing her with both his hands and throwing her against a wall ... and then hit her with his fists all over her body and afterwards he knocked her to the ground and kicked her. At the same time he was shouting: ‘You lesbian!’, ‘All of you should be killed!’, ‘I will f... you lesbian!’ and so on. E.N. attempted to restrain his attack by saying: ‘How can you beat a girl’, after which M.M. attacked E.N. by head-butting her, and then I.K. shot him with her gas pistol which made him cease the attack ...” \n17.On the basis of the applicant’s criminal complaint, the State Attorney’s Office ordered the police to investigate the applicant’s allegations.\n18.An unauthorised note of the applicant’s police interview, dated 14January 2011, indicates that the applicant confirmed her allegations as to the course of the events leading up to her attack, and stressed that she could no longer remember all the details but that she believed that the attack was motivated by her sexual orientation.\n19.In the further course of the police inquiry, the police interviewed the applicant’s friends I.K., I.D. and K.F., who confirmed the applicant’s version of the events. The police also interviewed A.K. and V.J., friends of M.M., who only confirmed that there was some commotion but they did not know any particular details.\n20.On 28 April 2011 the State Attorney’s Office asked an investigating judge of the Zagreb County Court (Županijski sud u Zagrebu; hereinafter “the County Court”) to conduct a further investigation into the applicant’s complaints in connection with a reasonable suspicion that M.M. had committed the offences of attempted grave bodily injury and violent behaviour, motivated by the hate crime element, and the criminal offence of discrimination against the applicant.\n21.During the investigation, the investigating judge commissioned a medical expert report and the report qualified the applicant’s injuries in the forensic sense as minor bodily injuries. The investigating judge further questioned the applicant, who reiterated her version of the events.\n22.The investigating judge also questioned M.M., who denied any deliberate attack on the applicant although he no longer remembered all the details of his discussion with her. During the questioning, M.M.’s defence lawyer informed the investigating judge that M.M. had been convicted by the Minor Offences Court on 20 April 2010 (see paragraphs 14-15 above).\n23.On the basis of the findings of the investigating judge, on 19 July 2011 the State Attorney’s Office rejected the applicant’s criminal complaint on the ground that M.M. had already been prosecuted in the minor offences proceedings and that his criminal prosecution would contravene the ne bis in idem principle. The relevant part of the decision reads:\n“During the investigation the victim Pavla Sabalić was questioned as a witness and she provided a detailed and comprehensive account of the events as described in her criminal complaint against M.M.\n...\nThe description of the offences in the criminal complaint against M.M. lodged by the victim Pavla Sabalić ... shows that these offences have been consumed by the judgment of the Zagreb Minor Offences Court ... of 20 April 2010. By that judgment M.M. was found guilty of the minor offence under section 13 of the Minor Offences against Public Order and Peace Act and the judgment became final. It follows that M.M. has already been found guilty for the event, which has been, as such, adjudicated by the judgment of the Zagreb Minor Offences Court and therefore there is a negative procedural condition, that is to say a procedural impediment, to further criminal proceedings, since the matter is so-called ‘res judicata’.\nComparing the description of the event, and in view of the incriminations contained in the victim’s criminal complaint, with the judgment of the Zagreb Minor Offences Court, by which the defendant has been found guilty in the minor offences proceedings, it is obvious that it concerns the same event and the same acts of M.M. It follows that the facts constituting the minor offence for which the defendant has been found guilty are essentially the same as those which form the incrimination in the victim’s criminal complaint. In these circumstances, the criminal proceedings would be conducted for the same offence, that is to say the same event, for which the defendant has already been finally convicted.\nIn the concrete case the matter has been finally adjudicated, which follows from the interpretation of Article 31 § 2 of the Constitution, providing that ‘nobody can be tried or convicted twice in criminal proceedings for the same criminal offence for which he or she has been finally acquitted or convicted in accordance with the law’, as well as from the provisions of Article 4 of Protocol No. 7 [to the Convention] and Article 11 of the Code of Criminal Procedure which proclaim the ne bis in idem principle.\nIt therefore follows that the matter has been finally adjudicated, which is a negative procedural condition, that is to say a procedural impediment, for further criminal proceedings and as such excludes further criminal prosecution.” \n24.The State Attorney’s Office informed the applicant that she could take over the criminal prosecution as a subsidiary prosecutor by lodging an indictment in the Zagreb Municipal Criminal Court (Općinski kazneni sud u Zagrebu; hereinafter “the Criminal Court”).\n25.On 26 October 2011 the applicant took over the prosecution as a subsidiary prosecutor in the Criminal Court against M.M. on charges of attempted grave bodily injury (Article 99 §§ 1 and 4 of the Criminal Code) and violent behaviour (Article 331 § 2 of the Criminal Code), motivated by the hate crime element (Article 89(36) of the Criminal Code), and the criminal offence of discrimination (Article 174 § 1 of the Criminal Code). She contended that the State Attorney’s Office had misinterpreted the law on the ne bis in idem principle and that, in the concrete case, the matter had not been finally adjudicated. She also relied on the Court’s case-law concerning the authorities’ duty to investigate and effectively prosecute hate crime, arguing that the minor offences proceedings had fallen short of those requirements.\n26.The Criminal Court rejected the applicant’s indictment on 19 July 2012, endorsing the arguments of the State Attorney’s Office.\n27.The decision of the Criminal Court was upheld on appeal by the County Court on 9 October 2012.\n28.On 5 December 2012 the applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske), referring to the Court’s case-law concerning the State’s procedural obligation to investigate acts of violence and hate crime, and complaining of the ineffectiveness of the domestic authorities in addressing her complaints effectively. She also contended that the lower authorities had misinterpreted the relevant law on the application of the ne bis in idem principle and thus erred in their assessment that the matter has been res judicata.\n29.On 31 January 2013 the Constitutional Court declared the applicant’s constitutional complaint inadmissible on the ground that in the impugned decisions the lower courts had not addressed any of the applicant’s rights or obligations.\n30.The decision of the Constitutional Court was served on the applicant’s representative on 22 February 2013.", "34": "Allegation: 3,8,14\n2.The applicant was born in 1982 and lives in Zagreb. She was represented by Ms A. Bandalo and Ms N. Labavić, lawyers practising in Zagreb.\n3.The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.\n4.The facts of the case, as submitted by the parties, may be summarised as follows.\n5.On 13 January 2010 the applicant was physically attacked in a nightclub in Zagreb where she was with several of her friends. The attack ceased only after one of the applicant’s friends, I.K., used her gas pistol to frighten off the attacker.\n6.At about 6.00 a.m. a local police station of the Zagreb Police Department (Policijska uprava zagrebačka, hereinafter: the “police”) was informed of the incident and two police officers immediately responded at the scene.\n7.The relevant part of the police report on the findings at the scene of the incident reads:\n“When we came at the scene ... we found Pavla Sabalić ..., I.K. ..., I.D. ..., K.F. ..., E.N. ... and A.B. ... [personal details omitted].\nBy interviewing them and observing the scene of the incident we established that the above-mentioned persons had come to [the nightclub] at around 4.00 a.m., where they stayed for about one and a half hours. While they were in the nightclub [the applicant] was approached by an unidentified man who started flirting with her but she was constantly refusing him. After the nightclub closed they were all standing in front of it and the man continued pressing [the applicant] to be with him. When she said that she was a ‘lesbian’ he grabbed her with both of his arms and pushed her against a wall. He then started hitting her all over her body and when she fell to the ground he continued kicking her. ...” \n8.The police soon identified the man as M.M. through the licence plates of a car he had used for fleeing from the scene. He was immediately apprehended and interviewed.\n9.According to a police report of 13 January 2010, M.M. confirmed having met the applicant but then he had learned that she was in the nightclub with her girlfriend. When the nightclub closed he had seen several girls having some dispute with his friend and as he tried to calm them all down he pushed them with his hands. M.M. did not provide any further details, alleging that he could not remember them as he had been drunk at the time of the incident. The police also established that at the time of the incident M.M. had been in the nightclub with his friends, J.V. and A.K.\n10.On the same day, at around 7.00 a.m., the applicant was examined in the accident and emergency department. The examination indicated a contusion on the head, a haematoma on the forehead, abrasions of the face, forehead and area around the lips, neck strain, contusion on the chest and abrasions of both palms and knees. The injuries were qualified as minor bodily injuries.\n11.Following the incident the police interviewed the applicant and M.M. and the other participants in the event in connection with M.M.’s physical attack.\n12.On 14 January 2010 the police instituted minor offences proceedings in the Minor Offences Court (Prekršajni sud u Zagrebu) against M.M. for breach of public peace and order. The relevant part of the indictment reads:\n“On 13 January 2010, at around 5.45 a.m., in Zagreb ..., on the street in front of [the nightclub], according to the statements of the victim Pavla Sabalić ... and the witnesses I.K. ..., E.N. ..., K.F. ..., A.B. ... and I.D. [personal details omitted], the accused physically attacked Pavla Sabalić by grabbing her with his both arms and throwing her against a wall.\nThe accused then started hitting Pavla Sabalić with his fists all over her body and afterwards he knocked her to the ground and continued to kick her. His further actions were constrained by I.K. and then he left the scene by using the car ...\nThe victim Pavla Sabalić sustained visible injuries on her head, which were qualified by a doctor [in the emergency] as minor bodily injuries.\nThereby, a minor offence under section 13 §§ 1 and 2 of the Minor Offences against Public Order and Peace Act was committed.”\n13.At a hearing on 20 April 2010 before the Minor Offences Court, M.M. confessed to the charges against him. No further evidence was taken and the applicant was not informed of the proceedings.\n14.On the same day the Minor Offences Court found M.M. guilty as charged of breach of public peace and order and fined him 300 Croatian kunas (approximately 40 Euros (EUR)).\n15.No appeal was lodged against the judgment and it became final on 15 May 2010.\n16.After having realised that the police had failed to institute a criminal investigation, on 29 December 2010 the applicant lodged a criminal complaint with the Zagreb Municipal State Attorney’s Office (Općinsko državno odvjetništvo u Zagrebu; hereinafter “the State Attorney’s Office”) against M.M. for the offences of attempted grave bodily injury (Article 99 §§ 1 and 4 of the Criminal Code) and violent behaviour (Article 331 § 2 of the Criminal Code), motivated by the hate crime element (Article 89(36) of the Criminal Code), and the criminal offence of discrimination (Article 174 § 1 of the Criminal Code). The relevant part of the applicant’s criminal complaint reads:\n“On 13 January 2010, after he was flirting with Pavla Sabalić and after she had refused him saying that she had a girlfriend, around 5.45 a.m., in Zagreb [in front of the nightclub] [M.M.] physically attacked Pavla Sabalić by grabbing her with both his hands and throwing her against a wall ... and then hit her with his fists all over her body and afterwards he knocked her to the ground and kicked her. At the same time he was shouting: ‘You lesbian!’, ‘All of you should be killed!’, ‘I will f... you lesbian!’ and so on. E.N. attempted to restrain his attack by saying: ‘How can you beat a girl’, after which M.M. attacked E.N. by head-butting her, and then I.K. shot him with her gas pistol which made him cease the attack ...” \n17.On the basis of the applicant’s criminal complaint, the State Attorney’s Office ordered the police to investigate the applicant’s allegations.\n18.An unauthorised note of the applicant’s police interview, dated 14January 2011, indicates that the applicant confirmed her allegations as to the course of the events leading up to her attack, and stressed that she could no longer remember all the details but that she believed that the attack was motivated by her sexual orientation.\n19.In the further course of the police inquiry, the police interviewed the applicant’s friends I.K., I.D. and K.F., who confirmed the applicant’s version of the events. The police also interviewed A.K. and V.J., friends of M.M., who only confirmed that there was some commotion but they did not know any particular details.\n20.On 28 April 2011 the State Attorney’s Office asked an investigating judge of the Zagreb County Court (Županijski sud u Zagrebu; hereinafter “the County Court”) to conduct a further investigation into the applicant’s complaints in connection with a reasonable suspicion that M.M. had committed the offences of attempted grave bodily injury and violent behaviour, motivated by the hate crime element, and the criminal offence of discrimination against the applicant.\n21.During the investigation, the investigating judge commissioned a medical expert report and the report qualified the applicant’s injuries in the forensic sense as minor bodily injuries. The investigating judge further questioned the applicant, who reiterated her version of the events.\n22.The investigating judge also questioned M.M., who denied any deliberate attack on the applicant although he no longer remembered all the details of his discussion with her. During the questioning, M.M.’s defence lawyer informed the investigating judge that M.M. had been convicted by the Minor Offences Court on 20 April 2010 (see paragraphs 14-15 above).\n23.On the basis of the findings of the investigating judge, on 19 July 2011 the State Attorney’s Office rejected the applicant’s criminal complaint on the ground that M.M. had already been prosecuted in the minor offences proceedings and that his criminal prosecution would contravene the ne bis in idem principle. The relevant part of the decision reads:\n“During the investigation the victim Pavla Sabalić was questioned as a witness and she provided a detailed and comprehensive account of the events as described in her criminal complaint against M.M.\n...\nThe description of the offences in the criminal complaint against M.M. lodged by the victim Pavla Sabalić ... shows that these offences have been consumed by the judgment of the Zagreb Minor Offences Court ... of 20 April 2010. By that judgment M.M. was found guilty of the minor offence under section 13 of the Minor Offences against Public Order and Peace Act and the judgment became final. It follows that M.M. has already been found guilty for the event, which has been, as such, adjudicated by the judgment of the Zagreb Minor Offences Court and therefore there is a negative procedural condition, that is to say a procedural impediment, to further criminal proceedings, since the matter is so-called ‘res judicata’.\nComparing the description of the event, and in view of the incriminations contained in the victim’s criminal complaint, with the judgment of the Zagreb Minor Offences Court, by which the defendant has been found guilty in the minor offences proceedings, it is obvious that it concerns the same event and the same acts of M.M. It follows that the facts constituting the minor offence for which the defendant has been found guilty are essentially the same as those which form the incrimination in the victim’s criminal complaint. In these circumstances, the criminal proceedings would be conducted for the same offence, that is to say the same event, for which the defendant has already been finally convicted.\nIn the concrete case the matter has been finally adjudicated, which follows from the interpretation of Article 31 § 2 of the Constitution, providing that ‘nobody can be tried or convicted twice in criminal proceedings for the same criminal offence for which he or she has been finally acquitted or convicted in accordance with the law’, as well as from the provisions of Article 4 of Protocol No. 7 [to the Convention] and Article 11 of the Code of Criminal Procedure which proclaim the ne bis in idem principle.\nIt therefore follows that the matter has been finally adjudicated, which is a negative procedural condition, that is to say a procedural impediment, for further criminal proceedings and as such excludes further criminal prosecution.” \n24.The State Attorney’s Office informed the applicant that she could take over the criminal prosecution as a subsidiary prosecutor by lodging an indictment in the Zagreb Municipal Criminal Court (Općinski kazneni sud u Zagrebu; hereinafter “the Criminal Court”).\n25.On 26 October 2011 the applicant took over the prosecution as a subsidiary prosecutor in the Criminal Court against M.M. on charges of attempted grave bodily injury (Article 99 §§ 1 and 4 of the Criminal Code) and violent behaviour (Article 331 § 2 of the Criminal Code), motivated by the hate crime element (Article 89(36) of the Criminal Code), and the criminal offence of discrimination (Article 174 § 1 of the Criminal Code). She contended that the State Attorney’s Office had misinterpreted the law on the ne bis in idem principle and that, in the concrete case, the matter had not been finally adjudicated. She also relied on the Court’s case-law concerning the authorities’ duty to investigate and effectively prosecute hate crime, arguing that the minor offences proceedings had fallen short of those requirements.\n26.The Criminal Court rejected the applicant’s indictment on 19 July 2012, endorsing the arguments of the State Attorney’s Office.\n27.The decision of the Criminal Court was upheld on appeal by the County Court on 9 October 2012.\n28.On 5 December 2012 the applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske), referring to the Court’s case-law concerning the State’s procedural obligation to investigate acts of violence and hate crime, and complaining of the ineffectiveness of the domestic authorities in addressing her complaints effectively. She also contended that the lower authorities had misinterpreted the relevant law on the application of the ne bis in idem principle and thus erred in their assessment that the matter has been res judicata.\n29.On 31 January 2013 the Constitutional Court declared the applicant’s constitutional complaint inadmissible on the ground that in the impugned decisions the lower courts had not addressed any of the applicant’s rights or obligations.\n30.The decision of the Constitutional Court was served on the applicant’s representative on 22 February 2013.", "35": "Allegation: 3,8,14\n2.The applicant was born in 1982 and lives in Zagreb. She was represented by Ms A. Bandalo and Ms N. Labavić, lawyers practising in Zagreb.\n3.The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.\n4.The facts of the case, as submitted by the parties, may be summarised as follows.\n5.On 13 January 2010 the applicant was physically attacked in a nightclub in Zagreb where she was with several of her friends. The attack ceased only after one of the applicant’s friends, I.K., used her gas pistol to frighten off the attacker.\n6.At about 6.00 a.m. a local police station of the Zagreb Police Department (Policijska uprava zagrebačka, hereinafter: the “police”) was informed of the incident and two police officers immediately responded at the scene.\n7.The relevant part of the police report on the findings at the scene of the incident reads:\n“When we came at the scene ... we found Pavla Sabalić ..., I.K. ..., I.D. ..., K.F. ..., E.N. ... and A.B. ... [personal details omitted].\nBy interviewing them and observing the scene of the incident we established that the above-mentioned persons had come to [the nightclub] at around 4.00 a.m., where they stayed for about one and a half hours. While they were in the nightclub [the applicant] was approached by an unidentified man who started flirting with her but she was constantly refusing him. After the nightclub closed they were all standing in front of it and the man continued pressing [the applicant] to be with him. When she said that she was a ‘lesbian’ he grabbed her with both of his arms and pushed her against a wall. He then started hitting her all over her body and when she fell to the ground he continued kicking her. ...” \n8.The police soon identified the man as M.M. through the licence plates of a car he had used for fleeing from the scene. He was immediately apprehended and interviewed.\n9.According to a police report of 13 January 2010, M.M. confirmed having met the applicant but then he had learned that she was in the nightclub with her girlfriend. When the nightclub closed he had seen several girls having some dispute with his friend and as he tried to calm them all down he pushed them with his hands. M.M. did not provide any further details, alleging that he could not remember them as he had been drunk at the time of the incident. The police also established that at the time of the incident M.M. had been in the nightclub with his friends, J.V. and A.K.\n10.On the same day, at around 7.00 a.m., the applicant was examined in the accident and emergency department. The examination indicated a contusion on the head, a haematoma on the forehead, abrasions of the face, forehead and area around the lips, neck strain, contusion on the chest and abrasions of both palms and knees. The injuries were qualified as minor bodily injuries.\n11.Following the incident the police interviewed the applicant and M.M. and the other participants in the event in connection with M.M.’s physical attack.\n12.On 14 January 2010 the police instituted minor offences proceedings in the Minor Offences Court (Prekršajni sud u Zagrebu) against M.M. for breach of public peace and order. The relevant part of the indictment reads:\n“On 13 January 2010, at around 5.45 a.m., in Zagreb ..., on the street in front of [the nightclub], according to the statements of the victim Pavla Sabalić ... and the witnesses I.K. ..., E.N. ..., K.F. ..., A.B. ... and I.D. [personal details omitted], the accused physically attacked Pavla Sabalić by grabbing her with his both arms and throwing her against a wall.\nThe accused then started hitting Pavla Sabalić with his fists all over her body and afterwards he knocked her to the ground and continued to kick her. His further actions were constrained by I.K. and then he left the scene by using the car ...\nThe victim Pavla Sabalić sustained visible injuries on her head, which were qualified by a doctor [in the emergency] as minor bodily injuries.\nThereby, a minor offence under section 13 §§ 1 and 2 of the Minor Offences against Public Order and Peace Act was committed.”\n13.At a hearing on 20 April 2010 before the Minor Offences Court, M.M. confessed to the charges against him. No further evidence was taken and the applicant was not informed of the proceedings.\n14.On the same day the Minor Offences Court found M.M. guilty as charged of breach of public peace and order and fined him 300 Croatian kunas (approximately 40 Euros (EUR)).\n15.No appeal was lodged against the judgment and it became final on 15 May 2010.\n16.After having realised that the police had failed to institute a criminal investigation, on 29 December 2010 the applicant lodged a criminal complaint with the Zagreb Municipal State Attorney’s Office (Općinsko državno odvjetništvo u Zagrebu; hereinafter “the State Attorney’s Office”) against M.M. for the offences of attempted grave bodily injury (Article 99 §§ 1 and 4 of the Criminal Code) and violent behaviour (Article 331 § 2 of the Criminal Code), motivated by the hate crime element (Article 89(36) of the Criminal Code), and the criminal offence of discrimination (Article 174 § 1 of the Criminal Code). The relevant part of the applicant’s criminal complaint reads:\n“On 13 January 2010, after he was flirting with Pavla Sabalić and after she had refused him saying that she had a girlfriend, around 5.45 a.m., in Zagreb [in front of the nightclub] [M.M.] physically attacked Pavla Sabalić by grabbing her with both his hands and throwing her against a wall ... and then hit her with his fists all over her body and afterwards he knocked her to the ground and kicked her. At the same time he was shouting: ‘You lesbian!’, ‘All of you should be killed!’, ‘I will f... you lesbian!’ and so on. E.N. attempted to restrain his attack by saying: ‘How can you beat a girl’, after which M.M. attacked E.N. by head-butting her, and then I.K. shot him with her gas pistol which made him cease the attack ...” \n17.On the basis of the applicant’s criminal complaint, the State Attorney’s Office ordered the police to investigate the applicant’s allegations.\n18.An unauthorised note of the applicant’s police interview, dated 14January 2011, indicates that the applicant confirmed her allegations as to the course of the events leading up to her attack, and stressed that she could no longer remember all the details but that she believed that the attack was motivated by her sexual orientation.\n19.In the further course of the police inquiry, the police interviewed the applicant’s friends I.K., I.D. and K.F., who confirmed the applicant’s version of the events. The police also interviewed A.K. and V.J., friends of M.M., who only confirmed that there was some commotion but they did not know any particular details.\n20.On 28 April 2011 the State Attorney’s Office asked an investigating judge of the Zagreb County Court (Županijski sud u Zagrebu; hereinafter “the County Court”) to conduct a further investigation into the applicant’s complaints in connection with a reasonable suspicion that M.M. had committed the offences of attempted grave bodily injury and violent behaviour, motivated by the hate crime element, and the criminal offence of discrimination against the applicant.\n21.During the investigation, the investigating judge commissioned a medical expert report and the report qualified the applicant’s injuries in the forensic sense as minor bodily injuries. The investigating judge further questioned the applicant, who reiterated her version of the events.\n22.The investigating judge also questioned M.M., who denied any deliberate attack on the applicant although he no longer remembered all the details of his discussion with her. During the questioning, M.M.’s defence lawyer informed the investigating judge that M.M. had been convicted by the Minor Offences Court on 20 April 2010 (see paragraphs 14-15 above).\n23.On the basis of the findings of the investigating judge, on 19 July 2011 the State Attorney’s Office rejected the applicant’s criminal complaint on the ground that M.M. had already been prosecuted in the minor offences proceedings and that his criminal prosecution would contravene the ne bis in idem principle. The relevant part of the decision reads:\n“During the investigation the victim Pavla Sabalić was questioned as a witness and she provided a detailed and comprehensive account of the events as described in her criminal complaint against M.M.\n...\nThe description of the offences in the criminal complaint against M.M. lodged by the victim Pavla Sabalić ... shows that these offences have been consumed by the judgment of the Zagreb Minor Offences Court ... of 20 April 2010. By that judgment M.M. was found guilty of the minor offence under section 13 of the Minor Offences against Public Order and Peace Act and the judgment became final. It follows that M.M. has already been found guilty for the event, which has been, as such, adjudicated by the judgment of the Zagreb Minor Offences Court and therefore there is a negative procedural condition, that is to say a procedural impediment, to further criminal proceedings, since the matter is so-called ‘res judicata’.\nComparing the description of the event, and in view of the incriminations contained in the victim’s criminal complaint, with the judgment of the Zagreb Minor Offences Court, by which the defendant has been found guilty in the minor offences proceedings, it is obvious that it concerns the same event and the same acts of M.M. It follows that the facts constituting the minor offence for which the defendant has been found guilty are essentially the same as those which form the incrimination in the victim’s criminal complaint. In these circumstances, the criminal proceedings would be conducted for the same offence, that is to say the same event, for which the defendant has already been finally convicted.\nIn the concrete case the matter has been finally adjudicated, which follows from the interpretation of Article 31 § 2 of the Constitution, providing that ‘nobody can be tried or convicted twice in criminal proceedings for the same criminal offence for which he or she has been finally acquitted or convicted in accordance with the law’, as well as from the provisions of Article 4 of Protocol No. 7 [to the Convention] and Article 11 of the Code of Criminal Procedure which proclaim the ne bis in idem principle.\nIt therefore follows that the matter has been finally adjudicated, which is a negative procedural condition, that is to say a procedural impediment, for further criminal proceedings and as such excludes further criminal prosecution.” \n24.The State Attorney’s Office informed the applicant that she could take over the criminal prosecution as a subsidiary prosecutor by lodging an indictment in the Zagreb Municipal Criminal Court (Općinski kazneni sud u Zagrebu; hereinafter “the Criminal Court”).\n25.On 26 October 2011 the applicant took over the prosecution as a subsidiary prosecutor in the Criminal Court against M.M. on charges of attempted grave bodily injury (Article 99 §§ 1 and 4 of the Criminal Code) and violent behaviour (Article 331 § 2 of the Criminal Code), motivated by the hate crime element (Article 89(36) of the Criminal Code), and the criminal offence of discrimination (Article 174 § 1 of the Criminal Code). She contended that the State Attorney’s Office had misinterpreted the law on the ne bis in idem principle and that, in the concrete case, the matter had not been finally adjudicated. She also relied on the Court’s case-law concerning the authorities’ duty to investigate and effectively prosecute hate crime, arguing that the minor offences proceedings had fallen short of those requirements.\n26.The Criminal Court rejected the applicant’s indictment on 19 July 2012, endorsing the arguments of the State Attorney’s Office.\n27.The decision of the Criminal Court was upheld on appeal by the County Court on 9 October 2012.\n28.On 5 December 2012 the applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske), referring to the Court’s case-law concerning the State’s procedural obligation to investigate acts of violence and hate crime, and complaining of the ineffectiveness of the domestic authorities in addressing her complaints effectively. She also contended that the lower authorities had misinterpreted the relevant law on the application of the ne bis in idem principle and thus erred in their assessment that the matter has been res judicata.\n29.On 31 January 2013 the Constitutional Court declared the applicant’s constitutional complaint inadmissible on the ground that in the impugned decisions the lower courts had not addressed any of the applicant’s rights or obligations.\n30.The decision of the Constitutional Court was served on the applicant’s representative on 22 February 2013.", "36": "Allegation: 14, P1-1\n2.The applicant was born in 1975 and lives in Rijeka. She was represented by Ms K. Jajaš, a lawyer practising in Rijeka.\n3.The Government were represented by their Agent, Ms Š. Stažnik.\n4.The facts of the case, as submitted by the parties, may be summarised as follows.\n5.The applicant had been employed, with short interruptions, since 1993. Her last relevant employment had lasted from 19 August 2006 until 31 October 2009. Since 1 November 2009 she had been unemployed.\n6.On 17 November 2009 the applicant underwent in vitro fertilisation. The doctor in charge recommended that she take rest (mirovanje).\n7.On 27 November 2009 the applicant entered into an employment contract with company N. (hereinafter “the company”), which had its headquarters near Split, about 360 kilometres away from the applicant’s place of residence. Pursuant to the contract, the applicant was to start full-time work on administrative tasks in Split on that date for a monthly salary of 4,400 Croatian kunas (HRK; approximately 600 euros (EUR)).\n8.On 11 December 2009 the applicant’s application to register with the compulsory health insurance scheme was filed with the Croatian Health Insurance Fund (Hrvatski zavod za zdravstveno osiguranje) and she was registered as an insured employee.\n9.On 14 December 2009 the applicant started feeling nauseous. Her doctor established that the in vitro fertilisation had been successful, and that the applicant needed rest owing to pregnancy-related complications. A period of sick leave was thus prescribed.\n10.On 17 December 2009 an ultrasound confirmed that the applicant was pregnant with twins.\n11.On 28 December 2009 the applicant filed a request for payment of salary compensation during her sick leave on account of pregnancy-related complications (see paragraph 26 below).\n12.On 5 January 2010 the relevant office of the Croatian Health Insurance Fund (hereinafter “the Fund”), of its own motion, initiated a review of the applicant’s health insurance status.\n13.On 16 February 2010 the Fund reopened the case concerning the applicant’s health insurance and rejected her application for registration as an insured employee, along with her request for salary compensation due to sick leave on account of pregnancy-related complications. It based its decision on an in-house expert report according to which, when the applicant had taken up her employment with the company on 27 November 2009, she had been medically unfit for employment because she had undergone in vitro fertilisation ten days earlier. It was therefore considered that her employment was fictitious and aimed solely at obtaining pecuniary advantages related to the status of employed persons, including salary compensation during her absence from work due to pregnancy-related complications.\n14.The applicant challenged this decision before the Central Office of the Croatian Health Insurance Fund (hereinafter “the Central Office”). She argued that she had felt well after undergoing the in vitro fertilisation and that she had had no way of knowing whether the implantation would be successful. There had therefore been no reason for her to miss out on an opportunity to take up employment on 27 November 2009.\n15.According to an expert report by a specialist in gynaecology and obstetrics dated 3 March 2010 and submitted by the applicant, on the date on which the applicant took up employment with the company she had been healthy and awaiting the results of her in vitro fertilisation. The expert also stressed that neither the applicant nor her gynaecologist could have known in advance whether the in vitro fertilisation would be successful and how the pregnancy would develop.\n16.Following the applicant’s appeal, the Central Office carried out a further assessment of the circumstances of the applicant’s employment and her medical condition. According to the information obtained from her employer, the applicant was to work at the company headquarters in Split, but a part of her tasks could be performed by teleworking from home. Her employer confirmed that her position in the company required travelling within and outside Croatia. The Central Office also obtained another in-house expert report, the relevant part of which reads as follows:\n“In the case at hand, [the applicant] had been unfit to work on 27 November 2009 because the gynaecologist recommended that she rest following the implantation of two fertilised ova, that is to say, as of 17 November 2009. In other words, rest was recommended ten days prior to [the applicant’s] employment.\nWe would emphasise that, on the date on which she entered into the employment contract, namely 27 November 2009, [the applicant] might not have known whether she was pregnant but in any event she should have rested until a BHCG test could be performed; this was planned for 3 December 2009. It is standard practice for gynaecologists to recommend rest immediately after in vitro fertilisation and embryo transfer until the outcome of the procedure can be established (via a BHCG test to determine whether pregnancy has occurred). Rest in these cases entails not only avoiding physical and psychological effort, but in particular avoiding travel owing to its negative mechanical effects (shaking) during the sensitive phase following embryo transfer and its potential implantation. Besides, every journey involves a potentially stressful situation and may negatively impact the outcome of the pregnancy because, in the experience of gynaecologists, psychological stability improves the chances of a favourable outcome of in vitro fertilisation.”\n17.On the basis of the above evidence, the Central Office of the Croatian Health Insurance Fund dismissed the applicant’s appeal on 30March 2010, holding that although pregnancy in itself could not be a reason for not taking up employment, the particular circumstances of the applicant’s case suggested that her employment could be considered fictitious and aimed solely at obtaining salary compensation granted to employed persons.\n18.The applicant challenged this decision before the High Administrative Court (Visoki upravni sud Republike Hrvatske), arguing, in particular, that she had been discriminated against as a woman who had undergone in vitro fertilisation. The applicant expressly relied on the Prevention of Discrimination Act and the Convention. She also explained that she had planned to move close to Split, where her husband had his registered residence and that most other employees of the company had residence elsewhere, since the nature of the company’s work had been compatible with teleworking, which she did.\n19.On 5 December 2012 the High Administrative Court dismissed the applicant’s administrative action, upholding the reasoning of the administrative bodies. It stressed that, in view of her in vitro fertilisation, on 27 November 2009 the applicant had not been fit to take up employment that was at a distance from her place of residence and also required travelling. The relevant part of that court’s judgment reads as follows:\n“The facts established in the proceedings resulting in the impugned decision lead to the conclusion that on the day of entering into the employment contract [the applicant] had been unfit to work and, in that most sensitive phase of a twin pregnancy, had been unfit to fulfil the obligations from her employment within the meaning of section 3(1) of the Labour Act providing that the employee is to personally perform activities for which he concluded an employment contract, in the [applicant’s] case administrative tasks in a city rather far from her place of residence, with the obligation of travel within the country and abroad. These facts lead to the conclusion that the employment was not entered into with a view to fulfilment of mutual obligations of the employer and employee but that the present case concerns conclusion of an employment contract exclusively in order to benefit from obligatory social security benefits. In this court’s view, such a contract cannot be basis for obtaining the status of an insured person.\nThe court finds [the applicant’s] discrimination complaint ill-founded, since she was not denied, on the basis of either her sex or her pregnancy, the right to take up employment or related rights (and specifically the rights stemming from compulsory health insurance). Pregnancy is not an obstacle to taking up employment, and any restriction of an employment-related right in the case of an employee who has actually entered into an employment contract during pregnancy (if that pregnancy does not affect the pregnant woman’s ability to work) would constitute a prohibited interference with her rights. However, in the present case it has been established that [the applicant] had undergone in vitro fertilisation ten days prior to the conclusion of the employment contract, as a consequence of which, according to concurring expert opinions (which are not in contradiction with the medical documentation in the case file), at the time of the conclusion of the employment contract [the applicant] had been unfit for work. Therefore, it is this court’s opinion that the competent bodies did not deprive [the applicant] of her rights under the compulsory health insurance scheme in breach of the Constitution, [the Convention] or [the applicable legislation] ...”\n20.The applicant then lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske), reiterating her previous arguments and alleging that she had been discriminated against.\n21.Meanwhile, the applicant complained to the Gender Equality Ombudsperson (Pravobraniteljica za ravnopravnost spolova) alleging discrimination. On 18 December 2010 the Ombudsperson informed the applicant that she had issued a warning to the Fund that its decision in the applicant’s case had violated the prohibition of less favourable treatment on grounds of pregnancy, and that this constituted discrimination based on sex. The Ombudsperson stressed that the relevant authorities’ interpretation of the applicant’s situation had been based on the premise that every woman who had undergone in vitro fertilisation should be considered physically unfit to take up employment, and that a women who was undergoing in vitro fertilisation or pregnant would not in reality be employed by any employer. She also recommended to the Fund that it abandon its interpretation of the relevant guidelines in similar cases, according to which a woman undergoing in vitro fertilisation or otherwise liable to have a high-risk pregnancy was unfit to perform any type of work.\n22.On 22 April 2015 the Constitutional Court dismissed the applicant’s constitutional complaint as unfounded, upholding the findings of the administrative authorities and the High Administrative Court. This decision, which was served on the applicant’s representative on 29 April 2015, reads, in so far as relevant, as follows:\n“The Constitutional Court notes that [it has been established in the proceedings that the applicant], who lives in Rijeka, entered into an employment contract on 27November 2009 with [the company], which has its headquarters in Klis and one employee.\nThe employment contract stipulated that [the applicant was to perform her duties in Split], and it transpires from the statement made by the employer ... that only part of her contractually established duties could be performed at her place of residence in Rijeka.\nThe Constitutional Court points out that the distance between Rijeka and Split is ... 360.82 kilometres by road ...\nTherefore, the Constitutional Court considers that in the present case the administrative authorities ... were justified in checking whether the employment contract at issue had been entered into solely in order to acquire rights arising out of the compulsory medical insurance scheme, or with a view to establishing an employment relationship.”\n23.Meanwhile, according to the information provided by the Fund, the applicant’s employment insurance with the company had been terminated with effect as of 13December 2009.", "37": "Allegation: 14, P1-1\n2.The applicant was born in 1975 and lives in Rijeka. She was represented by Ms K. Jajaš, a lawyer practising in Rijeka.\n3.The Government were represented by their Agent, Ms Š. Stažnik.\n4.The facts of the case, as submitted by the parties, may be summarised as follows.\n5.The applicant had been employed, with short interruptions, since 1993. Her last relevant employment had lasted from 19 August 2006 until 31 October 2009. Since 1 November 2009 she had been unemployed.\n6.On 17 November 2009 the applicant underwent in vitro fertilisation. The doctor in charge recommended that she take rest (mirovanje).\n7.On 27 November 2009 the applicant entered into an employment contract with company N. (hereinafter “the company”), which had its headquarters near Split, about 360 kilometres away from the applicant’s place of residence. Pursuant to the contract, the applicant was to start full-time work on administrative tasks in Split on that date for a monthly salary of 4,400 Croatian kunas (HRK; approximately 600 euros (EUR)).\n8.On 11 December 2009 the applicant’s application to register with the compulsory health insurance scheme was filed with the Croatian Health Insurance Fund (Hrvatski zavod za zdravstveno osiguranje) and she was registered as an insured employee.\n9.On 14 December 2009 the applicant started feeling nauseous. Her doctor established that the in vitro fertilisation had been successful, and that the applicant needed rest owing to pregnancy-related complications. A period of sick leave was thus prescribed.\n10.On 17 December 2009 an ultrasound confirmed that the applicant was pregnant with twins.\n11.On 28 December 2009 the applicant filed a request for payment of salary compensation during her sick leave on account of pregnancy-related complications (see paragraph 26 below).\n12.On 5 January 2010 the relevant office of the Croatian Health Insurance Fund (hereinafter “the Fund”), of its own motion, initiated a review of the applicant’s health insurance status.\n13.On 16 February 2010 the Fund reopened the case concerning the applicant’s health insurance and rejected her application for registration as an insured employee, along with her request for salary compensation due to sick leave on account of pregnancy-related complications. It based its decision on an in-house expert report according to which, when the applicant had taken up her employment with the company on 27 November 2009, she had been medically unfit for employment because she had undergone in vitro fertilisation ten days earlier. It was therefore considered that her employment was fictitious and aimed solely at obtaining pecuniary advantages related to the status of employed persons, including salary compensation during her absence from work due to pregnancy-related complications.\n14.The applicant challenged this decision before the Central Office of the Croatian Health Insurance Fund (hereinafter “the Central Office”). She argued that she had felt well after undergoing the in vitro fertilisation and that she had had no way of knowing whether the implantation would be successful. There had therefore been no reason for her to miss out on an opportunity to take up employment on 27 November 2009.\n15.According to an expert report by a specialist in gynaecology and obstetrics dated 3 March 2010 and submitted by the applicant, on the date on which the applicant took up employment with the company she had been healthy and awaiting the results of her in vitro fertilisation. The expert also stressed that neither the applicant nor her gynaecologist could have known in advance whether the in vitro fertilisation would be successful and how the pregnancy would develop.\n16.Following the applicant’s appeal, the Central Office carried out a further assessment of the circumstances of the applicant’s employment and her medical condition. According to the information obtained from her employer, the applicant was to work at the company headquarters in Split, but a part of her tasks could be performed by teleworking from home. Her employer confirmed that her position in the company required travelling within and outside Croatia. The Central Office also obtained another in-house expert report, the relevant part of which reads as follows:\n“In the case at hand, [the applicant] had been unfit to work on 27 November 2009 because the gynaecologist recommended that she rest following the implantation of two fertilised ova, that is to say, as of 17 November 2009. In other words, rest was recommended ten days prior to [the applicant’s] employment.\nWe would emphasise that, on the date on which she entered into the employment contract, namely 27 November 2009, [the applicant] might not have known whether she was pregnant but in any event she should have rested until a BHCG test could be performed; this was planned for 3 December 2009. It is standard practice for gynaecologists to recommend rest immediately after in vitro fertilisation and embryo transfer until the outcome of the procedure can be established (via a BHCG test to determine whether pregnancy has occurred). Rest in these cases entails not only avoiding physical and psychological effort, but in particular avoiding travel owing to its negative mechanical effects (shaking) during the sensitive phase following embryo transfer and its potential implantation. Besides, every journey involves a potentially stressful situation and may negatively impact the outcome of the pregnancy because, in the experience of gynaecologists, psychological stability improves the chances of a favourable outcome of in vitro fertilisation.”\n17.On the basis of the above evidence, the Central Office of the Croatian Health Insurance Fund dismissed the applicant’s appeal on 30March 2010, holding that although pregnancy in itself could not be a reason for not taking up employment, the particular circumstances of the applicant’s case suggested that her employment could be considered fictitious and aimed solely at obtaining salary compensation granted to employed persons.\n18.The applicant challenged this decision before the High Administrative Court (Visoki upravni sud Republike Hrvatske), arguing, in particular, that she had been discriminated against as a woman who had undergone in vitro fertilisation. The applicant expressly relied on the Prevention of Discrimination Act and the Convention. She also explained that she had planned to move close to Split, where her husband had his registered residence and that most other employees of the company had residence elsewhere, since the nature of the company’s work had been compatible with teleworking, which she did.\n19.On 5 December 2012 the High Administrative Court dismissed the applicant’s administrative action, upholding the reasoning of the administrative bodies. It stressed that, in view of her in vitro fertilisation, on 27 November 2009 the applicant had not been fit to take up employment that was at a distance from her place of residence and also required travelling. The relevant part of that court’s judgment reads as follows:\n“The facts established in the proceedings resulting in the impugned decision lead to the conclusion that on the day of entering into the employment contract [the applicant] had been unfit to work and, in that most sensitive phase of a twin pregnancy, had been unfit to fulfil the obligations from her employment within the meaning of section 3(1) of the Labour Act providing that the employee is to personally perform activities for which he concluded an employment contract, in the [applicant’s] case administrative tasks in a city rather far from her place of residence, with the obligation of travel within the country and abroad. These facts lead to the conclusion that the employment was not entered into with a view to fulfilment of mutual obligations of the employer and employee but that the present case concerns conclusion of an employment contract exclusively in order to benefit from obligatory social security benefits. In this court’s view, such a contract cannot be basis for obtaining the status of an insured person.\nThe court finds [the applicant’s] discrimination complaint ill-founded, since she was not denied, on the basis of either her sex or her pregnancy, the right to take up employment or related rights (and specifically the rights stemming from compulsory health insurance). Pregnancy is not an obstacle to taking up employment, and any restriction of an employment-related right in the case of an employee who has actually entered into an employment contract during pregnancy (if that pregnancy does not affect the pregnant woman’s ability to work) would constitute a prohibited interference with her rights. However, in the present case it has been established that [the applicant] had undergone in vitro fertilisation ten days prior to the conclusion of the employment contract, as a consequence of which, according to concurring expert opinions (which are not in contradiction with the medical documentation in the case file), at the time of the conclusion of the employment contract [the applicant] had been unfit for work. Therefore, it is this court’s opinion that the competent bodies did not deprive [the applicant] of her rights under the compulsory health insurance scheme in breach of the Constitution, [the Convention] or [the applicable legislation] ...”\n20.The applicant then lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske), reiterating her previous arguments and alleging that she had been discriminated against.\n21.Meanwhile, the applicant complained to the Gender Equality Ombudsperson (Pravobraniteljica za ravnopravnost spolova) alleging discrimination. On 18 December 2010 the Ombudsperson informed the applicant that she had issued a warning to the Fund that its decision in the applicant’s case had violated the prohibition of less favourable treatment on grounds of pregnancy, and that this constituted discrimination based on sex. The Ombudsperson stressed that the relevant authorities’ interpretation of the applicant’s situation had been based on the premise that every woman who had undergone in vitro fertilisation should be considered physically unfit to take up employment, and that a women who was undergoing in vitro fertilisation or pregnant would not in reality be employed by any employer. She also recommended to the Fund that it abandon its interpretation of the relevant guidelines in similar cases, according to which a woman undergoing in vitro fertilisation or otherwise liable to have a high-risk pregnancy was unfit to perform any type of work.\n22.On 22 April 2015 the Constitutional Court dismissed the applicant’s constitutional complaint as unfounded, upholding the findings of the administrative authorities and the High Administrative Court. This decision, which was served on the applicant’s representative on 29 April 2015, reads, in so far as relevant, as follows:\n“The Constitutional Court notes that [it has been established in the proceedings that the applicant], who lives in Rijeka, entered into an employment contract on 27November 2009 with [the company], which has its headquarters in Klis and one employee.\nThe employment contract stipulated that [the applicant was to perform her duties in Split], and it transpires from the statement made by the employer ... that only part of her contractually established duties could be performed at her place of residence in Rijeka.\nThe Constitutional Court points out that the distance between Rijeka and Split is ... 360.82 kilometres by road ...\nTherefore, the Constitutional Court considers that in the present case the administrative authorities ... were justified in checking whether the employment contract at issue had been entered into solely in order to acquire rights arising out of the compulsory medical insurance scheme, or with a view to establishing an employment relationship.”\n23.Meanwhile, according to the information provided by the Fund, the applicant’s employment insurance with the company had been terminated with effect as of 13December 2009.", "38": "Allegation: 8, 14, 6\n2.The applicants were born in 1970 and 1945 respectively and live in Sofia. They were represented initially by Ms M. Ilieva, a lawyer practising in Sofia and at the material time working with the Bulgarian Helsinki Committee, and then by Ms A. Kachaunova, also a lawyer practising in Sofia and working with that Committee, and by Mr K. Kanev, the Committee’s chairman.[1] On 15 January 2016 the then President of the Fifth Section gave Mr Kanev leave to represent the applicants in all pending and future cases in which he was appointed to personally act as their representative (Rule 36 § 4 (a) in fine of the Rules of Court).\n3.The Government were represented by their Agent, MsI.Stancheva‑Chinova of the Ministry of Justice.\n4.Ataka is a Bulgarian political party founded in April 2005. In parliamentary elections held on 25 June that year it received 8.14% of the votes cast and won twenty-one seats in Bulgaria’s two-hundred-and-forty-seat Parliament. In parliamentary elections held in 2009 it received 9.36% of the votes cast and again won twenty-one seats. In parliamentary elections held in 2013 it received 7.30% of the votes cast and won twenty-three seats. In parliamentary elections held in 2014 it received 4.52% of the votes cast and won eleven seats. It fought the March 2017 parliamentary elections as part of a three-party coalition, United Patriots, which gained 9.31% of the votes cast, and won eight of the coalition’s twenty-seven seats. In May 2017 United Patriots entered into a coalition with GERB, the political party then holding the biggest number of parliamentary seats, and formed a joint government with it; United Patriots received three ministerial positions, one of which was allocated to Ataka. At the elections for European Parliament in May 2019 Ataka received 1.07% of the votes cast and did not win any seats. Ataka has its own television channel, which apparently regularly broadcasts a programme attacking ethnic minorities and foreigners (see paragraph 36 in fine below).\n5.The party’s leader, Mr Volen Siderov, has been an Ataka Member of Parliament since 2005. Before that, he worked as a journalist: in the early 1990s he was editor-in-chief of the daily newspaper Demokratsia; then, in the early 2000s, he was a columnist for the daily newspaper Monitor; and later he served as the presenter of a daily television programme Ataka, aired by the television station SKAT. In September 2006 he stood as a candidate in that month’s presidential election. He came second in the first round of voting, receiving 21.5% of the votes cast, and in the run-off lost against the incumbent, Mr Georgi Parvanov, by 24.05% to 75.95%. In February 2011 Mr Siderov again announced his candidacy in the upcoming presidential election. Inthe first round of voting, which took place on 23 October 2011, he received 3.64% of the votes cast. Following the 2017 parliamentary elections (see paragraph 4 above), Mr Siderov became chairman of the United Patriots parliamentary grouping, but in July 2019 was removed from that position and was excluded from the parliamentary group along with two other Ataka members of parliament. Ataka nevertheless kept the ministerial position that it had in the coalition government (see paragraph 4 above).\n6.The applicants described Ataka as a “xenophobic party” and said that in his career as a journalist and politician Mr Siderov had systematically engaged in extreme anti-minority propaganda, by way of his books, his articles in Monitor, and then his television programme, which in effect he had made his political platform.\n7.Further information about Ataka’s activities and political positions can be found in Karaahmed v. Bulgaria (no. 30587/13, §§ 7-27, 24February 2015).\n8.In January 2006 the applicants and sixteen other people, as well as sixty-six non-governmental organisations, brought proceedings against MrSiderov under section 5 of the 2003 Protection from Discrimination Act (“the 2003 Act” – see paragraph 22 below). They alleged that a number of public statements made by him had constituted harassment of, and an incitement to discrimination against, Roma, Turks, Jews, Catholics and sexual minorities. The applicants argued, inter alia, that each of them – as a member of a minority – had been personally affected by those statements; they also based their claim against Mr Siderov on Article 32 § 1 of the Constitution (see paragraph 19 below), noting that it afforded protection against infringements of one’s dignity.\n9.The Sofia District Court split the case into eight separate cases on the basis of the specific type of discrimination alleged by each group of claimants. The case of the two applicants, both of whom were Roma working as journalists who often reported on Roma-related issues, concerned statements made by Mr Siderov in relation to Roma.\n10.In their claim, the applicants asserted that a number of statements made by Mr Siderov in his television programme, interviews, speeches and a book had amounted to harassment and incitement to discrimination against people of Roma ethnic origin. The applicants sought court orders against Mr Siderov to stop making such statements and to restore the status quo ante by publicly apologising for his statements.\n11.The applicants referred in particular to the following statements by Mr Siderov (arranged in the order in which they appeared in the particulars of claim):\nThe 1 June 2005 edition of the Ataka television programme(with the theme of “Gypsy terror”)\n“... Professor [S.K.] died, expired, passed away. The man [was] beaten to a pulp after a terrorist attack by a Gypsy gang on peaceful Bulgarians [having fun] in their own place. ...\n... This scientist – Bulgarian, famous, man of authority enjoying a very good name in scientific circles – was killed like a dog by a gang of ferocious Gypsies. With premeditation, wilfully, sadistically ...\n... This whole genocide [was] carried out against the Bulgarian community in the Zaharna Fabrika neighbourhood. A genocide committed by an ethnic group of Gypsies. There is in Bulgaria a racial, ethnic discrimination against Bulgarians by the Gypsy ethnic group. ...”\nThe 4 June 2005 edition of the Ataka television programme(with the theme of “Gypsy terror”)\n“... A gang of Gypsies, eighty strong, carried out a terrorist attack against several Bulgarians who were attending the high school graduation dance of a man from the neighbourhood. People were thrashed in the course of this attack; one of them died. A fifty-three-year-old university professor of history, [S.K.], died after an awful, sadistic beating. It turns out that the problem is not confined to Zaharna Fabrika. This is a problem for the whole of Bulgaria. I have received information about similar happenings from all corners of the country. Some of the stories are harrowing, and people say that they live in such fear that they dare not even complain to the police because they would not do anything in response. I received information from the village of Mechka, near Pleven. I have spoken [before] about this village – there, in 2000, [P.T.] was killed in his own yard. Until this day this man’s killers have not been caught, have not been convicted. They are from among the Gypsies, from the village’s Gypsy neighbourhood. After this case, it turned out that it was not only this murder that had not been investigated – there had been seven more [such cases], villagers told me. Today they live in a fear that can only be compared with the fear of people living under foreign occupation – trembling each day for their life, for their property. ...”\nThe 7 June 2005 edition of the Ataka television programme(with the theme of “Gypsy terror”)\n“... And Gypsy terror over Bulgarians is growing literally by the week. ...\n... This shows that the authorities refuse to deal with the Gypsy terror. This is a tremendous problem for Bulgaria. And I am telling you that if the authorities keep on refusing to address the issue, in two-three years, or five, Gypsy terror will become Bulgaria’s foremost problem. But it will then be too late, for Bulgarians will have self-organised and responded to violence with violence. ...\n... Think very hard; if Euroroma [a political party] enter Parliament, what greater [level of] protection will the terrorists from the Gypsy ghettoes ever gain? Because the thing they carry out – it is organised terror against Bulgarians. This terror must be brought to a halt. This terror must be resisted. And I promise you that work is being done in that respect. Hard work is being carried out by Bulgarians who can no longer bear the terrorising of their compatriots and will do all they can for this to cease. ...[2]”\nThe 8 June 2005 edition of the Ataka television programme(with the theme of “Gypsy terror”)\n“... There is no town, no settlement in Bulgaria that has not borne the brunt of Gypsy terror. ...\n... I want to tell you also that the question of Gypsy terror can only be resolved by tackling ... tackling this population in general – putting it where it belongs. They should work, learn to respect the laws, learn to meet their obligations, [learn] to pay their taxes and dues. ...”\nThe 14 June 2005 edition of the Ataka television programme(with the theme “The Gypsy killers of Professor [K.] are free”)\n“... The Gypsy terror in Bulgaria continues. The Gypsy terror in Bulgaria has never stopped. What is more, this has now begun to be acknowledged by international studies that show that the bulk of the crime in the country – upwards of 30% – is being carried out by Gypsies. At the same time, this ethnic group accounts for a mere 5% of the general population. So we Bulgarians have been subjected to total Gypsy terror. Every day, every hour, in all corners of Bulgaria. ...\n... An esteemed Bulgarian scientist was killed in a sadistic, barbaric manner by a gang of Gypsies. ...[3]”\nThe 4 May 2005 edition of the Ataka television programme(with the theme “The racial discrimination against Bulgarians in Bulgaria”)\n“... At the same time, whole Gypsy neighbourhoods are not only not paying for their electricity but also beat up fee collectors, attack the police vehicles that try to re‑establish order, ... smash everything around them, loot shops, rob people ... and nothing is being done to them. When you ask the high command of the police or the State in general why they have not taken any measures, they say – in order not to provoke an ethnic conflict. So a group of people in Bulgaria – non-Bulgarians – is being placed in a privileged position. ... This is called democracy, this is called integration, this is called wonderful names, which however conceal a single thing – discrimination and genocide against the Bulgarians in Bulgaria. ...”\nThe 6 May 2005 edition of the Ataka television programme\n“... This huge wave of external and internal factors, which wish, which categorically wish and work to de-Bulgarianise Bulgaria. Work to destroy the Bulgarian nation as a nation.[4] Work for its Gypsification, for its Turkification. Work for everything but the possibility for the Bulgarian people to consist of Bulgarians. I would like to tell you that according to official statistical data more than half of the children born in Bulgaria are either little Turks or little Gypsies. This is because nowadays, with plenty of outside money, anti-Bulgarian factors, aided by national traitors from within, have long since been working to divide the Bulgarian people. Work is being done to make Gypsies feel like a separate nationality, to pretend that they are apart and to seek collective rights. Work is being done for all sorts of other ... to create all sorts of other invented nationalities in Bulgaria. The results are at hand – already more than half of all newborns in Bulgaria are not Bulgarian. This means that the de-Bulgarisation process is moving towards its high point – the end of the Bulgarian nation. ...”\nThe 25 May 2005 edition of the Ataka television programme(with the theme “Gypsy terror”)\n“... Today I would like to speak about a topic on which the so-called official media keep silent, and on which politicians keep silent too. This topic is Gypsy terror – the Gypsy terror carried out towards Bulgarians in Bulgaria. This is a very serious topic; this is a drastic topic. But most media, as I said, keep silent about this topic. ...\n... Awful violence has taken place in the Zaharna Fabrika neighbourhood towards Bulgarians, and more than eighty Gypsies took part in it. They wrecked an establishment [selling food and drink], beat up a police officer, beat up the establishment’s owner, beat up the people who were there, and yet I do not know of any of them having been arrested. Here – see this material from the front page of Noshten Trud, the only newspaper that does not shirk from writing about the Gypsy topic – the topic of Gypsy terror towards Bulgarians. ...\n... In this case, notably, police officers were hurt as well. Though they tried to shoot plastic bullets into the air, they were attacked and some were struck and beaten up by the Gypsies. This is not the first such case. You will recall that a village police officer in a village near Burgas was beaten up – attacked by a gang of Gypsies. Forest rangers were attacked in Botevgrad and the vicinity. Forest workers were attacked near Samokov. Terror is constantly being generated across Bulgaria. By a population that calls itself ‘a minority’. Except that in many towns and villages in Bulgaria it is no longer a minority but the majority. There are today hundreds of villages in Bulgaria in which the prevailing population is Gypsy. Not only does it not integrate – something that parrots getting food from foreign foundations talk about; it also terrorises the Bulgarian population there. This terror continues under the benevolent gaze of the ruling clique, which not only does nothing but also stops the law-enforcement authorities from intervening. Usually, when something like this happens, as in the case of this terror over Bulgarian citizens in Zaharna Fabrika, then orders come from somewhere high-up for the police not to intervene, for investigators to keep mum, for prosecutors not to sweat too much, and for the judicial system to, you know, close its eyes and not put the ruffians, the rapists, the killers – very often of Gypsy origin – in prison. ...\n... The Bulgarian State nowadays tolerates Gypsy terror against Bulgarians. ...”\nThe 30 May 2005 edition of the Ataka television programme(with the theme “Gypsy terror”)\n“... Today I continue with the topic of Gypsy terror. ... These are between 1,500 and2,000 Gypsies – no-one can say how many exactly – who have come from all over the country, have settled there, without registering their address. All of them are deemed to inhabit the same address ... and live there illegally. They do not pay taxes, do not pay fees, do not pay for electricity, do not pay for water supply. They pay for nothing. But what do they do – they beat up Bulgarians, rob them, ill-treat them, rape women, kill; there have been several murders already. I categorically promise you, dear Bulgarians, that I will investigate these cases, because this is not simply terror – ‘Gypsy terror’, as I have entitled my programme – this is genocide. This is to commit genocide against the Bulgarian ethnic group in Bulgaria. This genocide is being manipulated and stimulated from abroad. I have information that these Gypsy raids are being paid for – paid for so that they be organised and stir up unrest. Someone wishes this place to become like Kosovo. ...”\nThe 22 March 2005 edition of the Ataka television programme(with the theme “Gypsy terror”)\n“... And this is just one episode from the long series of instances of Gypsy violence, which is now an everyday occurrence in the capital. As you can see, we are talking about an inner-city school in the capital, in [the district of] Ovcha Kupel. And what about localities in the countryside – smaller settlements, villages – which are being constantly subjected to Gypsy violence? ...\n... There are whole regions, dear Bulgarians, where settlements have in the last few years turned from Bulgarian – predominantly Bulgarian – to predominantly Gypsy. Someone would say that this is already a demographic issue. For my part, I say that this is a question of genocide against the Bulgarians, since Gypsy criminality is deliberately not being prosecuted. ...\n... I must say that during the last few years – the last perhaps seven or eight years – about 102 towns and villages in Bulgaria have turned from predominantly Bulgarian to predominantly Gypsy. This means a conquest of Bulgaria – a ‘Gypsification’ that will lead to ... I personally dare not paint the picture that might result, because the impudence of those groups, ethnic groups, is growing like an avalanche. ...”\nThe 23 June 2004 edition of the Ataka television programme\n“... We see how in the Borisova Gradina park the busts of a number of Bulgarian national writers and revolutionaries have gone missing, stolen by Gypsy gangs and melted for recycling. ...”\nInterview with Mr Siderov aired by SKAT television in June 2005\n“... I shall not detain people here with details of the dozens of instances of marauding, of crime left simply without any repercussions – just because it would cause ethnic unrest, as the people in power are now saying. ... They refuse to take a stance, and thus encourage whole groups of people, who simply know that they will not be sanctioned, and who do as they please. There are dozens of examples ... Villages, towns are simply squirming under a living terror. And this terror is becoming greater each day, and I believe that this should all be brought to a halt. There is a way to bring it to a halt. These ways ... so, at first they seem violent, administrative, but they are being applied in developed countries. And I shall again point to America, so very beloved by all democrats and liberal-mongering politicians. Where anyone who commits an offence or attacks you in your home – on your property, which is inviolable and sacred by constitution – you can literally shoot him, [while] protecting your home, and not be held liable. I am categorically in favour of that. I want the Bulgarian to be protected in his own home. To be able to protect his family, his property, and not wonder whether, if he defends himself, he will tomorrow become a target for the judicial system, be branded as a violent offender, as has happened in some cases ...\n... Gypsification is an enormous problem. It is not such an easy problem. Because I know of no country in Europe that has managed to integrate its Gypsy population, fully and completely. There is no such country. The problem is that in Bulgaria – unlike in Germany or France – this population is a serious percentage. There, even if there are Gypsies, they are a lot fewer in terms of percentage and do not create such a problem. If no measures are taken – at State level – as part of a programme, then this problem (I am categorically certain [and] I assure all viewers, all Bulgarians of this) ... will become paramount for Bulgaria in only five to six years. Because this population– let’s say it honestly, directly – understands sanctions. As does, by the way, a serious part of the population of the Earth when they are subjected to sanctions. And we cannot be confident that self-education [and] moral scruples will prevail and that one fine day we will see ourselves surrounded by a Gypsy ethnic group that will be at such a level of morality as to by itself heed all laws and moral precepts. ...”\nSpeech by Mr Siderov at a pre-election rally of Atakain Burgas on 22 June 2005\n“... All Gypsy gangs, marauders, who torture, ill-treat, rape and loot in all towns of Bulgaria will be put in their place. ...\n... Now is the time when we must begin to stop this process of the Gypsification of Bulgaria. ...”\nSpeech by Mr Siderov at the first session ofthe newly elected parliament on 11 July 2005\n“... Because a gigantic genocide of the Bulgarian nation was carried out during this eight-year period. At the insistence of foreign factors (фактори) hostile to Bulgaria, it is envisaged to leave [just] three-and-a-half to four million of our people [remaining in Bulgaria. This is the plan of the Bulgarophobes, and this plan is being carried out before our very eyes. If someone asks how, I will explain: by stripping Bulgarians of the right to be masters in their own State; by leaving them to die of misery and lack of medicine and medical treatment; by subjecting them to terror by Gypsy gangs, who every day attack, loot, rape and ill-treat the Bulgarian nation. And then, deliberately, no one seeks to uncover the crimes committed by them, because the foreign directive is precisely that – not to investigate offences committed by these minority groups. The goal is for Bulgarians to live in fear, to lose faith, to be crushed, submissive. ...”\nInterview with Mr Siderov aired by Darik Radio in July 2005\n“Host: Now, the other topic – Roma. How to resolve the problem of illegal logging and the Roma?\nMr Siderov: ... I know that in this region this is an everyday occurrence, this happens all the time: Gypsies with carts, with saws, with equipment – quite decent, by the way – are constantly cutting down [trees] ... there is illegal logging going on. ... This is well-known – everyone knows this. Just ask around the region – they will tell you. And in the fact that what happened here was a clash between Gypsy poachers who break the law (this should be said clearly, no one has done it until today) and law-enforcement authorities or forest rangers (I am not sure which – this will surely be elucidated in the future investigation). This is simply the consequence of something that is happening; measures against this illegal logging should have been taken long ago – put the perpetrators in prison and ensure that they do not think again of cutting down Bulgarian forests, because the damage is dreadful. This damage will not be made good for decades. This is simply an invasion of termites that is destroying Bulgaria.\nHost: This is one side of the coin, Mr Siderov; but would you say that, should it be established that the gendarmerie or the forest rangers or the police have beaten up Gypsies – would you say that they should also be punished?\nMr Siderov: If it is established that Gypsies have beaten up – because I know of a case in which today or yesterday – not sure, let me avoid an error – but a very recent case in which Burgas Gypsies attacked some [water-charge] collectors and beat them up – collectors who were on their way to cut off the water mains of [someone] who had not paid water charges for three years.\nHost: They should obviously be punished. And should those who beat up Gypsies likewise be punished?\nMr Siderov: Those who lay their hands on a law-enforcement officer should be punished with the full severity of the law. I am simply categorically in favour of that. In the case of [these gendarmes], I fully excuse the actions of the gendarmerie there, because in this case specifically we have a crime, we have illegal logging, we have an offence that has gone on for years. It was, you know, high time for the gendarmerie to intervene. I am for that.\nHost: ... And yet, should Gypsies be beaten up in ... when they are being arrested?\nMr Siderov: This is not a correct question, because what is ‘should they be’ supposed to mean? Offences should be prevented ...\nHost: Do you approve of violence against Gypsies?\nMr Siderov: If offenders put up resistance, they should be neutralised, including by force. This is the law. So there must have been some resistance, because there is more than one case in which Gypsies have attacked police officers, have attacked law‑enforcement officers; there were police officers, patrols, and so on, who were beaten up. This is inadmissible; in every civilised country such people are simply neutralised on the spot, at that very second, by all possible means. And this is absolutely lawful, within the bounds of the law.\nHost: And do you approve? Because there have been such cases against Bulgaria in Strasbourg [regarding] the thrashing of Gypsies in investigation facilities. When they have already been caught, do not put up resistance – they are being tied up and beaten.\nMr Siderov: And I would ask you: do you approve of an attack on a law‑enforcement officer by a poacher, a law-breaker, a criminal?\nHost: If we are to maintain a humorous vein – you are determined to preserve your image.\nMr Siderov: ... I am against Strasbourg’s decision. If someone approves of a police officer being attacked, I, according to ... my personal opinion is that he should have permission and the right to shoot to kill in such cases, because this is how law‑enforcement authorities operate. This is how it is in America, this how it is, you know, in developed countries – the police are inviolable; they cannot be attacked, especially by someone who is committing an offence. This is the same as ... he should become a target for the police officer, for the law-enforcement officer who is doing his duty, and be neutralised, including by using firearms. ...”\nPassages from Mr Siderov’s book Bulgarophobia,published in Sofia in 2003\n“... They steal to get out of poverty, say the waged [платените] human-rights defenders; they have no jobs. They skip over the tiny fact that Gypsy families keep their children out of school en masse and they remain illiterate. What kind of work can they get later? If you offer them agricultural work, they balk. They prefer to steal the fruit. To steal wiring and scavenge all things made of metal. According to villagers, it is chiefly Gypsies who now burn the forests, so that they can smuggle wood after that. ...” (page 288)\n“... According to the statistics, unemployment benefits in Bulgaria are distributed as follows: 65.2% of the money goes to Roma [and] 14.6% for Bulgarians. Again, the few active Bulgarians of working age who remain in Bulgaria support a gigantic percentage of Gypsies who for their part only take benefits, do not pay for anything, and are on top of all that the main thieves of electric wiring, which has caused the State losses of hundreds of millions and is everywhere [else] treated as terrorism (but we are broad-minded). If this is untrue, let the police and the investigators who deal with electric-wiring theft rebut me. ...” (page 315)\n“... Throughout all those years, when Gypsy bandits stole, cut away tonnes of electric wiring (which in civilised countries is a terrorist act) and left whole regions without electricity, causing millions of levs in damages, non-Gypsies were hanging themselves from the ceiling out of despair ...” (page 332)\n“... The brazenness of this demonstrable Gypsy banditry comes from statements such as that of [T.T.], the leader of the Roma Association, to the newspaper Trud on14 August 2001: ‘Bulgaria will become Kosovo’. The prophecy (or threat) of the Roma leader is evidently turning into reality. In the absence of State authority in Bulgaria, the next stage is terrorist acts and murders of non-Gypsies. ‘What are we to do?’ asks the police chief in Plovdiv hopelessly. Our advice is, first tender your resignation. And until then let someone who knows how to deal with terrorists and street vandals take over your post. ... ” (page 333)\n12.When hearing the case on 21 November 2006, the Sofia District Court listened to audio recordings of Mr Siderov’s statements presented by the applicants. The minutes of the hearing, drawn up by the court’s clerk, did not include certain passages of dialogue (see footnotes 2, 3 and 4 above). On 8 December 2006 the applicants asked the court to rectify the minutes so that those passages were included in them. On 16 April 2007 the court heard its clerk in the presence of counsel for the applicants. The clerk stated that she had noted down everything that she had been asked to, and that she had no clear recollection of hearing the passages of dialogue whose inclusion was being requested. In view of those explanations, and noting that the request for correction of the minutes had been made belatedly, the court refused to make the requested changes to the minutes.\n13.On 15 October 2008 the Sofia District Court dismissed the applicants’ claim. It began by noting that the case turned on whether MrSiderov’s statements had constituted a proper exercise of his right to express an opinion, as guaranteed by Article 39 § 1 of the Constitution (see paragraph 20 below), or whether they had amounted to an exercise of that right with a view to fomenting ethnic strife. The court went on to say that the assertion that the impugned statements had constituted harassment or incitement to discrimination were not supported by the facts. The statements, though revealing a negative attitude towards Roma as a group, had not been aimed at placing them at a disadvantage vis-à-vis other ethnic groups, but rather the opposite, as they had contained appeals that Roma be treated on an equal footing with other Bulgarian citizens. It was true that the statements, which had touched upon the integration of Roma, had been phrased in a manner that had not struck the correct tone and had not reflected the need for tolerance when discussing issues of public importance. But that was not in itself indicative of incitement to discrimination, since that turned on a statement’s content rather than its form or wording. Mr Siderov had, whether justifiably or not, sought to focus the public’s attention on “the fact that certain ethnic minority groups commit[ted] offences against the person, which went unpunished, and [did] not fulfil their obligations, as was expected of all Bulgarian citizens – namely not to disrupt public order and to pay their dues to the State and the various utility companies”. Calls for the investigation and punishment of offences committed by members of one or other ethnic group, and for them to abide by the laws, did not amount to discrimination, but were rather directed towards the equal treatment of the members of the various ethnic groups. To accept that ethnicity might be grounds to treat an individual or a group differently and to exonerate them from criminal or civil liability would be tantamount to legitimising discrimination against people with a different ethnic self-consciousness, which was proscribed by the Constitution and the 2003 Act. Mr Siderov’s public manifestation of his negative views about the conduct of the Roma community did not in itself amount to discrimination, since his statements had not been aimed atplacing that community in a less favourable position; rather, he had calledfor – as was indeed required by law – equal treatment for all (seeреш.от15.10.2008 г. по гр. д. № 2858/2006 г., СРС).\n14.The applicants and the four other claimants in the case lodged an appeal with Sofia City Court, arguing that the first-instance court’s findings had been formalistic and contrary to common sense. They argued that when a politician publicly spoke about an ethnic group in such crude terms, he in effect instilled fear and hatred towards it. It was not necessary for him directly to call for violence or discrimination against it. By holding otherwise, the court had erred in the application of the 2003 Act. Moreover, by referring to Mr Siderov’s assertions as “fact”, it had itself displayed racial bias.\n15.On 21 June 2010 the Sofia City Court upheld the lower court’s judgment. It held that the available evidence did not permit it to conclude that the impugned statements, as detailed in the statement of claim, had subjected the applicants to treatment different to that accorded to the rest of the population, or had constituted harassment or incitement to discrimination. In his newspaper articles, the public statements made by him over a considerable period of time (including his interview for Darik Radio), and his speech in Parliament in 2005, Mr Siderov had not directly or wilfully encouraged discrimination against those of Roma ethnicity. In particular, his remark in his book, Bulgarophobia, that the inhabitants of a Roma neighbourhood in the town of Plovdiv owed six million Bulgarian levs to the electricity company and that no steps were being taken to collect that debt could not be categorised as harassment (see реш. № 2935 от21.06.2010 г. по в. гр. д. № 2703/2010 г., СГС).\n16.The applicants and the four other claimants in the case appealed on points of law. They argued that the Sofia City Court had failed to give cogent reasons for its judgment or to properly analyse Mr Siderov’s statements in the light of the definitions of harassment and incitement to discrimination given by the 2003 Act. They again emphasised that MrSiderov was a well-known politician who had actively sought to vilify a whole ethnic group.\n17.On 8 August 2012 the Supreme Court of Cassation declined to accept the appeal for examination. It held that there was no indication that there was inconsistent case-law regarding the points at issue in the case, or that it threw up special issues relating to the correct application of the law or its development (see опр. № 972 от 08.08.2012 г. по гр. д. № 1672/2011 г., ВКС, IV г. о.).", "39": "Allegation: 8, 14, 6\n2.The applicants were born in 1970 and 1945 respectively and live in Sofia. They were represented initially by Ms M. Ilieva, a lawyer practising in Sofia and at the material time working with the Bulgarian Helsinki Committee, and then by Ms A. Kachaunova, also a lawyer practising in Sofia and working with that Committee, and by Mr K. Kanev, the Committee’s chairman.[1] On 15 January 2016 the then President of the Fifth Section gave Mr Kanev leave to represent the applicants in all pending and future cases in which he was appointed to personally act as their representative (Rule 36 § 4 (a) in fine of the Rules of Court).\n3.The Government were represented by their Agent, MsI.Stancheva‑Chinova of the Ministry of Justice.\n4.Ataka is a Bulgarian political party founded in April 2005. In parliamentary elections held on 25 June that year it received 8.14% of the votes cast and won twenty-one seats in Bulgaria’s two-hundred-and-forty-seat Parliament. In parliamentary elections held in 2009 it received 9.36% of the votes cast and again won twenty-one seats. In parliamentary elections held in 2013 it received 7.30% of the votes cast and won twenty-three seats. In parliamentary elections held in 2014 it received 4.52% of the votes cast and won eleven seats. It fought the March 2017 parliamentary elections as part of a three-party coalition, United Patriots, which gained 9.31% of the votes cast, and won eight of the coalition’s twenty-seven seats. In May 2017 United Patriots entered into a coalition with GERB, the political party then holding the biggest number of parliamentary seats, and formed a joint government with it; United Patriots received three ministerial positions, one of which was allocated to Ataka. At the elections for European Parliament in May 2019 Ataka received 1.07% of the votes cast and did not win any seats. Ataka has its own television channel, which apparently regularly broadcasts a programme attacking ethnic minorities and foreigners (see paragraph 36 in fine below).\n5.The party’s leader, Mr Volen Siderov, has been an Ataka Member of Parliament since 2005. Before that, he worked as a journalist: in the early 1990s he was editor-in-chief of the daily newspaper Demokratsia; then, in the early 2000s, he was a columnist for the daily newspaper Monitor; and later he served as the presenter of a daily television programme Ataka, aired by the television station SKAT. In September 2006 he stood as a candidate in that month’s presidential election. He came second in the first round of voting, receiving 21.5% of the votes cast, and in the run-off lost against the incumbent, Mr Georgi Parvanov, by 24.05% to 75.95%. In February 2011 Mr Siderov again announced his candidacy in the upcoming presidential election. Inthe first round of voting, which took place on 23 October 2011, he received 3.64% of the votes cast. Following the 2017 parliamentary elections (see paragraph 4 above), Mr Siderov became chairman of the United Patriots parliamentary grouping, but in July 2019 was removed from that position and was excluded from the parliamentary group along with two other Ataka members of parliament. Ataka nevertheless kept the ministerial position that it had in the coalition government (see paragraph 4 above).\n6.The applicants described Ataka as a “xenophobic party” and said that in his career as a journalist and politician Mr Siderov had systematically engaged in extreme anti-minority propaganda, by way of his books, his articles in Monitor, and then his television programme, which in effect he had made his political platform.\n7.Further information about Ataka’s activities and political positions can be found in Karaahmed v. Bulgaria (no. 30587/13, §§ 7-27, 24February 2015).\n8.In January 2006 the applicants and sixteen other people, as well as sixty-six non-governmental organisations, brought proceedings against MrSiderov under section 5 of the 2003 Protection from Discrimination Act (“the 2003 Act” – see paragraph 22 below). They alleged that a number of public statements made by him had constituted harassment of, and an incitement to discrimination against, Roma, Turks, Jews, Catholics and sexual minorities. The applicants argued, inter alia, that each of them – as a member of a minority – had been personally affected by those statements; they also based their claim against Mr Siderov on Article 32 § 1 of the Constitution (see paragraph 19 below), noting that it afforded protection against infringements of one’s dignity.\n9.The Sofia District Court split the case into eight separate cases on the basis of the specific type of discrimination alleged by each group of claimants. The case of the two applicants, both of whom were Roma working as journalists who often reported on Roma-related issues, concerned statements made by Mr Siderov in relation to Roma.\n10.In their claim, the applicants asserted that a number of statements made by Mr Siderov in his television programme, interviews, speeches and a book had amounted to harassment and incitement to discrimination against people of Roma ethnic origin. The applicants sought court orders against Mr Siderov to stop making such statements and to restore the status quo ante by publicly apologising for his statements.\n11.The applicants referred in particular to the following statements by Mr Siderov (arranged in the order in which they appeared in the particulars of claim):\nThe 1 June 2005 edition of the Ataka television programme(with the theme of “Gypsy terror”)\n“... Professor [S.K.] died, expired, passed away. The man [was] beaten to a pulp after a terrorist attack by a Gypsy gang on peaceful Bulgarians [having fun] in their own place. ...\n... This scientist – Bulgarian, famous, man of authority enjoying a very good name in scientific circles – was killed like a dog by a gang of ferocious Gypsies. With premeditation, wilfully, sadistically ...\n... This whole genocide [was] carried out against the Bulgarian community in the Zaharna Fabrika neighbourhood. A genocide committed by an ethnic group of Gypsies. There is in Bulgaria a racial, ethnic discrimination against Bulgarians by the Gypsy ethnic group. ...”\nThe 4 June 2005 edition of the Ataka television programme(with the theme of “Gypsy terror”)\n“... A gang of Gypsies, eighty strong, carried out a terrorist attack against several Bulgarians who were attending the high school graduation dance of a man from the neighbourhood. People were thrashed in the course of this attack; one of them died. A fifty-three-year-old university professor of history, [S.K.], died after an awful, sadistic beating. It turns out that the problem is not confined to Zaharna Fabrika. This is a problem for the whole of Bulgaria. I have received information about similar happenings from all corners of the country. Some of the stories are harrowing, and people say that they live in such fear that they dare not even complain to the police because they would not do anything in response. I received information from the village of Mechka, near Pleven. I have spoken [before] about this village – there, in 2000, [P.T.] was killed in his own yard. Until this day this man’s killers have not been caught, have not been convicted. They are from among the Gypsies, from the village’s Gypsy neighbourhood. After this case, it turned out that it was not only this murder that had not been investigated – there had been seven more [such cases], villagers told me. Today they live in a fear that can only be compared with the fear of people living under foreign occupation – trembling each day for their life, for their property. ...”\nThe 7 June 2005 edition of the Ataka television programme(with the theme of “Gypsy terror”)\n“... And Gypsy terror over Bulgarians is growing literally by the week. ...\n... This shows that the authorities refuse to deal with the Gypsy terror. This is a tremendous problem for Bulgaria. And I am telling you that if the authorities keep on refusing to address the issue, in two-three years, or five, Gypsy terror will become Bulgaria’s foremost problem. But it will then be too late, for Bulgarians will have self-organised and responded to violence with violence. ...\n... Think very hard; if Euroroma [a political party] enter Parliament, what greater [level of] protection will the terrorists from the Gypsy ghettoes ever gain? Because the thing they carry out – it is organised terror against Bulgarians. This terror must be brought to a halt. This terror must be resisted. And I promise you that work is being done in that respect. Hard work is being carried out by Bulgarians who can no longer bear the terrorising of their compatriots and will do all they can for this to cease. ...[2]”\nThe 8 June 2005 edition of the Ataka television programme(with the theme of “Gypsy terror”)\n“... There is no town, no settlement in Bulgaria that has not borne the brunt of Gypsy terror. ...\n... I want to tell you also that the question of Gypsy terror can only be resolved by tackling ... tackling this population in general – putting it where it belongs. They should work, learn to respect the laws, learn to meet their obligations, [learn] to pay their taxes and dues. ...”\nThe 14 June 2005 edition of the Ataka television programme(with the theme “The Gypsy killers of Professor [K.] are free”)\n“... The Gypsy terror in Bulgaria continues. The Gypsy terror in Bulgaria has never stopped. What is more, this has now begun to be acknowledged by international studies that show that the bulk of the crime in the country – upwards of 30% – is being carried out by Gypsies. At the same time, this ethnic group accounts for a mere 5% of the general population. So we Bulgarians have been subjected to total Gypsy terror. Every day, every hour, in all corners of Bulgaria. ...\n... An esteemed Bulgarian scientist was killed in a sadistic, barbaric manner by a gang of Gypsies. ...[3]”\nThe 4 May 2005 edition of the Ataka television programme(with the theme “The racial discrimination against Bulgarians in Bulgaria”)\n“... At the same time, whole Gypsy neighbourhoods are not only not paying for their electricity but also beat up fee collectors, attack the police vehicles that try to re‑establish order, ... smash everything around them, loot shops, rob people ... and nothing is being done to them. When you ask the high command of the police or the State in general why they have not taken any measures, they say – in order not to provoke an ethnic conflict. So a group of people in Bulgaria – non-Bulgarians – is being placed in a privileged position. ... This is called democracy, this is called integration, this is called wonderful names, which however conceal a single thing – discrimination and genocide against the Bulgarians in Bulgaria. ...”\nThe 6 May 2005 edition of the Ataka television programme\n“... This huge wave of external and internal factors, which wish, which categorically wish and work to de-Bulgarianise Bulgaria. Work to destroy the Bulgarian nation as a nation.[4] Work for its Gypsification, for its Turkification. Work for everything but the possibility for the Bulgarian people to consist of Bulgarians. I would like to tell you that according to official statistical data more than half of the children born in Bulgaria are either little Turks or little Gypsies. This is because nowadays, with plenty of outside money, anti-Bulgarian factors, aided by national traitors from within, have long since been working to divide the Bulgarian people. Work is being done to make Gypsies feel like a separate nationality, to pretend that they are apart and to seek collective rights. Work is being done for all sorts of other ... to create all sorts of other invented nationalities in Bulgaria. The results are at hand – already more than half of all newborns in Bulgaria are not Bulgarian. This means that the de-Bulgarisation process is moving towards its high point – the end of the Bulgarian nation. ...”\nThe 25 May 2005 edition of the Ataka television programme(with the theme “Gypsy terror”)\n“... Today I would like to speak about a topic on which the so-called official media keep silent, and on which politicians keep silent too. This topic is Gypsy terror – the Gypsy terror carried out towards Bulgarians in Bulgaria. This is a very serious topic; this is a drastic topic. But most media, as I said, keep silent about this topic. ...\n... Awful violence has taken place in the Zaharna Fabrika neighbourhood towards Bulgarians, and more than eighty Gypsies took part in it. They wrecked an establishment [selling food and drink], beat up a police officer, beat up the establishment’s owner, beat up the people who were there, and yet I do not know of any of them having been arrested. Here – see this material from the front page of Noshten Trud, the only newspaper that does not shirk from writing about the Gypsy topic – the topic of Gypsy terror towards Bulgarians. ...\n... In this case, notably, police officers were hurt as well. Though they tried to shoot plastic bullets into the air, they were attacked and some were struck and beaten up by the Gypsies. This is not the first such case. You will recall that a village police officer in a village near Burgas was beaten up – attacked by a gang of Gypsies. Forest rangers were attacked in Botevgrad and the vicinity. Forest workers were attacked near Samokov. Terror is constantly being generated across Bulgaria. By a population that calls itself ‘a minority’. Except that in many towns and villages in Bulgaria it is no longer a minority but the majority. There are today hundreds of villages in Bulgaria in which the prevailing population is Gypsy. Not only does it not integrate – something that parrots getting food from foreign foundations talk about; it also terrorises the Bulgarian population there. This terror continues under the benevolent gaze of the ruling clique, which not only does nothing but also stops the law-enforcement authorities from intervening. Usually, when something like this happens, as in the case of this terror over Bulgarian citizens in Zaharna Fabrika, then orders come from somewhere high-up for the police not to intervene, for investigators to keep mum, for prosecutors not to sweat too much, and for the judicial system to, you know, close its eyes and not put the ruffians, the rapists, the killers – very often of Gypsy origin – in prison. ...\n... The Bulgarian State nowadays tolerates Gypsy terror against Bulgarians. ...”\nThe 30 May 2005 edition of the Ataka television programme(with the theme “Gypsy terror”)\n“... Today I continue with the topic of Gypsy terror. ... These are between 1,500 and2,000 Gypsies – no-one can say how many exactly – who have come from all over the country, have settled there, without registering their address. All of them are deemed to inhabit the same address ... and live there illegally. They do not pay taxes, do not pay fees, do not pay for electricity, do not pay for water supply. They pay for nothing. But what do they do – they beat up Bulgarians, rob them, ill-treat them, rape women, kill; there have been several murders already. I categorically promise you, dear Bulgarians, that I will investigate these cases, because this is not simply terror – ‘Gypsy terror’, as I have entitled my programme – this is genocide. This is to commit genocide against the Bulgarian ethnic group in Bulgaria. This genocide is being manipulated and stimulated from abroad. I have information that these Gypsy raids are being paid for – paid for so that they be organised and stir up unrest. Someone wishes this place to become like Kosovo. ...”\nThe 22 March 2005 edition of the Ataka television programme(with the theme “Gypsy terror”)\n“... And this is just one episode from the long series of instances of Gypsy violence, which is now an everyday occurrence in the capital. As you can see, we are talking about an inner-city school in the capital, in [the district of] Ovcha Kupel. And what about localities in the countryside – smaller settlements, villages – which are being constantly subjected to Gypsy violence? ...\n... There are whole regions, dear Bulgarians, where settlements have in the last few years turned from Bulgarian – predominantly Bulgarian – to predominantly Gypsy. Someone would say that this is already a demographic issue. For my part, I say that this is a question of genocide against the Bulgarians, since Gypsy criminality is deliberately not being prosecuted. ...\n... I must say that during the last few years – the last perhaps seven or eight years – about 102 towns and villages in Bulgaria have turned from predominantly Bulgarian to predominantly Gypsy. This means a conquest of Bulgaria – a ‘Gypsification’ that will lead to ... I personally dare not paint the picture that might result, because the impudence of those groups, ethnic groups, is growing like an avalanche. ...”\nThe 23 June 2004 edition of the Ataka television programme\n“... We see how in the Borisova Gradina park the busts of a number of Bulgarian national writers and revolutionaries have gone missing, stolen by Gypsy gangs and melted for recycling. ...”\nInterview with Mr Siderov aired by SKAT television in June 2005\n“... I shall not detain people here with details of the dozens of instances of marauding, of crime left simply without any repercussions – just because it would cause ethnic unrest, as the people in power are now saying. ... They refuse to take a stance, and thus encourage whole groups of people, who simply know that they will not be sanctioned, and who do as they please. There are dozens of examples ... Villages, towns are simply squirming under a living terror. And this terror is becoming greater each day, and I believe that this should all be brought to a halt. There is a way to bring it to a halt. These ways ... so, at first they seem violent, administrative, but they are being applied in developed countries. And I shall again point to America, so very beloved by all democrats and liberal-mongering politicians. Where anyone who commits an offence or attacks you in your home – on your property, which is inviolable and sacred by constitution – you can literally shoot him, [while] protecting your home, and not be held liable. I am categorically in favour of that. I want the Bulgarian to be protected in his own home. To be able to protect his family, his property, and not wonder whether, if he defends himself, he will tomorrow become a target for the judicial system, be branded as a violent offender, as has happened in some cases ...\n... Gypsification is an enormous problem. It is not such an easy problem. Because I know of no country in Europe that has managed to integrate its Gypsy population, fully and completely. There is no such country. The problem is that in Bulgaria – unlike in Germany or France – this population is a serious percentage. There, even if there are Gypsies, they are a lot fewer in terms of percentage and do not create such a problem. If no measures are taken – at State level – as part of a programme, then this problem (I am categorically certain [and] I assure all viewers, all Bulgarians of this) ... will become paramount for Bulgaria in only five to six years. Because this population– let’s say it honestly, directly – understands sanctions. As does, by the way, a serious part of the population of the Earth when they are subjected to sanctions. And we cannot be confident that self-education [and] moral scruples will prevail and that one fine day we will see ourselves surrounded by a Gypsy ethnic group that will be at such a level of morality as to by itself heed all laws and moral precepts. ...”\nSpeech by Mr Siderov at a pre-election rally of Atakain Burgas on 22 June 2005\n“... All Gypsy gangs, marauders, who torture, ill-treat, rape and loot in all towns of Bulgaria will be put in their place. ...\n... Now is the time when we must begin to stop this process of the Gypsification of Bulgaria. ...”\nSpeech by Mr Siderov at the first session ofthe newly elected parliament on 11 July 2005\n“... Because a gigantic genocide of the Bulgarian nation was carried out during this eight-year period. At the insistence of foreign factors (фактори) hostile to Bulgaria, it is envisaged to leave [just] three-and-a-half to four million of our people [remaining in Bulgaria. This is the plan of the Bulgarophobes, and this plan is being carried out before our very eyes. If someone asks how, I will explain: by stripping Bulgarians of the right to be masters in their own State; by leaving them to die of misery and lack of medicine and medical treatment; by subjecting them to terror by Gypsy gangs, who every day attack, loot, rape and ill-treat the Bulgarian nation. And then, deliberately, no one seeks to uncover the crimes committed by them, because the foreign directive is precisely that – not to investigate offences committed by these minority groups. The goal is for Bulgarians to live in fear, to lose faith, to be crushed, submissive. ...”\nInterview with Mr Siderov aired by Darik Radio in July 2005\n“Host: Now, the other topic – Roma. How to resolve the problem of illegal logging and the Roma?\nMr Siderov: ... I know that in this region this is an everyday occurrence, this happens all the time: Gypsies with carts, with saws, with equipment – quite decent, by the way – are constantly cutting down [trees] ... there is illegal logging going on. ... This is well-known – everyone knows this. Just ask around the region – they will tell you. And in the fact that what happened here was a clash between Gypsy poachers who break the law (this should be said clearly, no one has done it until today) and law-enforcement authorities or forest rangers (I am not sure which – this will surely be elucidated in the future investigation). This is simply the consequence of something that is happening; measures against this illegal logging should have been taken long ago – put the perpetrators in prison and ensure that they do not think again of cutting down Bulgarian forests, because the damage is dreadful. This damage will not be made good for decades. This is simply an invasion of termites that is destroying Bulgaria.\nHost: This is one side of the coin, Mr Siderov; but would you say that, should it be established that the gendarmerie or the forest rangers or the police have beaten up Gypsies – would you say that they should also be punished?\nMr Siderov: If it is established that Gypsies have beaten up – because I know of a case in which today or yesterday – not sure, let me avoid an error – but a very recent case in which Burgas Gypsies attacked some [water-charge] collectors and beat them up – collectors who were on their way to cut off the water mains of [someone] who had not paid water charges for three years.\nHost: They should obviously be punished. And should those who beat up Gypsies likewise be punished?\nMr Siderov: Those who lay their hands on a law-enforcement officer should be punished with the full severity of the law. I am simply categorically in favour of that. In the case of [these gendarmes], I fully excuse the actions of the gendarmerie there, because in this case specifically we have a crime, we have illegal logging, we have an offence that has gone on for years. It was, you know, high time for the gendarmerie to intervene. I am for that.\nHost: ... And yet, should Gypsies be beaten up in ... when they are being arrested?\nMr Siderov: This is not a correct question, because what is ‘should they be’ supposed to mean? Offences should be prevented ...\nHost: Do you approve of violence against Gypsies?\nMr Siderov: If offenders put up resistance, they should be neutralised, including by force. This is the law. So there must have been some resistance, because there is more than one case in which Gypsies have attacked police officers, have attacked law‑enforcement officers; there were police officers, patrols, and so on, who were beaten up. This is inadmissible; in every civilised country such people are simply neutralised on the spot, at that very second, by all possible means. And this is absolutely lawful, within the bounds of the law.\nHost: And do you approve? Because there have been such cases against Bulgaria in Strasbourg [regarding] the thrashing of Gypsies in investigation facilities. When they have already been caught, do not put up resistance – they are being tied up and beaten.\nMr Siderov: And I would ask you: do you approve of an attack on a law‑enforcement officer by a poacher, a law-breaker, a criminal?\nHost: If we are to maintain a humorous vein – you are determined to preserve your image.\nMr Siderov: ... I am against Strasbourg’s decision. If someone approves of a police officer being attacked, I, according to ... my personal opinion is that he should have permission and the right to shoot to kill in such cases, because this is how law‑enforcement authorities operate. This is how it is in America, this how it is, you know, in developed countries – the police are inviolable; they cannot be attacked, especially by someone who is committing an offence. This is the same as ... he should become a target for the police officer, for the law-enforcement officer who is doing his duty, and be neutralised, including by using firearms. ...”\nPassages from Mr Siderov’s book Bulgarophobia,published in Sofia in 2003\n“... They steal to get out of poverty, say the waged [платените] human-rights defenders; they have no jobs. They skip over the tiny fact that Gypsy families keep their children out of school en masse and they remain illiterate. What kind of work can they get later? If you offer them agricultural work, they balk. They prefer to steal the fruit. To steal wiring and scavenge all things made of metal. According to villagers, it is chiefly Gypsies who now burn the forests, so that they can smuggle wood after that. ...” (page 288)\n“... According to the statistics, unemployment benefits in Bulgaria are distributed as follows: 65.2% of the money goes to Roma [and] 14.6% for Bulgarians. Again, the few active Bulgarians of working age who remain in Bulgaria support a gigantic percentage of Gypsies who for their part only take benefits, do not pay for anything, and are on top of all that the main thieves of electric wiring, which has caused the State losses of hundreds of millions and is everywhere [else] treated as terrorism (but we are broad-minded). If this is untrue, let the police and the investigators who deal with electric-wiring theft rebut me. ...” (page 315)\n“... Throughout all those years, when Gypsy bandits stole, cut away tonnes of electric wiring (which in civilised countries is a terrorist act) and left whole regions without electricity, causing millions of levs in damages, non-Gypsies were hanging themselves from the ceiling out of despair ...” (page 332)\n“... The brazenness of this demonstrable Gypsy banditry comes from statements such as that of [T.T.], the leader of the Roma Association, to the newspaper Trud on14 August 2001: ‘Bulgaria will become Kosovo’. The prophecy (or threat) of the Roma leader is evidently turning into reality. In the absence of State authority in Bulgaria, the next stage is terrorist acts and murders of non-Gypsies. ‘What are we to do?’ asks the police chief in Plovdiv hopelessly. Our advice is, first tender your resignation. And until then let someone who knows how to deal with terrorists and street vandals take over your post. ... ” (page 333)\n12.When hearing the case on 21 November 2006, the Sofia District Court listened to audio recordings of Mr Siderov’s statements presented by the applicants. The minutes of the hearing, drawn up by the court’s clerk, did not include certain passages of dialogue (see footnotes 2, 3 and 4 above). On 8 December 2006 the applicants asked the court to rectify the minutes so that those passages were included in them. On 16 April 2007 the court heard its clerk in the presence of counsel for the applicants. The clerk stated that she had noted down everything that she had been asked to, and that she had no clear recollection of hearing the passages of dialogue whose inclusion was being requested. In view of those explanations, and noting that the request for correction of the minutes had been made belatedly, the court refused to make the requested changes to the minutes.\n13.On 15 October 2008 the Sofia District Court dismissed the applicants’ claim. It began by noting that the case turned on whether MrSiderov’s statements had constituted a proper exercise of his right to express an opinion, as guaranteed by Article 39 § 1 of the Constitution (see paragraph 20 below), or whether they had amounted to an exercise of that right with a view to fomenting ethnic strife. The court went on to say that the assertion that the impugned statements had constituted harassment or incitement to discrimination were not supported by the facts. The statements, though revealing a negative attitude towards Roma as a group, had not been aimed at placing them at a disadvantage vis-à-vis other ethnic groups, but rather the opposite, as they had contained appeals that Roma be treated on an equal footing with other Bulgarian citizens. It was true that the statements, which had touched upon the integration of Roma, had been phrased in a manner that had not struck the correct tone and had not reflected the need for tolerance when discussing issues of public importance. But that was not in itself indicative of incitement to discrimination, since that turned on a statement’s content rather than its form or wording. Mr Siderov had, whether justifiably or not, sought to focus the public’s attention on “the fact that certain ethnic minority groups commit[ted] offences against the person, which went unpunished, and [did] not fulfil their obligations, as was expected of all Bulgarian citizens – namely not to disrupt public order and to pay their dues to the State and the various utility companies”. Calls for the investigation and punishment of offences committed by members of one or other ethnic group, and for them to abide by the laws, did not amount to discrimination, but were rather directed towards the equal treatment of the members of the various ethnic groups. To accept that ethnicity might be grounds to treat an individual or a group differently and to exonerate them from criminal or civil liability would be tantamount to legitimising discrimination against people with a different ethnic self-consciousness, which was proscribed by the Constitution and the 2003 Act. Mr Siderov’s public manifestation of his negative views about the conduct of the Roma community did not in itself amount to discrimination, since his statements had not been aimed atplacing that community in a less favourable position; rather, he had calledfor – as was indeed required by law – equal treatment for all (seeреш.от15.10.2008 г. по гр. д. № 2858/2006 г., СРС).\n14.The applicants and the four other claimants in the case lodged an appeal with Sofia City Court, arguing that the first-instance court’s findings had been formalistic and contrary to common sense. They argued that when a politician publicly spoke about an ethnic group in such crude terms, he in effect instilled fear and hatred towards it. It was not necessary for him directly to call for violence or discrimination against it. By holding otherwise, the court had erred in the application of the 2003 Act. Moreover, by referring to Mr Siderov’s assertions as “fact”, it had itself displayed racial bias.\n15.On 21 June 2010 the Sofia City Court upheld the lower court’s judgment. It held that the available evidence did not permit it to conclude that the impugned statements, as detailed in the statement of claim, had subjected the applicants to treatment different to that accorded to the rest of the population, or had constituted harassment or incitement to discrimination. In his newspaper articles, the public statements made by him over a considerable period of time (including his interview for Darik Radio), and his speech in Parliament in 2005, Mr Siderov had not directly or wilfully encouraged discrimination against those of Roma ethnicity. In particular, his remark in his book, Bulgarophobia, that the inhabitants of a Roma neighbourhood in the town of Plovdiv owed six million Bulgarian levs to the electricity company and that no steps were being taken to collect that debt could not be categorised as harassment (see реш. № 2935 от21.06.2010 г. по в. гр. д. № 2703/2010 г., СГС).\n16.The applicants and the four other claimants in the case appealed on points of law. They argued that the Sofia City Court had failed to give cogent reasons for its judgment or to properly analyse Mr Siderov’s statements in the light of the definitions of harassment and incitement to discrimination given by the 2003 Act. They again emphasised that MrSiderov was a well-known politician who had actively sought to vilify a whole ethnic group.\n17.On 8 August 2012 the Supreme Court of Cassation declined to accept the appeal for examination. It held that there was no indication that there was inconsistent case-law regarding the points at issue in the case, or that it threw up special issues relating to the correct application of the law or its development (see опр. № 972 от 08.08.2012 г. по гр. д. № 1672/2011 г., ВКС, IV г. о.).", "40": "Allegation: 8, 14, 6\n2.The applicants were born in 1970 and 1945 respectively and live in Sofia. They were represented initially by Ms M. Ilieva, a lawyer practising in Sofia and at the material time working with the Bulgarian Helsinki Committee, and then by Ms A. Kachaunova, also a lawyer practising in Sofia and working with that Committee, and by Mr K. Kanev, the Committee’s chairman.[1] On 15 January 2016 the then President of the Fifth Section gave Mr Kanev leave to represent the applicants in all pending and future cases in which he was appointed to personally act as their representative (Rule 36 § 4 (a) in fine of the Rules of Court).\n3.The Government were represented by their Agent, MsI.Stancheva‑Chinova of the Ministry of Justice.\n4.Ataka is a Bulgarian political party founded in April 2005. In parliamentary elections held on 25 June that year it received 8.14% of the votes cast and won twenty-one seats in Bulgaria’s two-hundred-and-forty-seat Parliament. In parliamentary elections held in 2009 it received 9.36% of the votes cast and again won twenty-one seats. In parliamentary elections held in 2013 it received 7.30% of the votes cast and won twenty-three seats. In parliamentary elections held in 2014 it received 4.52% of the votes cast and won eleven seats. It fought the March 2017 parliamentary elections as part of a three-party coalition, United Patriots, which gained 9.31% of the votes cast, and won eight of the coalition’s twenty-seven seats. In May 2017 United Patriots entered into a coalition with GERB, the political party then holding the biggest number of parliamentary seats, and formed a joint government with it; United Patriots received three ministerial positions, one of which was allocated to Ataka. At the elections for European Parliament in May 2019 Ataka received 1.07% of the votes cast and did not win any seats. Ataka has its own television channel, which apparently regularly broadcasts a programme attacking ethnic minorities and foreigners (see paragraph 36 in fine below).\n5.The party’s leader, Mr Volen Siderov, has been an Ataka Member of Parliament since 2005. Before that, he worked as a journalist: in the early 1990s he was editor-in-chief of the daily newspaper Demokratsia; then, in the early 2000s, he was a columnist for the daily newspaper Monitor; and later he served as the presenter of a daily television programme Ataka, aired by the television station SKAT. In September 2006 he stood as a candidate in that month’s presidential election. He came second in the first round of voting, receiving 21.5% of the votes cast, and in the run-off lost against the incumbent, Mr Georgi Parvanov, by 24.05% to 75.95%. In February 2011 Mr Siderov again announced his candidacy in the upcoming presidential election. Inthe first round of voting, which took place on 23 October 2011, he received 3.64% of the votes cast. Following the 2017 parliamentary elections (see paragraph 4 above), Mr Siderov became chairman of the United Patriots parliamentary grouping, but in July 2019 was removed from that position and was excluded from the parliamentary group along with two other Ataka members of parliament. Ataka nevertheless kept the ministerial position that it had in the coalition government (see paragraph 4 above).\n6.The applicants described Ataka as a “xenophobic party” and said that in his career as a journalist and politician Mr Siderov had systematically engaged in extreme anti-minority propaganda, by way of his books, his articles in Monitor, and then his television programme, which in effect he had made his political platform.\n7.Further information about Ataka’s activities and political positions can be found in Karaahmed v. Bulgaria (no. 30587/13, §§ 7-27, 24February 2015).\n8.In January 2006 the applicants and sixteen other people, as well as sixty-six non-governmental organisations, brought proceedings against MrSiderov under section 5 of the 2003 Protection from Discrimination Act (“the 2003 Act” – see paragraph 22 below). They alleged that a number of public statements made by him had constituted harassment of, and an incitement to discrimination against, Roma, Turks, Jews, Catholics and sexual minorities. The applicants argued, inter alia, that each of them – as a member of a minority – had been personally affected by those statements; they also based their claim against Mr Siderov on Article 32 § 1 of the Constitution (see paragraph 19 below), noting that it afforded protection against infringements of one’s dignity.\n9.The Sofia District Court split the case into eight separate cases on the basis of the specific type of discrimination alleged by each group of claimants. The case of the two applicants, both of whom were Roma working as journalists who often reported on Roma-related issues, concerned statements made by Mr Siderov in relation to Roma.\n10.In their claim, the applicants asserted that a number of statements made by Mr Siderov in his television programme, interviews, speeches and a book had amounted to harassment and incitement to discrimination against people of Roma ethnic origin. The applicants sought court orders against Mr Siderov to stop making such statements and to restore the status quo ante by publicly apologising for his statements.\n11.The applicants referred in particular to the following statements by Mr Siderov (arranged in the order in which they appeared in the particulars of claim):\nThe 1 June 2005 edition of the Ataka television programme(with the theme of “Gypsy terror”)\n“... Professor [S.K.] died, expired, passed away. The man [was] beaten to a pulp after a terrorist attack by a Gypsy gang on peaceful Bulgarians [having fun] in their own place. ...\n... This scientist – Bulgarian, famous, man of authority enjoying a very good name in scientific circles – was killed like a dog by a gang of ferocious Gypsies. With premeditation, wilfully, sadistically ...\n... This whole genocide [was] carried out against the Bulgarian community in the Zaharna Fabrika neighbourhood. A genocide committed by an ethnic group of Gypsies. There is in Bulgaria a racial, ethnic discrimination against Bulgarians by the Gypsy ethnic group. ...”\nThe 4 June 2005 edition of the Ataka television programme(with the theme of “Gypsy terror”)\n“... A gang of Gypsies, eighty strong, carried out a terrorist attack against several Bulgarians who were attending the high school graduation dance of a man from the neighbourhood. People were thrashed in the course of this attack; one of them died. A fifty-three-year-old university professor of history, [S.K.], died after an awful, sadistic beating. It turns out that the problem is not confined to Zaharna Fabrika. This is a problem for the whole of Bulgaria. I have received information about similar happenings from all corners of the country. Some of the stories are harrowing, and people say that they live in such fear that they dare not even complain to the police because they would not do anything in response. I received information from the village of Mechka, near Pleven. I have spoken [before] about this village – there, in 2000, [P.T.] was killed in his own yard. Until this day this man’s killers have not been caught, have not been convicted. They are from among the Gypsies, from the village’s Gypsy neighbourhood. After this case, it turned out that it was not only this murder that had not been investigated – there had been seven more [such cases], villagers told me. Today they live in a fear that can only be compared with the fear of people living under foreign occupation – trembling each day for their life, for their property. ...”\nThe 7 June 2005 edition of the Ataka television programme(with the theme of “Gypsy terror”)\n“... And Gypsy terror over Bulgarians is growing literally by the week. ...\n... This shows that the authorities refuse to deal with the Gypsy terror. This is a tremendous problem for Bulgaria. And I am telling you that if the authorities keep on refusing to address the issue, in two-three years, or five, Gypsy terror will become Bulgaria’s foremost problem. But it will then be too late, for Bulgarians will have self-organised and responded to violence with violence. ...\n... Think very hard; if Euroroma [a political party] enter Parliament, what greater [level of] protection will the terrorists from the Gypsy ghettoes ever gain? Because the thing they carry out – it is organised terror against Bulgarians. This terror must be brought to a halt. This terror must be resisted. And I promise you that work is being done in that respect. Hard work is being carried out by Bulgarians who can no longer bear the terrorising of their compatriots and will do all they can for this to cease. ...[2]”\nThe 8 June 2005 edition of the Ataka television programme(with the theme of “Gypsy terror”)\n“... There is no town, no settlement in Bulgaria that has not borne the brunt of Gypsy terror. ...\n... I want to tell you also that the question of Gypsy terror can only be resolved by tackling ... tackling this population in general – putting it where it belongs. They should work, learn to respect the laws, learn to meet their obligations, [learn] to pay their taxes and dues. ...”\nThe 14 June 2005 edition of the Ataka television programme(with the theme “The Gypsy killers of Professor [K.] are free”)\n“... The Gypsy terror in Bulgaria continues. The Gypsy terror in Bulgaria has never stopped. What is more, this has now begun to be acknowledged by international studies that show that the bulk of the crime in the country – upwards of 30% – is being carried out by Gypsies. At the same time, this ethnic group accounts for a mere 5% of the general population. So we Bulgarians have been subjected to total Gypsy terror. Every day, every hour, in all corners of Bulgaria. ...\n... An esteemed Bulgarian scientist was killed in a sadistic, barbaric manner by a gang of Gypsies. ...[3]”\nThe 4 May 2005 edition of the Ataka television programme(with the theme “The racial discrimination against Bulgarians in Bulgaria”)\n“... At the same time, whole Gypsy neighbourhoods are not only not paying for their electricity but also beat up fee collectors, attack the police vehicles that try to re‑establish order, ... smash everything around them, loot shops, rob people ... and nothing is being done to them. When you ask the high command of the police or the State in general why they have not taken any measures, they say – in order not to provoke an ethnic conflict. So a group of people in Bulgaria – non-Bulgarians – is being placed in a privileged position. ... This is called democracy, this is called integration, this is called wonderful names, which however conceal a single thing – discrimination and genocide against the Bulgarians in Bulgaria. ...”\nThe 6 May 2005 edition of the Ataka television programme\n“... This huge wave of external and internal factors, which wish, which categorically wish and work to de-Bulgarianise Bulgaria. Work to destroy the Bulgarian nation as a nation.[4] Work for its Gypsification, for its Turkification. Work for everything but the possibility for the Bulgarian people to consist of Bulgarians. I would like to tell you that according to official statistical data more than half of the children born in Bulgaria are either little Turks or little Gypsies. This is because nowadays, with plenty of outside money, anti-Bulgarian factors, aided by national traitors from within, have long since been working to divide the Bulgarian people. Work is being done to make Gypsies feel like a separate nationality, to pretend that they are apart and to seek collective rights. Work is being done for all sorts of other ... to create all sorts of other invented nationalities in Bulgaria. The results are at hand – already more than half of all newborns in Bulgaria are not Bulgarian. This means that the de-Bulgarisation process is moving towards its high point – the end of the Bulgarian nation. ...”\nThe 25 May 2005 edition of the Ataka television programme(with the theme “Gypsy terror”)\n“... Today I would like to speak about a topic on which the so-called official media keep silent, and on which politicians keep silent too. This topic is Gypsy terror – the Gypsy terror carried out towards Bulgarians in Bulgaria. This is a very serious topic; this is a drastic topic. But most media, as I said, keep silent about this topic. ...\n... Awful violence has taken place in the Zaharna Fabrika neighbourhood towards Bulgarians, and more than eighty Gypsies took part in it. They wrecked an establishment [selling food and drink], beat up a police officer, beat up the establishment’s owner, beat up the people who were there, and yet I do not know of any of them having been arrested. Here – see this material from the front page of Noshten Trud, the only newspaper that does not shirk from writing about the Gypsy topic – the topic of Gypsy terror towards Bulgarians. ...\n... In this case, notably, police officers were hurt as well. Though they tried to shoot plastic bullets into the air, they were attacked and some were struck and beaten up by the Gypsies. This is not the first such case. You will recall that a village police officer in a village near Burgas was beaten up – attacked by a gang of Gypsies. Forest rangers were attacked in Botevgrad and the vicinity. Forest workers were attacked near Samokov. Terror is constantly being generated across Bulgaria. By a population that calls itself ‘a minority’. Except that in many towns and villages in Bulgaria it is no longer a minority but the majority. There are today hundreds of villages in Bulgaria in which the prevailing population is Gypsy. Not only does it not integrate – something that parrots getting food from foreign foundations talk about; it also terrorises the Bulgarian population there. This terror continues under the benevolent gaze of the ruling clique, which not only does nothing but also stops the law-enforcement authorities from intervening. Usually, when something like this happens, as in the case of this terror over Bulgarian citizens in Zaharna Fabrika, then orders come from somewhere high-up for the police not to intervene, for investigators to keep mum, for prosecutors not to sweat too much, and for the judicial system to, you know, close its eyes and not put the ruffians, the rapists, the killers – very often of Gypsy origin – in prison. ...\n... The Bulgarian State nowadays tolerates Gypsy terror against Bulgarians. ...”\nThe 30 May 2005 edition of the Ataka television programme(with the theme “Gypsy terror”)\n“... Today I continue with the topic of Gypsy terror. ... These are between 1,500 and2,000 Gypsies – no-one can say how many exactly – who have come from all over the country, have settled there, without registering their address. All of them are deemed to inhabit the same address ... and live there illegally. They do not pay taxes, do not pay fees, do not pay for electricity, do not pay for water supply. They pay for nothing. But what do they do – they beat up Bulgarians, rob them, ill-treat them, rape women, kill; there have been several murders already. I categorically promise you, dear Bulgarians, that I will investigate these cases, because this is not simply terror – ‘Gypsy terror’, as I have entitled my programme – this is genocide. This is to commit genocide against the Bulgarian ethnic group in Bulgaria. This genocide is being manipulated and stimulated from abroad. I have information that these Gypsy raids are being paid for – paid for so that they be organised and stir up unrest. Someone wishes this place to become like Kosovo. ...”\nThe 22 March 2005 edition of the Ataka television programme(with the theme “Gypsy terror”)\n“... And this is just one episode from the long series of instances of Gypsy violence, which is now an everyday occurrence in the capital. As you can see, we are talking about an inner-city school in the capital, in [the district of] Ovcha Kupel. And what about localities in the countryside – smaller settlements, villages – which are being constantly subjected to Gypsy violence? ...\n... There are whole regions, dear Bulgarians, where settlements have in the last few years turned from Bulgarian – predominantly Bulgarian – to predominantly Gypsy. Someone would say that this is already a demographic issue. For my part, I say that this is a question of genocide against the Bulgarians, since Gypsy criminality is deliberately not being prosecuted. ...\n... I must say that during the last few years – the last perhaps seven or eight years – about 102 towns and villages in Bulgaria have turned from predominantly Bulgarian to predominantly Gypsy. This means a conquest of Bulgaria – a ‘Gypsification’ that will lead to ... I personally dare not paint the picture that might result, because the impudence of those groups, ethnic groups, is growing like an avalanche. ...”\nThe 23 June 2004 edition of the Ataka television programme\n“... We see how in the Borisova Gradina park the busts of a number of Bulgarian national writers and revolutionaries have gone missing, stolen by Gypsy gangs and melted for recycling. ...”\nInterview with Mr Siderov aired by SKAT television in June 2005\n“... I shall not detain people here with details of the dozens of instances of marauding, of crime left simply without any repercussions – just because it would cause ethnic unrest, as the people in power are now saying. ... They refuse to take a stance, and thus encourage whole groups of people, who simply know that they will not be sanctioned, and who do as they please. There are dozens of examples ... Villages, towns are simply squirming under a living terror. And this terror is becoming greater each day, and I believe that this should all be brought to a halt. There is a way to bring it to a halt. These ways ... so, at first they seem violent, administrative, but they are being applied in developed countries. And I shall again point to America, so very beloved by all democrats and liberal-mongering politicians. Where anyone who commits an offence or attacks you in your home – on your property, which is inviolable and sacred by constitution – you can literally shoot him, [while] protecting your home, and not be held liable. I am categorically in favour of that. I want the Bulgarian to be protected in his own home. To be able to protect his family, his property, and not wonder whether, if he defends himself, he will tomorrow become a target for the judicial system, be branded as a violent offender, as has happened in some cases ...\n... Gypsification is an enormous problem. It is not such an easy problem. Because I know of no country in Europe that has managed to integrate its Gypsy population, fully and completely. There is no such country. The problem is that in Bulgaria – unlike in Germany or France – this population is a serious percentage. There, even if there are Gypsies, they are a lot fewer in terms of percentage and do not create such a problem. If no measures are taken – at State level – as part of a programme, then this problem (I am categorically certain [and] I assure all viewers, all Bulgarians of this) ... will become paramount for Bulgaria in only five to six years. Because this population– let’s say it honestly, directly – understands sanctions. As does, by the way, a serious part of the population of the Earth when they are subjected to sanctions. And we cannot be confident that self-education [and] moral scruples will prevail and that one fine day we will see ourselves surrounded by a Gypsy ethnic group that will be at such a level of morality as to by itself heed all laws and moral precepts. ...”\nSpeech by Mr Siderov at a pre-election rally of Atakain Burgas on 22 June 2005\n“... All Gypsy gangs, marauders, who torture, ill-treat, rape and loot in all towns of Bulgaria will be put in their place. ...\n... Now is the time when we must begin to stop this process of the Gypsification of Bulgaria. ...”\nSpeech by Mr Siderov at the first session ofthe newly elected parliament on 11 July 2005\n“... Because a gigantic genocide of the Bulgarian nation was carried out during this eight-year period. At the insistence of foreign factors (фактори) hostile to Bulgaria, it is envisaged to leave [just] three-and-a-half to four million of our people [remaining in Bulgaria. This is the plan of the Bulgarophobes, and this plan is being carried out before our very eyes. If someone asks how, I will explain: by stripping Bulgarians of the right to be masters in their own State; by leaving them to die of misery and lack of medicine and medical treatment; by subjecting them to terror by Gypsy gangs, who every day attack, loot, rape and ill-treat the Bulgarian nation. And then, deliberately, no one seeks to uncover the crimes committed by them, because the foreign directive is precisely that – not to investigate offences committed by these minority groups. The goal is for Bulgarians to live in fear, to lose faith, to be crushed, submissive. ...”\nInterview with Mr Siderov aired by Darik Radio in July 2005\n“Host: Now, the other topic – Roma. How to resolve the problem of illegal logging and the Roma?\nMr Siderov: ... I know that in this region this is an everyday occurrence, this happens all the time: Gypsies with carts, with saws, with equipment – quite decent, by the way – are constantly cutting down [trees] ... there is illegal logging going on. ... This is well-known – everyone knows this. Just ask around the region – they will tell you. And in the fact that what happened here was a clash between Gypsy poachers who break the law (this should be said clearly, no one has done it until today) and law-enforcement authorities or forest rangers (I am not sure which – this will surely be elucidated in the future investigation). This is simply the consequence of something that is happening; measures against this illegal logging should have been taken long ago – put the perpetrators in prison and ensure that they do not think again of cutting down Bulgarian forests, because the damage is dreadful. This damage will not be made good for decades. This is simply an invasion of termites that is destroying Bulgaria.\nHost: This is one side of the coin, Mr Siderov; but would you say that, should it be established that the gendarmerie or the forest rangers or the police have beaten up Gypsies – would you say that they should also be punished?\nMr Siderov: If it is established that Gypsies have beaten up – because I know of a case in which today or yesterday – not sure, let me avoid an error – but a very recent case in which Burgas Gypsies attacked some [water-charge] collectors and beat them up – collectors who were on their way to cut off the water mains of [someone] who had not paid water charges for three years.\nHost: They should obviously be punished. And should those who beat up Gypsies likewise be punished?\nMr Siderov: Those who lay their hands on a law-enforcement officer should be punished with the full severity of the law. I am simply categorically in favour of that. In the case of [these gendarmes], I fully excuse the actions of the gendarmerie there, because in this case specifically we have a crime, we have illegal logging, we have an offence that has gone on for years. It was, you know, high time for the gendarmerie to intervene. I am for that.\nHost: ... And yet, should Gypsies be beaten up in ... when they are being arrested?\nMr Siderov: This is not a correct question, because what is ‘should they be’ supposed to mean? Offences should be prevented ...\nHost: Do you approve of violence against Gypsies?\nMr Siderov: If offenders put up resistance, they should be neutralised, including by force. This is the law. So there must have been some resistance, because there is more than one case in which Gypsies have attacked police officers, have attacked law‑enforcement officers; there were police officers, patrols, and so on, who were beaten up. This is inadmissible; in every civilised country such people are simply neutralised on the spot, at that very second, by all possible means. And this is absolutely lawful, within the bounds of the law.\nHost: And do you approve? Because there have been such cases against Bulgaria in Strasbourg [regarding] the thrashing of Gypsies in investigation facilities. When they have already been caught, do not put up resistance – they are being tied up and beaten.\nMr Siderov: And I would ask you: do you approve of an attack on a law‑enforcement officer by a poacher, a law-breaker, a criminal?\nHost: If we are to maintain a humorous vein – you are determined to preserve your image.\nMr Siderov: ... I am against Strasbourg’s decision. If someone approves of a police officer being attacked, I, according to ... my personal opinion is that he should have permission and the right to shoot to kill in such cases, because this is how law‑enforcement authorities operate. This is how it is in America, this how it is, you know, in developed countries – the police are inviolable; they cannot be attacked, especially by someone who is committing an offence. This is the same as ... he should become a target for the police officer, for the law-enforcement officer who is doing his duty, and be neutralised, including by using firearms. ...”\nPassages from Mr Siderov’s book Bulgarophobia,published in Sofia in 2003\n“... They steal to get out of poverty, say the waged [платените] human-rights defenders; they have no jobs. They skip over the tiny fact that Gypsy families keep their children out of school en masse and they remain illiterate. What kind of work can they get later? If you offer them agricultural work, they balk. They prefer to steal the fruit. To steal wiring and scavenge all things made of metal. According to villagers, it is chiefly Gypsies who now burn the forests, so that they can smuggle wood after that. ...” (page 288)\n“... According to the statistics, unemployment benefits in Bulgaria are distributed as follows: 65.2% of the money goes to Roma [and] 14.6% for Bulgarians. Again, the few active Bulgarians of working age who remain in Bulgaria support a gigantic percentage of Gypsies who for their part only take benefits, do not pay for anything, and are on top of all that the main thieves of electric wiring, which has caused the State losses of hundreds of millions and is everywhere [else] treated as terrorism (but we are broad-minded). If this is untrue, let the police and the investigators who deal with electric-wiring theft rebut me. ...” (page 315)\n“... Throughout all those years, when Gypsy bandits stole, cut away tonnes of electric wiring (which in civilised countries is a terrorist act) and left whole regions without electricity, causing millions of levs in damages, non-Gypsies were hanging themselves from the ceiling out of despair ...” (page 332)\n“... The brazenness of this demonstrable Gypsy banditry comes from statements such as that of [T.T.], the leader of the Roma Association, to the newspaper Trud on14 August 2001: ‘Bulgaria will become Kosovo’. The prophecy (or threat) of the Roma leader is evidently turning into reality. In the absence of State authority in Bulgaria, the next stage is terrorist acts and murders of non-Gypsies. ‘What are we to do?’ asks the police chief in Plovdiv hopelessly. Our advice is, first tender your resignation. And until then let someone who knows how to deal with terrorists and street vandals take over your post. ... ” (page 333)\n12.When hearing the case on 21 November 2006, the Sofia District Court listened to audio recordings of Mr Siderov’s statements presented by the applicants. The minutes of the hearing, drawn up by the court’s clerk, did not include certain passages of dialogue (see footnotes 2, 3 and 4 above). On 8 December 2006 the applicants asked the court to rectify the minutes so that those passages were included in them. On 16 April 2007 the court heard its clerk in the presence of counsel for the applicants. The clerk stated that she had noted down everything that she had been asked to, and that she had no clear recollection of hearing the passages of dialogue whose inclusion was being requested. In view of those explanations, and noting that the request for correction of the minutes had been made belatedly, the court refused to make the requested changes to the minutes.\n13.On 15 October 2008 the Sofia District Court dismissed the applicants’ claim. It began by noting that the case turned on whether MrSiderov’s statements had constituted a proper exercise of his right to express an opinion, as guaranteed by Article 39 § 1 of the Constitution (see paragraph 20 below), or whether they had amounted to an exercise of that right with a view to fomenting ethnic strife. The court went on to say that the assertion that the impugned statements had constituted harassment or incitement to discrimination were not supported by the facts. The statements, though revealing a negative attitude towards Roma as a group, had not been aimed at placing them at a disadvantage vis-à-vis other ethnic groups, but rather the opposite, as they had contained appeals that Roma be treated on an equal footing with other Bulgarian citizens. It was true that the statements, which had touched upon the integration of Roma, had been phrased in a manner that had not struck the correct tone and had not reflected the need for tolerance when discussing issues of public importance. But that was not in itself indicative of incitement to discrimination, since that turned on a statement’s content rather than its form or wording. Mr Siderov had, whether justifiably or not, sought to focus the public’s attention on “the fact that certain ethnic minority groups commit[ted] offences against the person, which went unpunished, and [did] not fulfil their obligations, as was expected of all Bulgarian citizens – namely not to disrupt public order and to pay their dues to the State and the various utility companies”. Calls for the investigation and punishment of offences committed by members of one or other ethnic group, and for them to abide by the laws, did not amount to discrimination, but were rather directed towards the equal treatment of the members of the various ethnic groups. To accept that ethnicity might be grounds to treat an individual or a group differently and to exonerate them from criminal or civil liability would be tantamount to legitimising discrimination against people with a different ethnic self-consciousness, which was proscribed by the Constitution and the 2003 Act. Mr Siderov’s public manifestation of his negative views about the conduct of the Roma community did not in itself amount to discrimination, since his statements had not been aimed atplacing that community in a less favourable position; rather, he had calledfor – as was indeed required by law – equal treatment for all (seeреш.от15.10.2008 г. по гр. д. № 2858/2006 г., СРС).\n14.The applicants and the four other claimants in the case lodged an appeal with Sofia City Court, arguing that the first-instance court’s findings had been formalistic and contrary to common sense. They argued that when a politician publicly spoke about an ethnic group in such crude terms, he in effect instilled fear and hatred towards it. It was not necessary for him directly to call for violence or discrimination against it. By holding otherwise, the court had erred in the application of the 2003 Act. Moreover, by referring to Mr Siderov’s assertions as “fact”, it had itself displayed racial bias.\n15.On 21 June 2010 the Sofia City Court upheld the lower court’s judgment. It held that the available evidence did not permit it to conclude that the impugned statements, as detailed in the statement of claim, had subjected the applicants to treatment different to that accorded to the rest of the population, or had constituted harassment or incitement to discrimination. In his newspaper articles, the public statements made by him over a considerable period of time (including his interview for Darik Radio), and his speech in Parliament in 2005, Mr Siderov had not directly or wilfully encouraged discrimination against those of Roma ethnicity. In particular, his remark in his book, Bulgarophobia, that the inhabitants of a Roma neighbourhood in the town of Plovdiv owed six million Bulgarian levs to the electricity company and that no steps were being taken to collect that debt could not be categorised as harassment (see реш. № 2935 от21.06.2010 г. по в. гр. д. № 2703/2010 г., СГС).\n16.The applicants and the four other claimants in the case appealed on points of law. They argued that the Sofia City Court had failed to give cogent reasons for its judgment or to properly analyse Mr Siderov’s statements in the light of the definitions of harassment and incitement to discrimination given by the 2003 Act. They again emphasised that MrSiderov was a well-known politician who had actively sought to vilify a whole ethnic group.\n17.On 8 August 2012 the Supreme Court of Cassation declined to accept the appeal for examination. It held that there was no indication that there was inconsistent case-law regarding the points at issue in the case, or that it threw up special issues relating to the correct application of the law or its development (see опр. № 972 от 08.08.2012 г. по гр. д. № 1672/2011 г., ВКС, IV г. о.).", "41": "Allegation: 14\n2.The applicant was born in and lives in Santiago de Compostela. She is the mother of M., a mentally disabled young woman born in A Coruña (La Coruña) in 1996. The applicant was represented by MsL.Gonzalez-Lagana Vicente, a lawyer practising in A Coruña.\n3.The Government were represented by their Agent, Mr R.-A. León Cavero, State Counsel and head of the Human Rights Department at the Ministry of Justice.\n4.The facts of the case, as submitted by the parties, may be summarised as follows.\n5.In December 2013, given the fact that M., the applicant’s daughter, would soon turn 18, the applicant lodged a request with a judge of First-Instance Court No. 6 of Santiago de Compostela (“the First-Instance Judge”) that she be deprived of her legal capacity. The applicant requested that her legal guardianship over her daughter be extended, but specifically asked that her daughter not be deprived of her right to vote.\n6.On 2 September 2014, the First-Instance Judge decided that the applicant’s daughter should be placed under the extended partial legal guardianship of her mother and that, in the light of the evidence and the case file, M.’s right to vote should be revoked.\n7.In an extensively reasoned judgment, the First-Instance Judge held that, given the specific circumstances of the case, the applicant’s daughter was not capable of exercising her right to vote. Having examined the Convention on the Rights of Persons with Disabilities (CRPD) (see paragraph 23 below) in the light of the Spanish legal system, the First-Instance Judge explained the difference between the CRPD’s general concept of disability and the Spanish legal institution of incapacitation (incapacitación), which is intended to guarantee the rights of disabled people. He also referred to the case-law of the Supreme Court (according to which the CRPD and the institution of incapacitation, as regulated under the Spanish legal system, are compatible); he furthermore stated that a person who has been declared incapacitated (incapacitado) in the course of judicial proceedings (and who is not able to manage himself or herself) cannot be compared to a person who suffers a disability but is capable of managing himself or herself. The First-Instance Judge indicated in particular that:\n“It is necessary to bring on this particular controversial aspect the most recent and consolidated scientific doctrine and jurisprudence, citing, inter alia, the recent Supreme Court judgment 341/2014, of 1 July 2014, which states that ... (as is clear from the New York Convention and as was maintained by Supreme Court judgment 421/2013 of 24 June) Article 29 of the CRPD guarantees to persons with disabilities all political rights, and the possibility to enjoy them, under equal conditions, and as a logical corollary thereto ... the right to vote ...; sections3(1)(b) and 2 of Institutional Law 5/85 of 19 July 1985 on the General Electoral System states that those declared incapacitated by virtue of a final judicial decision shall be deprived of the right to vote, provided that the decision expressly declares the relevant person’s incapacity to exercise it, and that the judges or courts deciding on that person’s incapacity or on confinement proceedings expressly rule on that person’s incapacity to exercise his right to vote. The loss of the right to vote is not an automatic or necessary consequence of incapacity ... It is for the judge in charge of the case to analyse and assess the situation of the person under his consideration and to rule on the advisability of denying that person his right to exercise of this fundamental right, ... which is a rule and not the exception ...”\n8.The First-Instance Judge considered that in respect of the instant case, the limitations imposed on M. in respect of her right to vote were based neither on the requirement of a higher cognitive or intellectual capacity nor on M.’s lack of knowledge regarding her voting options (that is to say her choice of candidate or party) nor on any hypothetical irrationality in respect of such choices, but on the strict and objective establishment of her lack of capacity in respect of political affairs and electoral matters. The court’s medical expert and the First-Instance Judge had ascertained the notable – and at that time insuperable – deficiencies of M. (without, in accordance with section 761 of the Civil Procedural Law, prejudging any possible subsequent change in her capacity) in respect of her exercising an electoral choice. The First-Instance Judge acknowledged that depriving a person of her voting rights could not be an automatic consequence of a judicial declaration of legal incapacity and that decisions dealing with such situations had therefore to be extensively reasoned. He noted that the task at hand was not that of examining the knowledge of the applicant’s daughter about a specific political system, but to assess the circumstances of the case. The restriction of her right to vote was not justified by the fact that she hardly knew anything about the Spanish political system, but because she was highly influenceable and not aware of the consequences of any vote that she might cast. The First-Instance Judge emphasised in his judgment that such decisions were always subject to judicial review.\n9.In October 2014, the applicant lodged an appeal with the Regional Court (Audiencia Provincial) of A Coruña. She asked the court to expressly recognise her daughter’s right to vote, submitting that under Articles 12 and29 of the CRPD, the right to vote of persons with disabilities was recognised and that States had to provide them with the support necessary for the full exercise of that right to be guaranteed.\n10.On 11 March 2015, the Regional Court of A Coruña dismissed the applicant’s appeal. The Regional Court considered that a decision to deprive a person of his or her right to vote was legal and compatible with the CRPD, provided that that person’s capacity to exercise the right to vote had been subjected to individual review by a judicial body; it noted that the first-instance judgment had been sufficiently reasoned. The Regional Court emphasised that the intellectual ability of the applicant’s daughter was equivalent to that of child aged between six and eight.\n11.In April 2015, the applicant lodged an appeal on points of law with the Supreme Court. She argued that all citizens had the right to vote under Article 23 of the Spanish Constitution (taken in conjunction with Article10§2 thereof, which provided that fundamental rights recognised under the Constitution should be interpreted in accordance with the international conventions ratified by Spain). Moreover, she considered it to be contrary to the principle of non-discrimination that disabled people were prevented from exercising the fundamental right to vote.\n12.On 17 March 2016, the Supreme Court dismissed the applicant’s appeal, upholding the decision of the Regional Court and ruling that the reasoning of the contested judgment had contained a thorough analysis of the case and had correctly balanced the interests at stake.\n13.On 28 April 2016 the applicant lodged an amparo appeal alleging a violation of Article 23 of the Spanish Constitution, defending her daughter’s right to vote. It was dismissed by the Constitutional Court on 28 November 2016 (notified on the 22 December 2016).\n14.In its reasoned decision (auto), the Constitutional Court stated as follows:\n“... 2.With regard to doubt about the constitutionality of sections 3(1)(b) and 2 of Institutional Law 5/1985 ... on the general electoral system (the LOREG) under Article23 § 1 of the Spanish Constitution, the applicant assumes that this constitutional provision guarantees to all citizens the right of active suffrage, without any limitation or exception ...\n...\nSections 2 and 3 of the LOREG limit the ... right to vote to those who, besides holding Spanish nationality ..., have reached the minimum legal age, have been included in the electoral census, and are not affected by the circumstances provided by section3 (including having been judicially deprived of the right to vote in incapacity proceedings or being confined owing to a psychiatric disorder). Thus, the constitutional model of universal suffrage is not per se incompatible with an individual being deprived of the right to vote for a reason legally provided for, especially when such deprivation is covered by the standard legal guarantees.\n3.On the basis of the considerations listed in the previous paragraph, the arguments employed in the appeal are insufficient to effectively question the constitutionality – owing to the infringement of Articles 23 §§ 1 and 14 of the Spanish Constitution – of the above-mentioned legal provisions (paragraphs (1)(b) and (2) of section 3 of the LOREG), which enable courts and tribunals to restrict the exercise of a person’s right to vote on the basis of that person’s legal incapacity – in particular, on the basis of the specific circumstances of each person and after the completion of the appropriate judicial procedure determining his or her incapacity (or the authorisation of his or her confinement on the basis of mental illness).\nWith regard to the alleged interpretation of Article 23 of the Spanish Constitution in accordance with the CRPD – and, in particular, in accordance with Article 29 thereof – which was adopted in New York on 13 December 2006 and ratified by Spain ... on 9April 2008 ..., it is necessary to take into account, first of all, the distinction between ‘disability’ (a) in the sense of the Convention – a very broad concept that includes any ‘long-term physical, mental, intellectual or sensory impairment’ that may prevent any actual equality, and (b) ‘disability’ in the sense of the Spanish Civil Code (CC) – that is to say ‘persistent physical or mental illnesses or impairments that prevent the person from caring for himself/herself’ (Article200of the CC) with regard to his/her exercise of the right in question under section 3 of the LOREG. The latter deals with the ability of ... each person to cast a vote as a ‘free expression of the will of the elector’, which is also guaranteed by the CRPD (Article29(a)(iii)), the purpose of which is ..., in line with the mandate specified by Article9§2 of the Spanish Constitution: to remove obstacles that prevent or hinder free and secret voting without fear (Article29(a)(ii) and (iii)) by persons with disabilities and to ensure that they are ‘assisted in voting by a person of their choice, ... where necessary and at their request’.\n...\nIt should be stressed that section 3 of the LOREG does not deprive the ‘disabled’ of their right to vote as a group or on the basis of any disability. On the contrary, it gives the judicial authorities the task of deciding on such a restriction of the exercise of the fundamental right on an individual basis, because of the specific circumstances of each person and after due process has been observed. This provision does not stipulate the deprivation of this right of suffrage in its active aspect in respect of people suffering from any disability, but only to those in respect of whom it has been so decided, by a judgment, after the appropriate proceedings have been conducted with due respect to the guarantees of adequate defence and evidence, and by virtue of the specific dysfunctionality from which they suffer and which affects their intellectual and volitional capacity with respect to the exercise of the right to vote. Therefore, the restriction should only affect those persons who lack the minimum level of understanding and will necessary to freely exercise their vote, as provided by Article 23§1 of the Spanish Constitution. Furthermore, the nature of the measures referred to in Article29 (a) (i) to (iii) of the CRPD is such ... that their purpose is to ensure the effective exercise of the right to vote as a true reflection of the free will of a person with a disability and not, on the contrary, the mere insertion of the ballot paper into the ballot box.\n4.... The case-law of the Civil Chamber of the Supreme Court ... requires that a decision not to allow someone to exercise his fundamental right to vote be preceded by an individualised examination of that person’s situation and by an assessment of the competing interests in play. ...\n... It is necessary to point out that an assessment of the specific circumstances from which the contested decisions imply the inability to exercise the right to vote in the present case not only does not manifest any arbitrariness, irrationality, or obvious error in the wording of those decisions, but also complies with the principle of reinforced reasoning, which is required when a restriction of the exercise of fundamental rights is involved ...\n... The contested judicial decisions take into consideration the data that they extract from the evidence – in particular from the forensic report and the examination carried out by the judge himself, as well as ... the statement given by the applicant’s daughter at the hearing – in order to reach a decision that cannot be categorised as unreasonable.\nAs is clear from the judgments appealed against and as was explicit in the first-instance judgment, the disputed decision does not depend on the person’s threshold of knowledge or instruction, which is not required for other citizens not subject to incapacity proceedings. The said knowledge is only one piece of information which, together with others – particularly medical-psychiatric expert reports – can be reasonably used to evaluate a person’s aptitude ... This can also be applied to the question of ‘influence exerted by third parties’ ... It is not ... a question of identifying an absence of knowledge ... on the part of a person lacking capacity, but of recognising that through these elements (among others) ... the degree of development of the mental faculties of the person in question can be ascertained.”\n15.The Constitutional Court concluded that there had not been any violation of the fundamental rights alleged.", "42": "Allegation: 8,11,14\n2.The applicants’ names, years of birth or establishment and place of residence are listed in the Appendix below. They were represented by MsR.I. Ionescu, a lawyer practising in Bucharest.\n3.The Government were represented by their Agent, most recently MsO.F.Ezer of the Ministry of Foreign Affairs.\n4.The facts of the case, as submitted by the parties, may be summarised as follows.\n5.In February 2013, the applicant association, ACCEPT – an organisation promoting the interests of lesbian, gay, bisexual and transgender people (LGBT) in Romania – organised a series of cultural events to celebrate LGBT History Month. The programme included the screening, on 20February 2013, at 6 p.m., of a movie portraying a same-sex family, in a cinema situated in the National Museum for the Romanian Peasant (“the Museum”) in Bucharest. The screening was meant to be followed by a discussion among the screening attendees, inspired by the movie, about the rights of same-sex families.\n6.On 20 February 2013 the applicant association became aware that an “online mobilisation” was taking place on social media platforms calling for a counter-demonstration later in the evening, during the screening at the Museum. The applicant association’s representative phoned the police and subsequently, upon advice from the police, sent a written request for protection.\n7.Ten police officers from Bucharest police station no.2, together with the head of that station, arrived on the premises to provide protection. They were later joined by a team of seven gendarmes who had been alerted by the director of the Museum via the national emergency number (112) and arrived as reinforcements in order to prevent any escalation. The police officers and gendarmes entered the building in which the cinema was situated, but remained in the corridor outside the screening room.\n8.About twenty people attended the public screening, including the individual applicants (the second, third, fourth, fifth and sixth applicants). Entrance was free, but most of the participants had been invited by the applicant association to attend. Fifty more people entered the screen room, some of them carrying flagpoles.\n9.According to the applicants, the newcomers disturbed the screening by shouting remarks such as “death to homosexuals”, “faggots” or “you filth”, and insulting and threatening attendees of the screening, including the individual applicants. Some of the intruders displayed fascist and xenophobic signs and brandished the flag of Everything for the Country (Totul pentru ţară), a Romanian far-right party. In 2015 that party was dissolved by court order. The intruders seemed to be associated with a far‑right movement, the New Right (Noua Dreaptǎ), which is active in political life and is openly opposed, among other things, to same-sex marriage and same-sex adoptions (for further details on these movements, see paragraph 43 below).\n10.The organisers alerted the police officers who had been stationed outside the screening room. The latter entered the room, confiscated some flags from the intruders and then left the room, despite the organisers’ request to remain.\n11.The intruders opposed the screening as they considered that the movie damaged national dignity because of its homosexual theme, a feeling that had been aggravated by the choice of venue – a place of history and tradition. They blocked the projector, so the screening could not continue. The organisers halted the screening and switched the lights on.\n12.As people started leaving the room, the police officers stationed in the corridor checked the identity papers of twenty-nine individuals, the majority of them from the group opposing the screening. By 7.50p.m. everyone had left the venue.\n13.The report concerning the incident of 20 February 2013, written by the head of the gendarme team, reads as follows in so far as relevant:\n“At about 6.10 p.m. I was called by the [Bucharest Directorate General of Gendarmerie] to go to [the Museum] – where a movie was being screened by the association ACCEPT – because some members of the ‘New Right’ had entered the premises with a view to blocking the screening through any means.\nWe arrived at 6.13 p.m. and I talked with [G.P.], the head of the police station, which had deployed [to the Museum] two uniformed police officers and six-seven [police officers] wearing civilian clothes. When we arrived, the screening had already started. In the room were present approximately sixty-seventy people (forty-fifty people ... from the ‘New Right’ and twenty people from the ACCEPT association). After a few minutes, those from the ‘New Right’ started booing, waving the national flag, and singing the national anthem, blocking the screening (6.18 p.m.). We monitored the situation from the corridor of the cinema, lending our support to the police officers, in order to avoid any possible altercations. At about 7.10 p.m. the people in the cinema room started leaving the premises. The police officers decided to verify the identity of the people present and asked us to help. [The identities of] twelve people were verified by the gendarmes and of eleven more by the police.\nAt about 7.35 p.m., [G.P.] decided to allow to leave those people who refused to present their identity papers.”\n14.The gendarmes’ report also listed the names and personal identification numbers of the twelve individuals identified by the gendarmes. In a separate report dated 24 February 2013 addressed to the General Inspectorate of the Romanian Gendarmerie, the head of the gendarme team present during the incident wrote a detailed depiction of several of the individuals identified and noted that they had belonged to the New Right and had been opposed – because of their religious and “moral” beliefs – to the event organised in the Museum.\n15.On 21 February 2013 the police drafted a report on the incident, stating, in so far as relevant, as follows:\n“Entrance to the event was free, and present in the auditorium were both representatives of the ACCEPT association and sympathisers of the ‘New Right’ movement, who were not exhibiting any insignia of that organisation. In the auditorium were thus present about sixty-seventy people, of whom forty-fifty belonged to the New Right movement.\nAfter the movie started, some participants started causing a commotion ...\nEventually the screening was stopped, the light was switched on and the majority of those present expressed their indignation that the film was being screened in [the Museum]. They considered that the film was inappropriate because it had homosexual undertones and thus harmed the national honour. They expressed their indignation that the event had been organised in [the Museum] and not in a different place with less history and tradition.\nThe participants engaged in discussions about sexual orientation, and religious and nationalist issues, and the sympathisers of the ‘New Right’ sang the national anthem and patriotic and religious songs.\nNo acts of violence occurred during the combative discussions between the two groups.\nIn order to prevent negative incidents between the participants, the head of police station no. 2, and ten police officers came to the location, as well as a team of seven gendarmes, who [together] took preventive measures.\nThe event ended after approximately sixty minutes, and it was not necessary to intervene by force to evict the participants. At the museum exit, the identity papers of twenty-nine individuals were checked, most of them showing dissatisfaction at being checked in an operation that they considered to be illegal.”\n16.The screening was rescheduled and took place in the same location on 10 March 2013 without incident.\n17.On 5 March 2013 the applicant association lodged a criminal complaint about the incident with Bucharest police section no. 2, alleging incitement to discrimination, abuse of office by the restriction of rights, and the displaying of fascist, racist or xenophobic symbols in public. The complaint relied on Articles 247and 317 of the Criminal Code (“the CC”), as in force at that time (see paragraph 36 below), was directed against the police officers and private individuals, and was lodged on behalf of ten individuals (including the individual applicants) who had participated in the screening of 20 February 2013. Those individuals complained that unidentified individuals had interrupted the screening, uttered threats, displayed fascist symbols, and filmed, photographed and videotaped the participants without their permission. They furthermore complained that the authorities had failed to take adequate measures to prevent and stop the behaviour of the violent group and to allow the victims’ peaceful assembly to continue. The applicant association argued that those acts had been motivated by hatred towards homosexuals. The applicant association appended information about the alleged perpetrators – details which, it believed, would contribute to the identification of the perpetrators and the roles that they had played in the incident. The applicant association also attached to the complaint a video of the incident, which had been posted on the Internet.\n18.On 17 March 2013 the prosecutor’s office attached to the Bucharest District Court determined that it had no jurisdiction to deal with the complaint and forwarded it to the prosecutor’s office attached to the Bucharest County Court; on 27February 2014 the prosecutor’s office attached to the Bucharest County Court – noting that the case also concerned military personnel (that is to say the gendarmes) – forwarded the complaint to the military prosecutor’s office attached to the Bucharest County Court.\n19.On 31 March 2014 the military prosecutor’s office opened a criminal investigation in respect of the case.\n20.On 13 May 2014 D.P.P., a member of the applicant association, was interviewed by the military prosecutor. She stated that on 20 February 2013, about two hours before the start of the screening, she had received an email alerting her that a certain I.C. had posted on his social media page information to the effect that a group of individuals opposing the event would attend the screening in order to voice their opposition. She had called and then written to the police to request protection during the event. She furthermore declared that after the event, when the ACCEPT members had been leaving the premise, the intruders had continued to shout abuse at them.\n21.G.P., the head of police station no. 2 (see paragraph 13 above), was heard on 18 June 2014. He reiterated that the intruders had made allegations that the screening was hurting the national honour and went against history and tradition. He declared that they may well have been supporters of extreme-right organisations but that they had not worn any distinct insignia of such organisations.\n22.In a decision of 24 June 2014 the military prosecutor’s office found that the gendarmes had been unable to create an action plan for dealing with the incident of 20 February 2013 because the applicant association had failed to seek the necessary pre-authorisation for that event. The prosecutor found that the gendarmes had complied with their obligations; the prosecutor then concluded the investigation in that respect. The prosecutor sent the case file to the prosecutor’s office attached to the Bucharest District Court in order that the latter might continue the investigation concerning the police officers involved. No mention was made in that decision of the individuals who had interrupted the event.\n23.On 4 September 2014 the prosecutor’s office attached to the Bucharest District Court forwarded the case file to the prosecutor’s office attached to the Bucharest Court of Appeal. It relied on a ruling of 18June 2014 whereby the prosecutor-in-chief of the prosecutor’s office attached to the Bucharest Court of Appeal had decided that all investigations concerning heads of police stations from the jurisdiction of that Court of Appeal would be carried out by that prosecutor’s office. Consequently, on 15September 2014 the prosecutor’s office attached to the Bucharest Court of Appeal took over the investigation in respect of the case.\n24.In a decision of 14 October 2014 the prosecutor’s office attached to the Bucharest Court of Appeal ended the investigation on the grounds that the acts complained of did not constitute criminal offences. The description of the incident, which was depicted as “an exchange of views” between the participants, was similar to that contained in the police report (see paragraph15 above).\n25.On 10 November 2014 the applicants lodged a hierarchical complaint against the prosecutor’s decision; on 15 December 2014 that complaint was dismissed by the prosecutor-in-chief of the prosecutor’s office attached to the Bucharest Court of Appeal. The applicants were notified of that decision on 29 December 2014.\n26.Meanwhile, on 22 December 2014 the applicant association lodged a complaint with the preliminary chamber of the Bucharest District Court (“the Bucharest District Court”) against the prosecutor’s decision of 14October 2014 (see paragraph 24 above), both on its own behalf and on behalf of the victims (including the individual applicants). Subsequently, the applicants extended the complaint to encompass the decision of 15December 2014 (see paragraph 25 above). The applicants reiterated their version of the sequence of events, and reaffirmed that the police officers present on the premises had refused to intervene to de-escalate the situation. They argued that the investigators had disregarded evidence that would have allowed them to pick out the perpetrators from the intruders and the threat that they had posed to the applicants. Moreover, they argued that the prosecutor had completely omitted to investigate the part of the complaint concerning the intruders, and they gave the names of ten individuals whom they had been able to identify from the group of intruders. They furthermore contended that the intruders had worn fascist and xenophobic signs (not necessarily only symbols of the New Right organisation). Lastly, the applicants opposed the prosecutor’s description of the incident as an “exchange of views”.\n27.At the same time, the applicant association lodged a complaint, on its own behalf and on behalf of the individuals concerned, with the prosecutor’s office attached to the High Court of Cassation and Justice, against the decision of 15December 2014. It argued that its criminal complaint (see paragraph 17 above) had been insufficiently investigated. In addition, it provided links to several videos published on the Internet about the incident.\n28.On 5 February 2015 the prosecutor’s office attached to the High Court of Cassation and Justice found that the investigation had not been sufficient in so far as it concerned the allegations that the intruders had worn fascist symbols. He also deemed that the investigators should have interviewed the individuals who had participated in the incident. In its description of the incident, the prosecutor’s office referred to the applicants as being “followers of same-sex relations” (adepţii relaţiilor între persoane de acelaşi sex).\n29.Meanwhile, in the course of its examination of the complaint lodged by the applicants on 22December 2014 (see paragraph 26 above), the Bucharest District Court became acquainted with the prosecutor’s decision of 5 February 2015 and asked the applicant association if it intended to pursue its complaint concerning the incident of 20 February 2013. The applicant association requested that the examination continue and reiterated that two years had passed since the incident but that nothing had been done in order to uncover the truth – the only step taken having been to transfer the case from one prosecutor’s office to another. On 2 March 2015 the Bucharest District Court dismissed the applicants’ complaint.\n30.On 12 June 2017 the prosecutor’s office attached to the Bucharest Court of Appeal opened an investigation into the allegations of public utilisation of fascist, racist and xenophobic symbols. Four individuals were interviewed as witnesses, at least one of them from among the individuals identified in the gendarmerie report of 24 February 2013 (see paragraph14 above). They all stated that they had witnessed exchanges between the two groups, but had not seen any fascist symbol or gesture. Some of them declared that they had heard about the screening from social media and had opposed it because entrance to the screening had been free to anyone who wished to view it – even though the film had – according to them – been rated as suitable only for adult viewing. One of the witnesses mentioned that he had noticed in the cinema auditorium a flag bearing the words “Everything for the country”.\n31.On 19 June 2017 the police viewed the footage of the incident and described its contents in a police report. In that report it was mentioned that a flag with the words “Everything for the country” written on it could be seen in the footage and that someone could be heard shouting “Death to the homosexuals”.\n32.On 11 August 2017 the prosecutor decided to discontinue the investigation on the grounds that the evidence in the file did not prove beyond any reasonable doubt that the alleged criminal acts had in fact been committed. The prosecutor considered that the evidence in the file did not corroborate the statements made by the members of the applicant association.\n33.On 21 September 2017 the prosecutor-in-chief from the prosecutor’s office attached to the Bucharest Court of Appeal dismissed the complaint lodged by the applicant against the decision of 11 August 2017.\n34.The applicants lodged a complaint with the Bucharest Court of Appeal against the prosecutors’ decisions. They argued that sufficient evidence showed that fascist symbols had been displayed – including the slogan “Everything for the country”, which belonged to a political party that had been banned because of its fascist agenda. On 22November 2017 the Bucharest Court of Appeal upheld with final effect the prosecutor’s decision of 11 August 2017 (see paragraph 32 above), on the grounds that there was no evidence to sustain beyond any reasonable doubt the assertion that fascist symbols had been displayed in public.", "43": "Allegation: 8,11,14\n2.The applicants’ names, years of birth or establishment and place of residence are listed in the Appendix below. They were represented by MsR.I. Ionescu, a lawyer practising in Bucharest.\n3.The Government were represented by their Agent, most recently MsO.F.Ezer of the Ministry of Foreign Affairs.\n4.The facts of the case, as submitted by the parties, may be summarised as follows.\n5.In February 2013, the applicant association, ACCEPT – an organisation promoting the interests of lesbian, gay, bisexual and transgender people (LGBT) in Romania – organised a series of cultural events to celebrate LGBT History Month. The programme included the screening, on 20February 2013, at 6 p.m., of a movie portraying a same-sex family, in a cinema situated in the National Museum for the Romanian Peasant (“the Museum”) in Bucharest. The screening was meant to be followed by a discussion among the screening attendees, inspired by the movie, about the rights of same-sex families.\n6.On 20 February 2013 the applicant association became aware that an “online mobilisation” was taking place on social media platforms calling for a counter-demonstration later in the evening, during the screening at the Museum. The applicant association’s representative phoned the police and subsequently, upon advice from the police, sent a written request for protection.\n7.Ten police officers from Bucharest police station no.2, together with the head of that station, arrived on the premises to provide protection. They were later joined by a team of seven gendarmes who had been alerted by the director of the Museum via the national emergency number (112) and arrived as reinforcements in order to prevent any escalation. The police officers and gendarmes entered the building in which the cinema was situated, but remained in the corridor outside the screening room.\n8.About twenty people attended the public screening, including the individual applicants (the second, third, fourth, fifth and sixth applicants). Entrance was free, but most of the participants had been invited by the applicant association to attend. Fifty more people entered the screen room, some of them carrying flagpoles.\n9.According to the applicants, the newcomers disturbed the screening by shouting remarks such as “death to homosexuals”, “faggots” or “you filth”, and insulting and threatening attendees of the screening, including the individual applicants. Some of the intruders displayed fascist and xenophobic signs and brandished the flag of Everything for the Country (Totul pentru ţară), a Romanian far-right party. In 2015 that party was dissolved by court order. The intruders seemed to be associated with a far‑right movement, the New Right (Noua Dreaptǎ), which is active in political life and is openly opposed, among other things, to same-sex marriage and same-sex adoptions (for further details on these movements, see paragraph 43 below).\n10.The organisers alerted the police officers who had been stationed outside the screening room. The latter entered the room, confiscated some flags from the intruders and then left the room, despite the organisers’ request to remain.\n11.The intruders opposed the screening as they considered that the movie damaged national dignity because of its homosexual theme, a feeling that had been aggravated by the choice of venue – a place of history and tradition. They blocked the projector, so the screening could not continue. The organisers halted the screening and switched the lights on.\n12.As people started leaving the room, the police officers stationed in the corridor checked the identity papers of twenty-nine individuals, the majority of them from the group opposing the screening. By 7.50p.m. everyone had left the venue.\n13.The report concerning the incident of 20 February 2013, written by the head of the gendarme team, reads as follows in so far as relevant:\n“At about 6.10 p.m. I was called by the [Bucharest Directorate General of Gendarmerie] to go to [the Museum] – where a movie was being screened by the association ACCEPT – because some members of the ‘New Right’ had entered the premises with a view to blocking the screening through any means.\nWe arrived at 6.13 p.m. and I talked with [G.P.], the head of the police station, which had deployed [to the Museum] two uniformed police officers and six-seven [police officers] wearing civilian clothes. When we arrived, the screening had already started. In the room were present approximately sixty-seventy people (forty-fifty people ... from the ‘New Right’ and twenty people from the ACCEPT association). After a few minutes, those from the ‘New Right’ started booing, waving the national flag, and singing the national anthem, blocking the screening (6.18 p.m.). We monitored the situation from the corridor of the cinema, lending our support to the police officers, in order to avoid any possible altercations. At about 7.10 p.m. the people in the cinema room started leaving the premises. The police officers decided to verify the identity of the people present and asked us to help. [The identities of] twelve people were verified by the gendarmes and of eleven more by the police.\nAt about 7.35 p.m., [G.P.] decided to allow to leave those people who refused to present their identity papers.”\n14.The gendarmes’ report also listed the names and personal identification numbers of the twelve individuals identified by the gendarmes. In a separate report dated 24 February 2013 addressed to the General Inspectorate of the Romanian Gendarmerie, the head of the gendarme team present during the incident wrote a detailed depiction of several of the individuals identified and noted that they had belonged to the New Right and had been opposed – because of their religious and “moral” beliefs – to the event organised in the Museum.\n15.On 21 February 2013 the police drafted a report on the incident, stating, in so far as relevant, as follows:\n“Entrance to the event was free, and present in the auditorium were both representatives of the ACCEPT association and sympathisers of the ‘New Right’ movement, who were not exhibiting any insignia of that organisation. In the auditorium were thus present about sixty-seventy people, of whom forty-fifty belonged to the New Right movement.\nAfter the movie started, some participants started causing a commotion ...\nEventually the screening was stopped, the light was switched on and the majority of those present expressed their indignation that the film was being screened in [the Museum]. They considered that the film was inappropriate because it had homosexual undertones and thus harmed the national honour. They expressed their indignation that the event had been organised in [the Museum] and not in a different place with less history and tradition.\nThe participants engaged in discussions about sexual orientation, and religious and nationalist issues, and the sympathisers of the ‘New Right’ sang the national anthem and patriotic and religious songs.\nNo acts of violence occurred during the combative discussions between the two groups.\nIn order to prevent negative incidents between the participants, the head of police station no. 2, and ten police officers came to the location, as well as a team of seven gendarmes, who [together] took preventive measures.\nThe event ended after approximately sixty minutes, and it was not necessary to intervene by force to evict the participants. At the museum exit, the identity papers of twenty-nine individuals were checked, most of them showing dissatisfaction at being checked in an operation that they considered to be illegal.”\n16.The screening was rescheduled and took place in the same location on 10 March 2013 without incident.\n17.On 5 March 2013 the applicant association lodged a criminal complaint about the incident with Bucharest police section no. 2, alleging incitement to discrimination, abuse of office by the restriction of rights, and the displaying of fascist, racist or xenophobic symbols in public. The complaint relied on Articles 247and 317 of the Criminal Code (“the CC”), as in force at that time (see paragraph 36 below), was directed against the police officers and private individuals, and was lodged on behalf of ten individuals (including the individual applicants) who had participated in the screening of 20 February 2013. Those individuals complained that unidentified individuals had interrupted the screening, uttered threats, displayed fascist symbols, and filmed, photographed and videotaped the participants without their permission. They furthermore complained that the authorities had failed to take adequate measures to prevent and stop the behaviour of the violent group and to allow the victims’ peaceful assembly to continue. The applicant association argued that those acts had been motivated by hatred towards homosexuals. The applicant association appended information about the alleged perpetrators – details which, it believed, would contribute to the identification of the perpetrators and the roles that they had played in the incident. The applicant association also attached to the complaint a video of the incident, which had been posted on the Internet.\n18.On 17 March 2013 the prosecutor’s office attached to the Bucharest District Court determined that it had no jurisdiction to deal with the complaint and forwarded it to the prosecutor’s office attached to the Bucharest County Court; on 27February 2014 the prosecutor’s office attached to the Bucharest County Court – noting that the case also concerned military personnel (that is to say the gendarmes) – forwarded the complaint to the military prosecutor’s office attached to the Bucharest County Court.\n19.On 31 March 2014 the military prosecutor’s office opened a criminal investigation in respect of the case.\n20.On 13 May 2014 D.P.P., a member of the applicant association, was interviewed by the military prosecutor. She stated that on 20 February 2013, about two hours before the start of the screening, she had received an email alerting her that a certain I.C. had posted on his social media page information to the effect that a group of individuals opposing the event would attend the screening in order to voice their opposition. She had called and then written to the police to request protection during the event. She furthermore declared that after the event, when the ACCEPT members had been leaving the premise, the intruders had continued to shout abuse at them.\n21.G.P., the head of police station no. 2 (see paragraph 13 above), was heard on 18 June 2014. He reiterated that the intruders had made allegations that the screening was hurting the national honour and went against history and tradition. He declared that they may well have been supporters of extreme-right organisations but that they had not worn any distinct insignia of such organisations.\n22.In a decision of 24 June 2014 the military prosecutor’s office found that the gendarmes had been unable to create an action plan for dealing with the incident of 20 February 2013 because the applicant association had failed to seek the necessary pre-authorisation for that event. The prosecutor found that the gendarmes had complied with their obligations; the prosecutor then concluded the investigation in that respect. The prosecutor sent the case file to the prosecutor’s office attached to the Bucharest District Court in order that the latter might continue the investigation concerning the police officers involved. No mention was made in that decision of the individuals who had interrupted the event.\n23.On 4 September 2014 the prosecutor’s office attached to the Bucharest District Court forwarded the case file to the prosecutor’s office attached to the Bucharest Court of Appeal. It relied on a ruling of 18June 2014 whereby the prosecutor-in-chief of the prosecutor’s office attached to the Bucharest Court of Appeal had decided that all investigations concerning heads of police stations from the jurisdiction of that Court of Appeal would be carried out by that prosecutor’s office. Consequently, on 15September 2014 the prosecutor’s office attached to the Bucharest Court of Appeal took over the investigation in respect of the case.\n24.In a decision of 14 October 2014 the prosecutor’s office attached to the Bucharest Court of Appeal ended the investigation on the grounds that the acts complained of did not constitute criminal offences. The description of the incident, which was depicted as “an exchange of views” between the participants, was similar to that contained in the police report (see paragraph15 above).\n25.On 10 November 2014 the applicants lodged a hierarchical complaint against the prosecutor’s decision; on 15 December 2014 that complaint was dismissed by the prosecutor-in-chief of the prosecutor’s office attached to the Bucharest Court of Appeal. The applicants were notified of that decision on 29 December 2014.\n26.Meanwhile, on 22 December 2014 the applicant association lodged a complaint with the preliminary chamber of the Bucharest District Court (“the Bucharest District Court”) against the prosecutor’s decision of 14October 2014 (see paragraph 24 above), both on its own behalf and on behalf of the victims (including the individual applicants). Subsequently, the applicants extended the complaint to encompass the decision of 15December 2014 (see paragraph 25 above). The applicants reiterated their version of the sequence of events, and reaffirmed that the police officers present on the premises had refused to intervene to de-escalate the situation. They argued that the investigators had disregarded evidence that would have allowed them to pick out the perpetrators from the intruders and the threat that they had posed to the applicants. Moreover, they argued that the prosecutor had completely omitted to investigate the part of the complaint concerning the intruders, and they gave the names of ten individuals whom they had been able to identify from the group of intruders. They furthermore contended that the intruders had worn fascist and xenophobic signs (not necessarily only symbols of the New Right organisation). Lastly, the applicants opposed the prosecutor’s description of the incident as an “exchange of views”.\n27.At the same time, the applicant association lodged a complaint, on its own behalf and on behalf of the individuals concerned, with the prosecutor’s office attached to the High Court of Cassation and Justice, against the decision of 15December 2014. It argued that its criminal complaint (see paragraph 17 above) had been insufficiently investigated. In addition, it provided links to several videos published on the Internet about the incident.\n28.On 5 February 2015 the prosecutor’s office attached to the High Court of Cassation and Justice found that the investigation had not been sufficient in so far as it concerned the allegations that the intruders had worn fascist symbols. He also deemed that the investigators should have interviewed the individuals who had participated in the incident. In its description of the incident, the prosecutor’s office referred to the applicants as being “followers of same-sex relations” (adepţii relaţiilor între persoane de acelaşi sex).\n29.Meanwhile, in the course of its examination of the complaint lodged by the applicants on 22December 2014 (see paragraph 26 above), the Bucharest District Court became acquainted with the prosecutor’s decision of 5 February 2015 and asked the applicant association if it intended to pursue its complaint concerning the incident of 20 February 2013. The applicant association requested that the examination continue and reiterated that two years had passed since the incident but that nothing had been done in order to uncover the truth – the only step taken having been to transfer the case from one prosecutor’s office to another. On 2 March 2015 the Bucharest District Court dismissed the applicants’ complaint.\n30.On 12 June 2017 the prosecutor’s office attached to the Bucharest Court of Appeal opened an investigation into the allegations of public utilisation of fascist, racist and xenophobic symbols. Four individuals were interviewed as witnesses, at least one of them from among the individuals identified in the gendarmerie report of 24 February 2013 (see paragraph14 above). They all stated that they had witnessed exchanges between the two groups, but had not seen any fascist symbol or gesture. Some of them declared that they had heard about the screening from social media and had opposed it because entrance to the screening had been free to anyone who wished to view it – even though the film had – according to them – been rated as suitable only for adult viewing. One of the witnesses mentioned that he had noticed in the cinema auditorium a flag bearing the words “Everything for the country”.\n31.On 19 June 2017 the police viewed the footage of the incident and described its contents in a police report. In that report it was mentioned that a flag with the words “Everything for the country” written on it could be seen in the footage and that someone could be heard shouting “Death to the homosexuals”.\n32.On 11 August 2017 the prosecutor decided to discontinue the investigation on the grounds that the evidence in the file did not prove beyond any reasonable doubt that the alleged criminal acts had in fact been committed. The prosecutor considered that the evidence in the file did not corroborate the statements made by the members of the applicant association.\n33.On 21 September 2017 the prosecutor-in-chief from the prosecutor’s office attached to the Bucharest Court of Appeal dismissed the complaint lodged by the applicant against the decision of 11 August 2017.\n34.The applicants lodged a complaint with the Bucharest Court of Appeal against the prosecutors’ decisions. They argued that sufficient evidence showed that fascist symbols had been displayed – including the slogan “Everything for the country”, which belonged to a political party that had been banned because of its fascist agenda. On 22November 2017 the Bucharest Court of Appeal upheld with final effect the prosecutor’s decision of 11 August 2017 (see paragraph 32 above), on the grounds that there was no evidence to sustain beyond any reasonable doubt the assertion that fascist symbols had been displayed in public.", "44": "Allegation: 8,11,14\n2.The applicants’ names, years of birth or establishment and place of residence are listed in the Appendix below. They were represented by MsR.I. Ionescu, a lawyer practising in Bucharest.\n3.The Government were represented by their Agent, most recently MsO.F.Ezer of the Ministry of Foreign Affairs.\n4.The facts of the case, as submitted by the parties, may be summarised as follows.\n5.In February 2013, the applicant association, ACCEPT – an organisation promoting the interests of lesbian, gay, bisexual and transgender people (LGBT) in Romania – organised a series of cultural events to celebrate LGBT History Month. The programme included the screening, on 20February 2013, at 6 p.m., of a movie portraying a same-sex family, in a cinema situated in the National Museum for the Romanian Peasant (“the Museum”) in Bucharest. The screening was meant to be followed by a discussion among the screening attendees, inspired by the movie, about the rights of same-sex families.\n6.On 20 February 2013 the applicant association became aware that an “online mobilisation” was taking place on social media platforms calling for a counter-demonstration later in the evening, during the screening at the Museum. The applicant association’s representative phoned the police and subsequently, upon advice from the police, sent a written request for protection.\n7.Ten police officers from Bucharest police station no.2, together with the head of that station, arrived on the premises to provide protection. They were later joined by a team of seven gendarmes who had been alerted by the director of the Museum via the national emergency number (112) and arrived as reinforcements in order to prevent any escalation. The police officers and gendarmes entered the building in which the cinema was situated, but remained in the corridor outside the screening room.\n8.About twenty people attended the public screening, including the individual applicants (the second, third, fourth, fifth and sixth applicants). Entrance was free, but most of the participants had been invited by the applicant association to attend. Fifty more people entered the screen room, some of them carrying flagpoles.\n9.According to the applicants, the newcomers disturbed the screening by shouting remarks such as “death to homosexuals”, “faggots” or “you filth”, and insulting and threatening attendees of the screening, including the individual applicants. Some of the intruders displayed fascist and xenophobic signs and brandished the flag of Everything for the Country (Totul pentru ţară), a Romanian far-right party. In 2015 that party was dissolved by court order. The intruders seemed to be associated with a far‑right movement, the New Right (Noua Dreaptǎ), which is active in political life and is openly opposed, among other things, to same-sex marriage and same-sex adoptions (for further details on these movements, see paragraph 43 below).\n10.The organisers alerted the police officers who had been stationed outside the screening room. The latter entered the room, confiscated some flags from the intruders and then left the room, despite the organisers’ request to remain.\n11.The intruders opposed the screening as they considered that the movie damaged national dignity because of its homosexual theme, a feeling that had been aggravated by the choice of venue – a place of history and tradition. They blocked the projector, so the screening could not continue. The organisers halted the screening and switched the lights on.\n12.As people started leaving the room, the police officers stationed in the corridor checked the identity papers of twenty-nine individuals, the majority of them from the group opposing the screening. By 7.50p.m. everyone had left the venue.\n13.The report concerning the incident of 20 February 2013, written by the head of the gendarme team, reads as follows in so far as relevant:\n“At about 6.10 p.m. I was called by the [Bucharest Directorate General of Gendarmerie] to go to [the Museum] – where a movie was being screened by the association ACCEPT – because some members of the ‘New Right’ had entered the premises with a view to blocking the screening through any means.\nWe arrived at 6.13 p.m. and I talked with [G.P.], the head of the police station, which had deployed [to the Museum] two uniformed police officers and six-seven [police officers] wearing civilian clothes. When we arrived, the screening had already started. In the room were present approximately sixty-seventy people (forty-fifty people ... from the ‘New Right’ and twenty people from the ACCEPT association). After a few minutes, those from the ‘New Right’ started booing, waving the national flag, and singing the national anthem, blocking the screening (6.18 p.m.). We monitored the situation from the corridor of the cinema, lending our support to the police officers, in order to avoid any possible altercations. At about 7.10 p.m. the people in the cinema room started leaving the premises. The police officers decided to verify the identity of the people present and asked us to help. [The identities of] twelve people were verified by the gendarmes and of eleven more by the police.\nAt about 7.35 p.m., [G.P.] decided to allow to leave those people who refused to present their identity papers.”\n14.The gendarmes’ report also listed the names and personal identification numbers of the twelve individuals identified by the gendarmes. In a separate report dated 24 February 2013 addressed to the General Inspectorate of the Romanian Gendarmerie, the head of the gendarme team present during the incident wrote a detailed depiction of several of the individuals identified and noted that they had belonged to the New Right and had been opposed – because of their religious and “moral” beliefs – to the event organised in the Museum.\n15.On 21 February 2013 the police drafted a report on the incident, stating, in so far as relevant, as follows:\n“Entrance to the event was free, and present in the auditorium were both representatives of the ACCEPT association and sympathisers of the ‘New Right’ movement, who were not exhibiting any insignia of that organisation. In the auditorium were thus present about sixty-seventy people, of whom forty-fifty belonged to the New Right movement.\nAfter the movie started, some participants started causing a commotion ...\nEventually the screening was stopped, the light was switched on and the majority of those present expressed their indignation that the film was being screened in [the Museum]. They considered that the film was inappropriate because it had homosexual undertones and thus harmed the national honour. They expressed their indignation that the event had been organised in [the Museum] and not in a different place with less history and tradition.\nThe participants engaged in discussions about sexual orientation, and religious and nationalist issues, and the sympathisers of the ‘New Right’ sang the national anthem and patriotic and religious songs.\nNo acts of violence occurred during the combative discussions between the two groups.\nIn order to prevent negative incidents between the participants, the head of police station no. 2, and ten police officers came to the location, as well as a team of seven gendarmes, who [together] took preventive measures.\nThe event ended after approximately sixty minutes, and it was not necessary to intervene by force to evict the participants. At the museum exit, the identity papers of twenty-nine individuals were checked, most of them showing dissatisfaction at being checked in an operation that they considered to be illegal.”\n16.The screening was rescheduled and took place in the same location on 10 March 2013 without incident.\n17.On 5 March 2013 the applicant association lodged a criminal complaint about the incident with Bucharest police section no. 2, alleging incitement to discrimination, abuse of office by the restriction of rights, and the displaying of fascist, racist or xenophobic symbols in public. The complaint relied on Articles 247and 317 of the Criminal Code (“the CC”), as in force at that time (see paragraph 36 below), was directed against the police officers and private individuals, and was lodged on behalf of ten individuals (including the individual applicants) who had participated in the screening of 20 February 2013. Those individuals complained that unidentified individuals had interrupted the screening, uttered threats, displayed fascist symbols, and filmed, photographed and videotaped the participants without their permission. They furthermore complained that the authorities had failed to take adequate measures to prevent and stop the behaviour of the violent group and to allow the victims’ peaceful assembly to continue. The applicant association argued that those acts had been motivated by hatred towards homosexuals. The applicant association appended information about the alleged perpetrators – details which, it believed, would contribute to the identification of the perpetrators and the roles that they had played in the incident. The applicant association also attached to the complaint a video of the incident, which had been posted on the Internet.\n18.On 17 March 2013 the prosecutor’s office attached to the Bucharest District Court determined that it had no jurisdiction to deal with the complaint and forwarded it to the prosecutor’s office attached to the Bucharest County Court; on 27February 2014 the prosecutor’s office attached to the Bucharest County Court – noting that the case also concerned military personnel (that is to say the gendarmes) – forwarded the complaint to the military prosecutor’s office attached to the Bucharest County Court.\n19.On 31 March 2014 the military prosecutor’s office opened a criminal investigation in respect of the case.\n20.On 13 May 2014 D.P.P., a member of the applicant association, was interviewed by the military prosecutor. She stated that on 20 February 2013, about two hours before the start of the screening, she had received an email alerting her that a certain I.C. had posted on his social media page information to the effect that a group of individuals opposing the event would attend the screening in order to voice their opposition. She had called and then written to the police to request protection during the event. She furthermore declared that after the event, when the ACCEPT members had been leaving the premise, the intruders had continued to shout abuse at them.\n21.G.P., the head of police station no. 2 (see paragraph 13 above), was heard on 18 June 2014. He reiterated that the intruders had made allegations that the screening was hurting the national honour and went against history and tradition. He declared that they may well have been supporters of extreme-right organisations but that they had not worn any distinct insignia of such organisations.\n22.In a decision of 24 June 2014 the military prosecutor’s office found that the gendarmes had been unable to create an action plan for dealing with the incident of 20 February 2013 because the applicant association had failed to seek the necessary pre-authorisation for that event. The prosecutor found that the gendarmes had complied with their obligations; the prosecutor then concluded the investigation in that respect. The prosecutor sent the case file to the prosecutor’s office attached to the Bucharest District Court in order that the latter might continue the investigation concerning the police officers involved. No mention was made in that decision of the individuals who had interrupted the event.\n23.On 4 September 2014 the prosecutor’s office attached to the Bucharest District Court forwarded the case file to the prosecutor’s office attached to the Bucharest Court of Appeal. It relied on a ruling of 18June 2014 whereby the prosecutor-in-chief of the prosecutor’s office attached to the Bucharest Court of Appeal had decided that all investigations concerning heads of police stations from the jurisdiction of that Court of Appeal would be carried out by that prosecutor’s office. Consequently, on 15September 2014 the prosecutor’s office attached to the Bucharest Court of Appeal took over the investigation in respect of the case.\n24.In a decision of 14 October 2014 the prosecutor’s office attached to the Bucharest Court of Appeal ended the investigation on the grounds that the acts complained of did not constitute criminal offences. The description of the incident, which was depicted as “an exchange of views” between the participants, was similar to that contained in the police report (see paragraph15 above).\n25.On 10 November 2014 the applicants lodged a hierarchical complaint against the prosecutor’s decision; on 15 December 2014 that complaint was dismissed by the prosecutor-in-chief of the prosecutor’s office attached to the Bucharest Court of Appeal. The applicants were notified of that decision on 29 December 2014.\n26.Meanwhile, on 22 December 2014 the applicant association lodged a complaint with the preliminary chamber of the Bucharest District Court (“the Bucharest District Court”) against the prosecutor’s decision of 14October 2014 (see paragraph 24 above), both on its own behalf and on behalf of the victims (including the individual applicants). Subsequently, the applicants extended the complaint to encompass the decision of 15December 2014 (see paragraph 25 above). The applicants reiterated their version of the sequence of events, and reaffirmed that the police officers present on the premises had refused to intervene to de-escalate the situation. They argued that the investigators had disregarded evidence that would have allowed them to pick out the perpetrators from the intruders and the threat that they had posed to the applicants. Moreover, they argued that the prosecutor had completely omitted to investigate the part of the complaint concerning the intruders, and they gave the names of ten individuals whom they had been able to identify from the group of intruders. They furthermore contended that the intruders had worn fascist and xenophobic signs (not necessarily only symbols of the New Right organisation). Lastly, the applicants opposed the prosecutor’s description of the incident as an “exchange of views”.\n27.At the same time, the applicant association lodged a complaint, on its own behalf and on behalf of the individuals concerned, with the prosecutor’s office attached to the High Court of Cassation and Justice, against the decision of 15December 2014. It argued that its criminal complaint (see paragraph 17 above) had been insufficiently investigated. In addition, it provided links to several videos published on the Internet about the incident.\n28.On 5 February 2015 the prosecutor’s office attached to the High Court of Cassation and Justice found that the investigation had not been sufficient in so far as it concerned the allegations that the intruders had worn fascist symbols. He also deemed that the investigators should have interviewed the individuals who had participated in the incident. In its description of the incident, the prosecutor’s office referred to the applicants as being “followers of same-sex relations” (adepţii relaţiilor între persoane de acelaşi sex).\n29.Meanwhile, in the course of its examination of the complaint lodged by the applicants on 22December 2014 (see paragraph 26 above), the Bucharest District Court became acquainted with the prosecutor’s decision of 5 February 2015 and asked the applicant association if it intended to pursue its complaint concerning the incident of 20 February 2013. The applicant association requested that the examination continue and reiterated that two years had passed since the incident but that nothing had been done in order to uncover the truth – the only step taken having been to transfer the case from one prosecutor’s office to another. On 2 March 2015 the Bucharest District Court dismissed the applicants’ complaint.\n30.On 12 June 2017 the prosecutor’s office attached to the Bucharest Court of Appeal opened an investigation into the allegations of public utilisation of fascist, racist and xenophobic symbols. Four individuals were interviewed as witnesses, at least one of them from among the individuals identified in the gendarmerie report of 24 February 2013 (see paragraph14 above). They all stated that they had witnessed exchanges between the two groups, but had not seen any fascist symbol or gesture. Some of them declared that they had heard about the screening from social media and had opposed it because entrance to the screening had been free to anyone who wished to view it – even though the film had – according to them – been rated as suitable only for adult viewing. One of the witnesses mentioned that he had noticed in the cinema auditorium a flag bearing the words “Everything for the country”.\n31.On 19 June 2017 the police viewed the footage of the incident and described its contents in a police report. In that report it was mentioned that a flag with the words “Everything for the country” written on it could be seen in the footage and that someone could be heard shouting “Death to the homosexuals”.\n32.On 11 August 2017 the prosecutor decided to discontinue the investigation on the grounds that the evidence in the file did not prove beyond any reasonable doubt that the alleged criminal acts had in fact been committed. The prosecutor considered that the evidence in the file did not corroborate the statements made by the members of the applicant association.\n33.On 21 September 2017 the prosecutor-in-chief from the prosecutor’s office attached to the Bucharest Court of Appeal dismissed the complaint lodged by the applicant against the decision of 11 August 2017.\n34.The applicants lodged a complaint with the Bucharest Court of Appeal against the prosecutors’ decisions. They argued that sufficient evidence showed that fascist symbols had been displayed – including the slogan “Everything for the country”, which belonged to a political party that had been banned because of its fascist agenda. On 22November 2017 the Bucharest Court of Appeal upheld with final effect the prosecutor’s decision of 11 August 2017 (see paragraph 32 above), on the grounds that there was no evidence to sustain beyond any reasonable doubt the assertion that fascist symbols had been displayed in public.", "45": "Allegation: 2, 14\n10.The applicant was born in 1978 and lives in Unterwagram.\n11.She married E. in 2003. They had two children, A., born in 2004, and B., born in 2005.\n12.On 10 July 2010 the applicant called the police because her husband had beaten her. In her statement to the police she alleged that she had problems with her husband and that he had been beating her for years. In the preceding months the situation had worsened because he had a gambling addiction, was heavily in debt and had lost his job. She stated that she had always supported him financially, but had also lost her job and therefore could no longer pay his debts. The police noted that the applicant showed signs of injuries, namely haematomas on her elbow and upper arm, which she stated she had sustained through beatings by her husband.\n13.Pursuant to section 38a of the Security Police Act (Sicherheitspolizeigesetz – see paragraph 48 below), the police handed the applicant a leaflet informing her, among other things, of the possibility of seeking a temporary restraining order (einstweilige Verfügung) against her husband under sections 382b and 382e of the Enforcement Act (see paragraphs 54 et seq. below).\n14.When confronted with the allegations by the police, E. stated that he did not have any problems with his wife, but that he had had a fight with his brother the night before and had sustained injuries to his face. There were no indications that E. was in possession of a weapon. A barring and protection order (Betretungsverbot und Wegweisung zum Schutz vor Gewalt) in accordance with section 38a of the Security Police Act was issued against E. This order obliged him to stay away from their common apartment as well as from the applicant’s parents’ apartment and the surrounding areas for fourteen days. It appears that E. complied with the order. The police submitted a report to the public prosecutor’s office (Staatsanwaltschaft), which brought criminal charges against E. on 20December 2010.\n15.On 10 January 2011 the Graz Regional Criminal Court (Landesgericht für Strafsachen) convicted E. of bodily harm and making dangerous threats, and sentenced him to three months’ imprisonment, suspended for three years with probation. The applicant refused to testify against E. He was nonetheless found guilty of pushing her against a wall and slapping her, and of threatening his brother and his nephew.\n16.On Tuesday 22 May 2012 the applicant, accompanied by her counsellor from the Centre for Protection from Violence (Gewaltschutzzentrum), went to the St. Pölten District Court (Bezirksgericht) and filed for divorce. In her oral hearing before the judge, which was held at 11.20 a.m., she explained that the reasons for the breakdown of the marriage were her husband’s continuous threats and violence against her throughout their marriage. She indicated that on the preceding Saturday the situation had escalated and she had suffered injuries. She added that she was planning to report him to the police and that she hoped that a barring and protection order would be issued against him.\n17.On the same day at 1.05 p.m. the applicant, assisted by her counsellor from the Centre for Protection from Violence, reported her husband to the police for rape and making dangerous threats. She was interviewed by a female police officer who was experienced in handling cases of domestic violence. In her witness statement, the applicant described the following events in detail.\n18.According to the applicant, on Saturday 19 May 2012, when the issue of a possible separation came up, the situation with her husband escalated. She arrived home from work that day at around 3 p.m. Her husband sent the children outside to play, because he said that he wanted to talk to her. He asked her what she was going to do, meaning now that he was gambling again. He thought that it was all her fault. He called her a whore and accused her of seeing other men, since she had not slept with him since February 2012. In the course of the ensuing argument E. repeatedly stated that he could not live without her and the children, and that he would take the children to Turkey. He started choking her and, with his hand still on her throat, pushed her onto the couch. He told her that he was a man and she was a woman, so she was obliged to have sex with him. The applicant told him to stop, but he removed the clothes from the lower part of her body and raped her. She said that he did not hold her tightly during the rape, but she did not resist out of fear of being beaten if she did. After the incident she took a shower, put on her clothes and went to the pharmacy to obtain a contraceptive pill because she was afraid of getting pregnant.\n19.The applicant stated further that E. had behaved violently towards her from the very beginning of their marriage, and that in 2010 he had been issued with a barring and protection order for two weeks because he had injured her. E. had been convicted of bodily harm in relation to that incident, and of making dangerous threats against his brother and nephew. The applicant explained that since 2010 she had been in regular contact with the local Centre for Protection from Violence. Because her husband had subsequently gone to hospital of his own accord to be treated for his gambling addiction and mental problems, she had forgiven him, refused to testify in the criminal proceedings against him and decided to give him another chance. However, the situation had worsened in February 2012, when E.’s gambling addiction had resumed. The applicant explained that after his stay in hospital in 2010 her husband had told her that if he started to gamble again she could leave him. That was why he had been even more aggressive since February 2012 – he feared that she would take him up on his promise. The applicant stated that since the beginning of March 2012 he had been threatening her on a daily basis, always with the same phrases: “I will kill you”, “I will kill our children in front of you”, “I will hurt you so badly that you will beg me to kill you”, “I will hurt your brother’s children if I am expelled to Turkey” (the applicant’s brother lives in Turkey), and “I will hang myself in front of your parents’ door”. She said that she took these threats very seriously, but that she had not previously reported them because she feared that he would act upon them if she did.\n20.The applicant stated that her husband had been beating her regularly, and sometimes slapped the children as well, especially when he came back from the betting shop. For the most part, the children had not sustained any injuries from the slaps in the face; on just one occasion A. had sustained a haematoma on his cheek. She stated that the children were scared of her husband too. She had been thinking about getting a divorce for several months, but she had feared that he would harm her or her children if she did. The applicant added that her husband sometimes took her mobile phone away from her and locked her in their apartment so that she could not leave. She reiterated that she was in great fear of her husband and that she was reporting all this to the police at that stage because she wanted to protect herself and her children.\n21.The police took pictures of the injuries the applicant had sustained (haematomas on her throat and scratches on her chin). A medical examination did not detect injuries in her genital area (see paragraph 28 below).\n22.In accordance with a standard procedure, an online search concerning E. was made by the police in a central electronic database containing the personal data of offenders, including the reasons for and scope of previous barring and protection orders, temporary restraining orders and temporary injunctions. The police also checked the firearms registry to ascertain whether the husband had a gun at his disposal, and the result was negative.\n23.After the applicant had reported the matter to the police, two police officers (one male and one female) took her to the family home, where E. and the children were present. The police officers also spoke to the children, who confirmed that their father beat their mother and had also regularly slapped them.\n24.E. accompanied the police officers voluntarily to the police station. Subsequently, at 4 p.m., he was questioned by the police. E. denied the allegations of violence, rape and threatening behaviour. He admitted that he had had sexual intercourse with his wife on 19 May 2012. However, he contended that sexual contact with his wife had always followed a pattern whereby his wife initially refused but then allowed herself to be persuaded. He explained that he had beaten his wife in the past but had ceased doing so three years earlier.\n25.On the basis of the reported facts and section 38a of the Security Police Act, the police officers issued a barring and protection order against E. at 5.15 p.m. This order obliged him to leave the family home for two weeks and prohibited him from returning to it or the surrounding areas; it also barred him from the applicant’s parents’ apartment and its surrounding areas. His keys to the family home were taken from him.\n26.The applicant was handed a “leaflet for victims of violence”, informing her, among other things, of the possibility of extending the scope of the barring and protection order in time and place by seeking a temporary restraining order (einstweilige Verfügung) against her husband under sections 382b and 382e of the Enforcement Act (see paragraphs 54 et seq. below). The applicant was informed in the leaflet that she could turn to the competent District Court for further information on the court proceedings. Moreover, the leaflet stated that a barring order was binding not only for the person posing a threat, but also for the victim, who must not let the person posing a threat back into the apartment, and that the police would check on the observance of the barring order. Lastly, the applicant was informed that her data would be transferred to a Centre for Protection from Violence, and she was provided with contact details of institutions providing counselling for victims of violence.\n27.The police report concerning the barring and protection order described the applicant as “tearful and very scared”. E. was described as “mildly agitated” and “cooperative”. Under the heading “indications of an imminent dangerous attack” (Merkmale für einen bevorstehenden gefährlichen Angriff) it stated that a rape had been reported, that there was evidence of violence in the form of haematomas, that there had been continuous threats, and that the children had been slapped regularly. Under the heading “indications of an increased risk from the person posing a threat” (Merkmale für eine erhöhte Gefährlichkeit des Gefährders), the police noted:\n(a) known reported/unreported violent acts (not only currently, but also previous incidents);\n(b) escalation (increase in the occurrence and seriousness of violence);\n(c) current stress factors (such as unemployment, divorce, separation from partner/children, and so on); and\n(d) a strong tendency to trivialise/deny violence (violence seen as a legitimate means).\n28.In the evening of 22 May 2012, at 6.10 p.m., the police informed the public prosecutor on duty (Journalstaatsanwalt) of the situation in a phone call. In a note added to the file, the public prosecutor wrote the following:\n“The accused is suspected of raping his wife on 19 May 2012, threatening her repeatedly during the marriage and beating her and the children. The wife has pressed charges with the aid of a representative of the Centre for Protection from Violence and a divorce is apparently pending.\nThe accused admits having had sexual relations with his wife, but denies the subjective element of the crime. Sexual relations during the marriage [according to him] took place in such a way that his wife repeatedly ‘played hard to get’. He would then keep touching her until he managed to persuade her to have sexual relations. According to him, this was typical behaviour for Turkish women. She had allegedly been saying for ten years that she did not want to have sex with him, but then had sex nonetheless.\nConcerning the injuries, the police officer stated that the woman did not have injuries in her genital area, but had abrasions on her chin. The wife stated that when she had told [the accused] that she did not want to have sexual relations, he had choked her. Finally she had ceased her resistance and allowed intercourse to take place. He did not hold her down and did not use violence during the act, and she did not scream. Since March 2012 he had allegedly been threatening on a daily basis to kill her.\n[The person posing a threat] was issued with a barring and protection order by the police.\nI order that the children be questioned, that reports on the findings of the investigations so far be transmitted, and that [the person posing a threat] be charged while remaining at liberty (auf freiem Fuß angezeigt).”\nOn the same day, the public prosecutor’s office instituted criminal proceedings against E. on suspicion of rape, bodily harm and making dangerous threats.\n29.From 6.50 p.m. until 7.25 p.m. the children A. and B. were questioned in detail at their grandparents’ home by the police concerning the violence they had been subjected to by their father. A transcript of the questioning was drawn up by the police. The children both confirmed their earlier statements to the effect that E. often slapped and screamed at them and behaved in the same way towards their mother.\n30.At 11.20 p.m. the competent police officer emailed a report on the findings of the criminal investigations concerning the applicant’s husband to the public prosecutor, together with transcripts of the applicant’s, her children’s and E.’s questioning. The report mentioned that a barring and protection order had been issued and, among other things, listed the offences of which E. was suspected (rape, making dangerous threats, and torment or neglect of under-age, young or defenceless persons). Under the heading “Facts”, the situation was described as follows:\n“The suspect has been beating his children and his wife for several years already. On 19 May 2012 the suspect choked his wife, as a result of which she suffered haematomas on her chin and her throat, which have been photographically documented. Then he had intercourse with her, even though she told him repeatedly that she did not want it. Furthermore, for months he has been threatening to kill his wife and their children.”\n31.The police report on the issuance of the barring and protection order containing the list of indications for an elevated risk (see paragraph 27 above) was not sent to the public prosecutor’s office.\n32.On 23 May 2012 the St Pölten Federal Police Department (Bundespolizeidirektion) assessed the lawfulness of the issuance of the barring and protection order against E. (under section 38a(6) of the Security Police Act). It found that the evidence showed “coherently and conclusively” (klar widerspruchsfrei und schlüssig) that E. had used violence against his family, and that the barring and protection order was therefore lawful.\n33.On 24 May 2012 at 9 a.m. E. went to the police station on his own initiative to enquire whether it would be possible for him to contact his children. The police took the opportunity to question him and to confront him with his children’s statements that he had beaten them. E. confessed that he beat them “every now and then”, but “only as an educational measure”, “not about the face” and “never aggressively”. His wife also slapped them from time to time. He added that his children were everything to him, and that he did not have anyone else but his children. He stated that the day before, he had had a telephone conversation with his daughter and she had wanted to see him. He admitted that he had problems with his wife and that he no longer shared the marital bed but slept on a couch in the living room, because she was “such a cold woman”. He stated that he had not beaten her in the past three years. The police noted in their report that E. did not exhibit any signs of potential for aggression while in the presence of the authorities.\n34.As a consequence of the above-mentioned questioning, additional charges were brought against E. for torment or neglect of under‑age, young or defenceless persons, under Article 92 of the Criminal Code. On 24May2012 the public prosecutor requested the St Pölten Regional Court to cross‑examine (kontradiktorische Vernehmung) the applicant and her children, and requested that an expert in child psychology be involved.\n35.On 25 May 2012 E. went to A. and B.’s school. He asked A.’s teacher if he could speak briefly to his son in private, because he wanted to give him money. The teacher, who later stated that she had been aware that money had to be paid for some school events but that she had not been informed of the problems in the family, agreed. When A. did not return to class, she started looking for him. She found him in the school’s basement, having been shot in the head. His sister B., who had witnessed her brother being shot, was not injured. E. had gone. An arrest warrant was issued in respect of him immediately. A. was taken to the intensive care unit of the city hospital.\n36.The police questioned several witnesses, including the applicant and her daughter. The applicant stated that E. had always presented “extremely different faces”: towards strangers he had always appeared friendly, but only she had known his “true face”. After the barring and protection order was issued he had called her several times each day. He had wanted to see her and the children together. She had answered that he could of course see the children, but only in the presence of their grandfather. She had also told her children that they could see their father whenever they wanted. She had only preferred to avoid meeting her husband alone with the children, because she was afraid that he would kill the children in front of her. The applicant stated that she had seen her husband in front of the school with his car in the morning, before the shooting. She had been planning to inform the teacher the following day, 26 May 2012, of her family problems.\n37. The applicant’s counsellor from the Centre for Protection from Violence (see paragraphs 46 and 71 below) stated that she had never thought that E. would commit such a crime. A.’s teacher said that she had never noticed any injuries on the boy or any other indications that he could have been a victim of domestic violence. She had never heard of any threats being made against the children. The mother of one of A.’s schoolmates, a nurse, described E. as a “friendly and courteous person”. She had met him an hour before the event in front of the school, and he had greeted her and shaken her hand. A father of another schoolmate had also met E. that morning and described him as “calm and polite”.\n38.On the same day, at 10.15 a.m., E. was found dead in his car. He had committed suicide by shooting himself. From his suicide note dated 24 May 2012, which was found in the car, it became apparent that E. had actually planned to kill both of the children as well as himself. He wrote that he loved his wife and children and could not live without them.\n39.On 27 May 2012 A. succumbed to his injuries and died.\n40.On 11 February 2014 the applicant instituted official liability proceedings. She contended that the public prosecutor’s office should have requested that E. be held in pre-trial detention on 22 May 2012, after she had reported him to the police. There had been a real and immediate risk that he would reoffend against his family. It should have been clear to the authorities that the barring and protection order had not offered sufficient protection, particularly as the police had known that it could not be extended to cover the children’s school. The applicant claimed 37,000euros(EUR) in compensation for non-pecuniary damage. She also applied to the court for a declaratory judgment (Feststellungsbegehren) that the Republic of Austria was liable for any possible future damage (such as mental and physical problems experienced by the applicant) caused by the murder of her son, which she assessed at EUR5,000.\n41.On 14 November 2014 the St Pölten Regional Court (Landesgericht) dismissed the applicant’s claim. It held that, taking into account the information the authorities had had to hand at the relevant time, there had not been an immediate risk to A.’s life. A barring and protection order had been issued against E., which had required him to stay away from the family home and the applicant’s parents’ apartment, as well as the surrounding areas. E. had never acted aggressively in public before. Even though he had allegedly been issuing threats against his family for years, he had never acted upon them. He had complied with the barring and protection order issued in 2010, and no further misconduct had been reported to the authorities after the incident in 2010 until the applicant had reported him to the police on 22 May 2012. There had not been any indications that E. had had a gun in his possession, or that he had tried to obtain one. Moreover, after the issuance of the barring and protection order, E. had cooperated with the police and had not demonstrated any aggressive behaviour, so the authorities had been able to assume that there would be a reduction in tension. The Regional Court considered it relevant that, at the hearing, the applicant had herself admitted that the police might have had the impression that E. was cooperative and not aggressive. She told the court that her husband had been a good actor and could present himself well. To others he had always been very friendly and kind. She herself had always given him another chance when he showed remorse for his behaviour and promised to do better. The court weighed the applicant’s and her children’s right to be protected against the rights of E. under Article 5 of the Convention, and held that pre-trial detention should only be used as the ultima ratio. A less intrusive measure had been issued instead, namely the barring and protection order with respect to the applicant’s and her parents’ residential premises. The court concluded that the public prosecutor’s office had therefore not acted unlawfully or culpably by not taking E. into pre-trial detention.\n42.The applicant appealed, repeating that the public prosecutor’s office should have been aware that there had been an increased threat of further violent acts by E. since she had filed for divorce. She presented statistics showing that the number of homicides committed between partners was significantly higher during the separation phase of a couple, the phase in which the applicant and E. had found themselves. The applicant asserted that the authorities had been aware that E.’s violence against her had increased since February 2012. In fact, he had specifically threatened that he would kill the children in front of the applicant, and that he would kill her or himself. The applicant also argued that the domestic authorities were under a positive obligation under Article 2 of the Convention to protect her and her children’s lives by making use of criminal-law provisions and the relevant measures under criminal law, which, in her specific situation, could only have meant detention. The barring and protection order as a “less intrusive measure” had not been sufficient as the police could not have extended it to cover the children’s school.\n43.On 30 January 2015 the Vienna Court of Appeal (Oberlandesgericht) dismissed the applicant’s appeal. It held that the public prosecutor’s office had some discretion when deciding on whether to take a person into pre-trial detention. Official civil liability could only be established if the decision had not been justified under the particular circumstances. The starting-point for the evaluation of such a decision was the specific information the authorities had to hand at the time the decision was taken. The public prosecutor’s office had to decide on the basis of the specific information available and the facts of the case before it. In the absence of such information, any general knowledge concerning increased levels of homicide during divorce proceedings was not decisive. What mattered was whether at the relevant time there had been serious reasons to suggest that there was a real and individual risk that E. would commit further serious offences against the applicant and her children. According to the information available to the public prosecutor’s office at the time, and considering that a barring and protection order had already been issued, there had not been sufficiently specific grounds to assume the existence of such a risk, in particular in the public area, for the reasons already set out by the St Pölten Regional Court.\n44.On 23 April 2015 the Supreme Court rejected an extraordinary appeal on points of law by the applicant. Its decision was served on the applicant’s counsel on 16 June 2015.", "46": "Allegation: 2, 14\n10.The applicant was born in 1978 and lives in Unterwagram.\n11.She married E. in 2003. They had two children, A., born in 2004, and B., born in 2005.\n12.On 10 July 2010 the applicant called the police because her husband had beaten her. In her statement to the police she alleged that she had problems with her husband and that he had been beating her for years. In the preceding months the situation had worsened because he had a gambling addiction, was heavily in debt and had lost his job. She stated that she had always supported him financially, but had also lost her job and therefore could no longer pay his debts. The police noted that the applicant showed signs of injuries, namely haematomas on her elbow and upper arm, which she stated she had sustained through beatings by her husband.\n13.Pursuant to section 38a of the Security Police Act (Sicherheitspolizeigesetz – see paragraph 48 below), the police handed the applicant a leaflet informing her, among other things, of the possibility of seeking a temporary restraining order (einstweilige Verfügung) against her husband under sections 382b and 382e of the Enforcement Act (see paragraphs 54 et seq. below).\n14.When confronted with the allegations by the police, E. stated that he did not have any problems with his wife, but that he had had a fight with his brother the night before and had sustained injuries to his face. There were no indications that E. was in possession of a weapon. A barring and protection order (Betretungsverbot und Wegweisung zum Schutz vor Gewalt) in accordance with section 38a of the Security Police Act was issued against E. This order obliged him to stay away from their common apartment as well as from the applicant’s parents’ apartment and the surrounding areas for fourteen days. It appears that E. complied with the order. The police submitted a report to the public prosecutor’s office (Staatsanwaltschaft), which brought criminal charges against E. on 20December 2010.\n15.On 10 January 2011 the Graz Regional Criminal Court (Landesgericht für Strafsachen) convicted E. of bodily harm and making dangerous threats, and sentenced him to three months’ imprisonment, suspended for three years with probation. The applicant refused to testify against E. He was nonetheless found guilty of pushing her against a wall and slapping her, and of threatening his brother and his nephew.\n16.On Tuesday 22 May 2012 the applicant, accompanied by her counsellor from the Centre for Protection from Violence (Gewaltschutzzentrum), went to the St. Pölten District Court (Bezirksgericht) and filed for divorce. In her oral hearing before the judge, which was held at 11.20 a.m., she explained that the reasons for the breakdown of the marriage were her husband’s continuous threats and violence against her throughout their marriage. She indicated that on the preceding Saturday the situation had escalated and she had suffered injuries. She added that she was planning to report him to the police and that she hoped that a barring and protection order would be issued against him.\n17.On the same day at 1.05 p.m. the applicant, assisted by her counsellor from the Centre for Protection from Violence, reported her husband to the police for rape and making dangerous threats. She was interviewed by a female police officer who was experienced in handling cases of domestic violence. In her witness statement, the applicant described the following events in detail.\n18.According to the applicant, on Saturday 19 May 2012, when the issue of a possible separation came up, the situation with her husband escalated. She arrived home from work that day at around 3 p.m. Her husband sent the children outside to play, because he said that he wanted to talk to her. He asked her what she was going to do, meaning now that he was gambling again. He thought that it was all her fault. He called her a whore and accused her of seeing other men, since she had not slept with him since February 2012. In the course of the ensuing argument E. repeatedly stated that he could not live without her and the children, and that he would take the children to Turkey. He started choking her and, with his hand still on her throat, pushed her onto the couch. He told her that he was a man and she was a woman, so she was obliged to have sex with him. The applicant told him to stop, but he removed the clothes from the lower part of her body and raped her. She said that he did not hold her tightly during the rape, but she did not resist out of fear of being beaten if she did. After the incident she took a shower, put on her clothes and went to the pharmacy to obtain a contraceptive pill because she was afraid of getting pregnant.\n19.The applicant stated further that E. had behaved violently towards her from the very beginning of their marriage, and that in 2010 he had been issued with a barring and protection order for two weeks because he had injured her. E. had been convicted of bodily harm in relation to that incident, and of making dangerous threats against his brother and nephew. The applicant explained that since 2010 she had been in regular contact with the local Centre for Protection from Violence. Because her husband had subsequently gone to hospital of his own accord to be treated for his gambling addiction and mental problems, she had forgiven him, refused to testify in the criminal proceedings against him and decided to give him another chance. However, the situation had worsened in February 2012, when E.’s gambling addiction had resumed. The applicant explained that after his stay in hospital in 2010 her husband had told her that if he started to gamble again she could leave him. That was why he had been even more aggressive since February 2012 – he feared that she would take him up on his promise. The applicant stated that since the beginning of March 2012 he had been threatening her on a daily basis, always with the same phrases: “I will kill you”, “I will kill our children in front of you”, “I will hurt you so badly that you will beg me to kill you”, “I will hurt your brother’s children if I am expelled to Turkey” (the applicant’s brother lives in Turkey), and “I will hang myself in front of your parents’ door”. She said that she took these threats very seriously, but that she had not previously reported them because she feared that he would act upon them if she did.\n20.The applicant stated that her husband had been beating her regularly, and sometimes slapped the children as well, especially when he came back from the betting shop. For the most part, the children had not sustained any injuries from the slaps in the face; on just one occasion A. had sustained a haematoma on his cheek. She stated that the children were scared of her husband too. She had been thinking about getting a divorce for several months, but she had feared that he would harm her or her children if she did. The applicant added that her husband sometimes took her mobile phone away from her and locked her in their apartment so that she could not leave. She reiterated that she was in great fear of her husband and that she was reporting all this to the police at that stage because she wanted to protect herself and her children.\n21.The police took pictures of the injuries the applicant had sustained (haematomas on her throat and scratches on her chin). A medical examination did not detect injuries in her genital area (see paragraph 28 below).\n22.In accordance with a standard procedure, an online search concerning E. was made by the police in a central electronic database containing the personal data of offenders, including the reasons for and scope of previous barring and protection orders, temporary restraining orders and temporary injunctions. The police also checked the firearms registry to ascertain whether the husband had a gun at his disposal, and the result was negative.\n23.After the applicant had reported the matter to the police, two police officers (one male and one female) took her to the family home, where E. and the children were present. The police officers also spoke to the children, who confirmed that their father beat their mother and had also regularly slapped them.\n24.E. accompanied the police officers voluntarily to the police station. Subsequently, at 4 p.m., he was questioned by the police. E. denied the allegations of violence, rape and threatening behaviour. He admitted that he had had sexual intercourse with his wife on 19 May 2012. However, he contended that sexual contact with his wife had always followed a pattern whereby his wife initially refused but then allowed herself to be persuaded. He explained that he had beaten his wife in the past but had ceased doing so three years earlier.\n25.On the basis of the reported facts and section 38a of the Security Police Act, the police officers issued a barring and protection order against E. at 5.15 p.m. This order obliged him to leave the family home for two weeks and prohibited him from returning to it or the surrounding areas; it also barred him from the applicant’s parents’ apartment and its surrounding areas. His keys to the family home were taken from him.\n26.The applicant was handed a “leaflet for victims of violence”, informing her, among other things, of the possibility of extending the scope of the barring and protection order in time and place by seeking a temporary restraining order (einstweilige Verfügung) against her husband under sections 382b and 382e of the Enforcement Act (see paragraphs 54 et seq. below). The applicant was informed in the leaflet that she could turn to the competent District Court for further information on the court proceedings. Moreover, the leaflet stated that a barring order was binding not only for the person posing a threat, but also for the victim, who must not let the person posing a threat back into the apartment, and that the police would check on the observance of the barring order. Lastly, the applicant was informed that her data would be transferred to a Centre for Protection from Violence, and she was provided with contact details of institutions providing counselling for victims of violence.\n27.The police report concerning the barring and protection order described the applicant as “tearful and very scared”. E. was described as “mildly agitated” and “cooperative”. Under the heading “indications of an imminent dangerous attack” (Merkmale für einen bevorstehenden gefährlichen Angriff) it stated that a rape had been reported, that there was evidence of violence in the form of haematomas, that there had been continuous threats, and that the children had been slapped regularly. Under the heading “indications of an increased risk from the person posing a threat” (Merkmale für eine erhöhte Gefährlichkeit des Gefährders), the police noted:\n(a) known reported/unreported violent acts (not only currently, but also previous incidents);\n(b) escalation (increase in the occurrence and seriousness of violence);\n(c) current stress factors (such as unemployment, divorce, separation from partner/children, and so on); and\n(d) a strong tendency to trivialise/deny violence (violence seen as a legitimate means).\n28.In the evening of 22 May 2012, at 6.10 p.m., the police informed the public prosecutor on duty (Journalstaatsanwalt) of the situation in a phone call. In a note added to the file, the public prosecutor wrote the following:\n“The accused is suspected of raping his wife on 19 May 2012, threatening her repeatedly during the marriage and beating her and the children. The wife has pressed charges with the aid of a representative of the Centre for Protection from Violence and a divorce is apparently pending.\nThe accused admits having had sexual relations with his wife, but denies the subjective element of the crime. Sexual relations during the marriage [according to him] took place in such a way that his wife repeatedly ‘played hard to get’. He would then keep touching her until he managed to persuade her to have sexual relations. According to him, this was typical behaviour for Turkish women. She had allegedly been saying for ten years that she did not want to have sex with him, but then had sex nonetheless.\nConcerning the injuries, the police officer stated that the woman did not have injuries in her genital area, but had abrasions on her chin. The wife stated that when she had told [the accused] that she did not want to have sexual relations, he had choked her. Finally she had ceased her resistance and allowed intercourse to take place. He did not hold her down and did not use violence during the act, and she did not scream. Since March 2012 he had allegedly been threatening on a daily basis to kill her.\n[The person posing a threat] was issued with a barring and protection order by the police.\nI order that the children be questioned, that reports on the findings of the investigations so far be transmitted, and that [the person posing a threat] be charged while remaining at liberty (auf freiem Fuß angezeigt).”\nOn the same day, the public prosecutor’s office instituted criminal proceedings against E. on suspicion of rape, bodily harm and making dangerous threats.\n29.From 6.50 p.m. until 7.25 p.m. the children A. and B. were questioned in detail at their grandparents’ home by the police concerning the violence they had been subjected to by their father. A transcript of the questioning was drawn up by the police. The children both confirmed their earlier statements to the effect that E. often slapped and screamed at them and behaved in the same way towards their mother.\n30.At 11.20 p.m. the competent police officer emailed a report on the findings of the criminal investigations concerning the applicant’s husband to the public prosecutor, together with transcripts of the applicant’s, her children’s and E.’s questioning. The report mentioned that a barring and protection order had been issued and, among other things, listed the offences of which E. was suspected (rape, making dangerous threats, and torment or neglect of under-age, young or defenceless persons). Under the heading “Facts”, the situation was described as follows:\n“The suspect has been beating his children and his wife for several years already. On 19 May 2012 the suspect choked his wife, as a result of which she suffered haematomas on her chin and her throat, which have been photographically documented. Then he had intercourse with her, even though she told him repeatedly that she did not want it. Furthermore, for months he has been threatening to kill his wife and their children.”\n31.The police report on the issuance of the barring and protection order containing the list of indications for an elevated risk (see paragraph 27 above) was not sent to the public prosecutor’s office.\n32.On 23 May 2012 the St Pölten Federal Police Department (Bundespolizeidirektion) assessed the lawfulness of the issuance of the barring and protection order against E. (under section 38a(6) of the Security Police Act). It found that the evidence showed “coherently and conclusively” (klar widerspruchsfrei und schlüssig) that E. had used violence against his family, and that the barring and protection order was therefore lawful.\n33.On 24 May 2012 at 9 a.m. E. went to the police station on his own initiative to enquire whether it would be possible for him to contact his children. The police took the opportunity to question him and to confront him with his children’s statements that he had beaten them. E. confessed that he beat them “every now and then”, but “only as an educational measure”, “not about the face” and “never aggressively”. His wife also slapped them from time to time. He added that his children were everything to him, and that he did not have anyone else but his children. He stated that the day before, he had had a telephone conversation with his daughter and she had wanted to see him. He admitted that he had problems with his wife and that he no longer shared the marital bed but slept on a couch in the living room, because she was “such a cold woman”. He stated that he had not beaten her in the past three years. The police noted in their report that E. did not exhibit any signs of potential for aggression while in the presence of the authorities.\n34.As a consequence of the above-mentioned questioning, additional charges were brought against E. for torment or neglect of under‑age, young or defenceless persons, under Article 92 of the Criminal Code. On 24May2012 the public prosecutor requested the St Pölten Regional Court to cross‑examine (kontradiktorische Vernehmung) the applicant and her children, and requested that an expert in child psychology be involved.\n35.On 25 May 2012 E. went to A. and B.’s school. He asked A.’s teacher if he could speak briefly to his son in private, because he wanted to give him money. The teacher, who later stated that she had been aware that money had to be paid for some school events but that she had not been informed of the problems in the family, agreed. When A. did not return to class, she started looking for him. She found him in the school’s basement, having been shot in the head. His sister B., who had witnessed her brother being shot, was not injured. E. had gone. An arrest warrant was issued in respect of him immediately. A. was taken to the intensive care unit of the city hospital.\n36.The police questioned several witnesses, including the applicant and her daughter. The applicant stated that E. had always presented “extremely different faces”: towards strangers he had always appeared friendly, but only she had known his “true face”. After the barring and protection order was issued he had called her several times each day. He had wanted to see her and the children together. She had answered that he could of course see the children, but only in the presence of their grandfather. She had also told her children that they could see their father whenever they wanted. She had only preferred to avoid meeting her husband alone with the children, because she was afraid that he would kill the children in front of her. The applicant stated that she had seen her husband in front of the school with his car in the morning, before the shooting. She had been planning to inform the teacher the following day, 26 May 2012, of her family problems.\n37. The applicant’s counsellor from the Centre for Protection from Violence (see paragraphs 46 and 71 below) stated that she had never thought that E. would commit such a crime. A.’s teacher said that she had never noticed any injuries on the boy or any other indications that he could have been a victim of domestic violence. She had never heard of any threats being made against the children. The mother of one of A.’s schoolmates, a nurse, described E. as a “friendly and courteous person”. She had met him an hour before the event in front of the school, and he had greeted her and shaken her hand. A father of another schoolmate had also met E. that morning and described him as “calm and polite”.\n38.On the same day, at 10.15 a.m., E. was found dead in his car. He had committed suicide by shooting himself. From his suicide note dated 24 May 2012, which was found in the car, it became apparent that E. had actually planned to kill both of the children as well as himself. He wrote that he loved his wife and children and could not live without them.\n39.On 27 May 2012 A. succumbed to his injuries and died.\n40.On 11 February 2014 the applicant instituted official liability proceedings. She contended that the public prosecutor’s office should have requested that E. be held in pre-trial detention on 22 May 2012, after she had reported him to the police. There had been a real and immediate risk that he would reoffend against his family. It should have been clear to the authorities that the barring and protection order had not offered sufficient protection, particularly as the police had known that it could not be extended to cover the children’s school. The applicant claimed 37,000euros(EUR) in compensation for non-pecuniary damage. She also applied to the court for a declaratory judgment (Feststellungsbegehren) that the Republic of Austria was liable for any possible future damage (such as mental and physical problems experienced by the applicant) caused by the murder of her son, which she assessed at EUR5,000.\n41.On 14 November 2014 the St Pölten Regional Court (Landesgericht) dismissed the applicant’s claim. It held that, taking into account the information the authorities had had to hand at the relevant time, there had not been an immediate risk to A.’s life. A barring and protection order had been issued against E., which had required him to stay away from the family home and the applicant’s parents’ apartment, as well as the surrounding areas. E. had never acted aggressively in public before. Even though he had allegedly been issuing threats against his family for years, he had never acted upon them. He had complied with the barring and protection order issued in 2010, and no further misconduct had been reported to the authorities after the incident in 2010 until the applicant had reported him to the police on 22 May 2012. There had not been any indications that E. had had a gun in his possession, or that he had tried to obtain one. Moreover, after the issuance of the barring and protection order, E. had cooperated with the police and had not demonstrated any aggressive behaviour, so the authorities had been able to assume that there would be a reduction in tension. The Regional Court considered it relevant that, at the hearing, the applicant had herself admitted that the police might have had the impression that E. was cooperative and not aggressive. She told the court that her husband had been a good actor and could present himself well. To others he had always been very friendly and kind. She herself had always given him another chance when he showed remorse for his behaviour and promised to do better. The court weighed the applicant’s and her children’s right to be protected against the rights of E. under Article 5 of the Convention, and held that pre-trial detention should only be used as the ultima ratio. A less intrusive measure had been issued instead, namely the barring and protection order with respect to the applicant’s and her parents’ residential premises. The court concluded that the public prosecutor’s office had therefore not acted unlawfully or culpably by not taking E. into pre-trial detention.\n42.The applicant appealed, repeating that the public prosecutor’s office should have been aware that there had been an increased threat of further violent acts by E. since she had filed for divorce. She presented statistics showing that the number of homicides committed between partners was significantly higher during the separation phase of a couple, the phase in which the applicant and E. had found themselves. The applicant asserted that the authorities had been aware that E.’s violence against her had increased since February 2012. In fact, he had specifically threatened that he would kill the children in front of the applicant, and that he would kill her or himself. The applicant also argued that the domestic authorities were under a positive obligation under Article 2 of the Convention to protect her and her children’s lives by making use of criminal-law provisions and the relevant measures under criminal law, which, in her specific situation, could only have meant detention. The barring and protection order as a “less intrusive measure” had not been sufficient as the police could not have extended it to cover the children’s school.\n43.On 30 January 2015 the Vienna Court of Appeal (Oberlandesgericht) dismissed the applicant’s appeal. It held that the public prosecutor’s office had some discretion when deciding on whether to take a person into pre-trial detention. Official civil liability could only be established if the decision had not been justified under the particular circumstances. The starting-point for the evaluation of such a decision was the specific information the authorities had to hand at the time the decision was taken. The public prosecutor’s office had to decide on the basis of the specific information available and the facts of the case before it. In the absence of such information, any general knowledge concerning increased levels of homicide during divorce proceedings was not decisive. What mattered was whether at the relevant time there had been serious reasons to suggest that there was a real and individual risk that E. would commit further serious offences against the applicant and her children. According to the information available to the public prosecutor’s office at the time, and considering that a barring and protection order had already been issued, there had not been sufficiently specific grounds to assume the existence of such a risk, in particular in the public area, for the reasons already set out by the St Pölten Regional Court.\n44.On 23 April 2015 the Supreme Court rejected an extraordinary appeal on points of law by the applicant. Its decision was served on the applicant’s counsel on 16 June 2015.", "47": "Allegation: 2, 3\n2.The applicant was born in 1974 and lives in Yerevan. The applicant was represented by Mr T. Yegoryan and Mr N. Baghdasaryan, lawyers practising in Yerevan.\n3.The Government were represented by their Agent, Mr G. Kostanyan, and subsequently by Mr Y. Kirakosyan, Representative of the Republic of Armenia to the European Court of Human Rights.\n4.The facts of the case, as submitted by the parties, may be summarised as follows.\n5.The applicant, who is ethnic Armenian, lived and worked in Russia prior to his return to Armenia on an unspecified date in June 2015. He was first deputy director of one of the State budgetary establishments of the City of Moscow.\n6.On 27 May 2015 the investigative department of the north administrative district of Moscow instituted criminal proceedings against the applicant on suspicion of attempted bribe-taking.\n7.On 1 June 2015 the applicant undertook to appear when summoned by the investigative authority and to inform the investigator immediately of any change of place of residence or registration.\n8.On 10 June 2015 the applicant was charged with attempted bribe-taking.\n9.On the same date the applicant was admitted to accident and emergency in a hospital in Moscow with transient cerebral ischaemia. He was discharged on 14 June 2015.\n10.On 16 June 2015 the investigator declared the applicant a fugitive, including him in the federal wanted list.\n11.On 8 July 2015 the applicant was declared an international fugitive.\n12.On 14 July 2015 the Savelevskiy District Court of Moscow allowed the investigator’s application seeking the applicant’s detention. In doing so, it dismissed the applicant’s lawyer’s arguments concerning the applicant’s poor state of health and the fact that that he had received inpatient medical treatment in Yerevan of which the investigator had been informed. The court found, inter alia, that the applicant had knowingly chosen not to receive medical treatment in Russia and had left the country despite the criminal proceedings pending against him.\n13.On 11 April 2017 the applicant was arrested in Yerevan. He was then detained pending determination of the question of his extradition to Russia.\n14.On 14 April 2017 the Office of the Prosecutor General of Armenia submitted an application to the Kentron and Nork-Marash District Court of Yerevan (“the District Court”) seeking to detain the applicant for a period of forty days pending determination of the question of his extradition to Russia.\n15.On the same date the District Court authorised the applicant’s detention for a period of forty days counting from 11 April 2017.\n16.On 19 April 2017 the applicant lodged an appeal against the District Court’s decision of 14 April 2017, arguing that he should be considered an Armenian citizen, which would be legal grounds preventing his extradition. The applicant submitted a number of documents such as his birth certificate, old passports, documents concerning his military conscription in Armenia, and so forth to substantiate that he satisfied the requirements of section 10 of the Nationality Act and he should therefore be recognised an Armenian citizen.\n17.On 30 May 2017 the Criminal Court of Appeal (“the Court of Appeal”) dismissed the applicant’s appeal. In particular, having examined the documents submitted by the prosecution in support of the argument that the applicant had received Russian nationality before 13 July 1995, the date of entry into force of the Constitution – one of the requirements of section 10 of the Nationality Act – the Court of Appeal found that the applicant’s detention for the purpose of his extradition to a foreign country would be in breach of his rights since the question of his nationality was disputed. At the same time, the Court of Appeal found that the applicant’s detention pending receipt of the criminal case against him for the purpose of his prosecution in Armenia was lawful under Articles 478.2 and 478.3 of the Code of Criminal Procedure.\n18.On 12 May 2017 the Prosecutor General of Russia requested the applicant’s extradition under the 1993 Minsk Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters. That request also stated that the applicant would not be subjected to torture, inhuman and degrading treatment or punishment.\n19.On 14 May 2017 the Office of the Prosecutor General of Armenia lodged an application with the District Court, seeking the applicant’s detention for two months for the purpose of carrying out his extradition.\n20.On 19 May 2017 the District Court authorised the applicant’s detention for a period of two months.\n21.On 16 June 2017 the applicant was transferred from the Nubarashen detention facility to the Central Prison Hospital with the following diagnosis: “Heart ischaemic disease; arterial hypertension progressing to a critical state”.\n22.In a decision of 23 June 2017 the Prosecutor General of Armenia granted the extradition request, instructing the police and the Central Prison Hospital, where the applicant was detained, to ensure his extradition to Russia after the decision had become final. It was stated in the decision that according to the documents provided by the Office of the Prosecutor General of Russia the applicant had received Russian nationality on 26 July 1994 and that he was still a Russian citizen. Hence, there were no legal impediments to his extradition.\n23.On 3 July 2017 the deputy head of the Central Prison Hospital issued a certificate in respect of the applicant’s state of health. It stated that he was suffering from a post-stroke condition with severe vestibulopathy and eye‑movement impairment; remnants of the stroke in the area of the left middle artery of the brain with right-sided reflector hemiparesis; walking difficulty as a result of hemiparesis; 2nd degree atherosclerotic encephalopathy; 1st degree arterial hypertension; a 15% risk of developing cardiovascular complications.\n24.On 6 July 2017 the applicant appealed against the extradition decision of 23 June 2017 to the Court of Appeal. He argued that, considering his state of health, his transfer to Russia could cause irreparable harm to his health or put his life in danger. In support of his appeal, the applicant relied on the medical certificate of 3 July 2017.\n25.In a letter of 12 July 2017 the Office of the Prosecutor General of Russia asked the Office of the Prosecutor General of Armenia to inform it of the planned date for the applicant’s transfer, guaranteeing that during the applicant’s detention and, in the event of his conviction, during the serving of his sentence the staff of the Armenian consulate in Russia would have access to him. In addition, during the same periods, in case of necessity, the applicant would be provided with the requisite medical assistance.\n26.On the same date the chief neurologist of the Ministry of Health of Armenia issued a medical certificate which stated that the applicant was suffering from the consequences of an ischaemic stroke indicating severe disorders of the cardiovascular and nervous systems. Considering those risks, it could not be ruled out that the applicant’s transfer to Russia by air or land could result in a further stroke or a heart attack.\n27.By further letter of 14 July 2017 the Office of the Prosecutor General of Russia gave assurances that a doctor with the relevant specialisation would travel with a special convoy to provide the applicant with medical assistance if necessary during his transfer.\n28.On 19 July 2017 the Court of Appeal rejected the applicant’s appeal. It referred to the assurances provided by the Office of the Prosecutor General of Russia regarding the presence of a medical specialist during the applicant’s transfer to Russia and during his detention and, if convicted, while serving his sentence.\n29.On 26 July 2017 the applicant lodged an appeal on points of law against the decision of 19 July 2017, arguing that the translator appointed for him had failed to appear at the hearing and that a copy in Russian of the judgment had not been provided to him. In addition, the applicant had not been able to effectively participate in the proceedings since he had neither been properly given a chance to make arguments nor had he been informed of his rights. Lastly, the applicant argued that the Court of Appeal had failed to verify his state of health as far as the risks during his transfer were concerned.\n30.In the certificate of 28 July 2017 Dr A.K., the head of the neurological department of a hospital in Yerevan, confirmed the applicant’s diagnosis as set out in the medical certificate of 12 July 2017 (see paragraph26 above). It was further noted that the applicant had developed cephalic disorder accompanied with photophobia and phonophobia, which required treatment and preferably supervision by a neurologist. On the basis of those conditions and risk factors, it was concluded that the applicant should not be allowed to be transferred by air or land as that might cause further heart and brain problems.\n31.Between 14 August and 1 September 2017 the applicant underwent inpatient medical examination and treatment in a civilian hospital. His discharge diagnosis stated the following:\n“Arterial hypertension, progressing to a critical state, high risk with chronic insufficiency of blood circulation and frequent transient ischaemic attacks in vertebra-basilar pool. Discirculatory angio-encephalopathy of the 3rd degree with ischaemic strokes in the vertebra-basilar pool and the pool of the left-middle cerebral artery accompanied with post-stroke cysts in the midbrain, the bridge and the brainstem; with leukoaraiosis with stable residual phenomena in the form of the right-sided moderate hemiparesis; vestibulopathy; moderate disorder of walking function; hypertensive syndrome manifested with frequent cephalgia. Ischaemic heart disease, stable angina pectoris ... ”\n32.On 21 August 2017 the Court of Cassation quashed the decision of 19 July 2017 and remitted the case for a new examination on the grounds that the Court of Appeal had failed to ensure that the applicant had understood the language of the proceedings and that he had been aware of his rights.\n33.On 13 September 2017 Dr A.K. provided a further medical opinion concerning the applicant’s state of health based on his discharge diagnosis (see paragraph 31 above). She stated, in particular, the following:\n“[T]he applicant’s [condition] is serious and unpredictable, considering the strong probability of future attacks in the form of hypertonic crises and transient ischaemic attacks, the two previous ischaemic strokes in the vertebra-basilar pool and the pool of the left-middle cerebral artery.\nA person suffering from those conditions cannot participate in court hearings, because any emotional tension might lead to the development of new potential complications.”\n34.At the hearing of 25 October 2017 during the fresh examination of the applicant’s appeal against the extradition decision of 23 June 2017, his lawyer lodged an application with the Court of Appeal, seeking the appointment of an expert to assess his state of health. The prosecutor objected to the application, stating that there were insufficient grounds to conclude that the applicant’s transfer to Russia would pose any risks to his health or life. She reasoned that during the examination of the request for the applicant’s extradition the Prosecutor General of Armenia had not been in possession of any medical documents concerning the applicant’s health. Moreover, the prosecutor expressed doubts about the applicant’s medical condition, referring to a letter from the detention facility dated 13 July 2017 which stated that he was fit to participate in court proceedings.\n35.On the same date the Court of Appeal rejected the applicant’s appeal finding that there were no circumstances preventing the applicant’s extradition. In particular, the applicant was a Russian national and assurances about securing his rights within the framework of the criminal proceedings against him had been provided by the Russian authorities. The Court of Appeal affirmed the decision of the Prosecutor General of Armenia on extraditing the applicant to Russia, relying on the supplementary assurances of the Russian authorities that the applicant’s medical supervision during and after his transfer to Russia would be ensured. In the meantime, it also rejected the applicant’s request to appoint a forensic medical expert on the grounds that the assignment of a forensic medical examination during extradition proceedings was not prescribed under domestic law.\n36.The applicant lodged an appeal on points of law complaining of lack of a public hearing and adversarial trial before the Court of Appeal. He also reiterated his arguments about the medical risks of his transfer.\n37.On 23 November 2017 the Court of Cassation declared the appeal inadmissible for lack of merit. Accordingly, the decision of the Prosecutor General of Armenia to extradite the applicant to Russia became final.\n38.On 30 November 2017 the decision of 23 November 2017 was served on the applicant’s lawyer.\n39.On 18 August 2017 the applicant asked the Court, under Rule 39 of the Rules of the Court, to indicate to the Government to stay his extradition to Russia until the Court had examined the merits of his complaints.\n40.On 30 November 2017 the applicant informed the Court that the domestic courts had reached a final decision to extradite him to Russia.\n41.On the same date the Court (the duty judge) decided to indicate to the Government, under Rule 39 of the Rules of Court, that the applicant should not be extradited until further notice. In the meantime, the Court (duty judge) decided, under Rule 54 § 2 (a) of the Rules of Court, to ask the Government to respond to the following questions by 15 December 2017:\n“1. What practical steps, if any, have been taken for the applicant’s effective transfer to the Russian Federation?\n2. If steps have been taken, when and how will the applicant be transferred (by air, land)?\n3. Will the applicant be provided with medical assistance during the journey? If so, please provide details.\n4. Is there a medical protocol for handing over the applicant to the Russian authorities upon arrival?”\n42.In their reply the Government submitted that the applicant had speculatively tried to hinder his extradition first by providing misleading information to substantiate that he was an Armenian national and then by producing medical documents about a drastic deterioration of his state of health. Furthermore, the applicant had already been suffering from the diseases mentioned in the medical note of 12 July 2017 when he had travelled to Armenia by plane in June 2015.\nThe Government relied on the letters of 12 and 14 July (see paragraphs26 and 27 above) and 14 December 2017 (see paragraph 49 below) which contained assurances by the Russian authorities that the applicant would be provided with the requisite medical assistance during his transfer to Russia and, if convicted, while serving his sentence. They submitted that according to the established practice, a person’s extradition from Armenia was performed only if a medical document proving his or her\nfitness to be transferred had been issued by the Central Prison Hospital.\n43.In reply to the Government’s submissions, the applicant maintained that he had had health issues since at least 1994, when he had been exempted from mandatory military service on health grounds. However, it had only been since 2015 that his health had sharply deteriorated as a result of the stress and anxiety caused by his prosecution. Owing to his poor state of health he had been kept in the Central Prison Hospital during his detention and transferred to civilian hospitals by the authorities to receive specialist care. Furthermore, the Government had never ordered an assessment of his state of his health in order to verify whether he had been fit to be extradited. In addition, the Court of Appeal had dismissed his application to be examined by a forensic medical expert.\nThe applicant argued that the general assurances obtained from the Russian authorities were insufficient for the discontinuation of the measure indicated by the Court, considering the seriousness of his illnesses as attested to by various medical professionals. He also relied on the medical advice that he should not be transferred to Russia either by air or land given the potential risks of such transfer indicated by doctors.\n44.On 6 February 2018 the Court (the duty judge) decided to maintain the interim measure indicated on 30 November 2017.\n45.On 27 September 2017 the applicant submitted a request for asylum to the State Migration Service.\n46.In a decision of 14 November 2017 the State Migration Service refused the applicant’s request for asylum.\n47.On 11 December 2017 the applicant was released from detention as the maximum period of his detention pending extradition had expired.\n48.On the same date he was admitted to the neurology department of a civilian hospital for examination and treatment.\n49.By letter of 14 December 2017 the Office of the Prosecutor General of Russia, with reference to a letter from the Russian Federal Service for Execution of Sentences, informed the Prosecutor General of Armenia that the special convoy accompanying the applicant would include a medical specialist ready to provide medical assistance to him in accordance with his state of health. Furthermore, the medication and medical equipment necessary to provide assistance in the event of cardiovascular problems would be at the disposal of the doctor accompanying the applicant during his transfer. The letter also stressed that, before signing the applicant’s act of transfer, it would be necessary for the accompanying doctor to examine his medical records with a view to verifying the absence of contraindications for his transfer by air transport. Lastly, it was stated that the applicant would undergo medical examinations and consultations upon arrival at the detention facility with a view to planning outpatient supervision of his chronic illnesses.\n50.On 18 December 2017 the applicant lodged a claim with the Administrative Court seeking judicial review of the decision of the State Migration Service dated 14 November 2017 (see paragraph 46 above).\n51.On 21 December 2017 the Administrative Court admitted the applicant’s claim for examination. The outcome of those proceedings was not communicated to the Court.\n52.On 26 December 2017 the applicant qualified for disability.\n53.On 28 December 2017 the applicant was discharged from hospital with the following diagnosis:\n“Arterial hypertension, progressing to a critical state, high risk with chronic insufficiency of blood circulation and frequent transient ischaemic attacks in the vertebra-basilar pool. Third degree discirculatory angio-encephalopathy with ischaemic strokes in the vertebra-basilar pool and the pool of the left-middle cerebral artery with the existence of post‑stroke cysts in the midbrain, the bridge and the brainstem, with leukoaraiosis with stable residual phenomena in the form of the right–sided moderate hemiparesis, vestibulopathy, moderate disorder of walking function, with hypertensive syndrome, and frequent cephalgia. Ischaemic heart disease, angina pectoris class 2, class 1 heart failure (NYHA classification). Multi-level degenerative-dystrophic changes of the spine, osteochondrosis of the 4th degree with hernias at C4-C5, C5-C6, C6-C7 levels, hydromyelia.\nRecommendation: constant supervision by a neurologist. At the moment, he is not fit to travel. Constant administration of hypotensive and antiplatelet medication”.\n54.On 9 January 2019 the Government informed the Court that they had ordered an additional impartial medical evaluation of the potential risks associated with the applicant’s transfer to Russia based on the evidence presented by the applicant regarding his state of health.\n55.On 11 January 2019 a neurologist examined the applicant and confirmed the diagnoses set out in the conclusion of 28 December 2017 (see paragraph 53 above). In addition, the neurologist noted the following:\n“... at the moment, transfer by air or land is contraindicative, as any change in pressure (take-off, landing, being in a confined space for a long time, oxygen scarcity, motion sickness, any sudden and quick movements) can worsen the state of the disease, which threatens not only the patient’s health, but also his life.”\n56.In a letter of 31 January 2019 the Government Agent asked the Minister of Health to form a medical panel which would provide professional medical opinion on the following questions:\n“Considering [the applicant’s] diagnosis as stated in the medical documents submitted to the [European Court of Human Rights], would his transfer to the Russian Federation by air or land expose him to risks to his life and physical well-being?\nIf [the applicant’s] transfer exposed him to risks to his life and physical well-being, would the presence of an accompanying doctor (specifically with what type of specialisation) during the transfer eliminate or minimise such risks?”\n57.On 12 February 2019 the Minister of Health submitted the opinion of the medical panel which had been convened on 11 February 2019. The medical panel answered the questions as formulated in the Government Agent’s letter of 31 January 2019 (see paragraph 56 above) as follows:\n“Question 1: Yes, the high risks associated with [the applicant’s] transfer to the Russian Federation by air or land are linked to the chronic diseases reflected in ... his medical documents and their possible unpredictable aggravation.\nQuestion 2: No, since in the event of aggravation [of the chronic diseases] emergency medical care in a specialist medical institution may become necessary.”\n58.The opinion of the medical panel convened on 11 February 2019 was provided to the Court on 2 May 2019 by the applicant, who had received it in response to an enquiry sent to the Ministry of Health in April 2019.\n59.The parties have not provided any further information with regard to developments in the applicant’s state of health.", "48": "Allegation: 2, 3\n2.The applicant was born in 1974 and lives in Yerevan. The applicant was represented by Mr T. Yegoryan and Mr N. Baghdasaryan, lawyers practising in Yerevan.\n3.The Government were represented by their Agent, Mr G. Kostanyan, and subsequently by Mr Y. Kirakosyan, Representative of the Republic of Armenia to the European Court of Human Rights.\n4.The facts of the case, as submitted by the parties, may be summarised as follows.\n5.The applicant, who is ethnic Armenian, lived and worked in Russia prior to his return to Armenia on an unspecified date in June 2015. He was first deputy director of one of the State budgetary establishments of the City of Moscow.\n6.On 27 May 2015 the investigative department of the north administrative district of Moscow instituted criminal proceedings against the applicant on suspicion of attempted bribe-taking.\n7.On 1 June 2015 the applicant undertook to appear when summoned by the investigative authority and to inform the investigator immediately of any change of place of residence or registration.\n8.On 10 June 2015 the applicant was charged with attempted bribe-taking.\n9.On the same date the applicant was admitted to accident and emergency in a hospital in Moscow with transient cerebral ischaemia. He was discharged on 14 June 2015.\n10.On 16 June 2015 the investigator declared the applicant a fugitive, including him in the federal wanted list.\n11.On 8 July 2015 the applicant was declared an international fugitive.\n12.On 14 July 2015 the Savelevskiy District Court of Moscow allowed the investigator’s application seeking the applicant’s detention. In doing so, it dismissed the applicant’s lawyer’s arguments concerning the applicant’s poor state of health and the fact that that he had received inpatient medical treatment in Yerevan of which the investigator had been informed. The court found, inter alia, that the applicant had knowingly chosen not to receive medical treatment in Russia and had left the country despite the criminal proceedings pending against him.\n13.On 11 April 2017 the applicant was arrested in Yerevan. He was then detained pending determination of the question of his extradition to Russia.\n14.On 14 April 2017 the Office of the Prosecutor General of Armenia submitted an application to the Kentron and Nork-Marash District Court of Yerevan (“the District Court”) seeking to detain the applicant for a period of forty days pending determination of the question of his extradition to Russia.\n15.On the same date the District Court authorised the applicant’s detention for a period of forty days counting from 11 April 2017.\n16.On 19 April 2017 the applicant lodged an appeal against the District Court’s decision of 14 April 2017, arguing that he should be considered an Armenian citizen, which would be legal grounds preventing his extradition. The applicant submitted a number of documents such as his birth certificate, old passports, documents concerning his military conscription in Armenia, and so forth to substantiate that he satisfied the requirements of section 10 of the Nationality Act and he should therefore be recognised an Armenian citizen.\n17.On 30 May 2017 the Criminal Court of Appeal (“the Court of Appeal”) dismissed the applicant’s appeal. In particular, having examined the documents submitted by the prosecution in support of the argument that the applicant had received Russian nationality before 13 July 1995, the date of entry into force of the Constitution – one of the requirements of section 10 of the Nationality Act – the Court of Appeal found that the applicant’s detention for the purpose of his extradition to a foreign country would be in breach of his rights since the question of his nationality was disputed. At the same time, the Court of Appeal found that the applicant’s detention pending receipt of the criminal case against him for the purpose of his prosecution in Armenia was lawful under Articles 478.2 and 478.3 of the Code of Criminal Procedure.\n18.On 12 May 2017 the Prosecutor General of Russia requested the applicant’s extradition under the 1993 Minsk Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters. That request also stated that the applicant would not be subjected to torture, inhuman and degrading treatment or punishment.\n19.On 14 May 2017 the Office of the Prosecutor General of Armenia lodged an application with the District Court, seeking the applicant’s detention for two months for the purpose of carrying out his extradition.\n20.On 19 May 2017 the District Court authorised the applicant’s detention for a period of two months.\n21.On 16 June 2017 the applicant was transferred from the Nubarashen detention facility to the Central Prison Hospital with the following diagnosis: “Heart ischaemic disease; arterial hypertension progressing to a critical state”.\n22.In a decision of 23 June 2017 the Prosecutor General of Armenia granted the extradition request, instructing the police and the Central Prison Hospital, where the applicant was detained, to ensure his extradition to Russia after the decision had become final. It was stated in the decision that according to the documents provided by the Office of the Prosecutor General of Russia the applicant had received Russian nationality on 26 July 1994 and that he was still a Russian citizen. Hence, there were no legal impediments to his extradition.\n23.On 3 July 2017 the deputy head of the Central Prison Hospital issued a certificate in respect of the applicant’s state of health. It stated that he was suffering from a post-stroke condition with severe vestibulopathy and eye‑movement impairment; remnants of the stroke in the area of the left middle artery of the brain with right-sided reflector hemiparesis; walking difficulty as a result of hemiparesis; 2nd degree atherosclerotic encephalopathy; 1st degree arterial hypertension; a 15% risk of developing cardiovascular complications.\n24.On 6 July 2017 the applicant appealed against the extradition decision of 23 June 2017 to the Court of Appeal. He argued that, considering his state of health, his transfer to Russia could cause irreparable harm to his health or put his life in danger. In support of his appeal, the applicant relied on the medical certificate of 3 July 2017.\n25.In a letter of 12 July 2017 the Office of the Prosecutor General of Russia asked the Office of the Prosecutor General of Armenia to inform it of the planned date for the applicant’s transfer, guaranteeing that during the applicant’s detention and, in the event of his conviction, during the serving of his sentence the staff of the Armenian consulate in Russia would have access to him. In addition, during the same periods, in case of necessity, the applicant would be provided with the requisite medical assistance.\n26.On the same date the chief neurologist of the Ministry of Health of Armenia issued a medical certificate which stated that the applicant was suffering from the consequences of an ischaemic stroke indicating severe disorders of the cardiovascular and nervous systems. Considering those risks, it could not be ruled out that the applicant’s transfer to Russia by air or land could result in a further stroke or a heart attack.\n27.By further letter of 14 July 2017 the Office of the Prosecutor General of Russia gave assurances that a doctor with the relevant specialisation would travel with a special convoy to provide the applicant with medical assistance if necessary during his transfer.\n28.On 19 July 2017 the Court of Appeal rejected the applicant’s appeal. It referred to the assurances provided by the Office of the Prosecutor General of Russia regarding the presence of a medical specialist during the applicant’s transfer to Russia and during his detention and, if convicted, while serving his sentence.\n29.On 26 July 2017 the applicant lodged an appeal on points of law against the decision of 19 July 2017, arguing that the translator appointed for him had failed to appear at the hearing and that a copy in Russian of the judgment had not been provided to him. In addition, the applicant had not been able to effectively participate in the proceedings since he had neither been properly given a chance to make arguments nor had he been informed of his rights. Lastly, the applicant argued that the Court of Appeal had failed to verify his state of health as far as the risks during his transfer were concerned.\n30.In the certificate of 28 July 2017 Dr A.K., the head of the neurological department of a hospital in Yerevan, confirmed the applicant’s diagnosis as set out in the medical certificate of 12 July 2017 (see paragraph26 above). It was further noted that the applicant had developed cephalic disorder accompanied with photophobia and phonophobia, which required treatment and preferably supervision by a neurologist. On the basis of those conditions and risk factors, it was concluded that the applicant should not be allowed to be transferred by air or land as that might cause further heart and brain problems.\n31.Between 14 August and 1 September 2017 the applicant underwent inpatient medical examination and treatment in a civilian hospital. His discharge diagnosis stated the following:\n“Arterial hypertension, progressing to a critical state, high risk with chronic insufficiency of blood circulation and frequent transient ischaemic attacks in vertebra-basilar pool. Discirculatory angio-encephalopathy of the 3rd degree with ischaemic strokes in the vertebra-basilar pool and the pool of the left-middle cerebral artery accompanied with post-stroke cysts in the midbrain, the bridge and the brainstem; with leukoaraiosis with stable residual phenomena in the form of the right-sided moderate hemiparesis; vestibulopathy; moderate disorder of walking function; hypertensive syndrome manifested with frequent cephalgia. Ischaemic heart disease, stable angina pectoris ... ”\n32.On 21 August 2017 the Court of Cassation quashed the decision of 19 July 2017 and remitted the case for a new examination on the grounds that the Court of Appeal had failed to ensure that the applicant had understood the language of the proceedings and that he had been aware of his rights.\n33.On 13 September 2017 Dr A.K. provided a further medical opinion concerning the applicant’s state of health based on his discharge diagnosis (see paragraph 31 above). She stated, in particular, the following:\n“[T]he applicant’s [condition] is serious and unpredictable, considering the strong probability of future attacks in the form of hypertonic crises and transient ischaemic attacks, the two previous ischaemic strokes in the vertebra-basilar pool and the pool of the left-middle cerebral artery.\nA person suffering from those conditions cannot participate in court hearings, because any emotional tension might lead to the development of new potential complications.”\n34.At the hearing of 25 October 2017 during the fresh examination of the applicant’s appeal against the extradition decision of 23 June 2017, his lawyer lodged an application with the Court of Appeal, seeking the appointment of an expert to assess his state of health. The prosecutor objected to the application, stating that there were insufficient grounds to conclude that the applicant’s transfer to Russia would pose any risks to his health or life. She reasoned that during the examination of the request for the applicant’s extradition the Prosecutor General of Armenia had not been in possession of any medical documents concerning the applicant’s health. Moreover, the prosecutor expressed doubts about the applicant’s medical condition, referring to a letter from the detention facility dated 13 July 2017 which stated that he was fit to participate in court proceedings.\n35.On the same date the Court of Appeal rejected the applicant’s appeal finding that there were no circumstances preventing the applicant’s extradition. In particular, the applicant was a Russian national and assurances about securing his rights within the framework of the criminal proceedings against him had been provided by the Russian authorities. The Court of Appeal affirmed the decision of the Prosecutor General of Armenia on extraditing the applicant to Russia, relying on the supplementary assurances of the Russian authorities that the applicant’s medical supervision during and after his transfer to Russia would be ensured. In the meantime, it also rejected the applicant’s request to appoint a forensic medical expert on the grounds that the assignment of a forensic medical examination during extradition proceedings was not prescribed under domestic law.\n36.The applicant lodged an appeal on points of law complaining of lack of a public hearing and adversarial trial before the Court of Appeal. He also reiterated his arguments about the medical risks of his transfer.\n37.On 23 November 2017 the Court of Cassation declared the appeal inadmissible for lack of merit. Accordingly, the decision of the Prosecutor General of Armenia to extradite the applicant to Russia became final.\n38.On 30 November 2017 the decision of 23 November 2017 was served on the applicant’s lawyer.\n39.On 18 August 2017 the applicant asked the Court, under Rule 39 of the Rules of the Court, to indicate to the Government to stay his extradition to Russia until the Court had examined the merits of his complaints.\n40.On 30 November 2017 the applicant informed the Court that the domestic courts had reached a final decision to extradite him to Russia.\n41.On the same date the Court (the duty judge) decided to indicate to the Government, under Rule 39 of the Rules of Court, that the applicant should not be extradited until further notice. In the meantime, the Court (duty judge) decided, under Rule 54 § 2 (a) of the Rules of Court, to ask the Government to respond to the following questions by 15 December 2017:\n“1. What practical steps, if any, have been taken for the applicant’s effective transfer to the Russian Federation?\n2. If steps have been taken, when and how will the applicant be transferred (by air, land)?\n3. Will the applicant be provided with medical assistance during the journey? If so, please provide details.\n4. Is there a medical protocol for handing over the applicant to the Russian authorities upon arrival?”\n42.In their reply the Government submitted that the applicant had speculatively tried to hinder his extradition first by providing misleading information to substantiate that he was an Armenian national and then by producing medical documents about a drastic deterioration of his state of health. Furthermore, the applicant had already been suffering from the diseases mentioned in the medical note of 12 July 2017 when he had travelled to Armenia by plane in June 2015.\nThe Government relied on the letters of 12 and 14 July (see paragraphs26 and 27 above) and 14 December 2017 (see paragraph 49 below) which contained assurances by the Russian authorities that the applicant would be provided with the requisite medical assistance during his transfer to Russia and, if convicted, while serving his sentence. They submitted that according to the established practice, a person’s extradition from Armenia was performed only if a medical document proving his or her\nfitness to be transferred had been issued by the Central Prison Hospital.\n43.In reply to the Government’s submissions, the applicant maintained that he had had health issues since at least 1994, when he had been exempted from mandatory military service on health grounds. However, it had only been since 2015 that his health had sharply deteriorated as a result of the stress and anxiety caused by his prosecution. Owing to his poor state of health he had been kept in the Central Prison Hospital during his detention and transferred to civilian hospitals by the authorities to receive specialist care. Furthermore, the Government had never ordered an assessment of his state of his health in order to verify whether he had been fit to be extradited. In addition, the Court of Appeal had dismissed his application to be examined by a forensic medical expert.\nThe applicant argued that the general assurances obtained from the Russian authorities were insufficient for the discontinuation of the measure indicated by the Court, considering the seriousness of his illnesses as attested to by various medical professionals. He also relied on the medical advice that he should not be transferred to Russia either by air or land given the potential risks of such transfer indicated by doctors.\n44.On 6 February 2018 the Court (the duty judge) decided to maintain the interim measure indicated on 30 November 2017.\n45.On 27 September 2017 the applicant submitted a request for asylum to the State Migration Service.\n46.In a decision of 14 November 2017 the State Migration Service refused the applicant’s request for asylum.\n47.On 11 December 2017 the applicant was released from detention as the maximum period of his detention pending extradition had expired.\n48.On the same date he was admitted to the neurology department of a civilian hospital for examination and treatment.\n49.By letter of 14 December 2017 the Office of the Prosecutor General of Russia, with reference to a letter from the Russian Federal Service for Execution of Sentences, informed the Prosecutor General of Armenia that the special convoy accompanying the applicant would include a medical specialist ready to provide medical assistance to him in accordance with his state of health. Furthermore, the medication and medical equipment necessary to provide assistance in the event of cardiovascular problems would be at the disposal of the doctor accompanying the applicant during his transfer. The letter also stressed that, before signing the applicant’s act of transfer, it would be necessary for the accompanying doctor to examine his medical records with a view to verifying the absence of contraindications for his transfer by air transport. Lastly, it was stated that the applicant would undergo medical examinations and consultations upon arrival at the detention facility with a view to planning outpatient supervision of his chronic illnesses.\n50.On 18 December 2017 the applicant lodged a claim with the Administrative Court seeking judicial review of the decision of the State Migration Service dated 14 November 2017 (see paragraph 46 above).\n51.On 21 December 2017 the Administrative Court admitted the applicant’s claim for examination. The outcome of those proceedings was not communicated to the Court.\n52.On 26 December 2017 the applicant qualified for disability.\n53.On 28 December 2017 the applicant was discharged from hospital with the following diagnosis:\n“Arterial hypertension, progressing to a critical state, high risk with chronic insufficiency of blood circulation and frequent transient ischaemic attacks in the vertebra-basilar pool. Third degree discirculatory angio-encephalopathy with ischaemic strokes in the vertebra-basilar pool and the pool of the left-middle cerebral artery with the existence of post‑stroke cysts in the midbrain, the bridge and the brainstem, with leukoaraiosis with stable residual phenomena in the form of the right–sided moderate hemiparesis, vestibulopathy, moderate disorder of walking function, with hypertensive syndrome, and frequent cephalgia. Ischaemic heart disease, angina pectoris class 2, class 1 heart failure (NYHA classification). Multi-level degenerative-dystrophic changes of the spine, osteochondrosis of the 4th degree with hernias at C4-C5, C5-C6, C6-C7 levels, hydromyelia.\nRecommendation: constant supervision by a neurologist. At the moment, he is not fit to travel. Constant administration of hypotensive and antiplatelet medication”.\n54.On 9 January 2019 the Government informed the Court that they had ordered an additional impartial medical evaluation of the potential risks associated with the applicant’s transfer to Russia based on the evidence presented by the applicant regarding his state of health.\n55.On 11 January 2019 a neurologist examined the applicant and confirmed the diagnoses set out in the conclusion of 28 December 2017 (see paragraph 53 above). In addition, the neurologist noted the following:\n“... at the moment, transfer by air or land is contraindicative, as any change in pressure (take-off, landing, being in a confined space for a long time, oxygen scarcity, motion sickness, any sudden and quick movements) can worsen the state of the disease, which threatens not only the patient’s health, but also his life.”\n56.In a letter of 31 January 2019 the Government Agent asked the Minister of Health to form a medical panel which would provide professional medical opinion on the following questions:\n“Considering [the applicant’s] diagnosis as stated in the medical documents submitted to the [European Court of Human Rights], would his transfer to the Russian Federation by air or land expose him to risks to his life and physical well-being?\nIf [the applicant’s] transfer exposed him to risks to his life and physical well-being, would the presence of an accompanying doctor (specifically with what type of specialisation) during the transfer eliminate or minimise such risks?”\n57.On 12 February 2019 the Minister of Health submitted the opinion of the medical panel which had been convened on 11 February 2019. The medical panel answered the questions as formulated in the Government Agent’s letter of 31 January 2019 (see paragraph 56 above) as follows:\n“Question 1: Yes, the high risks associated with [the applicant’s] transfer to the Russian Federation by air or land are linked to the chronic diseases reflected in ... his medical documents and their possible unpredictable aggravation.\nQuestion 2: No, since in the event of aggravation [of the chronic diseases] emergency medical care in a specialist medical institution may become necessary.”\n58.The opinion of the medical panel convened on 11 February 2019 was provided to the Court on 2 May 2019 by the applicant, who had received it in response to an enquiry sent to the Ministry of Health in April 2019.\n59.The parties have not provided any further information with regard to developments in the applicant’s state of health.", "49": "Allegation: 10\n2.The applicant was born in 1956 and lives in Bulkowo. He was represented by Ms A. Bzdyń, a lawyer practising in Warsaw.\n3.The Government were represented by their Agent, Ms J.Chrzanowska and, subsequently, by Mr J. Sobczak, of the Ministry of Foreign Affairs.\n4.The facts of the case, as submitted by the parties, may be summarised as follows.\n5.Since 2010 the applicant has been the sole editor of a free monthly newsletter, “The Voice of the Municipality of Bulkowo” (Gazeta Głos z Gminy Bulkowo), which he has distributed in shops and other public places. In 2014 ten editions of the newsletter were published, with 2,000 copies distributed for each edition. The newsletter, which consisted of a single double-sided piece of newsprint, reported on local issues and scrutinised the activities of G.G., the mayor of the municipality (wójt gminy) of Bulkowo.\n6.In edition no.9/2014, published on 10September 2014, the applicant suggested that Mayor G.G. had chosen the village of Blichów for the harvest festival (dożynki) because he had hoped to generate support for his candidature in the upcoming elections. Furthermore, the edition reported on a construction project for a wind farm in the municipality. The article discussed the controversy arising from the negative implications of wind turbines for the health of local inhabitants and the adverse effect on land prices. Although the applicant did mention that the wind-turbine project had been commenced under the previous mayor, he sought to emphasise that its implementation was to be attributed solely to Mayor G.G. and to the local councillors currently in office. The applicant also wrote about a charity in which G.G.’s wife was treasurer, the disparity for which G.G. was responsible between the amount of allowances given to local councillors and those given to mayors to the detriment of the latter, and a decision reached by G.G. to take out a loan for 2,622,466 Polish zlotys (PLN, over 655,000euros (EUR)).\n7.In edition no.10/2014, published on 10October 2014, the applicant indicated that the municipal debt had risen to PLN 10,000,000, which would result in an increase in taxes and charges; that G.G. possessed more than 40hectares of farming land; and that during his term of office as mayor, G.G. had made some extra money “on the side” (fuchy).\n8.On 27 August 2014 the campaign for local government elections (wybory samorządowe) formally started.\n9.On 22September 2014 the Płock Electoral Commissioner (Komisarz Wyborczy) set up local electoral commissions. The applicant became a member of the Electoral Commission for the Municipality (Gminna Komisja Wyborcza) of Bulkowo.\n10.On 7October 2014 the Electoral Commission registered S.S. as a candidate for mayor of the municipality.\n11.On the same date the Electoral Commission registered G.G. as a candidate for mayor of the municipality.\n12.On 21 October 2014 G.G., represented by a lawyer, lodged a claim against the applicant under Article 111 § 1 of the Election Code.\n13.On 21 October 2014 at 10.45 a.m., the applicant was informed by a clerk of the Płock Regional Court (Sąd Okręgowy) of the claim and that a hearing was scheduled for the following day at 9.00a.m. The claim, with various attachments, was sent to the applicant’s email address at 12.09p.m. The applicant claims that he opened the email some hours later, by which time it was too late to appoint a lawyer.\n14.In the claim, G.G. requested that the applicant and the Contact National Trade Union (Ogólnopolski Związek Zawodowy „Kontakt”; the publisher of the newsletter – hereinafter “the trade union”) be prohibited from disseminating untrue information about him. G.G. requested that the newsletters be confiscated and that the applicant and the trade union be ordered to publish a notice in a regional weekly magazine explaining that the statements in issue were untrue and offering an apology for publishing them. He also wanted a handwritten apology (spisane własnoręcznie i podpisane oświadczenie), and requested that the applicant and the trade union should pay PLN 10,000 (approximately EUR 2,500) to a charity and cover the costs of the proceedings.\n15.G.G. provided evidence to show that all the statements made by the applicant about him had been untrue. The harvest festival in Blichów had been a tradition for many years and had been held in the same locality regardless of local elections. The suggestion that construction of the wind farm had been the sole responsibility of G.G. had been untrue as the investment had been approved prior to his term of office by the former mayor. It was not true that G.G., as mayor, had been involved in, or was responsible for, fixing the remuneration of local councillors and mayors. Domestic law clearly assigned responsibility in that regard to the local council. The applicant was incorrect in quoting the amount of debt incurred on behalf of the municipality (the correct amount was approximately PLN7,800,000, not PLN10,000,000); he was also incorrect in stating that an 80% increase in taxes was planned, when nothing of the sort had been considered. The debts were to be paid off from the municipality’s own income derived from improvements in the collection of taxes, not from an increase in taxes. The claim that G.G. had 40hectares of land was not true, as in reality he owned 19 hectares. Furthermore, contrary to the applicant’s statements, G.G. had not been involved in any additional paid activity. Finally, the charity that had been operating since 2001, and in which G.G.’s wife had held various functions, had no links with the campaign.\nG.G. complained about the sensationalist nature of the newsletters and about how they had been tarnishing his good name, something that was of particular importance during the election campaign.\n16.During the hearing the applicant argued that the newsletters could not be considered as campaign material and that G.G. should not be allowed to use the procedure under Article 111 of the Election Code. He stated that he had been critical of G.G. in earlier editions of his newsletter but that the court considered that the previous editions had not been relevant. According to the official minutes of the hearing, the applicant stated that the newsletters had been “based on available documents together with his own conclusions”.\n17.On 22October 2014 the Płock Regional Court gave a decision in which it allowed the claim on almost all the points. The court ordered that:\n(a)as requested by G.G., the applicant and the trade union refrain from disseminating the information;\n(b)editions 9/2014 and 10/2014 of the newsletter be seized;\n(c)the applicant and the trade union publish a notice in the regional magazine Tygodnik Płocki explaining that the impugned statements were untrue, with an apology;\n(d)the applicant write a handwritten note to apologise for the untrue statements;\n(e)the applicant and the trade union jointly pay PLN10,000 (approximately EUR2,500) to a charity; and\n(f)the applicant and the trade union jointly pay PLN377 (approximately EUR94) in costs.\n18.The Regional Court did not examine the part of the claim which related to the charity in which G.G.’s wife had been treasurer, ruling that the charity itself should have lodged a complaint.\n19.The court considered that both the applicant and G.G. had participated in the election campaign. The two editions of the newsletter had been almost entirely dedicated to issues pertaining to the election and to Mayor G.G. as a person, whose activities had been analysed in detail and criticised. Therefore, the two editions of the newsletter had to be considered as campaign material and the case had to be examined under the procedure provided for by the Election Code.\nThe court emphasised that this summary procedure was intended to ensure fairness in the elections and to limit any adverse consequences of the dissemination of false information during that period. The press had a duty to disseminate information in a responsible manner and based on facts, otherwise the author and the publisher could be held liable as provided for by law.\n20.The court considered that the applicant’s newsletters were examples of a “negative campaign against G.G., consisting of gossip, insinuations, and allegations of a sensationalist and speculative nature that played on the emotions of readers”. For instance, the applicant had intimidated readers with the allegedly negative impact of the wind farm on human health and had suggested that G.G. had “devised an uncertain future for local inhabitants”. In connection with the charity’s finances, the applicant had used expressions such as “the case reeks”, a “new scandal was unfolding” and “the prosecutors should get involved”. In connection with the false information about the increase in taxes, the applicant stated that G.G. “would reach into peoples’ pockets”. According to the court, such statements were aimed at manipulating the emotions of readers and the information provided had lacked details or references to its sources. Such statements violated the principles of good journalism and breached the personal rights of the claimant. They unjustly placed him in a bad light and tarnished his good name.\n21.The court further noted that G.G. had produced conclusive evidence that the applicant’s statements of fact had been untrue. He had quoted inaccurate figures concerning the municipal debt, the size of G.G.’s landholding and the percentage of the planned increase in taxes. The point made about the mayor being solely responsible for commissioning the wind farm and for setting the amount of the allowances of local councillors and mayors and the assertion that, contrary to the law, he had been involved in additional paid activities, had all been untrue.\nThe court concluded as follows:\n“Taking into account the number and gravity of the allegations, [the applicant and the trade union] should cease disseminating such information, apologise publicly and privately to G.G., and receive a financial punishment for the unjustified breach of the personal rights of the claimant [in respect of] his good name, honesty, competency, responsibility for the financial standing of the municipality, and integrity ...”\n22.On 23 October 2014 the applicant, represented by a lawyer, lodged an appeal against the decision. The applicant argued that the newsletters could not be considered campaign material and that the claimant could not receive protection under Article 111 of the Election Code. The applicant submitted that the September 2014 edition of the newsletter had been published prior to the date on which G.G. had officially become a candidate in the election. Moreover, the newsletters could not be campaign material as they had not supported any candidate running for election.\n23.On 24 October 2014 the Płock Regional Court allowed an application by G.G. to supplement the decision of 22October 2014 by adding a requirement that the correction of the false statements and the apology be published by 28October 2014.\n24.On 27 October 2014 the Łódź Court of Appeal dismissed the appeal. In the first sentence of its written reasons, the court stated as follows:\n“It should above all be emphasised that in his appeal, [the applicant] does not question the assessment by the [first-instance] court that the statements made in the publications in question were untrue.”\n25.The court examined the arguments raised in the appeal and dismissed them, taking the view that Article 111 of the Election Code covered all forms of speech linked to election campaigns. For speech to be covered by this provision, it did not have to originate from the campaign committee of a candidate: it included all statements made during the campaign and in connection with the election. The court emphasised that in election campaigning, the use of all available media was a common and legal practice, provided that the information was true and that the value judgments were based on sufficient facts.\n26.The newsletters in question, although apparently not supporting any particular candidate, had openly agitated against the incumbent mayor, G.G. They were representative of a negative campaign aimed at discouraging the electorate from voting for a candidate. The election campaign began in August 2014, so the dates on which both newsletters had been published fell within the period of campaigning; the date on which G.G. had formally been declared a candidate for the post of mayor of the municipality was irrelevant.\n27.Lastly, the court observed that the applicant’s engagement in the campaign had been in clear breach of the law since members of electoral commissions – of which he was one – were banned from active participation in the campaign.\n28.On 30 October 2014 the Płock Electoral Commissioner warned the applicant that if he continued campaigning, his membership of the Electoral Commission for the Municipality of Bulkowo would be revoked.\n29.The local government elections took place on 16 November 2014. G.G. was re-elected as mayor of the municipality of Bulkowo.\n30.In 2015 the Płock Regional Court agreed to the applicant paying the remaining PLN 2,460 of the sum awarded in favour of the charity in monthly instalments.", "50": "Allegation: 14,6,P1-1\n2.The applicant was born in 1979 and lives in Vilnius. She was represented by Mr L. Biekša, a lawyer practising in Vilnius.\n3.The Government were represented by their Agent, MsK.Bubnytė‑Širmenė.\n4.The applicant is a single mother of a daughter born in 2012. In 2016 she applied for a housing subsidy available to “young families” of low income when buying their first home (see paragraph 24 below). The municipal authorities refused to grant her the subsidy on the grounds that the Law on Assistance for Home Acquisition or Rent (hereinafter “the Housing Assistance Act”) defined “young families” as those in which both spouses, or the single parent, were not older than thirty-five years (see paragraph25 below), whereas the applicant, at the time of the lodging of her application for the subsidy, had been thirty-seven years old.\n5.The applicant and her daughter lodged a complaint with the administrative courts. They argued that the refusal to grant the applicant the housing subsidy had been based solely on the grounds of her age and had therefore amounted to direct discrimination. They submitted that discrimination on the grounds of age was prohibited by the Constitution and the Charter of Fundamental Rights of the European Union, and thus the municipal authorities should not have applied the domestic legal provision, which was contrary to legal instruments of higher rank. They argued that the burden of proof was on the State authorities to justify the difference in treatment of persons on the grounds of their age.\n6.During the hearing before the Vilnius Regional Administrative Court the applicant also asked it to refer the matter to the Constitutional Court, in order to determine whether the relevant provision of the Housing Assistance Act was in compliance with the Constitution.\n7.On 26 April 2017 the Vilnius Regional Administrative Court dismissed the complaint lodged by the applicant and her daughter. It held that the legislature had the discretion to decide which categories of persons or families were entitled to which kinds of welfare benefits. That discretion included the right to define which families were considered “young” for the purpose of obtaining housing subsidies. In the court’s view, the claimants’ arguments concerning discrimination had been based on assumptions and speculation. In accordance with the principle of non-discrimination, similar situations had to be treated similarly and different situations had to be treated differently. On those grounds, the court considered that the State had the right to determine the age of persons who could constitute “young families”, and the impugned decision had been lawful and justified.\n8.The applicant and her daughter lodged an appeal against that decision. They submitted that the lower court had not addressed their arguments concerning the alleged conflict between the Housing Assistance Act and the Constitution and EU law (see paragraph 5 above). They also submitted that the impugned provisions of the Housing Assistance Act were contrary to Articles 8 and 14 of the Convention. Lastly, they argued that the court had not shifted the burden onto the State to prove that the above-mentioned different treatment on the basis of age was justified and that it had not addressed their request to refer the matter to the Constitutional Court (see paragraph 6 above).\n9.On 6 December 2018 the Supreme Administrative Court dismissed the appeal lodged by the applicant and her daughter. It referred to the case-law of the Constitutional Court concerning the principle of non‑discrimination (see paragraphs 32-34 below) and the duty of the State to provide protection and support for families, taking account of their needs and of the available resources (see paragraphs 36-38 below). It held that the legislature had wide discretion in the area of social security and welfare and could determine the categories of persons who were entitled to receive particular welfare benefits, as well as the grounds and conditions for receiving them; the legislature also had an obligation to have due regard to the needs of the most vulnerable groups in society (see paragraph38 below). When deciding on those matters, the State had the right to take into account various social, demographic and economic factors, as well as its financial capabilities.\n10.The Supreme Administrative Court furthermore observed that the Housing Assistance Act provided for the affording of assistance to various categories of families, and their eligibility for such assistance was not always linked to their age (see paragraph 23 above). Moreover, the Act also provided for the affording of assistance to various other categories of persons, such as persons who lived without parental care (likę be tėvų globos asmenys) until they reached the age of thirty-five, families with three or more children, disabled individuals or families that included disabled individuals, and families in which one of the parents was deceased (see paragraph 24 below). This demonstrated that the legislature had chosen to support certain vulnerable groups by providing them with housing assistance.\n11.The court also noted that several other relevant legal instruments also defined “young families” as those in which both spouses or parents, or the single parent, were not older than thirty-five. It observed that, according to the available statistical data, in 2016 the average age of Lithuanian nationals who got married was thirty-four years for men and thirty-one years for women, and that between 2012 and 2016 the number of women who had given birth at the age of thirty-five had grown significantly.\n12.The Supreme Administrative Court concluded that all the aforementioned circumstances demonstrated that the refusal to provide the applicant with the housing subsidy available to young families had been justified. It also stated that the applicant and her daughter had not provided any arguments that the child’s interests could be protected only by them obtaining that specific type of social assistance.\n13.Lastly, the Supreme Administrative Court stated that it was not bound by the claimants’ request to refer the matter to the Constitutional Court and that such a referral would be made only if the court itself had doubts that the relevant legal provisions may be in conflict with the Constitution (see paragraph 18 below). In the present case, it considered that there were no grounds to doubt that Article2§6 of the Housing Assistance Act (see paragraph 25 below) complied with the Constitution. The court held that the claimants had not provided any legal arguments to demonstrate that the legislature, when defining the notion of “young families” and determining a specific age limit, had failed to respect the provisions of the Constitution.", "51": "Allegation: 14,6,P1-1\n2.The applicant was born in 1979 and lives in Vilnius. She was represented by Mr L. Biekša, a lawyer practising in Vilnius.\n3.The Government were represented by their Agent, MsK.Bubnytė‑Širmenė.\n4.The applicant is a single mother of a daughter born in 2012. In 2016 she applied for a housing subsidy available to “young families” of low income when buying their first home (see paragraph 24 below). The municipal authorities refused to grant her the subsidy on the grounds that the Law on Assistance for Home Acquisition or Rent (hereinafter “the Housing Assistance Act”) defined “young families” as those in which both spouses, or the single parent, were not older than thirty-five years (see paragraph25 below), whereas the applicant, at the time of the lodging of her application for the subsidy, had been thirty-seven years old.\n5.The applicant and her daughter lodged a complaint with the administrative courts. They argued that the refusal to grant the applicant the housing subsidy had been based solely on the grounds of her age and had therefore amounted to direct discrimination. They submitted that discrimination on the grounds of age was prohibited by the Constitution and the Charter of Fundamental Rights of the European Union, and thus the municipal authorities should not have applied the domestic legal provision, which was contrary to legal instruments of higher rank. They argued that the burden of proof was on the State authorities to justify the difference in treatment of persons on the grounds of their age.\n6.During the hearing before the Vilnius Regional Administrative Court the applicant also asked it to refer the matter to the Constitutional Court, in order to determine whether the relevant provision of the Housing Assistance Act was in compliance with the Constitution.\n7.On 26 April 2017 the Vilnius Regional Administrative Court dismissed the complaint lodged by the applicant and her daughter. It held that the legislature had the discretion to decide which categories of persons or families were entitled to which kinds of welfare benefits. That discretion included the right to define which families were considered “young” for the purpose of obtaining housing subsidies. In the court’s view, the claimants’ arguments concerning discrimination had been based on assumptions and speculation. In accordance with the principle of non-discrimination, similar situations had to be treated similarly and different situations had to be treated differently. On those grounds, the court considered that the State had the right to determine the age of persons who could constitute “young families”, and the impugned decision had been lawful and justified.\n8.The applicant and her daughter lodged an appeal against that decision. They submitted that the lower court had not addressed their arguments concerning the alleged conflict between the Housing Assistance Act and the Constitution and EU law (see paragraph 5 above). They also submitted that the impugned provisions of the Housing Assistance Act were contrary to Articles 8 and 14 of the Convention. Lastly, they argued that the court had not shifted the burden onto the State to prove that the above-mentioned different treatment on the basis of age was justified and that it had not addressed their request to refer the matter to the Constitutional Court (see paragraph 6 above).\n9.On 6 December 2018 the Supreme Administrative Court dismissed the appeal lodged by the applicant and her daughter. It referred to the case-law of the Constitutional Court concerning the principle of non‑discrimination (see paragraphs 32-34 below) and the duty of the State to provide protection and support for families, taking account of their needs and of the available resources (see paragraphs 36-38 below). It held that the legislature had wide discretion in the area of social security and welfare and could determine the categories of persons who were entitled to receive particular welfare benefits, as well as the grounds and conditions for receiving them; the legislature also had an obligation to have due regard to the needs of the most vulnerable groups in society (see paragraph38 below). When deciding on those matters, the State had the right to take into account various social, demographic and economic factors, as well as its financial capabilities.\n10.The Supreme Administrative Court furthermore observed that the Housing Assistance Act provided for the affording of assistance to various categories of families, and their eligibility for such assistance was not always linked to their age (see paragraph 23 above). Moreover, the Act also provided for the affording of assistance to various other categories of persons, such as persons who lived without parental care (likę be tėvų globos asmenys) until they reached the age of thirty-five, families with three or more children, disabled individuals or families that included disabled individuals, and families in which one of the parents was deceased (see paragraph 24 below). This demonstrated that the legislature had chosen to support certain vulnerable groups by providing them with housing assistance.\n11.The court also noted that several other relevant legal instruments also defined “young families” as those in which both spouses or parents, or the single parent, were not older than thirty-five. It observed that, according to the available statistical data, in 2016 the average age of Lithuanian nationals who got married was thirty-four years for men and thirty-one years for women, and that between 2012 and 2016 the number of women who had given birth at the age of thirty-five had grown significantly.\n12.The Supreme Administrative Court concluded that all the aforementioned circumstances demonstrated that the refusal to provide the applicant with the housing subsidy available to young families had been justified. It also stated that the applicant and her daughter had not provided any arguments that the child’s interests could be protected only by them obtaining that specific type of social assistance.\n13.Lastly, the Supreme Administrative Court stated that it was not bound by the claimants’ request to refer the matter to the Constitutional Court and that such a referral would be made only if the court itself had doubts that the relevant legal provisions may be in conflict with the Constitution (see paragraph 18 below). In the present case, it considered that there were no grounds to doubt that Article2§6 of the Housing Assistance Act (see paragraph 25 below) complied with the Constitution. The court held that the claimants had not provided any legal arguments to demonstrate that the legislature, when defining the notion of “young families” and determining a specific age limit, had failed to respect the provisions of the Constitution.", "52": "Allegation: 14,6,P1-1\n2.The applicant was born in 1979 and lives in Vilnius. She was represented by Mr L. Biekša, a lawyer practising in Vilnius.\n3.The Government were represented by their Agent, MsK.Bubnytė‑Širmenė.\n4.The applicant is a single mother of a daughter born in 2012. In 2016 she applied for a housing subsidy available to “young families” of low income when buying their first home (see paragraph 24 below). The municipal authorities refused to grant her the subsidy on the grounds that the Law on Assistance for Home Acquisition or Rent (hereinafter “the Housing Assistance Act”) defined “young families” as those in which both spouses, or the single parent, were not older than thirty-five years (see paragraph25 below), whereas the applicant, at the time of the lodging of her application for the subsidy, had been thirty-seven years old.\n5.The applicant and her daughter lodged a complaint with the administrative courts. They argued that the refusal to grant the applicant the housing subsidy had been based solely on the grounds of her age and had therefore amounted to direct discrimination. They submitted that discrimination on the grounds of age was prohibited by the Constitution and the Charter of Fundamental Rights of the European Union, and thus the municipal authorities should not have applied the domestic legal provision, which was contrary to legal instruments of higher rank. They argued that the burden of proof was on the State authorities to justify the difference in treatment of persons on the grounds of their age.\n6.During the hearing before the Vilnius Regional Administrative Court the applicant also asked it to refer the matter to the Constitutional Court, in order to determine whether the relevant provision of the Housing Assistance Act was in compliance with the Constitution.\n7.On 26 April 2017 the Vilnius Regional Administrative Court dismissed the complaint lodged by the applicant and her daughter. It held that the legislature had the discretion to decide which categories of persons or families were entitled to which kinds of welfare benefits. That discretion included the right to define which families were considered “young” for the purpose of obtaining housing subsidies. In the court’s view, the claimants’ arguments concerning discrimination had been based on assumptions and speculation. In accordance with the principle of non-discrimination, similar situations had to be treated similarly and different situations had to be treated differently. On those grounds, the court considered that the State had the right to determine the age of persons who could constitute “young families”, and the impugned decision had been lawful and justified.\n8.The applicant and her daughter lodged an appeal against that decision. They submitted that the lower court had not addressed their arguments concerning the alleged conflict between the Housing Assistance Act and the Constitution and EU law (see paragraph 5 above). They also submitted that the impugned provisions of the Housing Assistance Act were contrary to Articles 8 and 14 of the Convention. Lastly, they argued that the court had not shifted the burden onto the State to prove that the above-mentioned different treatment on the basis of age was justified and that it had not addressed their request to refer the matter to the Constitutional Court (see paragraph 6 above).\n9.On 6 December 2018 the Supreme Administrative Court dismissed the appeal lodged by the applicant and her daughter. It referred to the case-law of the Constitutional Court concerning the principle of non‑discrimination (see paragraphs 32-34 below) and the duty of the State to provide protection and support for families, taking account of their needs and of the available resources (see paragraphs 36-38 below). It held that the legislature had wide discretion in the area of social security and welfare and could determine the categories of persons who were entitled to receive particular welfare benefits, as well as the grounds and conditions for receiving them; the legislature also had an obligation to have due regard to the needs of the most vulnerable groups in society (see paragraph38 below). When deciding on those matters, the State had the right to take into account various social, demographic and economic factors, as well as its financial capabilities.\n10.The Supreme Administrative Court furthermore observed that the Housing Assistance Act provided for the affording of assistance to various categories of families, and their eligibility for such assistance was not always linked to their age (see paragraph 23 above). Moreover, the Act also provided for the affording of assistance to various other categories of persons, such as persons who lived without parental care (likę be tėvų globos asmenys) until they reached the age of thirty-five, families with three or more children, disabled individuals or families that included disabled individuals, and families in which one of the parents was deceased (see paragraph 24 below). This demonstrated that the legislature had chosen to support certain vulnerable groups by providing them with housing assistance.\n11.The court also noted that several other relevant legal instruments also defined “young families” as those in which both spouses or parents, or the single parent, were not older than thirty-five. It observed that, according to the available statistical data, in 2016 the average age of Lithuanian nationals who got married was thirty-four years for men and thirty-one years for women, and that between 2012 and 2016 the number of women who had given birth at the age of thirty-five had grown significantly.\n12.The Supreme Administrative Court concluded that all the aforementioned circumstances demonstrated that the refusal to provide the applicant with the housing subsidy available to young families had been justified. It also stated that the applicant and her daughter had not provided any arguments that the child’s interests could be protected only by them obtaining that specific type of social assistance.\n13.Lastly, the Supreme Administrative Court stated that it was not bound by the claimants’ request to refer the matter to the Constitutional Court and that such a referral would be made only if the court itself had doubts that the relevant legal provisions may be in conflict with the Constitution (see paragraph 18 below). In the present case, it considered that there were no grounds to doubt that Article2§6 of the Housing Assistance Act (see paragraph 25 below) complied with the Constitution. The court held that the claimants had not provided any legal arguments to demonstrate that the legislature, when defining the notion of “young families” and determining a specific age limit, had failed to respect the provisions of the Constitution.", "53": "Allegation: 8\n2.The applicant was born in 1978 and lives in Podgorica. She was represented by Mr D. Lalićević, a lawyer practising in Podgorica.\n3.The Government were represented by their Agent, Ms V. Pavličić.\n4.The facts of the case, as submitted by the parties, may be summarised as follows.\n5.The applicant worked as a prison guard in the Institute for the Execution of Criminal Sanctions (“the IECS”; Zavod za izvršenje krivičnih sankcija) in Podgorica as of September 1998. At the relevant time she was covering the position of head of shift in the women’s prison (šef smjene Kazneno popravnog doma za žene).\n6.In January 2013 the applicant reported five of her colleagues for indecent behaviour at work on New Year’s Eve. As established later in disciplinary proceedings, some of the male guards had entered the women’s prison and one of them had had “physical contact” with two inmates there, which had been tolerated by some of the female guards (see paragraph 13 below).\n7.On 12 January 2013 the applicant had a telephone conversation with another colleague, N.R. He told her that she should not have reported the other colleagues unless they had killed somebody, and that it was her fault that they would get fired. He also said that a large number of colleagues were against her, that from then on she should be prepared for anything and that she should take care of what she was doing.\n8.In the night of 13 January 2013 the front windscreen of the applicant’s car was broken in front of the building where she lived. On 14 January 2013 an on-site inspection (uviđaj) took place and the State prosecutor was informed.\n9.On 17 January 2013 the applicant filed a complaint at the police station about her conversation with N.R. and the incident with the car. She also attached video footage taken by a camera from a neighbouring building, in which apparently the perpetrator could be seen damaging the windscreen and planting something underneath the car. The same day the police interviewed N.R. and informed the deputy State prosecutor accordingly. According to the official police records the prosecutor considered that the elements of a criminal offence subject to public prosecution or of a misdemeanour were lacking in the situation involving N.R.\n10.On 18 February and 3 October 2013 the applicant requested the Ministry of the Interior and the Police Directorate respectively to deal with her complaint.\n11.Between 26 and 28 February 2013 she allegedly reported some other irregularities at work, but without receiving any response whatsoever. There are no more details in the case file in this regard.\n12.On 8 March 2013 a prison driver, M.Ž., who was taking some female colleagues to their homes, refused to take the applicant, and instead left her in another part of town. When she explained that it was not where she lived, he replied: “What do you expect, you’re known for your sharp tongue and behaviour”. After a short argument, he drove her home.\n13.On 20 March 2013 the colleagues who had been reported for indecent behaviour on New Year’s Eve were found guilty in disciplinary proceedings. It was established that one male guard had allowed two other male guards to enter the women’s prison on New Year’s Eve, and that one of them, A.V., had talked with two inmates and had “physical contact” with them. Two female guards had allowed this. One of these two female guards was also found to have talked and danced with some of the inmates. The applicant’s colleagues were fined between 20% and 30% of their salaries for between two and three months. During the proceedings A.V. was also temporarily suspended from work and received 60% of his salary.\n14.On 24 June 2013 the applicant allegedly came across A.V., who told her: “Here is the stinking bitch. If she would only lose 50 kilos she might look acceptable” (“Evo je smrdulja smrdljiva, da barem smrša 50 kilograma ličila bi na nešto”), and spat next to her. The applicant reported the incident to Ra.S., head of the prison’s security unit. After having enquired with him the next day, Ra.S. told the applicant that A.V. had denied her allegations but that they would both be summoned by the governor of the IECS.\n15.As she was not summoned by the governor, the applicant turned to the IECS assistant governor, S.R. He said that he would talk to A.V., but that as of September she would be transferred to a remand prison. When the applicant enquired if she had done something wrong or if she was being punished for something, he replied that he wanted it that way (“da je to njegova volja”) and that even if the Minister of Justice were to call him, the applicant would no longer be head of shift of the women’s prison.\n16.Two or three days later the governor of the IECS, M.R., confronted the applicant with A.V, who denied the applicant’s allegations. The applicant suggested that they look at the video footage of the place where the encounter had taken place, but M.R. replied that the cameras were not functioning. The applicant enquired with the relevant officer and was told that the cameras were in fact functioning.\n17.The applicant submitted that between January and August 2013: (a)the head of the penitentiary facility had forbidden her to organise duty shifts; (b) some of her colleagues had kept ignoring her, and had failed to perform specific tasks allocated by her, without facing any sanctions; (c) her report on the illicit actions of one of the prisoners had never been dealt with; the same prisoner had said that she was not worried about the report as she had been told that the applicant would soon be “out of there” (“leti sa posla”); (d) she had been ordered to make coffee twice a day for one of the prisoners, and had complained about it to the assistant governor. She submitted that, on an unspecified date thereafter, the governor of the IECS asked her what had given her the right to complain to the assistant governor about that.\n18.On 16 August 2013 the applicant requested her employer to initiate proceedings for her protection against bullying (“za zaštitu of mobinga”), and described all of the above incidents. She complained of continuous insults and humiliation at work which were causing health problems.\n19.On 26 August 2013 the applicant went on holiday, and on 10September 2013 she went on sick leave.\n20.Between 12 September and 30 October 2013 she asked the inspection authority (Uprava za inspekcijske poslove), the prison management and the mediator (the officer in charge of proceedings for bullying in the employer company; see paragraph 48 below) to deal with her request.\n21.On 6 November 2013 the mediator dismissed her request as unfounded (odbacuje se kao nesonovan). He considered, in substance, that even assuming that her allegations were true, the conduct complained of had not been continuous. The incidents with N.R. and the damage to her car had taken place outside of the workplace and thus were not within the IECS’s sphere of responsibility, and her transfer to another position had been due to her failing to do her job properly.\n22.On 20 November 2013 the applicant instituted civil proceedings against her employer. She described the above events and maintained that her personal and professional integrity had been violated as a result. She also submitted that no decision on her appointment had been issued as of November 2013 and that her salary was being calculated on the basis of a lower coefficient.\n23.During the proceedings an expert witness found that the applicant had psychological problems related to conflict at work and that her capacity to function was permanently reduced by 20% (trajno umanjenje životne aktivnosti) owing to post-traumatic stress disorder and an adjustment disorder with episodes of reactive psychosis.\n24.On 10 February 2015, at about 9.15 p.m., just over a week before the domestic court was due to rule in the ongoing civil proceedings (see paragraph 28 below), the applicant was assaulted in a car park where she was collecting her daughter after her classes. The attacker approached her from behind and inflicted several blows on the back of her neck and the lower part of her back, and around the left elbow and the thighs. When leaving the attacker told her: “Be careful what you’re doing”.\n25.The same evening the applicant was examined by a doctor in the emergency ward of the clinical centre (Urgentni centar), who noted a haematoma of about 3 cm in diameter on the back of her neck, pain in the left shoulder and significantly reduced mobility of the left arm. The doctor also notified a police officer on duty in the emergency ward that the applicant had been assaulted. The police officer talked to the applicant and advised her to file a complaint the next morning.\n26.The next morning, on 11 February 2015, the applicant filed a complaint with the police and attached a medical report. She submitted that the attacker had been “rather short”, and described his clothing.\n27.It transpires from the official police records of 16 February 2015 that the State prosecutor was informed of this and ordered the police to take action to identify the attacker. A police officer made an on-site inspection and spoke to people living in the building in front of which the incident had taken place, but neither measure enabled the attacker to be identified. There was no video surveillance at the scene either. The State prosecutor ordered that the police keep working on the identification of the perpetrator.\n28.On 19 February 2015 the Court of First Instance (Osnovni sud) in Podgorica ruled against the applicant in civil proceedings (see paragraph 22 above). The court considered her submissions to be true, and observed that the respondent party had offered no evidence to the contrary. It found, on the basis of the expert witness opinion, that the applicant’s psychological problems were related to conflict at work. However, it considered, in substance, that the events complained of did not amount to bullying as they had lacked the necessary frequency. In particular, bullying was a form of systematic psychological ill-treatment, rather than being sporadic and individual, and as such required repetition of the actions over a certain period. According to most academics in this field, that meant at least once a week for at least six months. That position was also accepted in the domestic case-law, notably in judgments P.br.2226/11 and P.br.768/11 (seeparagraphs 60-61 below).\n29.The court examined, in particular, the incidents of 13 January, 8March and 24 June 2013. The conversation with N.R. had not amounted to psychological ill-treatment, and even assuming that the incident with M.Ž. could be considered as such, it had taken place on 8 March 2013 and the applicant had gone on holiday on 26 August 2013; therefore it had not lasted for six months, nor had it occurred once a week. The events involving the assistant governor and M.R. did not amount to bullying either, especially given that, in accordance with the systematisation of jobs, the applicant had in any event not met the criteria for the position she had been covering at the time. The court considered that these incidents taken together did not amount to bullying either, and that there had been no behaviour aimed at violating the applicant’s dignity and integrity, causing fear or creating a hostile, degrading or insulting environment, worsening her working conditions or leading to her isolation and making her resign of her own accord.\n30.The court also held that the fact that no decision had been made on the applicant’s appointment after November 2013, and the fact that her salary was calculated on the basis of a different coefficient, did not constitute bullying either. If she considered that she had received a lower salary than she was entitled to she could have filed a compensation claim in that regard, and she would be informed of the new decision on appointment on her return from sick leave.\n31.The court did not examine the following submissions: that one of the applicant’s subordinates had failed to perform the allocated tasks; that the governor of the prison had forbidden the applicant to organise duty shifts, which she had done previously; that the applicant had been ordered to make coffee for one of the prisoners twice a day; that a report concerning the search of one prisoner’s rooms had never been dealt with and that the prisoner in question had said that she was not worried about the report as the applicant would soon be fired.\n32.The applicant appealed. She submitted that the court had had all the right evidence before it, but that its assessment of that evidence had been incorrect, as had its interpretation of the relevant legislation. She also submitted that on 10 February 2015 she had been assaulted (see paragraph24 above).\n33.On 13 November 2015 and 15 June 2016 the first-instance judgment was upheld by the High Court (Viši sud) and the Supreme Court (Vrhovni sud) respectively. The High Court confirmed that for actions to constitute bullying it was necessary for them to be repeated over a longer period and continuously. In the applicant’s case there had been three incidents in about six months, which could not be considered as amounting to bullying. The court also held that the fact that there had been no new appointment decision and that the applicant’s salary had been calculated on the basis of the lower coefficient did not amount to bullying either. The expert witness’s finding that the applicant had suffered from stress had reflected her subjective feelings about the said events. The court further found that the assault against the applicant was irrelevant given that she had not proved that it had been related to the respondent party’s actions. The Supreme Court held, inter alia, that “bullying, as a form of discrimination, [could] constitute discrimination only if the treatment [was] based on personal characteristics of the employee or of a group of employees”.\n34.On 2 August 2016 the applicant lodged a constitutional appeal. She complained of a violation of her dignity, honour and reputation and of her personal and professional integrity. She also complained of a lack of an effective remedy. She referred to all of the above-mentioned incidents, and submitted that the two incidents in respect of which she had filed criminal complaints were related. She referred, inter alia, to Articles 20 and 28 of the Constitution, Article 3 of the Convention and Article 1 of Protocol No.12.\n35.On 15 November 2017 the Constitutional Court dismissed the applicant’s constitutional appeal. The court examined it under Articles 28 and 32 of the Constitution, Articles 6 and 14 of the Convention, and Article1 of Protocol No. 12. It found, in substance, that there were no grounds to find that the applicant had been bullied at work, and that the Supreme Court’s judgment was in accordance with the legislation, providing sufficient, relevant and constitutionally acceptable reasons. The Constitutional Court made no reference to the criminal complaints filed by the applicant and the alleged failure of the domestic authorities to act on them. This decision was served on the applicant on 5 January 2018.\n36.The applicant worked in the IECS between September 1998 and May 2016.\n37.Between 1 February 2005 and 1 June 2012 she was a State employee in the women’s prison.\n38.Between 1 June 2012 and 1 December 2013 she was temporarily appointed as an adviser, covering the position of the head of shift. The appointment was extended on a monthly basis, with the relevant decisions specifying that this was to ensure the smooth and successful functioning of the security unit.\n39.Between 10 September 2013 and May 2016 the applicant was on sick leave.\n40.Until 1 December 2013 her salary was calculated on the basis of a coefficient of 5.01, and after that on the basis of a coefficient of 3.77.\n41.In May 2016 the applicant retired owing to a complete loss of working capacity caused by illness. The Pension Fund Disability Commission (Prvostepena invalidska komisija) specified in its findings that the applicant’s psychological problems had appeared for the first time during 2013 after a stressful situation at work, after which she had received continuous outpatient psychiatric treatment. The Government submitted that these were the data the Commission had obtained from the applicant, and not the Commission’s own findings.\n42.On 2 September 2014 the Ombudsman’s office, acting on the applicant’s complaint, informed her that it did not consider her rights to have been violated.\n43.On 18 February 2020 the Council for Civic Control of the Police, acting at the applicant’s request, found that the legislation did not set a time-limit within which an assault needed to be reported, but that it went without saying that it should be reported as soon as possible. It found that in this particular case the applicant had reported the assault in the shortest time possible, following the advice of the police officer on duty in the hospital (see paragraphs 24-26 above).", "54": "Allegation: 11, 14, 9\n2. The first applicant is the Centre of Societies for Krishna Consciousness in Russia ( Центр обществ сознания Кришны в России ), a centralised religious organisation established under the Russian law on religious associations in 1992 which has its registered office in Moscow (“the applicant centre”). The second applicant, Mr Frolov, was born in 1975 and lives in the Moscow Region. The applicants were represented before the Court by Mr V. Borisov, vice-president of the applicant centre, and Mr S. Minenkov, a lawyer practising in Moscow.\n3. The Government were initially represented by Mr M. Galperin, former Representative of the Russian Federation to the European Court of Human Rights, and later by his successor in this office, Mr M. Vinogradov.\n4. The facts of the case, as submitted by the parties, may be summarised as follows.\nHOSTILE STATEMENTS ABOUT THE KRISHNA MOVEMENT\nInterview with an Orthodox priest\n5. On 15 September 2008 Orthodox news agency Russkaya Liniya published an interview with A.M., a member of Orthodox clergy. He was quoted as saying that the Krishna Society was a “demonically oriented religion” which “profoundly affected the personality” of its followers.\n6. On 23 September 2008 the applicant centre sent a letter of complaint to the St Petersburg office of the media regulator, seeking a declaration that A.M.’s allegations constituted extremist speech. On 28 January 2009 the regulator replied that their experts had found no indications of racial, ethnic or religious hatred. The applicant centre unsuccessfully appealed to the head of the media regulator and later filed an application for judicial review.\n7. On 10 November 2009 the Taganskiy District Court in Moscow held that, in so far as the media regulator had acted within its mandate and in accordance with the law, there had been no breach of the claimant’s rights. On 30 November 2010 the Moscow City Court upheld the decision.\nUlyanovsk Government’s “anti-cult” project\n8. On 1 November 2008 the official website of Governor and Government of the Ulyanovsk Region announced that the project “Beware: cults!” («Осторожно – секты!») was moving forward. Its chief objective was stated to be the “prevention of negative activities of destructive religious groups in the region”. It had begun in April 2008 with a conference co-organised by the Government of the Ulyanovsk Region and the Ulyanovsk State University. An action plan adopted at the conference had included the setting-up of an anti-cult hot line and organisation of roundtables and seminars with the participation of youth organisations, ministers of “traditional denominations”, authorities, educators and members of the public. An educational seminar, “Adverse effects of cults on the minds of children and youth”, had been held on 31 October 2008. Vice ‑ principals of secondary schools, teaching staff, and religious ministers had discussed the religious situation in the region. Teaching staff had been given pamphlets, posters and brochures to be distributed among their students. The brochure “Watch out for cults!” («Будьте внимательны: секты!») had been compiled in the framework of the project by experts of the Government of the Ulyanovsk Region together with staff of the Ulyanovsk State University. The first deputy chief of staff of the Government of the Ulyanovsk Region had been quoted as saying: “the Government attaches particular importance to ... the protection of the population from the influence of totalitarian cults”.\n9. An electronic version of the brochure “Watch out for cults!” was published on the regional Government’s website. The cover page listed “Government of the Ulyanovsk Region” and “Ulyanovsk State University” at the top, followed by the names of three authors. The second page gave a summary description of the brochure:\n“The methodical recommendations have been compiled on the basis of works by prominent Russian and international religious scholars and are addressed to administrators of educational institutions and officials in charge of education in the matter of destructive activities of totalitarian cults in the Ulyanovsk Region.\nPublished by decision of the Government of the Ulyanovsk Region.”\n10. Chapter 2 provided an overview of “non-traditional religious movements active in the Ulyanovsk Region”, including Jehovah’s Witnesses, Mormons, Unification Church of Rev. Moon, Scientology, and Krishna Society. The section on the Krishna Society opened:\n“Today, in the streets of our cities, you can see flamboyant groups of mostly young people dressed in white and yellow garments who sing unintelligible hymns to the beat of drums and other musical instruments. It is exciting and exotic, it attracts attention. But you need to know that you are facing members of the ‘International Society for Krishna Consciousness’, a totalitarian cult”.\nIt went on to describe the life of the founder of the Krishna Societies, the precepts of the faith, rituals and dietary restrictions. It concluded:\n“The goals of Krishnaites are frequently rather materialistic: they seek to obtain money by all means. They beg for money in the street, they sell their literature; in some countries, they have been caught stealing or selling drugs. All of it goes to the leaders of the cult who keep a close watch on that activity.\nEven a cursory review of the Krishna teachings can tell us that this religious movement is highly destructive for our society. It has no genetic, historic or geographic connection to our people. It is a peculiar spiritual culture of the East. Zombification and psychological manipulation of our youth constitute a serious threat to our future.”\n11. On 11 November 2008 the applicant centre complained to the Prosecutor General that the Government of the Ulyanovsk Region’s anti ‑ cult project discriminated against the Krishna movement by portraying it as a “totalitarian cult”. A printout of the news from the official website, a copy of the brochure and a detailed analysis of untrue or misleading allegations in the brochure were enclosed with the complaint.\n12. The complaint was forwarded to the Ulyanovsk regional prosecutor’s office which replied, on 29 December 2008, that: the State authorities had carried out the project within their legal authority; the primary objective of the project had been to discuss the matters relating to an interfaith dialogue and build the best possible framework for a relationship between the State and religious organisations; the brochure had been developed by staff of the Ulyanovsk State University and presented a variety of views on the activities of “non-traditional religious organisations”. If the applicant centre believed that their rights had been violated, they should apply to a court for the protection.\n13. Further hierarchical appeals having elicited similar responses, the applicant centre turned to a court for substantive review of the prosecutors’ decisions. On 27 October 2010 the Tverskoy District Court in Moscow held that the prosecutors had considered all the matters which the applicant centre had complained about and gave sufficient responses. That the applicant centre disagreed with their contents did not constitute a sufficient reason to impugn them. On 16 March 2011 the Moscow City Court upheld that judgment on appeal.\nMr FROLOV’S ATTEMPTS TO HOLD A RELIGIOUS MEETING FOR THE PROMOTION OF THE TEACHING OF VAISHNAVISM\nFirst notification to hold a religious meeting\n14. On 1 April 2013 Mr Frolov submitted a notification to the prefecture of the Severo-Vostochnyy District in Moscow, stating his intention to hold, on 13 April, a “meeting to promote the teaching of Vaishnavism and a healthy lifestyle based on spiritual values”, with up to fifteen people participating. The following day the prefecture rejected his notification on the grounds that “the stated purpose – promoting the teaching of Vaishnavism – does not correspond to section 2(1) of the Public Events Act”.\n15. In his application for judicial review, Mr Frolov contended that the prefecture’s refusal had had no basis in law. Section 16(5) of the Religions Act established that religious assemblies outside religious buildings were to be held in accordance with the Public Events Act. The Public Events Act governed the procedure for organising public events without imposing any specific purposes; its section 1(2) expressly provided for a possibility of holding religious events. The authorities had not specified the nature of the alleged contradiction, and the refusal had breached his rights to freedom of expression, assembly and religion.\n16. On 12 August 2013 the Meshchanskiy District Court in Moscow pronounced the refusal to have been lawful and justified. It found that the promotion of the teaching of Vaishnavism did not correspond to the purposes of a public event listed in section 2(1) of the Public Events Act. On 16 January 2014 the Moscow City Court dismissed the appeal, finding that “the missionary activities, of which Mr Frolov had informed the prefecture, did not correspond to the lawful purposes of a public event; they were incompatible with the respect for the religious beliefs of others; the rejection of the notification of a public event was therefore lawful”. The City Court added that the refusal did not restrict Mr Frolov’s right to freedom of religion because he could promote the teaching of Vaishnavism “by other lawful means and methods”.\nSecond notification to hold a religious meeting\n17. On 8 April 2013 Mr Frolov submitted a second notification to the prefecture of the Severo-Vostochnyy District, stating his intention to hold, on 20 April, a meeting to promote the teaching of Vaishnavism. On 10 April 2013 the prefecture rejected the notification on the grounds that the promotion of Vaishnavism did not correspond to the purposes of a public event in section 2(1) of the Public Events Act and that the Religions Act did not mention a “meeting” as a form of religious event. Mr Frolov sent a letter of objection to the prefecture, to which he received no reply.\n18. On 20 April 2013 a few participants gathered at the designated location of the religious event. A police officer told them to disperse.\n19. On 11 June 2013 the Ostankinskiy District Court in Moscow dismissed Mr Frolov’s application for judicial review, finding that the prefecture had not actually refused to allow the public event to proceed but merely informed Mr Frolov that its stated purpose had been inconsistent with the law. On 20 August 2013 the Moscow City Court dismissed the appeal. It held that neither the Religions Act nor the Public Events Act made provision for holding a “public event of a religious nature in the form of a meeting”. Religious events could take the form of a service of worship, rite or ceremony; a “meeting”, “as the term was generally applied”, was none of them. It was “evident” for the City Court that “promoting the teaching of Vaishnavism” was not “a service of worship, a rite or a ceremony”. It also fell outside the concept of a “public event” in so far as it did not involve “free expression and shaping of opinions [or] making demands on issues related to political, economic, social or cultural life”.", "55": "Allegation: 11, 14, 9\n2. The first applicant is the Centre of Societies for Krishna Consciousness in Russia ( Центр обществ сознания Кришны в России ), a centralised religious organisation established under the Russian law on religious associations in 1992 which has its registered office in Moscow (“the applicant centre”). The second applicant, Mr Frolov, was born in 1975 and lives in the Moscow Region. The applicants were represented before the Court by Mr V. Borisov, vice-president of the applicant centre, and Mr S. Minenkov, a lawyer practising in Moscow.\n3. The Government were initially represented by Mr M. Galperin, former Representative of the Russian Federation to the European Court of Human Rights, and later by his successor in this office, Mr M. Vinogradov.\n4. The facts of the case, as submitted by the parties, may be summarised as follows.\nHOSTILE STATEMENTS ABOUT THE KRISHNA MOVEMENT\nInterview with an Orthodox priest\n5. On 15 September 2008 Orthodox news agency Russkaya Liniya published an interview with A.M., a member of Orthodox clergy. He was quoted as saying that the Krishna Society was a “demonically oriented religion” which “profoundly affected the personality” of its followers.\n6. On 23 September 2008 the applicant centre sent a letter of complaint to the St Petersburg office of the media regulator, seeking a declaration that A.M.’s allegations constituted extremist speech. On 28 January 2009 the regulator replied that their experts had found no indications of racial, ethnic or religious hatred. The applicant centre unsuccessfully appealed to the head of the media regulator and later filed an application for judicial review.\n7. On 10 November 2009 the Taganskiy District Court in Moscow held that, in so far as the media regulator had acted within its mandate and in accordance with the law, there had been no breach of the claimant’s rights. On 30 November 2010 the Moscow City Court upheld the decision.\nUlyanovsk Government’s “anti-cult” project\n8. On 1 November 2008 the official website of Governor and Government of the Ulyanovsk Region announced that the project “Beware: cults!” («Осторожно – секты!») was moving forward. Its chief objective was stated to be the “prevention of negative activities of destructive religious groups in the region”. It had begun in April 2008 with a conference co-organised by the Government of the Ulyanovsk Region and the Ulyanovsk State University. An action plan adopted at the conference had included the setting-up of an anti-cult hot line and organisation of roundtables and seminars with the participation of youth organisations, ministers of “traditional denominations”, authorities, educators and members of the public. An educational seminar, “Adverse effects of cults on the minds of children and youth”, had been held on 31 October 2008. Vice ‑ principals of secondary schools, teaching staff, and religious ministers had discussed the religious situation in the region. Teaching staff had been given pamphlets, posters and brochures to be distributed among their students. The brochure “Watch out for cults!” («Будьте внимательны: секты!») had been compiled in the framework of the project by experts of the Government of the Ulyanovsk Region together with staff of the Ulyanovsk State University. The first deputy chief of staff of the Government of the Ulyanovsk Region had been quoted as saying: “the Government attaches particular importance to ... the protection of the population from the influence of totalitarian cults”.\n9. An electronic version of the brochure “Watch out for cults!” was published on the regional Government’s website. The cover page listed “Government of the Ulyanovsk Region” and “Ulyanovsk State University” at the top, followed by the names of three authors. The second page gave a summary description of the brochure:\n“The methodical recommendations have been compiled on the basis of works by prominent Russian and international religious scholars and are addressed to administrators of educational institutions and officials in charge of education in the matter of destructive activities of totalitarian cults in the Ulyanovsk Region.\nPublished by decision of the Government of the Ulyanovsk Region.”\n10. Chapter 2 provided an overview of “non-traditional religious movements active in the Ulyanovsk Region”, including Jehovah’s Witnesses, Mormons, Unification Church of Rev. Moon, Scientology, and Krishna Society. The section on the Krishna Society opened:\n“Today, in the streets of our cities, you can see flamboyant groups of mostly young people dressed in white and yellow garments who sing unintelligible hymns to the beat of drums and other musical instruments. It is exciting and exotic, it attracts attention. But you need to know that you are facing members of the ‘International Society for Krishna Consciousness’, a totalitarian cult”.\nIt went on to describe the life of the founder of the Krishna Societies, the precepts of the faith, rituals and dietary restrictions. It concluded:\n“The goals of Krishnaites are frequently rather materialistic: they seek to obtain money by all means. They beg for money in the street, they sell their literature; in some countries, they have been caught stealing or selling drugs. All of it goes to the leaders of the cult who keep a close watch on that activity.\nEven a cursory review of the Krishna teachings can tell us that this religious movement is highly destructive for our society. It has no genetic, historic or geographic connection to our people. It is a peculiar spiritual culture of the East. Zombification and psychological manipulation of our youth constitute a serious threat to our future.”\n11. On 11 November 2008 the applicant centre complained to the Prosecutor General that the Government of the Ulyanovsk Region’s anti ‑ cult project discriminated against the Krishna movement by portraying it as a “totalitarian cult”. A printout of the news from the official website, a copy of the brochure and a detailed analysis of untrue or misleading allegations in the brochure were enclosed with the complaint.\n12. The complaint was forwarded to the Ulyanovsk regional prosecutor’s office which replied, on 29 December 2008, that: the State authorities had carried out the project within their legal authority; the primary objective of the project had been to discuss the matters relating to an interfaith dialogue and build the best possible framework for a relationship between the State and religious organisations; the brochure had been developed by staff of the Ulyanovsk State University and presented a variety of views on the activities of “non-traditional religious organisations”. If the applicant centre believed that their rights had been violated, they should apply to a court for the protection.\n13. Further hierarchical appeals having elicited similar responses, the applicant centre turned to a court for substantive review of the prosecutors’ decisions. On 27 October 2010 the Tverskoy District Court in Moscow held that the prosecutors had considered all the matters which the applicant centre had complained about and gave sufficient responses. That the applicant centre disagreed with their contents did not constitute a sufficient reason to impugn them. On 16 March 2011 the Moscow City Court upheld that judgment on appeal.\nMr FROLOV’S ATTEMPTS TO HOLD A RELIGIOUS MEETING FOR THE PROMOTION OF THE TEACHING OF VAISHNAVISM\nFirst notification to hold a religious meeting\n14. On 1 April 2013 Mr Frolov submitted a notification to the prefecture of the Severo-Vostochnyy District in Moscow, stating his intention to hold, on 13 April, a “meeting to promote the teaching of Vaishnavism and a healthy lifestyle based on spiritual values”, with up to fifteen people participating. The following day the prefecture rejected his notification on the grounds that “the stated purpose – promoting the teaching of Vaishnavism – does not correspond to section 2(1) of the Public Events Act”.\n15. In his application for judicial review, Mr Frolov contended that the prefecture’s refusal had had no basis in law. Section 16(5) of the Religions Act established that religious assemblies outside religious buildings were to be held in accordance with the Public Events Act. The Public Events Act governed the procedure for organising public events without imposing any specific purposes; its section 1(2) expressly provided for a possibility of holding religious events. The authorities had not specified the nature of the alleged contradiction, and the refusal had breached his rights to freedom of expression, assembly and religion.\n16. On 12 August 2013 the Meshchanskiy District Court in Moscow pronounced the refusal to have been lawful and justified. It found that the promotion of the teaching of Vaishnavism did not correspond to the purposes of a public event listed in section 2(1) of the Public Events Act. On 16 January 2014 the Moscow City Court dismissed the appeal, finding that “the missionary activities, of which Mr Frolov had informed the prefecture, did not correspond to the lawful purposes of a public event; they were incompatible with the respect for the religious beliefs of others; the rejection of the notification of a public event was therefore lawful”. The City Court added that the refusal did not restrict Mr Frolov’s right to freedom of religion because he could promote the teaching of Vaishnavism “by other lawful means and methods”.\nSecond notification to hold a religious meeting\n17. On 8 April 2013 Mr Frolov submitted a second notification to the prefecture of the Severo-Vostochnyy District, stating his intention to hold, on 20 April, a meeting to promote the teaching of Vaishnavism. On 10 April 2013 the prefecture rejected the notification on the grounds that the promotion of Vaishnavism did not correspond to the purposes of a public event in section 2(1) of the Public Events Act and that the Religions Act did not mention a “meeting” as a form of religious event. Mr Frolov sent a letter of objection to the prefecture, to which he received no reply.\n18. On 20 April 2013 a few participants gathered at the designated location of the religious event. A police officer told them to disperse.\n19. On 11 June 2013 the Ostankinskiy District Court in Moscow dismissed Mr Frolov’s application for judicial review, finding that the prefecture had not actually refused to allow the public event to proceed but merely informed Mr Frolov that its stated purpose had been inconsistent with the law. On 20 August 2013 the Moscow City Court dismissed the appeal. It held that neither the Religions Act nor the Public Events Act made provision for holding a “public event of a religious nature in the form of a meeting”. Religious events could take the form of a service of worship, rite or ceremony; a “meeting”, “as the term was generally applied”, was none of them. It was “evident” for the City Court that “promoting the teaching of Vaishnavism” was not “a service of worship, a rite or a ceremony”. It also fell outside the concept of a “public event” in so far as it did not involve “free expression and shaping of opinions [or] making demands on issues related to political, economic, social or cultural life”.", "56": "Allegation: 11, 14, 9\n2. The first applicant is the Centre of Societies for Krishna Consciousness in Russia ( Центр обществ сознания Кришны в России ), a centralised religious organisation established under the Russian law on religious associations in 1992 which has its registered office in Moscow (“the applicant centre”). The second applicant, Mr Frolov, was born in 1975 and lives in the Moscow Region. The applicants were represented before the Court by Mr V. Borisov, vice-president of the applicant centre, and Mr S. Minenkov, a lawyer practising in Moscow.\n3. The Government were initially represented by Mr M. Galperin, former Representative of the Russian Federation to the European Court of Human Rights, and later by his successor in this office, Mr M. Vinogradov.\n4. The facts of the case, as submitted by the parties, may be summarised as follows.\nHOSTILE STATEMENTS ABOUT THE KRISHNA MOVEMENT\nInterview with an Orthodox priest\n5. On 15 September 2008 Orthodox news agency Russkaya Liniya published an interview with A.M., a member of Orthodox clergy. He was quoted as saying that the Krishna Society was a “demonically oriented religion” which “profoundly affected the personality” of its followers.\n6. On 23 September 2008 the applicant centre sent a letter of complaint to the St Petersburg office of the media regulator, seeking a declaration that A.M.’s allegations constituted extremist speech. On 28 January 2009 the regulator replied that their experts had found no indications of racial, ethnic or religious hatred. The applicant centre unsuccessfully appealed to the head of the media regulator and later filed an application for judicial review.\n7. On 10 November 2009 the Taganskiy District Court in Moscow held that, in so far as the media regulator had acted within its mandate and in accordance with the law, there had been no breach of the claimant’s rights. On 30 November 2010 the Moscow City Court upheld the decision.\nUlyanovsk Government’s “anti-cult” project\n8. On 1 November 2008 the official website of Governor and Government of the Ulyanovsk Region announced that the project “Beware: cults!” («Осторожно – секты!») was moving forward. Its chief objective was stated to be the “prevention of negative activities of destructive religious groups in the region”. It had begun in April 2008 with a conference co-organised by the Government of the Ulyanovsk Region and the Ulyanovsk State University. An action plan adopted at the conference had included the setting-up of an anti-cult hot line and organisation of roundtables and seminars with the participation of youth organisations, ministers of “traditional denominations”, authorities, educators and members of the public. An educational seminar, “Adverse effects of cults on the minds of children and youth”, had been held on 31 October 2008. Vice ‑ principals of secondary schools, teaching staff, and religious ministers had discussed the religious situation in the region. Teaching staff had been given pamphlets, posters and brochures to be distributed among their students. The brochure “Watch out for cults!” («Будьте внимательны: секты!») had been compiled in the framework of the project by experts of the Government of the Ulyanovsk Region together with staff of the Ulyanovsk State University. The first deputy chief of staff of the Government of the Ulyanovsk Region had been quoted as saying: “the Government attaches particular importance to ... the protection of the population from the influence of totalitarian cults”.\n9. An electronic version of the brochure “Watch out for cults!” was published on the regional Government’s website. The cover page listed “Government of the Ulyanovsk Region” and “Ulyanovsk State University” at the top, followed by the names of three authors. The second page gave a summary description of the brochure:\n“The methodical recommendations have been compiled on the basis of works by prominent Russian and international religious scholars and are addressed to administrators of educational institutions and officials in charge of education in the matter of destructive activities of totalitarian cults in the Ulyanovsk Region.\nPublished by decision of the Government of the Ulyanovsk Region.”\n10. Chapter 2 provided an overview of “non-traditional religious movements active in the Ulyanovsk Region”, including Jehovah’s Witnesses, Mormons, Unification Church of Rev. Moon, Scientology, and Krishna Society. The section on the Krishna Society opened:\n“Today, in the streets of our cities, you can see flamboyant groups of mostly young people dressed in white and yellow garments who sing unintelligible hymns to the beat of drums and other musical instruments. It is exciting and exotic, it attracts attention. But you need to know that you are facing members of the ‘International Society for Krishna Consciousness’, a totalitarian cult”.\nIt went on to describe the life of the founder of the Krishna Societies, the precepts of the faith, rituals and dietary restrictions. It concluded:\n“The goals of Krishnaites are frequently rather materialistic: they seek to obtain money by all means. They beg for money in the street, they sell their literature; in some countries, they have been caught stealing or selling drugs. All of it goes to the leaders of the cult who keep a close watch on that activity.\nEven a cursory review of the Krishna teachings can tell us that this religious movement is highly destructive for our society. It has no genetic, historic or geographic connection to our people. It is a peculiar spiritual culture of the East. Zombification and psychological manipulation of our youth constitute a serious threat to our future.”\n11. On 11 November 2008 the applicant centre complained to the Prosecutor General that the Government of the Ulyanovsk Region’s anti ‑ cult project discriminated against the Krishna movement by portraying it as a “totalitarian cult”. A printout of the news from the official website, a copy of the brochure and a detailed analysis of untrue or misleading allegations in the brochure were enclosed with the complaint.\n12. The complaint was forwarded to the Ulyanovsk regional prosecutor’s office which replied, on 29 December 2008, that: the State authorities had carried out the project within their legal authority; the primary objective of the project had been to discuss the matters relating to an interfaith dialogue and build the best possible framework for a relationship between the State and religious organisations; the brochure had been developed by staff of the Ulyanovsk State University and presented a variety of views on the activities of “non-traditional religious organisations”. If the applicant centre believed that their rights had been violated, they should apply to a court for the protection.\n13. Further hierarchical appeals having elicited similar responses, the applicant centre turned to a court for substantive review of the prosecutors’ decisions. On 27 October 2010 the Tverskoy District Court in Moscow held that the prosecutors had considered all the matters which the applicant centre had complained about and gave sufficient responses. That the applicant centre disagreed with their contents did not constitute a sufficient reason to impugn them. On 16 March 2011 the Moscow City Court upheld that judgment on appeal.\nMr FROLOV’S ATTEMPTS TO HOLD A RELIGIOUS MEETING FOR THE PROMOTION OF THE TEACHING OF VAISHNAVISM\nFirst notification to hold a religious meeting\n14. On 1 April 2013 Mr Frolov submitted a notification to the prefecture of the Severo-Vostochnyy District in Moscow, stating his intention to hold, on 13 April, a “meeting to promote the teaching of Vaishnavism and a healthy lifestyle based on spiritual values”, with up to fifteen people participating. The following day the prefecture rejected his notification on the grounds that “the stated purpose – promoting the teaching of Vaishnavism – does not correspond to section 2(1) of the Public Events Act”.\n15. In his application for judicial review, Mr Frolov contended that the prefecture’s refusal had had no basis in law. Section 16(5) of the Religions Act established that religious assemblies outside religious buildings were to be held in accordance with the Public Events Act. The Public Events Act governed the procedure for organising public events without imposing any specific purposes; its section 1(2) expressly provided for a possibility of holding religious events. The authorities had not specified the nature of the alleged contradiction, and the refusal had breached his rights to freedom of expression, assembly and religion.\n16. On 12 August 2013 the Meshchanskiy District Court in Moscow pronounced the refusal to have been lawful and justified. It found that the promotion of the teaching of Vaishnavism did not correspond to the purposes of a public event listed in section 2(1) of the Public Events Act. On 16 January 2014 the Moscow City Court dismissed the appeal, finding that “the missionary activities, of which Mr Frolov had informed the prefecture, did not correspond to the lawful purposes of a public event; they were incompatible with the respect for the religious beliefs of others; the rejection of the notification of a public event was therefore lawful”. The City Court added that the refusal did not restrict Mr Frolov’s right to freedom of religion because he could promote the teaching of Vaishnavism “by other lawful means and methods”.\nSecond notification to hold a religious meeting\n17. On 8 April 2013 Mr Frolov submitted a second notification to the prefecture of the Severo-Vostochnyy District, stating his intention to hold, on 20 April, a meeting to promote the teaching of Vaishnavism. On 10 April 2013 the prefecture rejected the notification on the grounds that the promotion of Vaishnavism did not correspond to the purposes of a public event in section 2(1) of the Public Events Act and that the Religions Act did not mention a “meeting” as a form of religious event. Mr Frolov sent a letter of objection to the prefecture, to which he received no reply.\n18. On 20 April 2013 a few participants gathered at the designated location of the religious event. A police officer told them to disperse.\n19. On 11 June 2013 the Ostankinskiy District Court in Moscow dismissed Mr Frolov’s application for judicial review, finding that the prefecture had not actually refused to allow the public event to proceed but merely informed Mr Frolov that its stated purpose had been inconsistent with the law. On 20 August 2013 the Moscow City Court dismissed the appeal. It held that neither the Religions Act nor the Public Events Act made provision for holding a “public event of a religious nature in the form of a meeting”. Religious events could take the form of a service of worship, rite or ceremony; a “meeting”, “as the term was generally applied”, was none of them. It was “evident” for the City Court that “promoting the teaching of Vaishnavism” was not “a service of worship, a rite or a ceremony”. It also fell outside the concept of a “public event” in so far as it did not involve “free expression and shaping of opinions [or] making demands on issues related to political, economic, social or cultural life”.", "57": "Allegation: 10\n2.The applicants were born in 1969 and 1973 respectively and live in Sofia. They are represented before the Court by Mr M. Ekimdzhiev and MsK. Boncheva, lawyers practising in Plovdiv.\n3.The Government were represented by their Agent, Ms B. Simeonova of the Ministry of Justice.\n4.In April 1990 the Bulgarian Communist Party (“BCP”), which had been the dominant political force in the country between 1946 and 1989, throughout the communist regime, renamed itself Bulgarian Socialist Party.\n5.Following parliamentary elections on 12 May 2013, on 29 May 2013 a new government was formed, led by Mr Plamen Oresharski and chiefly supported in Parliament by Coalition for Bulgaria whose main member was the Bulgarian Socialist Party.\n6.On the evening of 14 June 2013 a wave of demonstrations against that government erupted in various cities and towns throughout the country. Atfirst, the demonstrators’ main grievance was the appointment on the same date of Mr Delyan Peevski, a wealthy businessman, media-owner and member of Parliament from the political party Movement for Rights and Freedoms, as chairman of the State Agency for National Security. The nomination was formally made by the Prime Minister, Mr Oresharski, and was approved in Parliament with the votes of seventy-eight members from Coalition for Bulgaria (out of a total of eighty voting) and of all thirty-six members from the Movement for Rights and Freedoms.\n7.One of the main slogans of those protests became the question “Who?”, interpreted to mean “Who proposed Mr Peevski for that post?”.\n8.On 19 June 2013 the chairmen of the parliamentary groups of “Coalition for Bulgaria” and the Movement for Rights and Freedoms proposed to Parliament to revoke Mr Peevski’s appointment, citing the vigorous public reaction to it. All one hundred and twenty-eight members of Parliament present voted in support of the proposal, and it was adopted.\n9.In spite of that, the daily protests continued until about mid-January 2014. In an opinion poll carried out in late November and early December 2013, forty-three per cent of the respondents supported those protests, and forty per cent were of the view that they should continue; twenty-two percent declared that they would themselves participate in them. In another opinion poll carried out during the same period by another agency, forty-one per cent of the respondents said that the best political solution for the country would be for that government to resign and for new parliamentary elections to take place (see Handzhiyski v. Bulgaria, no. 10783/14, § 5, 6April 2021). Several months later, in July 2014, Mr Oresharski’s government stepped down.\n10.Both applicants took part in those protests and were active members of the informal organisation “Protest Network” which was coordinating them.\n11.The first applicant, a blogger, was also frequently posting public comments and videos about the situation in Bulgaria on his Facebook page and YouTube channel, and was thus quite well known in Bulgarian society.\n12.The second applicant is an architect by profession. During the communist regime her grandfather, an activist of the Bulgarian Agrarian People’s Union, spent five years in a labour camp on account of his political views. In 2015 the second applicant ran for municipal councillor in Sofia on the ticket of the Reformist Block, an electoral alliance formed in December 2013 and existing until 2017.\n13.At about 4 a.m. on 7 November 2013 – anniversary of the 1917 Bolshevik Revolution – the two applicants and four other people were near the central office of the Bulgarian Socialist Party in Sofia. At about4.40a.m. they were spotted by three police officers and tried quickly to move away. The officers saw that a monument standing in front of the building, put there in the 1970s and consisting of seven metal figures representing “partisans”[1], had been freshly spray-painted in rose and magenta (the heads in rose and the bodies in magenta), and had the words “WHO? BCP–SHAME! WHO!” written in rose spray-paint on its base.\n14.Two of the officers followed the applicants and the four other people who were with them, and intercepted the group two blocks away from the monument. The officers saw that the second applicant wore latex gloves and held two spray-cans. They also noticed that in his bag the first applicant had four spray-cans, two pairs of latex gloves and a protective face-mask. The applicants handed those items to the officers. In reply to a question what they were doing there, they said that they had gone out for a walk and a coffee.\n15.The officers took the applicants and their four companions to a police station. The applicants agreed to have their hands and clothes swabbed for samples; their companions refused. The applicants remained under arrest for about twenty hours.\n16.It was later established that the applicants’ clothes and shoes, as well as the face-mask found in the first applicant’s possession, bore traces of the same spray-paints as the ones used to paint over and write on the monument.\n17.The spray-paint was later cleaned from the monument. There is no evidence in the case file about who did that or how much effort or cost it entailed (see also paragraph 29 below).\n18.The same day, 7 November 2013, the authorities opened criminal proceedings against the applicants in relation to the above events. InFebruary 2014 they were charged with hooliganism contrary to Article325 § 1 of the Criminal Code (see paragraph 34 below).\n19.In June 2014 the prosecuting authorities brought the applicants to trial. They maintained the charges, but proposed to the Sofia District Court to waive the applicants’ criminal liability and replace it with administrative penalties, in application of Article 78a § 1 of the Criminal Code (see paragraph 41 below). Counsel for each of the applicants argued, inter alia, that they had duly exercised their right to freedom of expression.\n20.On 31 October 2014 the Sofia District Court acquitted the applicants (see реш. от 31.10.2014 г. по н. а. х. д. № 11698/2014 г., СРС).\n21.The court found that the available evidence did not categorically show that it had been them, rather than any of the four other people also present at the scene, who had spray-painted the monument. But even if it had been established that this had been done by the applicants, their act had not amounted to hooliganism. In the light of the applicants’ explanations, the act was rather to be seen as a non-verbal expression of political views. The applicants’ right to freedom of expression, protected under both Article10 of the Convention and Article 39 of the 1991 Constitution (see paragraph 33 below), had thus been engaged. Political expression enjoyed heightened protection, and that comprised also the form in which it had been made. It was not for the criminal courts to assess the views advocated by the applicants or the monument’s artistic or historical value. What mattered was whether the interference with the applicants’ right to freedom of expression would pursue a legitimate aim and would be proportionate to attain it. That required a balancing exercise. In view of the context in which the applicants had painted the monument (widespread anti-government protests and an intense public debate about the legacy of the communist regime, in particular the fate of the monuments remaining from it), and the reasons for which they had done so (to express their disapproval of the political party in power during that regime), their act could not be qualified as hooliganism. Holding otherwise would amount to using penal repression for political ends.\n22.The court went on to note that the applicants had impaired someone else’s artistic work and property, and could thus be held liable to restore the status quo ante and make good the damage resulting from their act. But the proceedings against them, being conducted on charges of hooliganism rather than of property damage, did not concern that point. The question who owned the monument was hence irrelevant.\n23.The prosecuting authorities appealed. However, when the Sofia City Court heard the appeal, the prosecutor appearing on behalf of the prosecution did not support it, and instead argued that the lower court had been correct to acquit the applicants. In response to the appeal, counsel for the applicants reiterated, inter alia, that the applicants had duly exercised their right to freedom of expression. In the course of the appeal hearing the first applicant presented letters from Sofia’s regional governor and Sofia Municipality attesting that the monument was neither State- nor municipally-owned.\n24.In a final judgment of 31 July 2015 (реш. № 882 от 31.07.2015 г. по н. а. х. д. № 5398/2014 г., СГС) a three-judge panel of the Sofia City Court by a majority quashed the lower court’s judgment and found the applicants guilty of hooliganism contrary to Article 325 § 1 of the Criminal Code (see paragraph 34 below). It waived their criminal liability and replaced it with administrative fines of 1,500 Bulgarian levs (BGN) (equivalent to 767 euros (EUR)) each (see paragraphs 19 above and 41 below). It also ordered each of the applicants to pay the Ministry of Internal Affairs BGN 452.57 (equivalent to EUR 231.40) in respect of costs incurred in the pre-trial proceedings.\n25.The court held that the available evidence, although circumstantial, was sufficient to find that it had been the two applicants, rather than any of their four companions, who had spray-painted the monument. In particular, the police officers who had intercepted them had stated that the paint on the monument had been fresh; the investigation had found on the applicants cans of spray-paint and traces of the same paint as the one used to paint the monument; and it had been established that when intercepted by the officers both applicants had had on them latex gloves, and the second applicant also a protective face-mask (which had also borne traces of the same paint). All of that unequivocally showed that they had themselves carried out the spray-painting.\n26.The court went on to say that the applicants’ act had amounted to hooliganism. Hooliganism could take various forms; one of them was wantonly painting public monuments. Such conduct was contrary to public order and revealed a wish on the part of the applicants to demonstrate that they did not feel bound by generally accepted rules of proper conduct. Even if it could be accepted that they had not damaged the monument, their act had been contrary to morals, and could thus properly be characterised as hooliganism within the meaning of the former Supreme Court’s and the Supreme Court of Cassation’s case-law. Who owned the monument was irrelevant in this respect, since hooliganism was an offence against public order, not against property. Nor was it relevant what the monument stood for or how it was being perceived by the public, or that the legislature had declared the communist regime criminal (see paragraphs 42 to 44 below). What mattered was that the monument was part of the country’s cultural heritage.\n27.It could not be accepted that the applicants had sought to express their views publicly, since they had carried out their act at night, and had then attempted to flee, to deceive the police officers who had intercepted them, and more generally to conceal their participation in the events. All of that denoted an intent to scandalise society and demonstrate contempt toward it rather than to express one’s views on a matter of public importance. The questions what the monument represented, what kind of artistic, cultural or historical value it did or did not have, and how some sectors of the population felt about it were irrelevant; what mattered, again, was that the target of the applicants’ act was part of the country’s cultural heritage.\n28.The interference with the applicants’ right to freedom of expression was not in breach of Article 10 of the Convention or Article 39 of the 1991 Constitution (see paragraph 33 below), both of which permitted such interferences. One had to express oneself in an overt way to enjoy protection under those provisions, and not by means of criminal acts. People were of course entitled to engage in political protest, but not when that took the form of a criminal offence.\n29.As regards the punishment, the court noted, in particular, that neither of the two applicants had a previous conviction or waiver of criminal liability, and that their act had not caused pecuniary damage (since no evidence had been presented about how much it had cost to clean the monument and who had covered that cost). The applicants’ criminal liability therefore had to be waived under Article 78a § 1 of the Criminal Code (see paragraph 41 below), and replaced by administrative fines. Since neither the applicants’ act nor they themselves presented a high degree of dangerousness, the fines were to be fixed towards the minimum: BGN 1,500 (equivalent to EUR 767) each.\n30.One of the three judges who heard the appeal dissented. According to her, the evidence did not permit a categorical conclusion that it had been the applicants who had spray-painted the monument. Six people altogether had been present at the scene, and the only reason why charges had been brought only against the applicants was that they had allowed the police to swab their clothes and hands, whereas the other four had refused. Moreover, it could not be said that by spray-painting the phrase “WHO? BCP–SHAME! WHO!” on the base of the monument the applicants had showed overt disrespect toward society and had thus engaged in hooliganism. They had merely expressed their views about the monument and about a past political regime perceived by the bulk of the population in a negative way. Holding otherwise ran counter to Article 10 of the Convention.\n31.In 2016 the National Revenue Agency opened enforcement proceedings against the first applicant in relation to the fine and the costs which he had been ordered to pay (see paragraph 24 above). He paid them in six instalments between February 2017 and June 2020.\n32.In 2015 the National Revenue Agency opened enforcement proceedings against the second applicant as well, and in November 2017 froze some of her bank accounts. According to a letter from the Agency presented by the Government, the second applicant had paid part of the fine and costs which she had been ordered to pay; the letter did not set out the exact sums. The second applicant did not provide any evidence on that point.", "58": "Allegation: 11\n2.The applicant, the Yakut Republican Trade-Union Federation, is a non-governmental organisation set up in 1991 in the Republic of Sakha (Yakutia), which is a constituent part of the Russian Federation. It was represented before the Court by its chairman, Mr A. Loginov. The Government were represented initially by Mr G. Matyushkin and MrM.Galperin, former Representatives of the Russian Federation to the European Court of Human Rights, and later by their successor in that office, MrM. Vinogradov.\n3.The facts of the case, as submitted by the parties, may be summarised as follows.\n4.Federal State Establishment Penal Colony no. 7 is a high-security prison located in Yakutsk, 4,900 km east of Moscow. Its inmates work in a sawmill and in prison maintenance jobs. From 1998 to 2002 the applicant’s chairman, Mr Loginov, then also a chairman of a human rights board, inspected the prison several times. He considered that the administration underpaid its inmates, overworked them, withheld their disability benefits, neglected workplace safety and covered up accidents. MrLoginov increased the inmates’ awareness of their rights.\n5.On 10 January 2006 Parliament amended the rules for State registration of non-profit organisations. As a consequence, convicts were prevented from being founders or members of public associations (see paragraph12 below).\n6.In February 2006 twenty inmates of Penal Colony no.7 met in secret from the administration and voted to set up a trade union and have it join the applicant federation. The applicant federation admitted the union as its member.\n7.On 18 April 2006 the restriction introduced by Parliament entered into force.\n8.Alerted by media reports, in June 2007 the republican prosecutor’s office investigated the union and found it unlawful. The prosecutor’s office considered that the Code on the Execution of Sentences saw prison work as a method of correction and not a professional activity, that in the eyes of the law inmates shared no industrial or trade interests, and that the amended Public Associations Act barred convicts from founding or joining associations. For these reasons, the prosecutor’s office ordered the applicant to expel the union. The applicant refused to comply, citing the International Labour Organisation (ILO) Convention on the Freedom of Association and Protection of the Right to Organise 1948, which protected unions from government intrusion.\n9.The prosecutor’s office applied to the courts to invalidate the unionisation. On 21 January 2008 the Yakutsk Town Court rejected that application because the union had been set up before the restriction on inmate associations had entered into force.\n10.In August 2008 the prosecutor’s office applied to the courts again, this time seeking the union’s expulsion from the applicant federation. On 23September 2008 the Town Court applied the restriction and held for the prosecutor. On 10November 2008 the Supreme Court of Yakutia upheld that judgment. On 10December 2008 the applicant complied with the judgment and expelled the union from its ranks.", "59": "Allegation: 10\n2.Mr Manannikov was born in 1956 and lives in Moscow. He was represented by Mr N. Zboroshenko, a lawyer practising in Moscow.\n3.The Government were initially represented by M.Galperin, former Representative of the Russian Federation to the European Court of Human Rights, and later by his successor in that office, Mr M. Vinogradov.\n4.The facts of the case, as submitted by the parties, may be summarised as follows.\n5.In the run up to the legislative elections of December 2007 and the presidential election of March 2008, a number of public events in support of the acting President, Mr V.Putin, were held in Russia.\n6.The applicant, a human rights activist, decided to attend one such public gathering aimed at supporting the economic and political ideas of Mr Putin on 27 October 2007. He went to the event together with Mr B.\n7.The public gathering received official approval and took place in Lenin Square in Novosibirsk from 12 noon to 12.30 p.m. Several thousands of people were present. Many of them waved banners in support of MrV. Putin. The gathering attracted media attention.\n8.The applicant and Mr B. placed themselves among the participants and raised their banner that read “Putin is better than Hitler”. According to the footage of the event examined by the domestic court (see paragraph 13 below), two participants of the assembly were displeased by the banner and asked the applicant and Mr B. to remove it, but the applicant and Mr B. continued displaying it.\n9.Then police officers, who were present at the venue ordered the applicant and Mr B. to remove the banner, but they refused to do so. They continued to be present at the meeting holding their banner.\n10.At the end of the meeting, three people in plain clothes approached the applicant and MrB., seized their banner and teared it up. The applicant alleged that those people were undercover police officers.\n11.On the way home the applicant was approached by police officers, who took him and Mr B. to a police station and kept them there while an administrative-offence report was prepared.\n12.On the same day a justice of the peace of the 1st Circuit of the Tsentralniy District of Novosibirsk examined the administrative case against the applicant.\n13.On the basis of the police footage from the site of the public gathering the court established that the applicant had unfurled a provocative banner, which ran contrary to the programme of the event. People present at the meeting reacted negatively and asked the applicant to remove the banner. In that situation the police officers lawfully ordered him to remove the banner (see paragraphs 15 and 16 below), because its display posed a real threat to public order, health and lives of the participants. However, in breach of section 6(3)(2) of the Public Events Act (see paragraph 15 below) the applicant refused to follow that order.In the courts’ view his conduct amounted to “a breach of the established rules for the conduct of public events”, an offence under Article 20.2 § 2 of the Code of Administrative Offences (hereafter “the CAO”) (see paragraph 17 below). The court fined the applicant for 500 Russian roubles (RUB) (equivalent to 14 euros (EUR)).\n14.The applicant then appealed to the Tsentralniy District Court of Novosibirsk, which examined his appeal on 28 November 2007. The court endorsed the findings of the lower court. In particular, it noted that the applicant had not disputed the facts of the case. The court agreed with the assessment of the provocative content of the banner and with the assessment of threat to public order posed by the applicant. According to the Tsentralniy District Court of Novosibirsk, the legal classification of the offence was correct, and the fine was not disproportionate.", "60": "Allegation: 8,14\n2.The applicant was born in 1969 and lives in the Paris region of France. He was represented by Ms A. Stach, a lawyer practising in Szczecin.\n3.The Government were represented by their Agent, Mr J. Sobczak of the Ministry of Foreign Affairs.\n4.The facts of the case, as submitted by the parties, may be summarised as follows.\n5.At birth the applicant was registered as female. He later underwent gender reassignment.\n6.On 6 April 1992 the Warsaw District Court gave a decision ordering that an annotation be made to the applicant’s birth certificate to indicate that his sex had changed from female to male and name had changed from X to Y. The relevant annotation was duly made.\n7.On 28 December 1993 the applicant married K. in a civil ceremony.\n8.On 18 August 2001 their daughter A. was born in France. Her French birth certificate indicates the applicant as her father and K. as her mother.\n9.On 22 August 2005 the applicant’s lawyer asked the Prudnik Civil Registry Office (Urząd Stanu Cywilnego) to remove the reference to the Warsaw District Court’s decision of 6April1992 from the birth certificate.\n10.On 22 September 2005 the head of the Prudnik Registry Office (Kierownik Urzędu Stanu Cywilnego) refused the applicant’s request on the grounds that, under section 21 of the Civil Status Records Act (prawo o aktach stanu cywilnego – “the 1986 Act”), any events occurring after a birth certificate had been drawn up had to be included in that certificate in the form of a “marginal annotation” (wzmianka marginesowa).\n11.On 8 November 2005 the Opole Governor declared that decision null and void on formal grounds. The Governor’s decision was subsequently overturned by the Minister of the Interior on 21 August 2006.\n12.On 29 September 2006 the Opole Governor gave a decision on the merits and upheld the decision of 22 September 2005, refusing to remove the annotation about the change of gender and first name. The Governor observed that only annotations not provided for by law or in breach of personal rights could be removed.\n13.On 26 February 2007 the Opole Regional Administrative Court dismissed an appeal by the applicant, referring to the reasons given by the Governor. It held that a marginal annotation about the applicant’s gender of origin and change of name could not be considered to be in breach of his personal rights.\n14.On 16 July 2008 the Supreme Administrative Court dismissed the applicant’s cassation appeal.\n15.On 5 September 2011 the applicant lodged a request with the Warsaw District Court to be issued a new birth certificate. He relied on sections48 and 49 of the 1986 Act relating to the drawing up of new birth certificates following adoption (see paragraph 28 below).\n16.On 20 October 2011 the court dismissed the applicant’s request. The court held that, pursuant to sections 48 and 49 of the 1986 Act, a new birth certificate could only be drawn up in the event of adoption of a child. In addition, it noted that the civil courts had jurisdiction to invalidate, correct and recognise the contents of a civil status document. Since the present case did not concern any of those situations, the request had to be dismissed.\n17.The applicant appealed. He referred to the sensitive situation of transgender people, submitting that the authorities should have applied sections 48 and 49 of the 1986 Act by analogy.\n18.On 12 February 2013 the Warsaw Regional Court dismissed his appeal. The court upheld the reasoning of the District Court. With reference to the applicant’s submissions that the first-instance court should have applied sections 48 and 49 of the 1986 Act by analogy and drawn up a new birth certificate, the Regional Court held that the provisions concerning civil status could not be applied by analogy. Sections 48 and 49 of the 1986 Act listed very specific situations in which a new birth certificate could be issued. A full birth certificate reflected the situation at the time of a person’s birth. A subsequent change of gender could not be a reason to invalidate that birth certificate and draw up a new one. The court further noted that the applicant’s birth certificate had been amended to reflect his gender reassignment.\n19.The applicant lodged a cassation appeal, relying, in particular, on the provisions of the Polish Constitution (Articles 32 and 47), Articles 8 and14 of the Convention and the Court’s case-law.\n20.On 28 May 2014 the Supreme Court dismissed his cassation appeal. The court considered, referring to the 1986 Act, that following gender reassignment it was not possible to draw up a new birth certificate. Any changes had to be indicated as an annotation on the existing birth certificate. The Supreme Court also noted that Parliament had been working on a bill on gender recognition.\n21.On 23 March 2010 a district court in the Paris region granted custody of K.’s three year old niece - A.L. to the applicant’s wife. The applicant submitted that A.L. lived with him and his family.", "61": "Allegation: 8,14\n2.The applicant was born in 1969 and lives in the Paris region of France. He was represented by Ms A. Stach, a lawyer practising in Szczecin.\n3.The Government were represented by their Agent, Mr J. Sobczak of the Ministry of Foreign Affairs.\n4.The facts of the case, as submitted by the parties, may be summarised as follows.\n5.At birth the applicant was registered as female. He later underwent gender reassignment.\n6.On 6 April 1992 the Warsaw District Court gave a decision ordering that an annotation be made to the applicant’s birth certificate to indicate that his sex had changed from female to male and name had changed from X to Y. The relevant annotation was duly made.\n7.On 28 December 1993 the applicant married K. in a civil ceremony.\n8.On 18 August 2001 their daughter A. was born in France. Her French birth certificate indicates the applicant as her father and K. as her mother.\n9.On 22 August 2005 the applicant’s lawyer asked the Prudnik Civil Registry Office (Urząd Stanu Cywilnego) to remove the reference to the Warsaw District Court’s decision of 6April1992 from the birth certificate.\n10.On 22 September 2005 the head of the Prudnik Registry Office (Kierownik Urzędu Stanu Cywilnego) refused the applicant’s request on the grounds that, under section 21 of the Civil Status Records Act (prawo o aktach stanu cywilnego – “the 1986 Act”), any events occurring after a birth certificate had been drawn up had to be included in that certificate in the form of a “marginal annotation” (wzmianka marginesowa).\n11.On 8 November 2005 the Opole Governor declared that decision null and void on formal grounds. The Governor’s decision was subsequently overturned by the Minister of the Interior on 21 August 2006.\n12.On 29 September 2006 the Opole Governor gave a decision on the merits and upheld the decision of 22 September 2005, refusing to remove the annotation about the change of gender and first name. The Governor observed that only annotations not provided for by law or in breach of personal rights could be removed.\n13.On 26 February 2007 the Opole Regional Administrative Court dismissed an appeal by the applicant, referring to the reasons given by the Governor. It held that a marginal annotation about the applicant’s gender of origin and change of name could not be considered to be in breach of his personal rights.\n14.On 16 July 2008 the Supreme Administrative Court dismissed the applicant’s cassation appeal.\n15.On 5 September 2011 the applicant lodged a request with the Warsaw District Court to be issued a new birth certificate. He relied on sections48 and 49 of the 1986 Act relating to the drawing up of new birth certificates following adoption (see paragraph 28 below).\n16.On 20 October 2011 the court dismissed the applicant’s request. The court held that, pursuant to sections 48 and 49 of the 1986 Act, a new birth certificate could only be drawn up in the event of adoption of a child. In addition, it noted that the civil courts had jurisdiction to invalidate, correct and recognise the contents of a civil status document. Since the present case did not concern any of those situations, the request had to be dismissed.\n17.The applicant appealed. He referred to the sensitive situation of transgender people, submitting that the authorities should have applied sections 48 and 49 of the 1986 Act by analogy.\n18.On 12 February 2013 the Warsaw Regional Court dismissed his appeal. The court upheld the reasoning of the District Court. With reference to the applicant’s submissions that the first-instance court should have applied sections 48 and 49 of the 1986 Act by analogy and drawn up a new birth certificate, the Regional Court held that the provisions concerning civil status could not be applied by analogy. Sections 48 and 49 of the 1986 Act listed very specific situations in which a new birth certificate could be issued. A full birth certificate reflected the situation at the time of a person’s birth. A subsequent change of gender could not be a reason to invalidate that birth certificate and draw up a new one. The court further noted that the applicant’s birth certificate had been amended to reflect his gender reassignment.\n19.The applicant lodged a cassation appeal, relying, in particular, on the provisions of the Polish Constitution (Articles 32 and 47), Articles 8 and14 of the Convention and the Court’s case-law.\n20.On 28 May 2014 the Supreme Court dismissed his cassation appeal. The court considered, referring to the 1986 Act, that following gender reassignment it was not possible to draw up a new birth certificate. Any changes had to be indicated as an annotation on the existing birth certificate. The Supreme Court also noted that Parliament had been working on a bill on gender recognition.\n21.On 23 March 2010 a district court in the Paris region granted custody of K.’s three year old niece - A.L. to the applicant’s wife. The applicant submitted that A.L. lived with him and his family.", "62": "Allegation: 2, 3\n2.The applicant was born in 1981 and is currently detained at the Corradino Correctional Facility (‘CCF’), Paola. The applicant was represented by Mr W. Jordash, a lawyer practising in the Hague, the Netherlands.\n3.The Government were represented by their Agents, Dr C. Soler, State Advocate, and Dr J. Vella, Advocate at the Office of the State Advocate.\n4.The facts of the case may be summarised as follows.\n5.The applicant is a businessman and the former head of the TumasGroup. He was arrested on his yacht on 20 November 2019 on suspicion of involvement in the murder of Maltese journalist DaphneCaruana Galizia in October 2017. On the same day he was released on bail.\n6.On 30 November 2019 the applicant was arraigned before the Court of Magistrates acting as a court of criminal inquiry, and was accused of promoting, organising or financing an organisation with a view to committing a criminal offence, and complicity in wilful homicide. The applicant pleaded not guilty to the charges. He was remanded in custody and has since then been detained in the CCF, Paola, Malta.\n7.Following the refusal of a number of requests for release, the last ones (at the time) being rejected in April 2020 (see for details Fenech v.Malta (dec.) no.19090/20, §§ 4-33, 23 March 2021) on 1 May 2020 the applicant instituted constitutional redress proceedings seeking a declaration of breaches of Articles 5 § 1 (c) and 5 § 3 and 5 § 4 of the Convention and asked the court to release him. The proceedings came to an end by a judgment of 23November 2020 by which the Constitutional Court rejected the applicant’s complaints. The applicant had not raised any complaints under Articles 2 or3 of the Convention during these proceedings, as he considered that constitutional redress proceedings would not be an appropriate remedy given their duration and the urgency of the matter.\n8.On 17 November 2020, the applicant’s legal counsel at the domestic level (CM) filed an application before the Court of Magistrates asking for the court’s protection in view of the prison authorities’ refusal to allow the lawyer even to show certain documents to the applicant. According to the applicant, in its decree of 23 November 2020 (not submitted to the Court), the court observed that a lawyer should not be prevented from taking documents with him to prison in order to discuss them with the detainee. However, the court also observed that, pursuant to Regulation 54(1) of the Prisons Regulations, any document may be read or examined by the Director if he suspects that such correspondence is unrelated to the proceedings.\n9.On 23 November 2020 the applicant filed a further application before the Court of Magistrates by which he sought an order by the court to ensure confidential communications whilst he was in detention. He pointed out his lack of opportunity to communicate verbally or in written form with his lawyers, the lack of any opportunity to bring and show documents to him in prison, and to have a secure telephone line without recording. According to the applicant, in its decree of 24 November 2020 (not submitted to the Court), the Court of Magistrates declined to intervene, claiming that the issue was solely within the jurisdiction of the Director of Prisons, and the court had no jurisdiction to intervene on issues concerning the management of the prison or the implementation of the relevant legal provisions regulating the prison facility. With particular reference to the request for an unrecorded telephone line, the court denied the request, referring to Regulation 59 of the Prisons Regulations, which specifically allowed the monitoring and recording of all conversations in prison.\n10.The applicant did not lodge constitutional redress proceedings complaining about the above.\n11.In his application to the Court the applicant claimed that ever since he had been remanded in custody, he had endured a mixture of abusive, unsanitary and unhealthy conditions of detention as follows.\n12.According to the applicant,from 30 November 2019 to 3January 2020, he was placed in solitary confinement. During that time i)he wasnotgiven any warm clothing or socks, was left in a cell in used shorts and T-shirt provided by the prison and refused access to his own clothing; ii)he did not have proper bedding in his cell, which had a makeshift bed which was a piece of foam on the floor, without any sheets or pillows; iii)he was forced to use a hole in the ground of his cell as a bathroom, and there was no provision for flushing, and no hand basins to wash his hands; iv)the cell had only artificial lighting, and the neon tube was left on twenty-four hours and seven days a week; v)the applicant was only allowed sixty minutes out of his cell a day, within which time he was expected to eat, wash up, clean his cell, and finally take a break. During this break, the applicant was not allowed to go outside for fresh air or sunlight, and his movement was restricted to visiting another room; vi)he was not given any water or cigarettes from 10p.m. ‑ 6 a.m.; and was not allowed access to any books from the library for the first twenty-seven days.\n13.Since 4 January 2020 onwards, the applicant was moved to a dormitory, the conditions of which he also considered unsanitary and unhealthy. He shared his cell with four or five other detainees (whose identity could change). The cell measured 34.8 sq.m. (sic.) and each detainee had less than 4 sq.m. of free space. The detainees slept on bunk beds and shared a toilet, shower, and handbasin. They had to wash their clothes, dishes and plates in the same handbasin. The applicant was not allowed to use the gym for exercise. Instead, he was able to walk in a yard for thirty minutes per day. The remainder of the day, he was confined to the shared cell.\n14.The applicant submitted that he was in daily contact with guards (who were rotated every week) and nurses and a chaplain (who also rotated). On any single day, the applicant was exposed to ten persons who left the prison at least weekly. The applicant was not allowed to go to mass or church; was subjected to CCTV surveillance in his cell; was deprived of family visits and was only allowed to speak to his family by Skype once (according to his application). While he was able to discuss legal issues with his counsel on a confidential basis in person, all legal documents were (temporarily) seized and could be read or photocopied by the prison authorities. Moreover, confidential meetings with the applicant and his lawyers were under surveillance through a CCTV.\n15.The applicant was, at the time of lodging the application in 2020, thirty-eight years of age and has only one kidney. On 12 April 2020, a Consultant Surgeon AA wrote a report (submitted to the Court at the time of lodging the application) stating that the applicant was “susceptible in any infective situation such as Corona virus infection leading to Covid-19 which has been shown to be associated not only with respiratory complications but also with the development of renal complications which will be aggravated in a patient like the applicant who at present already has a reduced renal reserve as a consequence of only having one kidney”.", "63": "Allegation: 2, 3\n2.The applicant was born in 1981 and is currently detained at the Corradino Correctional Facility (‘CCF’), Paola. The applicant was represented by Mr W. Jordash, a lawyer practising in the Hague, the Netherlands.\n3.The Government were represented by their Agents, Dr C. Soler, State Advocate, and Dr J. Vella, Advocate at the Office of the State Advocate.\n4.The facts of the case may be summarised as follows.\n5.The applicant is a businessman and the former head of the TumasGroup. He was arrested on his yacht on 20 November 2019 on suspicion of involvement in the murder of Maltese journalist DaphneCaruana Galizia in October 2017. On the same day he was released on bail.\n6.On 30 November 2019 the applicant was arraigned before the Court of Magistrates acting as a court of criminal inquiry, and was accused of promoting, organising or financing an organisation with a view to committing a criminal offence, and complicity in wilful homicide. The applicant pleaded not guilty to the charges. He was remanded in custody and has since then been detained in the CCF, Paola, Malta.\n7.Following the refusal of a number of requests for release, the last ones (at the time) being rejected in April 2020 (see for details Fenech v.Malta (dec.) no.19090/20, §§ 4-33, 23 March 2021) on 1 May 2020 the applicant instituted constitutional redress proceedings seeking a declaration of breaches of Articles 5 § 1 (c) and 5 § 3 and 5 § 4 of the Convention and asked the court to release him. The proceedings came to an end by a judgment of 23November 2020 by which the Constitutional Court rejected the applicant’s complaints. The applicant had not raised any complaints under Articles 2 or3 of the Convention during these proceedings, as he considered that constitutional redress proceedings would not be an appropriate remedy given their duration and the urgency of the matter.\n8.On 17 November 2020, the applicant’s legal counsel at the domestic level (CM) filed an application before the Court of Magistrates asking for the court’s protection in view of the prison authorities’ refusal to allow the lawyer even to show certain documents to the applicant. According to the applicant, in its decree of 23 November 2020 (not submitted to the Court), the court observed that a lawyer should not be prevented from taking documents with him to prison in order to discuss them with the detainee. However, the court also observed that, pursuant to Regulation 54(1) of the Prisons Regulations, any document may be read or examined by the Director if he suspects that such correspondence is unrelated to the proceedings.\n9.On 23 November 2020 the applicant filed a further application before the Court of Magistrates by which he sought an order by the court to ensure confidential communications whilst he was in detention. He pointed out his lack of opportunity to communicate verbally or in written form with his lawyers, the lack of any opportunity to bring and show documents to him in prison, and to have a secure telephone line without recording. According to the applicant, in its decree of 24 November 2020 (not submitted to the Court), the Court of Magistrates declined to intervene, claiming that the issue was solely within the jurisdiction of the Director of Prisons, and the court had no jurisdiction to intervene on issues concerning the management of the prison or the implementation of the relevant legal provisions regulating the prison facility. With particular reference to the request for an unrecorded telephone line, the court denied the request, referring to Regulation 59 of the Prisons Regulations, which specifically allowed the monitoring and recording of all conversations in prison.\n10.The applicant did not lodge constitutional redress proceedings complaining about the above.\n11.In his application to the Court the applicant claimed that ever since he had been remanded in custody, he had endured a mixture of abusive, unsanitary and unhealthy conditions of detention as follows.\n12.According to the applicant,from 30 November 2019 to 3January 2020, he was placed in solitary confinement. During that time i)he wasnotgiven any warm clothing or socks, was left in a cell in used shorts and T-shirt provided by the prison and refused access to his own clothing; ii)he did not have proper bedding in his cell, which had a makeshift bed which was a piece of foam on the floor, without any sheets or pillows; iii)he was forced to use a hole in the ground of his cell as a bathroom, and there was no provision for flushing, and no hand basins to wash his hands; iv)the cell had only artificial lighting, and the neon tube was left on twenty-four hours and seven days a week; v)the applicant was only allowed sixty minutes out of his cell a day, within which time he was expected to eat, wash up, clean his cell, and finally take a break. During this break, the applicant was not allowed to go outside for fresh air or sunlight, and his movement was restricted to visiting another room; vi)he was not given any water or cigarettes from 10p.m. ‑ 6 a.m.; and was not allowed access to any books from the library for the first twenty-seven days.\n13.Since 4 January 2020 onwards, the applicant was moved to a dormitory, the conditions of which he also considered unsanitary and unhealthy. He shared his cell with four or five other detainees (whose identity could change). The cell measured 34.8 sq.m. (sic.) and each detainee had less than 4 sq.m. of free space. The detainees slept on bunk beds and shared a toilet, shower, and handbasin. They had to wash their clothes, dishes and plates in the same handbasin. The applicant was not allowed to use the gym for exercise. Instead, he was able to walk in a yard for thirty minutes per day. The remainder of the day, he was confined to the shared cell.\n14.The applicant submitted that he was in daily contact with guards (who were rotated every week) and nurses and a chaplain (who also rotated). On any single day, the applicant was exposed to ten persons who left the prison at least weekly. The applicant was not allowed to go to mass or church; was subjected to CCTV surveillance in his cell; was deprived of family visits and was only allowed to speak to his family by Skype once (according to his application). While he was able to discuss legal issues with his counsel on a confidential basis in person, all legal documents were (temporarily) seized and could be read or photocopied by the prison authorities. Moreover, confidential meetings with the applicant and his lawyers were under surveillance through a CCTV.\n15.The applicant was, at the time of lodging the application in 2020, thirty-eight years of age and has only one kidney. On 12 April 2020, a Consultant Surgeon AA wrote a report (submitted to the Court at the time of lodging the application) stating that the applicant was “susceptible in any infective situation such as Corona virus infection leading to Covid-19 which has been shown to be associated not only with respiratory complications but also with the development of renal complications which will be aggravated in a patient like the applicant who at present already has a reduced renal reserve as a consequence of only having one kidney”.", "64": "Allegation: 6, 14\n2.The applicant in application no. 19059/18, Ms Fatima Benkharbouche (hereinafter “the first applicant”), is a Moroccan national who was born in 1964 and lives in London. She is represented before the Court by MsS.Newman of Newman Law LLP, a lawyer practising in London.\n3.The applicant in application no. 19725/18, Ms Mina Janah (hereinafter “the second applicant”), is a Moroccan national who was born in 1967 and lives in London. She is represented before the Court by Ms J. Duncan-Bosu of SaltWorks Law, and was previously represented by Ms E.A. Gibbs of SaltWorks Law, lawyers practising in London.\n4.The Government were represented by their Agent, Ms L. Stallard of the Foreign, Commonwealth and Development Office.\n5.The facts of the case may be summarised as follows.\n6.The first applicant started working for the Sudanese Embassy in Iraq in the 1980s. In 2000 she moved to the United Kingdom to work as a housekeeper/cook to the ambassador at the Sudanese Embassy in London. She went back to Iraq in 2002 and returned to the embassy in London in 2005. On 27 November 2010 her employment at the embassy was terminated summarily.\n7.The second applicant came to the United Kingdom on 2November2005 to work as a domestic worker and nanny in the household of the Cultural Attaché at the Libyan Embassy in London. She worked at a number of residences connected to the embassy but she was dismissed by letter dated 24 January 2012.\n8.Following the termination of her employment, the first applicant brought claims against her former employer for damages for failure to pay the National Minimum Wage over a period of nearly six years, unfair dismissal, wrongful dismissal, failure to provide an itemised pay statement, failure to provide written reasons for dismissal and breach of the Working Time Regulations 1998.\n9.A schedule of loss submitted by the applicant valued her claims as follows (in pounds sterling (GBP)):\nUnfair dismissal37,229.93\nMinimum wage168,761.07\nWorking Time Regulations (annual leave)4,264.44\nWorking Time Regulations (weekly rest)TBA (To be assessed)\nWrongful dismissal1,428.38\n10.Default judgment was entered into on 20 May 2011 after the respondent failed to submit a Response Form and a remedy hearing was listed for 14 June 2011. The parties subsequently made submissions on the question of State immunity. In particular, the respondent argued that the Tribunal did not have jurisdiction to hear the claim because of the operation of section16(1) of the 1978 Act, according to which a foreign State is immune from the jurisdiction of a United Kingdom court in a claim based on the foreign state’s employment of the claimant, where the claimant worked for the foreign State’s diplomatic mission (see paragraph 1 above and paragraph35 below). Article 4(2)(b) of the 1978 Act (see paragraph 35 below), which provided that a foreign State was immune from the jurisdiction of a United Kingdom court in a claim based on the foreign state’s employment of the claimant, where the claimant, at the time of the contract, was neither a United Kingdom national nor habitually resident in the United Kingdom (see paragraph 1 above and paragraph 35 below), was not in issue as there had been no finding regarding the first applicant’s place of habitual residence at the date the contract was entered into.\n11.At the pre-hearing review the first applicant argued first, that to allow a State to rely on immunity from legal proceedings in such a case would contradict the Human Rights Act 1998 (see paragraph 36 below) and Article6 of the Convention because it did not afford her a fair hearing to determine her employment dispute; and secondly, that her claim involved rights within the scope of European Union (EU) law which would be frustrated if the 1978Act was applied. She submitted that the Tribunal, if sympathetic to her arguments, had three options available to it: to read down the literal wording of section16(1) of the 1978 Act so as to avoid the conclusion that her claim was barred; to refuse to apply section16(1) on the ground that it was contrary to Article 47 of the Charter of Fundamental Rights of the European Union (“the EU Charter” – see paragraph 38 below); or make a provisional finding that the claim appeared to be barred but stay it pending an appeal to the Court of Appeal in order to obtain a Declaration of Incompatibility under section 4 of the Human Rights Act 1998 (see paragraph 36 below).\n12.The Employment Tribunal gave judgment on 10 April 2012. Having regard to the case-law of the European Court of Human Rights (in particular, Cudak v Lithuania [GC], no. 15869/02, ECHR 2010, and Sabeh El Leil v.France [GC], no. 34869/05, 29 June 2011), and the private law nature of the first applicant’s employment relationship, the Tribunal accepted that a human rights issue was engaged. However, it could not issue a Declaration of Incompatibility under section 4 of the Human Rights Act 1998 and, in its view, it could not use its powers under section3 of the Human Rights Act 1998 (see paragraph 36 below) to read down the provisions of the 1978 Act in a way that would completely change, and possibly even reverse, its meaning. The Tribunal further found that it was not open to it to ignore the 1978 Act because an EU right was engaged in an employment dispute.\n13.Having accepted the respondent’s assertion of State immunity, the Tribunal stayed the first applicant’s claim pending her appeal to the Court of Appeal.\n14.Following her dismissal the second applicant brought claims against her former employer for unfair dismissal, failure to pay the minimum wage over a period of six years, failure to provide the documents required by Part1 of the Employment Rights Act (written statement of the particulars of employment), breach of the Working Time Regulations 1998 and unlawful discrimination/harassment on the grounds of race.\n15.The comparative value of her claims was estimated as follows (in GBP):\nWorking Time Regulations 1,012.34\nMinimum Wage149,347.79\nUnfair dismissal72,230.40\nEmployment Rights Act1,704\n16.At a pre-hearing review to determine whether the respondent would be entitled to immunity from the second applicant’s claims by operation of section 16(1) and (as the second applicant had been found not to have been habitually resident in the United Kingdom at the date of the contract) section4(2)(b) of the 1978 Act (see paragraph 35 below), it was agreed that the issues before the Employment Tribunal were: whether the barring of the second applicant’s claims would be contrary to Article 6 and/or Article 14 of the Convention; whether the Tribunal should “read down” the literal wording of the 1978 Act to avoid the conclusion that her claims were barred; insofar as the second applicant’s claims involved rights within the material scope of EUlaw, whether the Tribunal could disapply the relevant sections of the 1978 Act on the ground that they were contrary to Article 47 of the EU Charter (see paragraph 38 below); and, if the Tribunal did not “read down” or disapply the relevant sections of the 1978 Act, whether it should make a provisional finding that it had no jurisdiction to hear the claim and either stay it pending an appeal by the applicant or dismiss it.\n17.Having regard to the case-law of the European Court of Human Rights (in particular, Cudak and Sabeh El Leil, both cited above), the Employment Tribunal concluded that as regards the respondent’s immunity under section16(1) of the 1978 Act (see paragraph 35 below), Article 6 of the Convention was both applicable and had been breached, since the second applicant had not herself participated in acts involving the governmental authority of Libya and to invoke immunity would be disproportionate to the aim of protecting the functions of Libya as a State. The Tribunal did not consider itself to be in a position to make a finding that there had also been breaches of Articles 6 or 14 of the Convention in respect of section 4(2) of the 1978 Act (see paragraph35 below).\n18.Nevertheless, the Tribunal considered that “reading down” section16(1) of the 1978 Act as suggested by the second applicant would effectively reverse the effect of the section and cross the boundary between interpretation and amendment. It therefore declined to do so. It further found that the second applicant had failed to make out her case that the 1978 Act should be disapplied as being contrary to EU law.\n19.In conclusion, the Tribunal held that the respondent’s assertion of State immunity should succeed, but stayed the claim pending the second applicant’s appeal to the Employment Appeal Tribunal.\n20.Both applicants appealed to the Employment Appeal Tribunal, which heard the two cases together.\n21.In a judgment dated 4 February 2013, the Tribunal found that there had been a breach of Article 6 of the Convention in so far as section 16(1) of the 1978 Act (see paragraph 35 below) was concerned. It was also prepared to assume for the purpose of argument that there was also a breach of Articles6 and 14 in so far as section 4(2)(b) (see paragraph 35 below) was concerned.\n22.The Employment Appeal Tribunal considered that there was no interpretative scope for “reading down” the provisions of the 1978 Act. However, insofar as the applicants’ claims fell within the material scope of EU law, it held that the relevant provisions of the 1978 Act should be disapplied. For the first applicant, this meant that insofar as she complained about a breach of the Working Time Regulations 1998, the provisions of section 16(1) of the 1978 Act were to be disapplied; and for the second applicant, insofar as she complained about racial discrimination and harassment, and breaches of the Working Time Regulations 1998, sections16(1) and 4(2)(b) of the 1978 Act were to be disapplied. The appeal was therefore allowed to this extent.\n23.The applicants were granted permission to appeal to the Court of Appeal to allow them to seek a Declaration of Incompatibility in respect of those parts of their claims which fell outside the material scope of EU law.\n24.The Court of Appeal handed down its judgment on 5 February 2015. In respect of Article 16(1) of the 1978 Act (see paragraph 35 below), it found nothing in the European Convention on State Immunity 1972, the Vienna Convention on Diplomatic Relations 1961, the United Nations International Law Commission Draft Articles on Jurisdictional Immunities of States and Their Property 1991 (“the ILC Draft Articles”), Article 11 of the United Nations Convention on Jurisdictional Immunities of States and their Property 2004 (“the 2004 UN Convention”) or State practice which would enable it to conclude that there was any rule of international law which required the grant of immunity in respect of employment claims by members of the service staff of a mission in the absence of some special feature, such as where the claim was for the recruitment, renewal of employment or reinstatement of an individual or where the proceedings would interfere with the security interests of the State.\n25.It further held that section 4(2)(b) of the 1978 Act (see paragraph 35 below) was discriminatory on grounds of nationality and that no such limitation to the exception to immunity was required by customary international law, nor was it within the range of reasonably tenable opinion within the margin of appreciation granted to States in the assessment of their international obligations.\n26.Turning to remedies, the court agreed with the Employment Appeal Tribunal that the relevant provisions of the 1978 Act could not be read down. It therefore made a Declaration of Incompatibility to the effect that section16(1)(a), in its application to the claims brought by the applicants, infringed Article 6 of the Convention; and that section 4(2)(b) (see paragraph35 below), in its application to the claims brought by the second applicant, infringed Articles 6 and14 of the Convention.\n27.In respect of the EU Charter, the court held that Article 47 fell into the category of Charter provisions that could be the subject of horizontal direct effect. As such, the court was required to disapply section 4(2)(b) and section16(1)(a) of the 1978 Act in respect of those parts of the claims which fell within the scope of EU law.\n28.On 18 October 2017 the Supreme Court unanimously dismissed an appeal brought by Libya and the Secretary for State for Foreign and Commonwealth Affairs. In determining whether sections 4(2)(b) and 16(1) of the 1978 Act (see paragraph 35 below) were incompatible with Article 6 of the Convention and Article 47 of the EU Charter (see paragraph 38 below), it considered the relevant test to be whether or not they were consistent with a rule of customary international law that denied the English court jurisdiction in such cases. However, the court considered that the only consensus to be found in customary international law was in favour of a “restrictive doctrine”, whereby immunity was limited to acts by a State in the exercise of sovereign authority and did not extend to acts of a private law nature. As such, there was no basis in customary international law for the application of State immunity in an employment context to acts of a private law character (such as the employment of purely domestic staff in a diplomatic mission). It followed that neither section 4(2)(b) nor section16(1) of the 1978 Act (see paragraph 35 below) could be justified by any principle of international law and, accordingly, they were incompatible with Article 6 of the Convention and Article 47 of the EU Charter (see paragraph 38 below).\n29.Insofar as the second applicant had complained that section4(2)(b) of the 1978 Act (see paragraph 35 below) was incompatible with Article 14 of the Convention, Lord Sumption, who delivered the leading judgment, said:\n“Section 4(2)(b) unquestionably discriminates on grounds of nationality. The only question is whether the discrimination is justifiable by reference to international law. If state immunity is no answer to the claim under article 6 alone, then it is no answer to the claim under the combination of article 6 and article 14. In my view, the denial of access to the courts to persons in her position is unjustifiable whether it is discriminatory or not.”\n30.In disposing of the case, the Supreme Court did not consider it necessary to decide whether Article 6 of the Convention would be engaged by a successful claim to state immunity in circumstances where the grant of immunity had no basis in customary international law.\n31.The result of the Supreme Court judgment was that sections 4(2)(b) and16(1)(a) of the 1978 Act (see paragraph 35 below) did not apply to the applicants’ claims derived from EU law. The two cases were therefore remitted to the Employment Tribunal to determine the claims based on EUlaw on their merits.\n32.By a settlement agreement dated 22 January 2019, Sudan agreed to pay the first applicant the sum of GBP 10,000 in settlement of her claim under the Working Time Regulations. The settlement agreement expressly stated that it did not compromise or in any way affect the applicant’s claim for damages against the United Kingdom before the European Court of Human Rights in respect of those domestic law claims which were barred by the 1978 Act (which included the claim for damages for failure to pay the National Minimum Wage, unfair dismissal and wrongful dismissal– see paragraph 9 above).\n33.On 13 August 2018, Libya agreed to pay the second applicant GBP1,012.34 together with costs in settlement of her claim under the Working Time Regulations 1998. She withdrew her discrimination/harassment claim (which was also based on EU law) in light of the Supreme Court judgment in Taiwo v. Olaigbe [2016] UKSC 31, which found that discrimination on grounds of immigration status did not amount to discrimination on grounds of race or nationality actionable under the Equality Act 2010.\n34.According to the Ministry of Justice’s report to the Joint Committee on Human Rights on the Government’s response to human rights judgments2019-2020, dated December 2020, the Government “is considering options for addressing the declaration of incompatibility”. However, on 23February 2021 the Government informed Parliament of its intention to make a remedial order pursuant to section 10(2) and schedule 2 of the Human Rights Act to remove the incompatibility identified by the Supreme Court (see paragraph37 below).", "65": "Allegation: 6, 14\n2.The applicant in application no. 19059/18, Ms Fatima Benkharbouche (hereinafter “the first applicant”), is a Moroccan national who was born in 1964 and lives in London. She is represented before the Court by MsS.Newman of Newman Law LLP, a lawyer practising in London.\n3.The applicant in application no. 19725/18, Ms Mina Janah (hereinafter “the second applicant”), is a Moroccan national who was born in 1967 and lives in London. She is represented before the Court by Ms J. Duncan-Bosu of SaltWorks Law, and was previously represented by Ms E.A. Gibbs of SaltWorks Law, lawyers practising in London.\n4.The Government were represented by their Agent, Ms L. Stallard of the Foreign, Commonwealth and Development Office.\n5.The facts of the case may be summarised as follows.\n6.The first applicant started working for the Sudanese Embassy in Iraq in the 1980s. In 2000 she moved to the United Kingdom to work as a housekeeper/cook to the ambassador at the Sudanese Embassy in London. She went back to Iraq in 2002 and returned to the embassy in London in 2005. On 27 November 2010 her employment at the embassy was terminated summarily.\n7.The second applicant came to the United Kingdom on 2November2005 to work as a domestic worker and nanny in the household of the Cultural Attaché at the Libyan Embassy in London. She worked at a number of residences connected to the embassy but she was dismissed by letter dated 24 January 2012.\n8.Following the termination of her employment, the first applicant brought claims against her former employer for damages for failure to pay the National Minimum Wage over a period of nearly six years, unfair dismissal, wrongful dismissal, failure to provide an itemised pay statement, failure to provide written reasons for dismissal and breach of the Working Time Regulations 1998.\n9.A schedule of loss submitted by the applicant valued her claims as follows (in pounds sterling (GBP)):\nUnfair dismissal37,229.93\nMinimum wage168,761.07\nWorking Time Regulations (annual leave)4,264.44\nWorking Time Regulations (weekly rest)TBA (To be assessed)\nWrongful dismissal1,428.38\n10.Default judgment was entered into on 20 May 2011 after the respondent failed to submit a Response Form and a remedy hearing was listed for 14 June 2011. The parties subsequently made submissions on the question of State immunity. In particular, the respondent argued that the Tribunal did not have jurisdiction to hear the claim because of the operation of section16(1) of the 1978 Act, according to which a foreign State is immune from the jurisdiction of a United Kingdom court in a claim based on the foreign state’s employment of the claimant, where the claimant worked for the foreign State’s diplomatic mission (see paragraph 1 above and paragraph35 below). Article 4(2)(b) of the 1978 Act (see paragraph 35 below), which provided that a foreign State was immune from the jurisdiction of a United Kingdom court in a claim based on the foreign state’s employment of the claimant, where the claimant, at the time of the contract, was neither a United Kingdom national nor habitually resident in the United Kingdom (see paragraph 1 above and paragraph 35 below), was not in issue as there had been no finding regarding the first applicant’s place of habitual residence at the date the contract was entered into.\n11.At the pre-hearing review the first applicant argued first, that to allow a State to rely on immunity from legal proceedings in such a case would contradict the Human Rights Act 1998 (see paragraph 36 below) and Article6 of the Convention because it did not afford her a fair hearing to determine her employment dispute; and secondly, that her claim involved rights within the scope of European Union (EU) law which would be frustrated if the 1978Act was applied. She submitted that the Tribunal, if sympathetic to her arguments, had three options available to it: to read down the literal wording of section16(1) of the 1978 Act so as to avoid the conclusion that her claim was barred; to refuse to apply section16(1) on the ground that it was contrary to Article 47 of the Charter of Fundamental Rights of the European Union (“the EU Charter” – see paragraph 38 below); or make a provisional finding that the claim appeared to be barred but stay it pending an appeal to the Court of Appeal in order to obtain a Declaration of Incompatibility under section 4 of the Human Rights Act 1998 (see paragraph 36 below).\n12.The Employment Tribunal gave judgment on 10 April 2012. Having regard to the case-law of the European Court of Human Rights (in particular, Cudak v Lithuania [GC], no. 15869/02, ECHR 2010, and Sabeh El Leil v.France [GC], no. 34869/05, 29 June 2011), and the private law nature of the first applicant’s employment relationship, the Tribunal accepted that a human rights issue was engaged. However, it could not issue a Declaration of Incompatibility under section 4 of the Human Rights Act 1998 and, in its view, it could not use its powers under section3 of the Human Rights Act 1998 (see paragraph 36 below) to read down the provisions of the 1978 Act in a way that would completely change, and possibly even reverse, its meaning. The Tribunal further found that it was not open to it to ignore the 1978 Act because an EU right was engaged in an employment dispute.\n13.Having accepted the respondent’s assertion of State immunity, the Tribunal stayed the first applicant’s claim pending her appeal to the Court of Appeal.\n14.Following her dismissal the second applicant brought claims against her former employer for unfair dismissal, failure to pay the minimum wage over a period of six years, failure to provide the documents required by Part1 of the Employment Rights Act (written statement of the particulars of employment), breach of the Working Time Regulations 1998 and unlawful discrimination/harassment on the grounds of race.\n15.The comparative value of her claims was estimated as follows (in GBP):\nWorking Time Regulations 1,012.34\nMinimum Wage149,347.79\nUnfair dismissal72,230.40\nEmployment Rights Act1,704\n16.At a pre-hearing review to determine whether the respondent would be entitled to immunity from the second applicant’s claims by operation of section 16(1) and (as the second applicant had been found not to have been habitually resident in the United Kingdom at the date of the contract) section4(2)(b) of the 1978 Act (see paragraph 35 below), it was agreed that the issues before the Employment Tribunal were: whether the barring of the second applicant’s claims would be contrary to Article 6 and/or Article 14 of the Convention; whether the Tribunal should “read down” the literal wording of the 1978 Act to avoid the conclusion that her claims were barred; insofar as the second applicant’s claims involved rights within the material scope of EUlaw, whether the Tribunal could disapply the relevant sections of the 1978 Act on the ground that they were contrary to Article 47 of the EU Charter (see paragraph 38 below); and, if the Tribunal did not “read down” or disapply the relevant sections of the 1978 Act, whether it should make a provisional finding that it had no jurisdiction to hear the claim and either stay it pending an appeal by the applicant or dismiss it.\n17.Having regard to the case-law of the European Court of Human Rights (in particular, Cudak and Sabeh El Leil, both cited above), the Employment Tribunal concluded that as regards the respondent’s immunity under section16(1) of the 1978 Act (see paragraph 35 below), Article 6 of the Convention was both applicable and had been breached, since the second applicant had not herself participated in acts involving the governmental authority of Libya and to invoke immunity would be disproportionate to the aim of protecting the functions of Libya as a State. The Tribunal did not consider itself to be in a position to make a finding that there had also been breaches of Articles 6 or 14 of the Convention in respect of section 4(2) of the 1978 Act (see paragraph35 below).\n18.Nevertheless, the Tribunal considered that “reading down” section16(1) of the 1978 Act as suggested by the second applicant would effectively reverse the effect of the section and cross the boundary between interpretation and amendment. It therefore declined to do so. It further found that the second applicant had failed to make out her case that the 1978 Act should be disapplied as being contrary to EU law.\n19.In conclusion, the Tribunal held that the respondent’s assertion of State immunity should succeed, but stayed the claim pending the second applicant’s appeal to the Employment Appeal Tribunal.\n20.Both applicants appealed to the Employment Appeal Tribunal, which heard the two cases together.\n21.In a judgment dated 4 February 2013, the Tribunal found that there had been a breach of Article 6 of the Convention in so far as section 16(1) of the 1978 Act (see paragraph 35 below) was concerned. It was also prepared to assume for the purpose of argument that there was also a breach of Articles6 and 14 in so far as section 4(2)(b) (see paragraph 35 below) was concerned.\n22.The Employment Appeal Tribunal considered that there was no interpretative scope for “reading down” the provisions of the 1978 Act. However, insofar as the applicants’ claims fell within the material scope of EU law, it held that the relevant provisions of the 1978 Act should be disapplied. For the first applicant, this meant that insofar as she complained about a breach of the Working Time Regulations 1998, the provisions of section 16(1) of the 1978 Act were to be disapplied; and for the second applicant, insofar as she complained about racial discrimination and harassment, and breaches of the Working Time Regulations 1998, sections16(1) and 4(2)(b) of the 1978 Act were to be disapplied. The appeal was therefore allowed to this extent.\n23.The applicants were granted permission to appeal to the Court of Appeal to allow them to seek a Declaration of Incompatibility in respect of those parts of their claims which fell outside the material scope of EU law.\n24.The Court of Appeal handed down its judgment on 5 February 2015. In respect of Article 16(1) of the 1978 Act (see paragraph 35 below), it found nothing in the European Convention on State Immunity 1972, the Vienna Convention on Diplomatic Relations 1961, the United Nations International Law Commission Draft Articles on Jurisdictional Immunities of States and Their Property 1991 (“the ILC Draft Articles”), Article 11 of the United Nations Convention on Jurisdictional Immunities of States and their Property 2004 (“the 2004 UN Convention”) or State practice which would enable it to conclude that there was any rule of international law which required the grant of immunity in respect of employment claims by members of the service staff of a mission in the absence of some special feature, such as where the claim was for the recruitment, renewal of employment or reinstatement of an individual or where the proceedings would interfere with the security interests of the State.\n25.It further held that section 4(2)(b) of the 1978 Act (see paragraph 35 below) was discriminatory on grounds of nationality and that no such limitation to the exception to immunity was required by customary international law, nor was it within the range of reasonably tenable opinion within the margin of appreciation granted to States in the assessment of their international obligations.\n26.Turning to remedies, the court agreed with the Employment Appeal Tribunal that the relevant provisions of the 1978 Act could not be read down. It therefore made a Declaration of Incompatibility to the effect that section16(1)(a), in its application to the claims brought by the applicants, infringed Article 6 of the Convention; and that section 4(2)(b) (see paragraph35 below), in its application to the claims brought by the second applicant, infringed Articles 6 and14 of the Convention.\n27.In respect of the EU Charter, the court held that Article 47 fell into the category of Charter provisions that could be the subject of horizontal direct effect. As such, the court was required to disapply section 4(2)(b) and section16(1)(a) of the 1978 Act in respect of those parts of the claims which fell within the scope of EU law.\n28.On 18 October 2017 the Supreme Court unanimously dismissed an appeal brought by Libya and the Secretary for State for Foreign and Commonwealth Affairs. In determining whether sections 4(2)(b) and 16(1) of the 1978 Act (see paragraph 35 below) were incompatible with Article 6 of the Convention and Article 47 of the EU Charter (see paragraph 38 below), it considered the relevant test to be whether or not they were consistent with a rule of customary international law that denied the English court jurisdiction in such cases. However, the court considered that the only consensus to be found in customary international law was in favour of a “restrictive doctrine”, whereby immunity was limited to acts by a State in the exercise of sovereign authority and did not extend to acts of a private law nature. As such, there was no basis in customary international law for the application of State immunity in an employment context to acts of a private law character (such as the employment of purely domestic staff in a diplomatic mission). It followed that neither section 4(2)(b) nor section16(1) of the 1978 Act (see paragraph 35 below) could be justified by any principle of international law and, accordingly, they were incompatible with Article 6 of the Convention and Article 47 of the EU Charter (see paragraph 38 below).\n29.Insofar as the second applicant had complained that section4(2)(b) of the 1978 Act (see paragraph 35 below) was incompatible with Article 14 of the Convention, Lord Sumption, who delivered the leading judgment, said:\n“Section 4(2)(b) unquestionably discriminates on grounds of nationality. The only question is whether the discrimination is justifiable by reference to international law. If state immunity is no answer to the claim under article 6 alone, then it is no answer to the claim under the combination of article 6 and article 14. In my view, the denial of access to the courts to persons in her position is unjustifiable whether it is discriminatory or not.”\n30.In disposing of the case, the Supreme Court did not consider it necessary to decide whether Article 6 of the Convention would be engaged by a successful claim to state immunity in circumstances where the grant of immunity had no basis in customary international law.\n31.The result of the Supreme Court judgment was that sections 4(2)(b) and16(1)(a) of the 1978 Act (see paragraph 35 below) did not apply to the applicants’ claims derived from EU law. The two cases were therefore remitted to the Employment Tribunal to determine the claims based on EUlaw on their merits.\n32.By a settlement agreement dated 22 January 2019, Sudan agreed to pay the first applicant the sum of GBP 10,000 in settlement of her claim under the Working Time Regulations. The settlement agreement expressly stated that it did not compromise or in any way affect the applicant’s claim for damages against the United Kingdom before the European Court of Human Rights in respect of those domestic law claims which were barred by the 1978 Act (which included the claim for damages for failure to pay the National Minimum Wage, unfair dismissal and wrongful dismissal– see paragraph 9 above).\n33.On 13 August 2018, Libya agreed to pay the second applicant GBP1,012.34 together with costs in settlement of her claim under the Working Time Regulations 1998. She withdrew her discrimination/harassment claim (which was also based on EU law) in light of the Supreme Court judgment in Taiwo v. Olaigbe [2016] UKSC 31, which found that discrimination on grounds of immigration status did not amount to discrimination on grounds of race or nationality actionable under the Equality Act 2010.\n34.According to the Ministry of Justice’s report to the Joint Committee on Human Rights on the Government’s response to human rights judgments2019-2020, dated December 2020, the Government “is considering options for addressing the declaration of incompatibility”. However, on 23February 2021 the Government informed Parliament of its intention to make a remedial order pursuant to section 10(2) and schedule 2 of the Human Rights Act to remove the incompatibility identified by the Supreme Court (see paragraph37 below).", "66": "Allegation: 10, 11\n2.The applicant was born in 1981 and lives in Curtea de Argeș. He was represented by Ms D.O. Hatneanu, a lawyer practising in Bucharest.\n3.The Government were represented by their Agents, most recently by Ms.O.Ezer, of the Ministry of Foreign Affairs.\n4.The facts of the case may be summarised as follows.\n5.The applicant is a founding member and president of the Spiritual Militia Civic Movement Association (Asociaţia Mișcarea Civică Miliţia Spirituală). He is a known activist and was involved in various civic actions, including the Save Roșia Montană (Salvaţi Roșia Montană) campaign.\n6.That campaign, which attracted significant national and international support and attention, was initiated by the local community in Roșia Montană in the year 2000 as a protest against a mining project of the local gold and silver deposits. The project, which would involve the use of cyanide, was controversial because of its estimated negative impact on the environment and the local heritage. The campaign eventually led to the Roșia Montană mining landscape being registered on the United Nations Educational, Scientific and Cultural Organization’s world heritage list in July 2021.\n7.According to the applicant, on 28 August 2013 he read in the newspapers a press statement by the government informing the public that during their 4 p.m. meeting of 27 August 2013 they had approved a bill (proiect de lege) concerning the mining of the gold and silver deposits in Roșia Montană and had sent it to Parliament to be adopted. The bill in question had been approved by the government without any prior public consultation or information being provided and had practically green-lighted the mining of the Roșia Montană deposits.\n8.On the same date the applicant and three other persons decided to express their negative opinion about the government’s above-mentioned actions and to raise public awareness about the bill by handcuffing themselves to one of the barriers blocking access to the parking area of the government’s headquarters and by holding up signs.\n9.The event was filmed by an acquaintance of the applicant and the resulting film was posted on the YouTube Internet website on 29 August 2013. The film was 5 minutes and 32 seconds long. The first 3 minutes and 55seconds covered the actual event and the rest covered an interview with the applicant and two of the participants carried out a few hours after the event about the reasons prompting their actions.\n10.The film showed that a police officer who was guarding the car park barrier in question immediately tried to stop the applicant and the other persons from handcuffing themselves to the barrier’s rails. Other police officers rushed in to help him, but the applicant and the other three persons succeeded in attaching themselves to the rails and holding up signs reading “Save Roșia Montană” and “United to save Roșia Montană” (Uniţi pentru a salva Roșia Montană). The applicant and the other persons were completely silent throughout almost the entire duration of the event. The handcuffs of two of the participants were detached from the barrier’s rails very quickly but the applicant’s and one other participant’s handcuffs could not be removed as quickly because the applicant complained that the process was hurting his arm.\n11.A gendarme officer asked the applicant and the remaining handcuffed participant to leave the area because their actions were unlawful, but they refused to do so unless a government representative came out of the building to talk to them. As a result, the officers decided to take the applicant and the remaining person handcuffed to the barrier to a police station on the ground that they had refused to cooperate with the police. The police officers detached the applicant and the other person from the barrier’s rails by cutting the rail to which the handcuffs were attached and carried them in their arms to a police car. One of the other two participants was also asked by the officers to get into a police car and to go to the police station, and he complied.\n12.The film further showed that apart from the law-enforcement officials and a few passers-by who stopped to watch or film the applicant’s removal from the barrier, no other persons were present and the event did not affect in any way the car and pedestrian traffic in the area. Also, no official or unofficial car tried to use the barrier in question to access the government building’s car park.\n13.The film also showed that in her interview carried out a few hours after the event, one of the participants justified her actions by stating that she had been impressed by the way the locals in Roșia Montană had been fighting against the mining project and by the fact that people had been unaware of their fight. As a result, she had felt that she needed to do something about it and also to convince other young people to do the same by the power of example. She considered that actions had to be more radical since people had been lodging petitions for years only to be ignored.\n14.During the same interview, another participant stated that their actions had been to try and break the media silence around the Roșia Montană subject. He was of the opinion that since the type of peaceful protests that had been held before had not had any significant impact and the persons involved in them had not been taken seriously either by the authorities or by the mass media, their type of protest could yield results.\n15.According to a police report drafted on 28 August 2013 at 6.20 p.m. at police station no. 1 in Bucharest, the applicant was fined 500 Romanian lei (RON) (an estimated 113 euros (EUR)) because he had committed the acts set out in Article 3 § 2 and punished by Article 4 § 1 (c) of Law no. 61/1991 on the punishment of acts breaching certain norms of social coexistence and the public order and peace. The police report stated in particular that “... at 5.15p.m. ... [the applicant] had been spotted ... at the Romanian government’s headquarters in Victoria Square, the Iancu de Hunedoara Boulevard entrance, having formed a group with ... [S.M.B.], [F.B.], and [R.B.] in order to commit antisocial acts, blocking access to the institution [and] attaching himself together with S.M.B. with handcuffs to the access gate’s barrier, while the other persons held up the message ‘United for Roșia Montană’ [Uniţi pentru Roșia Montană]”.\n16.The police report also stated that the applicant had acknowledged the act committed by him, but that he had refused to sign the police report.\n17.On 18 September 2013 the applicant challenged the police report and the fine imposed on him and asked the court to annul them. In the alternative, he asked the court to replace the fine by a warning. He argued that the police report had been unlawful because, to the extent that a sanction had been needed in his case, he should have been punished on the basis of the provisions of Law no. 60/1991 on the organisation and conduct of public gatherings. His behaviour had been wrongly classified as being punished under Law no.61/1991, because the manifestation of one’s rights to freedom of expression and assembly through protest could not be an antisocial act which disturbed the public order and peace.\n18.The applicant further argued that the police report had been unfounded. The acts imputed to him had been a form of lawful manifestation of his above-mentioned rights (see paragraph 17). The protest had represented a spontaneous reaction to a decision taken by the government, without any prior notice, with which he had disagreed. In such circumstances, according to the judgment of the European Court of Human Rights in Bukta and Others v. Hungary (no. 25691/04, ECHR 2007-III), a person’s right to freedom of assembly could be exercised without a prior notification to the authorities. By complying with the three-day time-limit requirement set out in Law no.60/1991, the spontaneous protest against the government’s decision in question would have been void of any substance.\n19.Moreover, during the protest he had behaved peacefully and had not disturbed or affected in a significant way the activity of the institution. The protest had taken place in front of a gate which was used only by high dignitaries and therefore was the one least used for access to the building; no one had attempted to use the gate in question during his presence there and the building had remained accessible during the protest through its several other gates. It could not be said, therefore, that he had formed a group of three or more people in order to commit unlawful acts, violating the public peace and order and the norms of social coexistence.\n20.Lastly, the applicant argued that the sanction imposed on him had been unnecessary in a democratic society. In the latter society the existence and expression of critical opinions about the government was essential, even if done in unconventional ways aimed at attracting the public’s and the decision-makers’ attention.\n21.On 7 July 2014 the Bucharest District Court (“the District Court”) dismissed the applicant’s challenge, holding that the police report had been lawful. Given the content of the act that had been described in the police report and the images filmed at the scene of the event, the legal classification of the act as falling under Article 3 § 2 of Law no. 61/1991 had been justified because the form of protest chosen by the applicant had breached Law no.60/1991, therefore amounting to an unlawful act, and his having handcuffed himself to the barrier and the expression made could be considered to be acts that had breached the public peace and order and the norms of social coexistence.\n22.The court further held that the applicant had not given well-founded reasons grounded in exceptional circumstances that could justify holding this form of protest without following the preliminary procedure provided for by Law no. 60/1991 of declaring public gatherings to the authorities. It could not be said that the rules set out in Law no. 60/1991 did not cover spontaneous forms of protest since the manifestation of one’s rights to freedom of expression and assembly could be done only within the limits set by the law and Law no. 60/1991 required that a prior declaration be made about any type of public gathering.\n23.Taking into account the text of Article 11 of the European Convention on Human Rights, it could not be said that the sanction imposed on the applicant had not complied with the conditions set out in paragraph 2 of that Article since the measure had been provided for by law, had been imposed in order to protect public order and the rights and freedoms of others and to prevent crime and had been proportionate to the aim pursued given the specific form and means of protest chosen by the applicant.\n24.Lastly, the court held that the applicant had not rebutted in any way the version of the facts contained in the police report, even though the burden of proof had been on him to do so, and that there were no lawful grounds to annul the police report. Also, there was no reason to replace the fine by a warning since the applicant had been correctly punished by the lowest fine provided for by law for his actions.\n25.The applicant appealed against the judgment. He reiterated the arguments that his actions had been a form of manifesting his right to freedom of expression (see paragraph 18 above) and that during the protest he had behaved peacefully and had not disturbed the public peace nor affected in a significant way the activity of the institution (see paragraph 19 above).\n26.In the event that his actions were to be viewed as constituting the organisation of and participation in a public gathering which had lacked the requisite prior notification, his punishment would have been lawful only if he had been punished on the basis of Article 26 of Law no. 60/1991, and not on the basis of Law no. 61/1991. The District Court had not taken into account the video-recording of the event which had shown that at the scene of the protest the law-enforcement officials had applied the procedure set out in Law no. 60/1991 and had not referred at all to Law no. 61/1991. Also, it had considered that the sanction imposed on him had been lawful by relying on the provisions of Law no. 60/1991, even though it had found at the same time that his actions had been a form of protest which had breached Law no.61/1991.\n27.The District Court had failed to examine his argument about his right to freedom of expression having been breached (see paragraphs 17-20 above). The findings of the European Court of Human Right in the judgment in Tatár and Fáber v. Hungary (nos.26005/08 and 26160/08, 12 June 2012), which concerned circumstances similar to his, had made the examination of his above-mentioned argument even more necessary since the court had considered that his actions had not been covered by the provisions of Law no.61/1991.\n28.The lower court had also ignored the findings of the European Court of Human Rights in Bukta and Others (cited above) to the effect that justified spontaneous gatherings could be held in the absence of a requisite prior notice. As a result, it had misinterpreted Article 11 of the European Convention on Human Rights.\n29.Even though the applicant had proved that the government had approved a controversial bill which he had wanted to contest only a day before the protest, suddenly and without any prior notice, the District Court had taken the view that the spontaneous protest had not been justified by the circumstances. At the same time, in contradiction to this finding and despite the fact that spontaneous gatherings by their nature could not be notified in advance, the court had found that the prior-notice procedure provided for by Law no. 60/1991 also covered spontaneous gatherings. However, if that finding of the lower court had been true, its assertion to the effect that the applicant had to provide justified reasons for failing to follow the prior-notice procedure provided for by Law no. 60/1991 would be rendered irrelevant.\n30.By a final judgment of 10 June 2015, the Bucharest County Court dismissed the applicant’s appeal and upheld the lower court’s judgment. It held that the applicant’s actions had been correctly classified and punished. According to the content of the police report and of the applicant’s application to the court, the applicant and three other persons had decided on 27 August 2013 to form a group in order to protest in front of the government building on the following day against the government and its decision to approve a bill that was green-lighting the mining of the deposits in Roșia Montană. There could be no doubt that the four persons’ agreement to meet on the following day in a certain location and at a certain time with the aim of conducting an unauthorised meeting met the conditions of the contravention provided for by Article 3 § 2 of Law no. 61/1991 read in the light of Article 26 § 1 (a) of Law no.60/1991.\n31.The applicant’s argument that the authorities should have relied on Law no. 60/1991 rather than Law no. 61/1991 to impose the sanction on him was ill-founded because the two laws were complimentary and not mutually exclusive as provided also by Article 2 of Law no. 60/1991. To accept the applicant’s view would mean that those instances of disturbing the public order and peace which had not been covered by Law no. 60/1991 would have gone unpunished.\n32.The applicant’s argument to the effect that his rights to freedom of expression and assembly had been violated was likewise ill-founded. While it was true that the Constitution and Law no. 60/1991 provided for a person’s right to protest in public places by expressing his or her opinions, the latter law also provided that the protests had to be conducted in observance of the lawful procedure, the rights and freedoms of other citizens and the other conditions provided for by law. Given the content of the applicable legal framework which set out the rules and conditions for manifesting one’s rights to freedom of expression and assembly and which required a written notification at least three days prior to the date of the protest, the measure taken against the applicant had not violated his right to freedom of expression.\n33.The bill adopted by the government on 27 August 2013 concerning the Roșia Montană mining project (see paragraph 7 above) sparked numerous other large protests across Romania starting from 1 September 2013. The protests eventually led to Parliament rejecting the bill.", "67": "Allegation: 10, 11\n2.The applicant was born in 1981 and lives in Curtea de Argeș. He was represented by Ms D.O. Hatneanu, a lawyer practising in Bucharest.\n3.The Government were represented by their Agents, most recently by Ms.O.Ezer, of the Ministry of Foreign Affairs.\n4.The facts of the case may be summarised as follows.\n5.The applicant is a founding member and president of the Spiritual Militia Civic Movement Association (Asociaţia Mișcarea Civică Miliţia Spirituală). He is a known activist and was involved in various civic actions, including the Save Roșia Montană (Salvaţi Roșia Montană) campaign.\n6.That campaign, which attracted significant national and international support and attention, was initiated by the local community in Roșia Montană in the year 2000 as a protest against a mining project of the local gold and silver deposits. The project, which would involve the use of cyanide, was controversial because of its estimated negative impact on the environment and the local heritage. The campaign eventually led to the Roșia Montană mining landscape being registered on the United Nations Educational, Scientific and Cultural Organization’s world heritage list in July 2021.\n7.According to the applicant, on 28 August 2013 he read in the newspapers a press statement by the government informing the public that during their 4 p.m. meeting of 27 August 2013 they had approved a bill (proiect de lege) concerning the mining of the gold and silver deposits in Roșia Montană and had sent it to Parliament to be adopted. The bill in question had been approved by the government without any prior public consultation or information being provided and had practically green-lighted the mining of the Roșia Montană deposits.\n8.On the same date the applicant and three other persons decided to express their negative opinion about the government’s above-mentioned actions and to raise public awareness about the bill by handcuffing themselves to one of the barriers blocking access to the parking area of the government’s headquarters and by holding up signs.\n9.The event was filmed by an acquaintance of the applicant and the resulting film was posted on the YouTube Internet website on 29 August 2013. The film was 5 minutes and 32 seconds long. The first 3 minutes and 55seconds covered the actual event and the rest covered an interview with the applicant and two of the participants carried out a few hours after the event about the reasons prompting their actions.\n10.The film showed that a police officer who was guarding the car park barrier in question immediately tried to stop the applicant and the other persons from handcuffing themselves to the barrier’s rails. Other police officers rushed in to help him, but the applicant and the other three persons succeeded in attaching themselves to the rails and holding up signs reading “Save Roșia Montană” and “United to save Roșia Montană” (Uniţi pentru a salva Roșia Montană). The applicant and the other persons were completely silent throughout almost the entire duration of the event. The handcuffs of two of the participants were detached from the barrier’s rails very quickly but the applicant’s and one other participant’s handcuffs could not be removed as quickly because the applicant complained that the process was hurting his arm.\n11.A gendarme officer asked the applicant and the remaining handcuffed participant to leave the area because their actions were unlawful, but they refused to do so unless a government representative came out of the building to talk to them. As a result, the officers decided to take the applicant and the remaining person handcuffed to the barrier to a police station on the ground that they had refused to cooperate with the police. The police officers detached the applicant and the other person from the barrier’s rails by cutting the rail to which the handcuffs were attached and carried them in their arms to a police car. One of the other two participants was also asked by the officers to get into a police car and to go to the police station, and he complied.\n12.The film further showed that apart from the law-enforcement officials and a few passers-by who stopped to watch or film the applicant’s removal from the barrier, no other persons were present and the event did not affect in any way the car and pedestrian traffic in the area. Also, no official or unofficial car tried to use the barrier in question to access the government building’s car park.\n13.The film also showed that in her interview carried out a few hours after the event, one of the participants justified her actions by stating that she had been impressed by the way the locals in Roșia Montană had been fighting against the mining project and by the fact that people had been unaware of their fight. As a result, she had felt that she needed to do something about it and also to convince other young people to do the same by the power of example. She considered that actions had to be more radical since people had been lodging petitions for years only to be ignored.\n14.During the same interview, another participant stated that their actions had been to try and break the media silence around the Roșia Montană subject. He was of the opinion that since the type of peaceful protests that had been held before had not had any significant impact and the persons involved in them had not been taken seriously either by the authorities or by the mass media, their type of protest could yield results.\n15.According to a police report drafted on 28 August 2013 at 6.20 p.m. at police station no. 1 in Bucharest, the applicant was fined 500 Romanian lei (RON) (an estimated 113 euros (EUR)) because he had committed the acts set out in Article 3 § 2 and punished by Article 4 § 1 (c) of Law no. 61/1991 on the punishment of acts breaching certain norms of social coexistence and the public order and peace. The police report stated in particular that “... at 5.15p.m. ... [the applicant] had been spotted ... at the Romanian government’s headquarters in Victoria Square, the Iancu de Hunedoara Boulevard entrance, having formed a group with ... [S.M.B.], [F.B.], and [R.B.] in order to commit antisocial acts, blocking access to the institution [and] attaching himself together with S.M.B. with handcuffs to the access gate’s barrier, while the other persons held up the message ‘United for Roșia Montană’ [Uniţi pentru Roșia Montană]”.\n16.The police report also stated that the applicant had acknowledged the act committed by him, but that he had refused to sign the police report.\n17.On 18 September 2013 the applicant challenged the police report and the fine imposed on him and asked the court to annul them. In the alternative, he asked the court to replace the fine by a warning. He argued that the police report had been unlawful because, to the extent that a sanction had been needed in his case, he should have been punished on the basis of the provisions of Law no. 60/1991 on the organisation and conduct of public gatherings. His behaviour had been wrongly classified as being punished under Law no.61/1991, because the manifestation of one’s rights to freedom of expression and assembly through protest could not be an antisocial act which disturbed the public order and peace.\n18.The applicant further argued that the police report had been unfounded. The acts imputed to him had been a form of lawful manifestation of his above-mentioned rights (see paragraph 17). The protest had represented a spontaneous reaction to a decision taken by the government, without any prior notice, with which he had disagreed. In such circumstances, according to the judgment of the European Court of Human Rights in Bukta and Others v. Hungary (no. 25691/04, ECHR 2007-III), a person’s right to freedom of assembly could be exercised without a prior notification to the authorities. By complying with the three-day time-limit requirement set out in Law no.60/1991, the spontaneous protest against the government’s decision in question would have been void of any substance.\n19.Moreover, during the protest he had behaved peacefully and had not disturbed or affected in a significant way the activity of the institution. The protest had taken place in front of a gate which was used only by high dignitaries and therefore was the one least used for access to the building; no one had attempted to use the gate in question during his presence there and the building had remained accessible during the protest through its several other gates. It could not be said, therefore, that he had formed a group of three or more people in order to commit unlawful acts, violating the public peace and order and the norms of social coexistence.\n20.Lastly, the applicant argued that the sanction imposed on him had been unnecessary in a democratic society. In the latter society the existence and expression of critical opinions about the government was essential, even if done in unconventional ways aimed at attracting the public’s and the decision-makers’ attention.\n21.On 7 July 2014 the Bucharest District Court (“the District Court”) dismissed the applicant’s challenge, holding that the police report had been lawful. Given the content of the act that had been described in the police report and the images filmed at the scene of the event, the legal classification of the act as falling under Article 3 § 2 of Law no. 61/1991 had been justified because the form of protest chosen by the applicant had breached Law no.60/1991, therefore amounting to an unlawful act, and his having handcuffed himself to the barrier and the expression made could be considered to be acts that had breached the public peace and order and the norms of social coexistence.\n22.The court further held that the applicant had not given well-founded reasons grounded in exceptional circumstances that could justify holding this form of protest without following the preliminary procedure provided for by Law no. 60/1991 of declaring public gatherings to the authorities. It could not be said that the rules set out in Law no. 60/1991 did not cover spontaneous forms of protest since the manifestation of one’s rights to freedom of expression and assembly could be done only within the limits set by the law and Law no. 60/1991 required that a prior declaration be made about any type of public gathering.\n23.Taking into account the text of Article 11 of the European Convention on Human Rights, it could not be said that the sanction imposed on the applicant had not complied with the conditions set out in paragraph 2 of that Article since the measure had been provided for by law, had been imposed in order to protect public order and the rights and freedoms of others and to prevent crime and had been proportionate to the aim pursued given the specific form and means of protest chosen by the applicant.\n24.Lastly, the court held that the applicant had not rebutted in any way the version of the facts contained in the police report, even though the burden of proof had been on him to do so, and that there were no lawful grounds to annul the police report. Also, there was no reason to replace the fine by a warning since the applicant had been correctly punished by the lowest fine provided for by law for his actions.\n25.The applicant appealed against the judgment. He reiterated the arguments that his actions had been a form of manifesting his right to freedom of expression (see paragraph 18 above) and that during the protest he had behaved peacefully and had not disturbed the public peace nor affected in a significant way the activity of the institution (see paragraph 19 above).\n26.In the event that his actions were to be viewed as constituting the organisation of and participation in a public gathering which had lacked the requisite prior notification, his punishment would have been lawful only if he had been punished on the basis of Article 26 of Law no. 60/1991, and not on the basis of Law no. 61/1991. The District Court had not taken into account the video-recording of the event which had shown that at the scene of the protest the law-enforcement officials had applied the procedure set out in Law no. 60/1991 and had not referred at all to Law no. 61/1991. Also, it had considered that the sanction imposed on him had been lawful by relying on the provisions of Law no. 60/1991, even though it had found at the same time that his actions had been a form of protest which had breached Law no.61/1991.\n27.The District Court had failed to examine his argument about his right to freedom of expression having been breached (see paragraphs 17-20 above). The findings of the European Court of Human Right in the judgment in Tatár and Fáber v. Hungary (nos.26005/08 and 26160/08, 12 June 2012), which concerned circumstances similar to his, had made the examination of his above-mentioned argument even more necessary since the court had considered that his actions had not been covered by the provisions of Law no.61/1991.\n28.The lower court had also ignored the findings of the European Court of Human Rights in Bukta and Others (cited above) to the effect that justified spontaneous gatherings could be held in the absence of a requisite prior notice. As a result, it had misinterpreted Article 11 of the European Convention on Human Rights.\n29.Even though the applicant had proved that the government had approved a controversial bill which he had wanted to contest only a day before the protest, suddenly and without any prior notice, the District Court had taken the view that the spontaneous protest had not been justified by the circumstances. At the same time, in contradiction to this finding and despite the fact that spontaneous gatherings by their nature could not be notified in advance, the court had found that the prior-notice procedure provided for by Law no. 60/1991 also covered spontaneous gatherings. However, if that finding of the lower court had been true, its assertion to the effect that the applicant had to provide justified reasons for failing to follow the prior-notice procedure provided for by Law no. 60/1991 would be rendered irrelevant.\n30.By a final judgment of 10 June 2015, the Bucharest County Court dismissed the applicant’s appeal and upheld the lower court’s judgment. It held that the applicant’s actions had been correctly classified and punished. According to the content of the police report and of the applicant’s application to the court, the applicant and three other persons had decided on 27 August 2013 to form a group in order to protest in front of the government building on the following day against the government and its decision to approve a bill that was green-lighting the mining of the deposits in Roșia Montană. There could be no doubt that the four persons’ agreement to meet on the following day in a certain location and at a certain time with the aim of conducting an unauthorised meeting met the conditions of the contravention provided for by Article 3 § 2 of Law no. 61/1991 read in the light of Article 26 § 1 (a) of Law no.60/1991.\n31.The applicant’s argument that the authorities should have relied on Law no. 60/1991 rather than Law no. 61/1991 to impose the sanction on him was ill-founded because the two laws were complimentary and not mutually exclusive as provided also by Article 2 of Law no. 60/1991. To accept the applicant’s view would mean that those instances of disturbing the public order and peace which had not been covered by Law no. 60/1991 would have gone unpunished.\n32.The applicant’s argument to the effect that his rights to freedom of expression and assembly had been violated was likewise ill-founded. While it was true that the Constitution and Law no. 60/1991 provided for a person’s right to protest in public places by expressing his or her opinions, the latter law also provided that the protests had to be conducted in observance of the lawful procedure, the rights and freedoms of other citizens and the other conditions provided for by law. Given the content of the applicable legal framework which set out the rules and conditions for manifesting one’s rights to freedom of expression and assembly and which required a written notification at least three days prior to the date of the protest, the measure taken against the applicant had not violated his right to freedom of expression.\n33.The bill adopted by the government on 27 August 2013 concerning the Roșia Montană mining project (see paragraph 7 above) sparked numerous other large protests across Romania starting from 1 September 2013. The protests eventually led to Parliament rejecting the bill.", "68": "Allegation: 8,9,14\n2.The applicant was born in 1973 and lives in F. He was represented by Mr L. Marsella, a lawyer practising in Rome, and Mr O.Nardi, a lawyer practising in Castelfidardo.\n3.The Government were represented by their Agent, Mr L. D’Ascia, State Attorney.\n4.The facts of the case, as submitted by the parties, may be summarised as follows.\n5.In 2004 the applicant started a relationship with S.G. A child, E., was born from that relationship on 15 September 2006. The applicant and S.G. cohabitated out of wedlock.\n6.The applicant and S.G. broke up in 2008.\n7.In 2009, the applicant started to attend meetings of the Jehovah’s Witnesses at the F. Kingdom Hall. In July 2011, he was baptised and became a member of that religion. At that time, the applicant used to bring E. with him to the services, two or three times per month.\n8.In 2012 the applicant married E.B., who was also a Jehovah’s Witness and the mother of a child, S. A child was born of their marriage.\n9.In September 2013 S.G. commenced non contentious proceedings (see §20 below) before the Livorno District Court, following disagreements between her and the applicant regarding E.’s custody and visiting arrangements. S.G. argued that the applicant, without S.G.’s agreement, took E. to Jehovah’s Witness religious services, prevented the daughter from attending ballet classes and took her along to distribute religious magazines in the street.\nThe applicant emphasised that “E. did not grow up in a Roman Catholic environment, she did not receive any Catholic education, nor did she receive any kind of example or teaching from her mother, who has herself never been a practising Catholic”. S.G. confirmed that their approach had been confined to allowing the girl to attend a private Roman Catholic kindergarten, attend other children’s birthday parties and Carnival parties and ballet school, as well as attending catechism classes with a view to any future first communion.\n10.On 3 February 2014 E. was heard by the District Court. Before the court, she voiced discomfort about her father bringing her to the Kingdom Hall on Saturdays and expressed a wish to spend more time playing with him. At the same time, she affirmed that she was perfectly aware of the fact that S.G. did not agree with the applicant taking her to the Kingdom Hall, and that she felt irritated and disturbed by her mother’s comments on the applicant’s religious activities. She also said that that she has been to Mass twice (once for Christmas and once to check the dates for starting catechism classes).\n11.On 11 March 2014, the Livorno District Court settled all matters pending between the applicant and S.G. apart from the religion issue. In particular, the applicant and S.G. were granted joint custodyof E., and they agreed that the latter should reside at S.G.’s home and that the applicant would spend at least 12 days per month with the daughter. The trial court invited the social services to assess the influence which the religious activities of both parties were having on E. from the psychological and behavioural points of view.\n12.At a hearing of 27 May 2014, the applicant finally agreed that as of 7June 2014 the girl could participate in the ballet show.\n13.On 22 July 2014 the applicant also agreed that E. could in future take the “sacraments” (first communion) in the Roman Catholic Church and requested that she also attend the Kingdom Hall. S.G. requested that the latter be ruled out. In view of the social services’ inertia, the Livorno District Court appointed an expert, P.C., to evaluate the influence of E.’s parents’ religious activities on her behaviour.\n14.P.C. submitted her technical expert report on 30 December 2014. She concluded that it was not detrimental to E. to know that the parents had different religious beliefs. However, P.C. pointed out that the means which the applicant had been employing, such as concealing from S.G., and asking E. also to conceal, her attendance at the meetings in the Kingdom Hall, were harmful. P.C. added that forcing E. to actively participate in specific religious activities and to change her habits, without an agreement with S.G., was detrimental.\n15.P.C. concluded that it would have been appropriate for both parents to refrain from actively involving E. in religious activities and to respect E.’s choices not to be actively involved in such activities. However, given the social context in which the child was being raised (her school activities and her participation in birthday or Carnival parties) it would have been prejudicial to her if she had not been allowed to take part in Catholic-oriented activities. P.C. referred to the fact that E. had been baptised in the Roman Catholic Church and that all her friends belonged to that religion.\n16.On 20 January 2015, following the expert’s conclusions, the Livorno District Court issued a decision ordering the applicant to refrain from involving his daughter E. in his religion (“inibisce allo stato al ricorrente il coinvolgimento della figlia nella propria scelta religiosa”). The District Court stated that it would not have been in the child’s interests to be involved in a religion other than Roman Catholicism (she was used to the Catholic Church by reason of the familial and social context in which she had been raised and was living), and that E.’s situation was distressing because of her attendance at the Kingdom Hall, as shown by her personal statements. The District Court stated in the reasoning of the above order what follows:\n“the court-appointed expert’s report and the examination of the child lead this court to consider that the child’s interests take precedence over the practice of a religion differing from Catholicism, in which both parents had brought her up since her birth ... (the applicant having started attending the Kingdom Hall after his separation);\nconsidering that, indeed, the child’s young age (eight years old), lacking mature discernment, prevents her from autonomously choosing a religion, and that, therefore, a religion that differs from the one adopted by the family and the social environment in which she is growing up would appear detrimental to her, by virtue of the principle of continuity governing the child’s religious education, in order to shield her from disturbance and confusion at a time when she is seeking and developing her own identity (see, in this regard, Court of Cassation rulings nos. 24683/13 and 9546/12);\nconsidering that in the present case a distressing situation emerged caused by the child’s father’s religion and by her attendance at the Kingdom Hall, the child having been heard by both the court and the afore-mentioned court-appointed expert, whose report highlighted that practising two different religions may cause confusion and tension for the child in the family context in which she lives;\nconsidering that, as concerns the Catholic religion practised by the child, there is no dispute between the parties, in the light of the declarations made by Mr T.C. at the hearing dated 22 July 2014”.\n17.On 17 July 2015 the applicant appealed against that judgment. On 23February 2016 the Florence Court of Appeal dismissed the applicant’s appeal. Nevertheless, it clarified the operative part of the first-instance judgment and interpreted it as meaning that the applicant must refrain from actively involving E. in his religious activities but not from communicating his beliefs to her.\n18.The applicant appealed to the Court of Cassation on 4 May 2016. On 29May 2017 he further filed a motion with the latter requesting that his appeal be decided on an expedited basis in view of the detrimental effects which the lower courts’ judgments had had on his relationship with his daughter.\n19.The Court of Cassation ultimately dismissed the applicant’s claims on 24May 2018.", "69": "Allegation: 8,9,14\n2.The applicant was born in 1973 and lives in F. He was represented by Mr L. Marsella, a lawyer practising in Rome, and Mr O.Nardi, a lawyer practising in Castelfidardo.\n3.The Government were represented by their Agent, Mr L. D’Ascia, State Attorney.\n4.The facts of the case, as submitted by the parties, may be summarised as follows.\n5.In 2004 the applicant started a relationship with S.G. A child, E., was born from that relationship on 15 September 2006. The applicant and S.G. cohabitated out of wedlock.\n6.The applicant and S.G. broke up in 2008.\n7.In 2009, the applicant started to attend meetings of the Jehovah’s Witnesses at the F. Kingdom Hall. In July 2011, he was baptised and became a member of that religion. At that time, the applicant used to bring E. with him to the services, two or three times per month.\n8.In 2012 the applicant married E.B., who was also a Jehovah’s Witness and the mother of a child, S. A child was born of their marriage.\n9.In September 2013 S.G. commenced non contentious proceedings (see §20 below) before the Livorno District Court, following disagreements between her and the applicant regarding E.’s custody and visiting arrangements. S.G. argued that the applicant, without S.G.’s agreement, took E. to Jehovah’s Witness religious services, prevented the daughter from attending ballet classes and took her along to distribute religious magazines in the street.\nThe applicant emphasised that “E. did not grow up in a Roman Catholic environment, she did not receive any Catholic education, nor did she receive any kind of example or teaching from her mother, who has herself never been a practising Catholic”. S.G. confirmed that their approach had been confined to allowing the girl to attend a private Roman Catholic kindergarten, attend other children’s birthday parties and Carnival parties and ballet school, as well as attending catechism classes with a view to any future first communion.\n10.On 3 February 2014 E. was heard by the District Court. Before the court, she voiced discomfort about her father bringing her to the Kingdom Hall on Saturdays and expressed a wish to spend more time playing with him. At the same time, she affirmed that she was perfectly aware of the fact that S.G. did not agree with the applicant taking her to the Kingdom Hall, and that she felt irritated and disturbed by her mother’s comments on the applicant’s religious activities. She also said that that she has been to Mass twice (once for Christmas and once to check the dates for starting catechism classes).\n11.On 11 March 2014, the Livorno District Court settled all matters pending between the applicant and S.G. apart from the religion issue. In particular, the applicant and S.G. were granted joint custodyof E., and they agreed that the latter should reside at S.G.’s home and that the applicant would spend at least 12 days per month with the daughter. The trial court invited the social services to assess the influence which the religious activities of both parties were having on E. from the psychological and behavioural points of view.\n12.At a hearing of 27 May 2014, the applicant finally agreed that as of 7June 2014 the girl could participate in the ballet show.\n13.On 22 July 2014 the applicant also agreed that E. could in future take the “sacraments” (first communion) in the Roman Catholic Church and requested that she also attend the Kingdom Hall. S.G. requested that the latter be ruled out. In view of the social services’ inertia, the Livorno District Court appointed an expert, P.C., to evaluate the influence of E.’s parents’ religious activities on her behaviour.\n14.P.C. submitted her technical expert report on 30 December 2014. She concluded that it was not detrimental to E. to know that the parents had different religious beliefs. However, P.C. pointed out that the means which the applicant had been employing, such as concealing from S.G., and asking E. also to conceal, her attendance at the meetings in the Kingdom Hall, were harmful. P.C. added that forcing E. to actively participate in specific religious activities and to change her habits, without an agreement with S.G., was detrimental.\n15.P.C. concluded that it would have been appropriate for both parents to refrain from actively involving E. in religious activities and to respect E.’s choices not to be actively involved in such activities. However, given the social context in which the child was being raised (her school activities and her participation in birthday or Carnival parties) it would have been prejudicial to her if she had not been allowed to take part in Catholic-oriented activities. P.C. referred to the fact that E. had been baptised in the Roman Catholic Church and that all her friends belonged to that religion.\n16.On 20 January 2015, following the expert’s conclusions, the Livorno District Court issued a decision ordering the applicant to refrain from involving his daughter E. in his religion (“inibisce allo stato al ricorrente il coinvolgimento della figlia nella propria scelta religiosa”). The District Court stated that it would not have been in the child’s interests to be involved in a religion other than Roman Catholicism (she was used to the Catholic Church by reason of the familial and social context in which she had been raised and was living), and that E.’s situation was distressing because of her attendance at the Kingdom Hall, as shown by her personal statements. The District Court stated in the reasoning of the above order what follows:\n“the court-appointed expert’s report and the examination of the child lead this court to consider that the child’s interests take precedence over the practice of a religion differing from Catholicism, in which both parents had brought her up since her birth ... (the applicant having started attending the Kingdom Hall after his separation);\nconsidering that, indeed, the child’s young age (eight years old), lacking mature discernment, prevents her from autonomously choosing a religion, and that, therefore, a religion that differs from the one adopted by the family and the social environment in which she is growing up would appear detrimental to her, by virtue of the principle of continuity governing the child’s religious education, in order to shield her from disturbance and confusion at a time when she is seeking and developing her own identity (see, in this regard, Court of Cassation rulings nos. 24683/13 and 9546/12);\nconsidering that in the present case a distressing situation emerged caused by the child’s father’s religion and by her attendance at the Kingdom Hall, the child having been heard by both the court and the afore-mentioned court-appointed expert, whose report highlighted that practising two different religions may cause confusion and tension for the child in the family context in which she lives;\nconsidering that, as concerns the Catholic religion practised by the child, there is no dispute between the parties, in the light of the declarations made by Mr T.C. at the hearing dated 22 July 2014”.\n17.On 17 July 2015 the applicant appealed against that judgment. On 23February 2016 the Florence Court of Appeal dismissed the applicant’s appeal. Nevertheless, it clarified the operative part of the first-instance judgment and interpreted it as meaning that the applicant must refrain from actively involving E. in his religious activities but not from communicating his beliefs to her.\n18.The applicant appealed to the Court of Cassation on 4 May 2016. On 29May 2017 he further filed a motion with the latter requesting that his appeal be decided on an expedited basis in view of the detrimental effects which the lower courts’ judgments had had on his relationship with his daughter.\n19.The Court of Cassation ultimately dismissed the applicant’s claims on 24May 2018.", "70": "Allegation: 8,9,14\n2.The applicant was born in 1973 and lives in F. He was represented by Mr L. Marsella, a lawyer practising in Rome, and Mr O.Nardi, a lawyer practising in Castelfidardo.\n3.The Government were represented by their Agent, Mr L. D’Ascia, State Attorney.\n4.The facts of the case, as submitted by the parties, may be summarised as follows.\n5.In 2004 the applicant started a relationship with S.G. A child, E., was born from that relationship on 15 September 2006. The applicant and S.G. cohabitated out of wedlock.\n6.The applicant and S.G. broke up in 2008.\n7.In 2009, the applicant started to attend meetings of the Jehovah’s Witnesses at the F. Kingdom Hall. In July 2011, he was baptised and became a member of that religion. At that time, the applicant used to bring E. with him to the services, two or three times per month.\n8.In 2012 the applicant married E.B., who was also a Jehovah’s Witness and the mother of a child, S. A child was born of their marriage.\n9.In September 2013 S.G. commenced non contentious proceedings (see §20 below) before the Livorno District Court, following disagreements between her and the applicant regarding E.’s custody and visiting arrangements. S.G. argued that the applicant, without S.G.’s agreement, took E. to Jehovah’s Witness religious services, prevented the daughter from attending ballet classes and took her along to distribute religious magazines in the street.\nThe applicant emphasised that “E. did not grow up in a Roman Catholic environment, she did not receive any Catholic education, nor did she receive any kind of example or teaching from her mother, who has herself never been a practising Catholic”. S.G. confirmed that their approach had been confined to allowing the girl to attend a private Roman Catholic kindergarten, attend other children’s birthday parties and Carnival parties and ballet school, as well as attending catechism classes with a view to any future first communion.\n10.On 3 February 2014 E. was heard by the District Court. Before the court, she voiced discomfort about her father bringing her to the Kingdom Hall on Saturdays and expressed a wish to spend more time playing with him. At the same time, she affirmed that she was perfectly aware of the fact that S.G. did not agree with the applicant taking her to the Kingdom Hall, and that she felt irritated and disturbed by her mother’s comments on the applicant’s religious activities. She also said that that she has been to Mass twice (once for Christmas and once to check the dates for starting catechism classes).\n11.On 11 March 2014, the Livorno District Court settled all matters pending between the applicant and S.G. apart from the religion issue. In particular, the applicant and S.G. were granted joint custodyof E., and they agreed that the latter should reside at S.G.’s home and that the applicant would spend at least 12 days per month with the daughter. The trial court invited the social services to assess the influence which the religious activities of both parties were having on E. from the psychological and behavioural points of view.\n12.At a hearing of 27 May 2014, the applicant finally agreed that as of 7June 2014 the girl could participate in the ballet show.\n13.On 22 July 2014 the applicant also agreed that E. could in future take the “sacraments” (first communion) in the Roman Catholic Church and requested that she also attend the Kingdom Hall. S.G. requested that the latter be ruled out. In view of the social services’ inertia, the Livorno District Court appointed an expert, P.C., to evaluate the influence of E.’s parents’ religious activities on her behaviour.\n14.P.C. submitted her technical expert report on 30 December 2014. She concluded that it was not detrimental to E. to know that the parents had different religious beliefs. However, P.C. pointed out that the means which the applicant had been employing, such as concealing from S.G., and asking E. also to conceal, her attendance at the meetings in the Kingdom Hall, were harmful. P.C. added that forcing E. to actively participate in specific religious activities and to change her habits, without an agreement with S.G., was detrimental.\n15.P.C. concluded that it would have been appropriate for both parents to refrain from actively involving E. in religious activities and to respect E.’s choices not to be actively involved in such activities. However, given the social context in which the child was being raised (her school activities and her participation in birthday or Carnival parties) it would have been prejudicial to her if she had not been allowed to take part in Catholic-oriented activities. P.C. referred to the fact that E. had been baptised in the Roman Catholic Church and that all her friends belonged to that religion.\n16.On 20 January 2015, following the expert’s conclusions, the Livorno District Court issued a decision ordering the applicant to refrain from involving his daughter E. in his religion (“inibisce allo stato al ricorrente il coinvolgimento della figlia nella propria scelta religiosa”). The District Court stated that it would not have been in the child’s interests to be involved in a religion other than Roman Catholicism (she was used to the Catholic Church by reason of the familial and social context in which she had been raised and was living), and that E.’s situation was distressing because of her attendance at the Kingdom Hall, as shown by her personal statements. The District Court stated in the reasoning of the above order what follows:\n“the court-appointed expert’s report and the examination of the child lead this court to consider that the child’s interests take precedence over the practice of a religion differing from Catholicism, in which both parents had brought her up since her birth ... (the applicant having started attending the Kingdom Hall after his separation);\nconsidering that, indeed, the child’s young age (eight years old), lacking mature discernment, prevents her from autonomously choosing a religion, and that, therefore, a religion that differs from the one adopted by the family and the social environment in which she is growing up would appear detrimental to her, by virtue of the principle of continuity governing the child’s religious education, in order to shield her from disturbance and confusion at a time when she is seeking and developing her own identity (see, in this regard, Court of Cassation rulings nos. 24683/13 and 9546/12);\nconsidering that in the present case a distressing situation emerged caused by the child’s father’s religion and by her attendance at the Kingdom Hall, the child having been heard by both the court and the afore-mentioned court-appointed expert, whose report highlighted that practising two different religions may cause confusion and tension for the child in the family context in which she lives;\nconsidering that, as concerns the Catholic religion practised by the child, there is no dispute between the parties, in the light of the declarations made by Mr T.C. at the hearing dated 22 July 2014”.\n17.On 17 July 2015 the applicant appealed against that judgment. On 23February 2016 the Florence Court of Appeal dismissed the applicant’s appeal. Nevertheless, it clarified the operative part of the first-instance judgment and interpreted it as meaning that the applicant must refrain from actively involving E. in his religious activities but not from communicating his beliefs to her.\n18.The applicant appealed to the Court of Cassation on 4 May 2016. On 29May 2017 he further filed a motion with the latter requesting that his appeal be decided on an expedited basis in view of the detrimental effects which the lower courts’ judgments had had on his relationship with his daughter.\n19.The Court of Cassation ultimately dismissed the applicant’s claims on 24May 2018.", "71": "Allegation: 5, 6, 14\n2.The applicant was born in 1964 and lives in Linz. She was represented by Mr H. Graupner and MrJ. Ph.Bischof, lawyers practising in Vienna.\n3.The Government were represented by their Agent, Ambassador H.Tichy, Head of the International Law Department at the Federal Ministry for European and International Affairs.\n4.The facts of the case, as submitted by the parties, may be summarised as follows.\n5.On the night of 7 May 2016, a taxi driver notified the police because his passenger, the applicant, said that she could not pay the fare as she did not have any cash with her and had forgotten the PIN number for her debit card. The police officers arriving at the scene explained the next steps to the applicant, namely that her personal details would be recorded and that she could pay the fare the next day, but failure to do so would result in a complaint being filed against her. The applicant then became agitated and started to shout at the police officers. As they could not calm her down, they told her that she was being arrested. The applicant attempted to resist arrest by repeatedly hitting the chest of one of the police officers with her hands. Although she applied a certain physical force, she did not injure the police officer. She was subsequently arrested and later examined by the medical officer (Amtsarzt) who indicated that she was fit to undergo detention and had the legal capacity to commit an offence (Haft- und Deliktsfähigkeit), but added that this could not be determined with absolute certainty. On the grounds that the applicant had psychotic episodes and was a danger to others when she had such a flare-up of aggression, the medical officer ordered the applicant’s committal to hospital (Parere). The arrest by the police was revoked after the public prosecutor ordered that charges be pressed against the applicant without an arrest being made.\n6.Still on the same day, 7 May 2016, the applicant was taken to the Neuromed Campus of the Kepler University Clinic. The placement proceedings (Unterbringungsverfahren) conducted there by the Linz District Court (Bezirksgericht) led to the applicant being placed in the high-security ward under the Act on the Placement of Mentally Ill Persons in Hospitals (Hospitalisation Act) (Bundesgesetz über die Unterbringung psychisch Kranker in Krankenanstalten, Unterbringungsgesetz). DrM.F., a specialist in psychiatry and neurology, was commissioned to submit an expert opinion on the question whether the applicant met the requirements for a placement, as set out in section3(1) and(2) of the above‑mentioned Act (see paragraph35 below).\n7.In an expert opinion of 17 May 2016, DrM.F. concluded that the requirements for such a placement were met. The applicant was known to have been suffering from a schizoaffective disorder for years, with the first known institutional inpatient stay dating back to 2006, although she denied any such incidents or any mental disorder. Elements of danger to third parties due to psychosis were present, with the applicant acting as if she was out of touch with reality, and showing an inclination towards aggressive reactions. Given the applicant’s lack of awareness of the fact that she was suffering from a disorder, and her lack of understanding of her need for treatment, DrM.F. considered that a voluntary hospital stay was not an option.\n8.On 23 May 2016 the Linz District Court ordered the applicant’s placement until 20June 2016, on which date the placement was terminated.\n9.On 24 November 2016 further placement proceedings were instituted against the applicant by the Linz District Court, after her neighbours had alerted the police as the applicant had, in her apartment, been ranting and raging, talking to herself, and having paranoid ideas and fantasies about killing. In a (second) expert opinion of 15January 2017, DrM.F. concluded that the applicant had been suffering from a mental disorder for many years, which now had to be classified as “paranoid schizophrenia”. As the applicant had recently agreed to taking medication, it was to be assumed that the requirements for a placement, specifically the elements of being a danger to others, would not continue beyond the date of the upcoming hearing. The applicant’s second placement lasted from 24November 2016 until 23January 2017, on which date that placement was terminated.\n10.On 11 October 2016, that is, prior to the second placement proceedings (see paragraph9 above), the Linz public prosecutor’s office (Staatsanwaltschaft) instigated preliminary proceedings against the applicant for the offences of attempted resistance to State authority (Widerstand gegen die Staatsgewalt), under Articles15 and 269 of the Criminal Code (see paragraphs27 and31 below), and fraud (Betrug), under Article146 of the Criminal Code (see paragraph30 below), in connection with the incident of 7May 2016 (see paragraph5 above).\n11.DrW.S., a specialist in neurology and psychiatry, was appointed as the psychiatric expert and was commissioned to submit his findings on whether the applicant had been criminally liable under Article11 of the Criminal Code (see paragraph26 below) at the time of the offence on 7May 2016, and on whether the requirements for confinement in an institution for mentally ill offenders under Article21 § 1 or Article21 §2 of the Criminal Code (see paragraph28 below) were met, in particular how far offences with serious consequences, such as grievous bodily harm or death threats, would have to be expected in the future.\n12.In an expert opinion prepared on 16November 2016 and formally submitted on 7December 2016, which was based on the files alone, because he was not able to carry out a face‑to‑face examination as the applicant did not obey a summons to her examination shortly before her second placement began (see paragraph9 above), DrW.S. concluded that the applicant suffered from a schizoaffective disorder. Judging by her ability to control her actions (Steuerungsfähigkeit), she had, at the time of the offence, been closer to not being criminally liable than to being liable. However, her ability to act in accordance with an understanding of the wrongfulness of her actions (Dispositionsfähigkeit) had not been totally absent. The applicant had thus been criminally liable at the time of the offence. The offence she had been charged with (resisting the police) was not the result of any serious mental or emotional disorder (seelisch-geistige Abartigkeit). DrW.S. concluded that he was not able to make any prognosis about any future offences with serious consequences.\n13.On 5 January 2017, that is during the applicant’s second placement (see paragraph9 above), the Linz public prosecutor’s office charged the applicant with the offence of attempted resistance to State authority under Article15 §1 and Article269 §1 of the Criminal Code (see paragraphs27 and31 below).\n14.In a submission of 9 February 2017, the applicant’s defence lawyer lodged a request to be permitted to produce evidence by obtaining a psychiatric and neurological expert opinion aimed at proving that, at the time of the offence, the applicant had lacked capacity for criminal responsibility as defined in Article11 of the Criminal Code (see paragraph26 below). He argued that DrW.S. had not personally examined the applicant, and objected to his expert opinion being used and the same expert being commissioned again. He reiterated that request during the trial hearing of 13February 2017 before the Linz Regional Court (Landesgericht).\n15.The Regional Court acceded to the request and ordered another psychiatric expert opinion. In its reasoning, it held that the new expert opinion was commissioned because the opinion provided by DrM.F. in the first placement proceedings (see paragraph7 above) had stated that elements of being a danger to others owing to psychosis had been present; moreover, the applicant had had to undergo another inpatient stay in hospital (see paragraph9 above) after Dr W.S. had prepared his expert opinion.\n16.On 1 April 2017, Dr A.K., a specialist in psychiatry and neurology and head of the Forensic Department of the Neuromed Campus of the University Clinic Linz and authorised to teach at university on the basis of a post‑doctoral lecturing qualification (venia docendi), submitted her twenty‑nine‑page long expert opinion based on her own examination of the applicant. She concluded that the applicant had already been suffering from a schizophrenic disorder in2001. Given the multifaceted manifestation of her symptoms, the bizarre subjects of her delusions, her varied hallucinations, her total lack of motivation, her complete social withdrawal, her total loss of the capability to perform socially and of the ability to take care of herself, this had to be classified as undifferentiated schizophrenia. The applicant’s schizophrenic disorder was chronic, she had no awareness of suffering from a disorder and did not accept the necessary treatment. She had repeatedly and without authorisation stopped taking the prescribed medication in the past. At the time of the offence, the applicant had been overcome by her disorder to such an extent that she had no longer had any connection to reality, which is why she had no longer been able to assess the situation in a way that would conform to reality, or to make deliberate decisions or draw conclusions which were not influenced by her disorder. DrA.K. concluded that, consequently, the applicant had not been criminally liable. With respect to acts of aggression in the future, she considered that the applicant had to be classified as high-risk, as a consequence of, among other things, her lack of awareness of suffering from a disorder, her negative attitude towards treatment, the vast range of existing active symptoms, her documented difficulty in controlling her impulses and the lack of success in treatment so far. This was likely to present a danger to neighbours, caregivers and police officers who could become random victims of serious attacks. DrA.K. finally noted that the medical requirements for confinement under Article21 §1 of the Criminal Code (see paragraph28 below) were met as mere outpatient treatment would not be sufficient at that time.\n17.On 19 April 2017 the Linz public prosecutor’s office, on the basis of DrA.K.’s expert opinion, replaced the criminal charges against the applicant (see paragraph13 above) with a request for her detention as a preventive measure, that is her confinement in an institution for mentally ill offenders (Einweisung in eine Anstalt für geistig abnorme Rechtsbrecher) under Article21§1 of the Criminal Code (see paragraph28 below). The applicant was arrested on 8May2017 and, on the following day, was again taken to the Neuromed Campus of the Kepler University Clinic. The Linz Regional Court ordered her provisional detention (vorläufige Anhaltung) under Article429 §4 of the Code of Criminal Procedure (see paragraph34 below).\n18.During the trial hearing of 8 August 2017, the applicant, represented by a new defence lawyer, was examined, as were the witnesses, and all of the above‑mentioned expert opinions (see paragraphs7, 9, 12 and16 above) were read out. DrA.K. explained her opinion in detail, maintaining it in full and addressing the opinions submitted by DrW.S. and DrM.F. with regard to the differences in their conclusions.\n19.By a judgment of 8 August 2017, the Linz Regional Court held that the applicant had committed an offence which, had she been criminally liable at the time of the offence, would have had to be attributed to her as the offence of attempted resistance to State authority under Article15 §1 and Article269 §1 of the Criminal Code (see paragraphs27 and31 below). Furthermore, the applicant had committed this offence under the influence of a state of mind which excluded criminal liability under Article11 of the Criminal Code (see paragraph26 below), resulting from a serious mental or emotional disorder, namely undifferentiated schizophrenia. As it had to be feared that the applicant would commit further punishable offences with serious consequences, the court ordered her confinement in an institution for mentally ill offenders under Article21 §1 of the Criminal Code (see paragraph28 below). The court based its findings regarding the applicant’s criminal liability and dangerousness above all on the expert opinion provided by DrA.K., which was found to be conclusive and comprehensible and free from contradictions and uncertainties.\n20.The applicant lodged a plea of nullity (Nichtigkeitsbeschwerde) against the judgment and an appeal against the sentence, and a request to be permitted to produce evidence by obtaining a further psychiatric expert opinion under Article127 §3 of the Code of Criminal Procedure (see paragraph27 below), aimed at proving that she was not dangerous within the meaning of Article21§1 of the Criminal Code (see paragraph28 below). She also lodged an individual application to challenge the constitutionality of the law (Parteienantrag auf Normenkontrolle) with the Constitutional Court (Verfassungsgerichtshof).\n21.On 6 March 2018 the Constitutional Court declined to deal with the application for lack of prospects of success. It referred to the limits set by the legislature in Article21 §§1 and3 and Article25 §§1 and3 of the Criminal Code (see paragraphs28‑29 below) in respect of ordering preventive confinement, and those with regard to persons remaining in preventive confinement which, with due consideration being given to the dangerousness of the person concerned, prevented disproportionate confinement in an institution. It further found that the statutory rules of Article21 §1 of the Criminal Code (see paragraph28 below) were not indeterminate or arbitrary, and that the legislature had thus made use of its discretion in a manner which was irreproachable under constitutional law.\n22.On 27 June 2018 the Supreme Court (Oberster Gerichtshof) rejected the applicant’s plea of nullity and referred the case to the Linz Court of Appeal (Oberlandesgericht) for a decision on the appeal. It considered that the applicant had presented arguments for an appeal but not for nullity; further, the applicant had failed to lodge a request under the first sentence of Article127 §3 of the Code of Criminal Procedure (see paragraph27 below), in accordance with which doubts about the expertise of an expert must first be dispelled by questioning the expert in question, and if this failed to achieve the desired result, by consulting another expert.\n23.On 6 August 2018 the Linz Court of Appeal dismissed the applicant’s request to be permitted to produce evidence by obtaining a further psychiatric expert opinion. It considered that the Regional Court had already correctly pointed out why the earlier expert opinions, geared towards different statutory requirements, had not been able to call into question the expert opinion obtained in the present proceedings and based on an in-person examination. There was thus no contradiction between the expert opinions and there were no deficiencies in terms of substance within the meaning of Article127 §3 of the Code of Criminal Procedure (see paragraph27 below) which would have necessitated a further expert opinion.\n24.Given the lapse of time since the preparation of the most recent expert opinion (see paragraph16 above), the Court of Appeal requested a supplementary opinion thereto on the question whether the requirements for conditional release were (now) met. On 30July 2018 DrA.K. found – after another face‑to‑face examination – that the applicant was still suffering from undifferentiated schizophrenia and was, at that time, not in remission. She further maintained her previous conclusions, including that there was a still a high probability of offences with serious consequences being committed in the future and that therefore, the psychiatric requirements for confinement in an institution under Article21 §1 of the Criminal Code (see paragraph28 below) were met. On this basis, the Court of Appeal held that conditional suspension of confinement was not a viable option at the time.\n25.On 15 October 2020 the Linz Regional Court ordered the applicant’s conditional release by 30October 2020, imposing specific requirements and a probationary period of five years. No further details about the applicant’s mental health condition or the expert opinions obtained in the context of her release were provided by the parties.", "72": "Allegation: 5, 6, 14\n2.The applicant was born in 1964 and lives in Linz. She was represented by Mr H. Graupner and MrJ. Ph.Bischof, lawyers practising in Vienna.\n3.The Government were represented by their Agent, Ambassador H.Tichy, Head of the International Law Department at the Federal Ministry for European and International Affairs.\n4.The facts of the case, as submitted by the parties, may be summarised as follows.\n5.On the night of 7 May 2016, a taxi driver notified the police because his passenger, the applicant, said that she could not pay the fare as she did not have any cash with her and had forgotten the PIN number for her debit card. The police officers arriving at the scene explained the next steps to the applicant, namely that her personal details would be recorded and that she could pay the fare the next day, but failure to do so would result in a complaint being filed against her. The applicant then became agitated and started to shout at the police officers. As they could not calm her down, they told her that she was being arrested. The applicant attempted to resist arrest by repeatedly hitting the chest of one of the police officers with her hands. Although she applied a certain physical force, she did not injure the police officer. She was subsequently arrested and later examined by the medical officer (Amtsarzt) who indicated that she was fit to undergo detention and had the legal capacity to commit an offence (Haft- und Deliktsfähigkeit), but added that this could not be determined with absolute certainty. On the grounds that the applicant had psychotic episodes and was a danger to others when she had such a flare-up of aggression, the medical officer ordered the applicant’s committal to hospital (Parere). The arrest by the police was revoked after the public prosecutor ordered that charges be pressed against the applicant without an arrest being made.\n6.Still on the same day, 7 May 2016, the applicant was taken to the Neuromed Campus of the Kepler University Clinic. The placement proceedings (Unterbringungsverfahren) conducted there by the Linz District Court (Bezirksgericht) led to the applicant being placed in the high-security ward under the Act on the Placement of Mentally Ill Persons in Hospitals (Hospitalisation Act) (Bundesgesetz über die Unterbringung psychisch Kranker in Krankenanstalten, Unterbringungsgesetz). DrM.F., a specialist in psychiatry and neurology, was commissioned to submit an expert opinion on the question whether the applicant met the requirements for a placement, as set out in section3(1) and(2) of the above‑mentioned Act (see paragraph35 below).\n7.In an expert opinion of 17 May 2016, DrM.F. concluded that the requirements for such a placement were met. The applicant was known to have been suffering from a schizoaffective disorder for years, with the first known institutional inpatient stay dating back to 2006, although she denied any such incidents or any mental disorder. Elements of danger to third parties due to psychosis were present, with the applicant acting as if she was out of touch with reality, and showing an inclination towards aggressive reactions. Given the applicant’s lack of awareness of the fact that she was suffering from a disorder, and her lack of understanding of her need for treatment, DrM.F. considered that a voluntary hospital stay was not an option.\n8.On 23 May 2016 the Linz District Court ordered the applicant’s placement until 20June 2016, on which date the placement was terminated.\n9.On 24 November 2016 further placement proceedings were instituted against the applicant by the Linz District Court, after her neighbours had alerted the police as the applicant had, in her apartment, been ranting and raging, talking to herself, and having paranoid ideas and fantasies about killing. In a (second) expert opinion of 15January 2017, DrM.F. concluded that the applicant had been suffering from a mental disorder for many years, which now had to be classified as “paranoid schizophrenia”. As the applicant had recently agreed to taking medication, it was to be assumed that the requirements for a placement, specifically the elements of being a danger to others, would not continue beyond the date of the upcoming hearing. The applicant’s second placement lasted from 24November 2016 until 23January 2017, on which date that placement was terminated.\n10.On 11 October 2016, that is, prior to the second placement proceedings (see paragraph9 above), the Linz public prosecutor’s office (Staatsanwaltschaft) instigated preliminary proceedings against the applicant for the offences of attempted resistance to State authority (Widerstand gegen die Staatsgewalt), under Articles15 and 269 of the Criminal Code (see paragraphs27 and31 below), and fraud (Betrug), under Article146 of the Criminal Code (see paragraph30 below), in connection with the incident of 7May 2016 (see paragraph5 above).\n11.DrW.S., a specialist in neurology and psychiatry, was appointed as the psychiatric expert and was commissioned to submit his findings on whether the applicant had been criminally liable under Article11 of the Criminal Code (see paragraph26 below) at the time of the offence on 7May 2016, and on whether the requirements for confinement in an institution for mentally ill offenders under Article21 § 1 or Article21 §2 of the Criminal Code (see paragraph28 below) were met, in particular how far offences with serious consequences, such as grievous bodily harm or death threats, would have to be expected in the future.\n12.In an expert opinion prepared on 16November 2016 and formally submitted on 7December 2016, which was based on the files alone, because he was not able to carry out a face‑to‑face examination as the applicant did not obey a summons to her examination shortly before her second placement began (see paragraph9 above), DrW.S. concluded that the applicant suffered from a schizoaffective disorder. Judging by her ability to control her actions (Steuerungsfähigkeit), she had, at the time of the offence, been closer to not being criminally liable than to being liable. However, her ability to act in accordance with an understanding of the wrongfulness of her actions (Dispositionsfähigkeit) had not been totally absent. The applicant had thus been criminally liable at the time of the offence. The offence she had been charged with (resisting the police) was not the result of any serious mental or emotional disorder (seelisch-geistige Abartigkeit). DrW.S. concluded that he was not able to make any prognosis about any future offences with serious consequences.\n13.On 5 January 2017, that is during the applicant’s second placement (see paragraph9 above), the Linz public prosecutor’s office charged the applicant with the offence of attempted resistance to State authority under Article15 §1 and Article269 §1 of the Criminal Code (see paragraphs27 and31 below).\n14.In a submission of 9 February 2017, the applicant’s defence lawyer lodged a request to be permitted to produce evidence by obtaining a psychiatric and neurological expert opinion aimed at proving that, at the time of the offence, the applicant had lacked capacity for criminal responsibility as defined in Article11 of the Criminal Code (see paragraph26 below). He argued that DrW.S. had not personally examined the applicant, and objected to his expert opinion being used and the same expert being commissioned again. He reiterated that request during the trial hearing of 13February 2017 before the Linz Regional Court (Landesgericht).\n15.The Regional Court acceded to the request and ordered another psychiatric expert opinion. In its reasoning, it held that the new expert opinion was commissioned because the opinion provided by DrM.F. in the first placement proceedings (see paragraph7 above) had stated that elements of being a danger to others owing to psychosis had been present; moreover, the applicant had had to undergo another inpatient stay in hospital (see paragraph9 above) after Dr W.S. had prepared his expert opinion.\n16.On 1 April 2017, Dr A.K., a specialist in psychiatry and neurology and head of the Forensic Department of the Neuromed Campus of the University Clinic Linz and authorised to teach at university on the basis of a post‑doctoral lecturing qualification (venia docendi), submitted her twenty‑nine‑page long expert opinion based on her own examination of the applicant. She concluded that the applicant had already been suffering from a schizophrenic disorder in2001. Given the multifaceted manifestation of her symptoms, the bizarre subjects of her delusions, her varied hallucinations, her total lack of motivation, her complete social withdrawal, her total loss of the capability to perform socially and of the ability to take care of herself, this had to be classified as undifferentiated schizophrenia. The applicant’s schizophrenic disorder was chronic, she had no awareness of suffering from a disorder and did not accept the necessary treatment. She had repeatedly and without authorisation stopped taking the prescribed medication in the past. At the time of the offence, the applicant had been overcome by her disorder to such an extent that she had no longer had any connection to reality, which is why she had no longer been able to assess the situation in a way that would conform to reality, or to make deliberate decisions or draw conclusions which were not influenced by her disorder. DrA.K. concluded that, consequently, the applicant had not been criminally liable. With respect to acts of aggression in the future, she considered that the applicant had to be classified as high-risk, as a consequence of, among other things, her lack of awareness of suffering from a disorder, her negative attitude towards treatment, the vast range of existing active symptoms, her documented difficulty in controlling her impulses and the lack of success in treatment so far. This was likely to present a danger to neighbours, caregivers and police officers who could become random victims of serious attacks. DrA.K. finally noted that the medical requirements for confinement under Article21 §1 of the Criminal Code (see paragraph28 below) were met as mere outpatient treatment would not be sufficient at that time.\n17.On 19 April 2017 the Linz public prosecutor’s office, on the basis of DrA.K.’s expert opinion, replaced the criminal charges against the applicant (see paragraph13 above) with a request for her detention as a preventive measure, that is her confinement in an institution for mentally ill offenders (Einweisung in eine Anstalt für geistig abnorme Rechtsbrecher) under Article21§1 of the Criminal Code (see paragraph28 below). The applicant was arrested on 8May2017 and, on the following day, was again taken to the Neuromed Campus of the Kepler University Clinic. The Linz Regional Court ordered her provisional detention (vorläufige Anhaltung) under Article429 §4 of the Code of Criminal Procedure (see paragraph34 below).\n18.During the trial hearing of 8 August 2017, the applicant, represented by a new defence lawyer, was examined, as were the witnesses, and all of the above‑mentioned expert opinions (see paragraphs7, 9, 12 and16 above) were read out. DrA.K. explained her opinion in detail, maintaining it in full and addressing the opinions submitted by DrW.S. and DrM.F. with regard to the differences in their conclusions.\n19.By a judgment of 8 August 2017, the Linz Regional Court held that the applicant had committed an offence which, had she been criminally liable at the time of the offence, would have had to be attributed to her as the offence of attempted resistance to State authority under Article15 §1 and Article269 §1 of the Criminal Code (see paragraphs27 and31 below). Furthermore, the applicant had committed this offence under the influence of a state of mind which excluded criminal liability under Article11 of the Criminal Code (see paragraph26 below), resulting from a serious mental or emotional disorder, namely undifferentiated schizophrenia. As it had to be feared that the applicant would commit further punishable offences with serious consequences, the court ordered her confinement in an institution for mentally ill offenders under Article21 §1 of the Criminal Code (see paragraph28 below). The court based its findings regarding the applicant’s criminal liability and dangerousness above all on the expert opinion provided by DrA.K., which was found to be conclusive and comprehensible and free from contradictions and uncertainties.\n20.The applicant lodged a plea of nullity (Nichtigkeitsbeschwerde) against the judgment and an appeal against the sentence, and a request to be permitted to produce evidence by obtaining a further psychiatric expert opinion under Article127 §3 of the Code of Criminal Procedure (see paragraph27 below), aimed at proving that she was not dangerous within the meaning of Article21§1 of the Criminal Code (see paragraph28 below). She also lodged an individual application to challenge the constitutionality of the law (Parteienantrag auf Normenkontrolle) with the Constitutional Court (Verfassungsgerichtshof).\n21.On 6 March 2018 the Constitutional Court declined to deal with the application for lack of prospects of success. It referred to the limits set by the legislature in Article21 §§1 and3 and Article25 §§1 and3 of the Criminal Code (see paragraphs28‑29 below) in respect of ordering preventive confinement, and those with regard to persons remaining in preventive confinement which, with due consideration being given to the dangerousness of the person concerned, prevented disproportionate confinement in an institution. It further found that the statutory rules of Article21 §1 of the Criminal Code (see paragraph28 below) were not indeterminate or arbitrary, and that the legislature had thus made use of its discretion in a manner which was irreproachable under constitutional law.\n22.On 27 June 2018 the Supreme Court (Oberster Gerichtshof) rejected the applicant’s plea of nullity and referred the case to the Linz Court of Appeal (Oberlandesgericht) for a decision on the appeal. It considered that the applicant had presented arguments for an appeal but not for nullity; further, the applicant had failed to lodge a request under the first sentence of Article127 §3 of the Code of Criminal Procedure (see paragraph27 below), in accordance with which doubts about the expertise of an expert must first be dispelled by questioning the expert in question, and if this failed to achieve the desired result, by consulting another expert.\n23.On 6 August 2018 the Linz Court of Appeal dismissed the applicant’s request to be permitted to produce evidence by obtaining a further psychiatric expert opinion. It considered that the Regional Court had already correctly pointed out why the earlier expert opinions, geared towards different statutory requirements, had not been able to call into question the expert opinion obtained in the present proceedings and based on an in-person examination. There was thus no contradiction between the expert opinions and there were no deficiencies in terms of substance within the meaning of Article127 §3 of the Code of Criminal Procedure (see paragraph27 below) which would have necessitated a further expert opinion.\n24.Given the lapse of time since the preparation of the most recent expert opinion (see paragraph16 above), the Court of Appeal requested a supplementary opinion thereto on the question whether the requirements for conditional release were (now) met. On 30July 2018 DrA.K. found – after another face‑to‑face examination – that the applicant was still suffering from undifferentiated schizophrenia and was, at that time, not in remission. She further maintained her previous conclusions, including that there was a still a high probability of offences with serious consequences being committed in the future and that therefore, the psychiatric requirements for confinement in an institution under Article21 §1 of the Criminal Code (see paragraph28 below) were met. On this basis, the Court of Appeal held that conditional suspension of confinement was not a viable option at the time.\n25.On 15 October 2020 the Linz Regional Court ordered the applicant’s conditional release by 30October 2020, imposing specific requirements and a probationary period of five years. No further details about the applicant’s mental health condition or the expert opinions obtained in the context of her release were provided by the parties.", "73": "Allegation: 5, 6, 14\n2.The applicant was born in 1964 and lives in Linz. She was represented by Mr H. Graupner and MrJ. Ph.Bischof, lawyers practising in Vienna.\n3.The Government were represented by their Agent, Ambassador H.Tichy, Head of the International Law Department at the Federal Ministry for European and International Affairs.\n4.The facts of the case, as submitted by the parties, may be summarised as follows.\n5.On the night of 7 May 2016, a taxi driver notified the police because his passenger, the applicant, said that she could not pay the fare as she did not have any cash with her and had forgotten the PIN number for her debit card. The police officers arriving at the scene explained the next steps to the applicant, namely that her personal details would be recorded and that she could pay the fare the next day, but failure to do so would result in a complaint being filed against her. The applicant then became agitated and started to shout at the police officers. As they could not calm her down, they told her that she was being arrested. The applicant attempted to resist arrest by repeatedly hitting the chest of one of the police officers with her hands. Although she applied a certain physical force, she did not injure the police officer. She was subsequently arrested and later examined by the medical officer (Amtsarzt) who indicated that she was fit to undergo detention and had the legal capacity to commit an offence (Haft- und Deliktsfähigkeit), but added that this could not be determined with absolute certainty. On the grounds that the applicant had psychotic episodes and was a danger to others when she had such a flare-up of aggression, the medical officer ordered the applicant’s committal to hospital (Parere). The arrest by the police was revoked after the public prosecutor ordered that charges be pressed against the applicant without an arrest being made.\n6.Still on the same day, 7 May 2016, the applicant was taken to the Neuromed Campus of the Kepler University Clinic. The placement proceedings (Unterbringungsverfahren) conducted there by the Linz District Court (Bezirksgericht) led to the applicant being placed in the high-security ward under the Act on the Placement of Mentally Ill Persons in Hospitals (Hospitalisation Act) (Bundesgesetz über die Unterbringung psychisch Kranker in Krankenanstalten, Unterbringungsgesetz). DrM.F., a specialist in psychiatry and neurology, was commissioned to submit an expert opinion on the question whether the applicant met the requirements for a placement, as set out in section3(1) and(2) of the above‑mentioned Act (see paragraph35 below).\n7.In an expert opinion of 17 May 2016, DrM.F. concluded that the requirements for such a placement were met. The applicant was known to have been suffering from a schizoaffective disorder for years, with the first known institutional inpatient stay dating back to 2006, although she denied any such incidents or any mental disorder. Elements of danger to third parties due to psychosis were present, with the applicant acting as if she was out of touch with reality, and showing an inclination towards aggressive reactions. Given the applicant’s lack of awareness of the fact that she was suffering from a disorder, and her lack of understanding of her need for treatment, DrM.F. considered that a voluntary hospital stay was not an option.\n8.On 23 May 2016 the Linz District Court ordered the applicant’s placement until 20June 2016, on which date the placement was terminated.\n9.On 24 November 2016 further placement proceedings were instituted against the applicant by the Linz District Court, after her neighbours had alerted the police as the applicant had, in her apartment, been ranting and raging, talking to herself, and having paranoid ideas and fantasies about killing. In a (second) expert opinion of 15January 2017, DrM.F. concluded that the applicant had been suffering from a mental disorder for many years, which now had to be classified as “paranoid schizophrenia”. As the applicant had recently agreed to taking medication, it was to be assumed that the requirements for a placement, specifically the elements of being a danger to others, would not continue beyond the date of the upcoming hearing. The applicant’s second placement lasted from 24November 2016 until 23January 2017, on which date that placement was terminated.\n10.On 11 October 2016, that is, prior to the second placement proceedings (see paragraph9 above), the Linz public prosecutor’s office (Staatsanwaltschaft) instigated preliminary proceedings against the applicant for the offences of attempted resistance to State authority (Widerstand gegen die Staatsgewalt), under Articles15 and 269 of the Criminal Code (see paragraphs27 and31 below), and fraud (Betrug), under Article146 of the Criminal Code (see paragraph30 below), in connection with the incident of 7May 2016 (see paragraph5 above).\n11.DrW.S., a specialist in neurology and psychiatry, was appointed as the psychiatric expert and was commissioned to submit his findings on whether the applicant had been criminally liable under Article11 of the Criminal Code (see paragraph26 below) at the time of the offence on 7May 2016, and on whether the requirements for confinement in an institution for mentally ill offenders under Article21 § 1 or Article21 §2 of the Criminal Code (see paragraph28 below) were met, in particular how far offences with serious consequences, such as grievous bodily harm or death threats, would have to be expected in the future.\n12.In an expert opinion prepared on 16November 2016 and formally submitted on 7December 2016, which was based on the files alone, because he was not able to carry out a face‑to‑face examination as the applicant did not obey a summons to her examination shortly before her second placement began (see paragraph9 above), DrW.S. concluded that the applicant suffered from a schizoaffective disorder. Judging by her ability to control her actions (Steuerungsfähigkeit), she had, at the time of the offence, been closer to not being criminally liable than to being liable. However, her ability to act in accordance with an understanding of the wrongfulness of her actions (Dispositionsfähigkeit) had not been totally absent. The applicant had thus been criminally liable at the time of the offence. The offence she had been charged with (resisting the police) was not the result of any serious mental or emotional disorder (seelisch-geistige Abartigkeit). DrW.S. concluded that he was not able to make any prognosis about any future offences with serious consequences.\n13.On 5 January 2017, that is during the applicant’s second placement (see paragraph9 above), the Linz public prosecutor’s office charged the applicant with the offence of attempted resistance to State authority under Article15 §1 and Article269 §1 of the Criminal Code (see paragraphs27 and31 below).\n14.In a submission of 9 February 2017, the applicant’s defence lawyer lodged a request to be permitted to produce evidence by obtaining a psychiatric and neurological expert opinion aimed at proving that, at the time of the offence, the applicant had lacked capacity for criminal responsibility as defined in Article11 of the Criminal Code (see paragraph26 below). He argued that DrW.S. had not personally examined the applicant, and objected to his expert opinion being used and the same expert being commissioned again. He reiterated that request during the trial hearing of 13February 2017 before the Linz Regional Court (Landesgericht).\n15.The Regional Court acceded to the request and ordered another psychiatric expert opinion. In its reasoning, it held that the new expert opinion was commissioned because the opinion provided by DrM.F. in the first placement proceedings (see paragraph7 above) had stated that elements of being a danger to others owing to psychosis had been present; moreover, the applicant had had to undergo another inpatient stay in hospital (see paragraph9 above) after Dr W.S. had prepared his expert opinion.\n16.On 1 April 2017, Dr A.K., a specialist in psychiatry and neurology and head of the Forensic Department of the Neuromed Campus of the University Clinic Linz and authorised to teach at university on the basis of a post‑doctoral lecturing qualification (venia docendi), submitted her twenty‑nine‑page long expert opinion based on her own examination of the applicant. She concluded that the applicant had already been suffering from a schizophrenic disorder in2001. Given the multifaceted manifestation of her symptoms, the bizarre subjects of her delusions, her varied hallucinations, her total lack of motivation, her complete social withdrawal, her total loss of the capability to perform socially and of the ability to take care of herself, this had to be classified as undifferentiated schizophrenia. The applicant’s schizophrenic disorder was chronic, she had no awareness of suffering from a disorder and did not accept the necessary treatment. She had repeatedly and without authorisation stopped taking the prescribed medication in the past. At the time of the offence, the applicant had been overcome by her disorder to such an extent that she had no longer had any connection to reality, which is why she had no longer been able to assess the situation in a way that would conform to reality, or to make deliberate decisions or draw conclusions which were not influenced by her disorder. DrA.K. concluded that, consequently, the applicant had not been criminally liable. With respect to acts of aggression in the future, she considered that the applicant had to be classified as high-risk, as a consequence of, among other things, her lack of awareness of suffering from a disorder, her negative attitude towards treatment, the vast range of existing active symptoms, her documented difficulty in controlling her impulses and the lack of success in treatment so far. This was likely to present a danger to neighbours, caregivers and police officers who could become random victims of serious attacks. DrA.K. finally noted that the medical requirements for confinement under Article21 §1 of the Criminal Code (see paragraph28 below) were met as mere outpatient treatment would not be sufficient at that time.\n17.On 19 April 2017 the Linz public prosecutor’s office, on the basis of DrA.K.’s expert opinion, replaced the criminal charges against the applicant (see paragraph13 above) with a request for her detention as a preventive measure, that is her confinement in an institution for mentally ill offenders (Einweisung in eine Anstalt für geistig abnorme Rechtsbrecher) under Article21§1 of the Criminal Code (see paragraph28 below). The applicant was arrested on 8May2017 and, on the following day, was again taken to the Neuromed Campus of the Kepler University Clinic. The Linz Regional Court ordered her provisional detention (vorläufige Anhaltung) under Article429 §4 of the Code of Criminal Procedure (see paragraph34 below).\n18.During the trial hearing of 8 August 2017, the applicant, represented by a new defence lawyer, was examined, as were the witnesses, and all of the above‑mentioned expert opinions (see paragraphs7, 9, 12 and16 above) were read out. DrA.K. explained her opinion in detail, maintaining it in full and addressing the opinions submitted by DrW.S. and DrM.F. with regard to the differences in their conclusions.\n19.By a judgment of 8 August 2017, the Linz Regional Court held that the applicant had committed an offence which, had she been criminally liable at the time of the offence, would have had to be attributed to her as the offence of attempted resistance to State authority under Article15 §1 and Article269 §1 of the Criminal Code (see paragraphs27 and31 below). Furthermore, the applicant had committed this offence under the influence of a state of mind which excluded criminal liability under Article11 of the Criminal Code (see paragraph26 below), resulting from a serious mental or emotional disorder, namely undifferentiated schizophrenia. As it had to be feared that the applicant would commit further punishable offences with serious consequences, the court ordered her confinement in an institution for mentally ill offenders under Article21 §1 of the Criminal Code (see paragraph28 below). The court based its findings regarding the applicant’s criminal liability and dangerousness above all on the expert opinion provided by DrA.K., which was found to be conclusive and comprehensible and free from contradictions and uncertainties.\n20.The applicant lodged a plea of nullity (Nichtigkeitsbeschwerde) against the judgment and an appeal against the sentence, and a request to be permitted to produce evidence by obtaining a further psychiatric expert opinion under Article127 §3 of the Code of Criminal Procedure (see paragraph27 below), aimed at proving that she was not dangerous within the meaning of Article21§1 of the Criminal Code (see paragraph28 below). She also lodged an individual application to challenge the constitutionality of the law (Parteienantrag auf Normenkontrolle) with the Constitutional Court (Verfassungsgerichtshof).\n21.On 6 March 2018 the Constitutional Court declined to deal with the application for lack of prospects of success. It referred to the limits set by the legislature in Article21 §§1 and3 and Article25 §§1 and3 of the Criminal Code (see paragraphs28‑29 below) in respect of ordering preventive confinement, and those with regard to persons remaining in preventive confinement which, with due consideration being given to the dangerousness of the person concerned, prevented disproportionate confinement in an institution. It further found that the statutory rules of Article21 §1 of the Criminal Code (see paragraph28 below) were not indeterminate or arbitrary, and that the legislature had thus made use of its discretion in a manner which was irreproachable under constitutional law.\n22.On 27 June 2018 the Supreme Court (Oberster Gerichtshof) rejected the applicant’s plea of nullity and referred the case to the Linz Court of Appeal (Oberlandesgericht) for a decision on the appeal. It considered that the applicant had presented arguments for an appeal but not for nullity; further, the applicant had failed to lodge a request under the first sentence of Article127 §3 of the Code of Criminal Procedure (see paragraph27 below), in accordance with which doubts about the expertise of an expert must first be dispelled by questioning the expert in question, and if this failed to achieve the desired result, by consulting another expert.\n23.On 6 August 2018 the Linz Court of Appeal dismissed the applicant’s request to be permitted to produce evidence by obtaining a further psychiatric expert opinion. It considered that the Regional Court had already correctly pointed out why the earlier expert opinions, geared towards different statutory requirements, had not been able to call into question the expert opinion obtained in the present proceedings and based on an in-person examination. There was thus no contradiction between the expert opinions and there were no deficiencies in terms of substance within the meaning of Article127 §3 of the Code of Criminal Procedure (see paragraph27 below) which would have necessitated a further expert opinion.\n24.Given the lapse of time since the preparation of the most recent expert opinion (see paragraph16 above), the Court of Appeal requested a supplementary opinion thereto on the question whether the requirements for conditional release were (now) met. On 30July 2018 DrA.K. found – after another face‑to‑face examination – that the applicant was still suffering from undifferentiated schizophrenia and was, at that time, not in remission. She further maintained her previous conclusions, including that there was a still a high probability of offences with serious consequences being committed in the future and that therefore, the psychiatric requirements for confinement in an institution under Article21 §1 of the Criminal Code (see paragraph28 below) were met. On this basis, the Court of Appeal held that conditional suspension of confinement was not a viable option at the time.\n25.On 15 October 2020 the Linz Regional Court ordered the applicant’s conditional release by 30October 2020, imposing specific requirements and a probationary period of five years. No further details about the applicant’s mental health condition or the expert opinions obtained in the context of her release were provided by the parties.", "74": "Allegation: 11\n2.The years of the applicants’ birth, registration or establishment and their places of residence or seat are indicated in the appended table. They were represented by MrW.Däubler, Dußlingen (first applicant), MrF.Schorkopf, Göttingen (second applicant) and Mr U. Fischer, Frankfurt a.M. (applicants in the third to fifth applications).\n3.The Government were represented by one of their Agents, MrH.‑J.Behrens, of the Federal Ministry of Justice and Consumer Protection, and by Mr T. Giegerich, Professor at Saarland University.\n4.The facts of the case, as submitted by the parties, may be summarised as follows.\n5.The first applicant, Association of Civil Servants and Union for Collective Bargaining (Beamtenbund und Tarifunion (dbb)), is a confederation of trade unions and associations of the public service and the private service sector. One of its missions is to negotiate collective agreements for the members of its member unions.\n6.The second applicant, Marburger Bund – Association of Employed and State-employed Physicians in Germany, concludes collective agreements for its members, employed physicians, since 2006.\n7.The third applicant, the Trade Union of German Train Drivers (GDL) is the oldest trade union in Germany, whose mission it is to conclude collective agreements for its members, railway traffic employees.\n8.The applicants in the fourth case (Ms Melanie Angert and others) and in the fifth application (Mr Sven Ratih) are members of the third applicant trade union.\n9.A company may negotiate with different trade unions representing employees of that company and may conclude several collective agreements covering employees working in the same business unit of the company (Betrieb) with these trade unions. This may lead to conflicts where several collective agreements with diverging provisions cover employees in similar positions in that business unit (these are known as “conflicting collective agreements”). In that event, the Federal Labour Court had initially considered in its case-law, from 1957 onwards, that only the collective agreement which was most specifically tailored to the business unit in question remained applicable. In 2010 that court reversed its case-law (to which there had previously been some exceptions), which it then considered to lack a sufficient legal basis, and permitted different collective agreements to apply to employees in similar positions in one business unit of a company, depending on the relevant employee’s trade union membership.\n10.On 3 July 2015, consequently, the legislature adopted the Uniformity of Collective Agreements Act, which entered into force on 10 July 2015, to provide for a new solution in case of conflicting collective agreements. Under this Act, which, in particular, inserted a new section 4a into the Collective Agreements Act (Tarifvertragsgesetz, see paragraph 27 below), only the collective agreement concluded by the trade union which has the highest number of members employed within the business unit of the company concerned remains applicable; other collective agreements become inapplicable (section 4a § 2, second sentence).\n11.The union whose collective agreement became inapplicable has the right to adopt the legal provisions of the majority union’s collective agreement (Nachzeichnung). Moreover, if the employing company engages in collective bargaining, it has to inform the other trade unions in that company, and all unions have the right to present their demands to the employer (section 4a §§ 4 and 5 of the Collective Agreements Act; see details in paragraph 27 below).\n12.Furthermore, the Uniformity of Collective Agreements Act inserted sections 2a § 1 no. 6 and 99 into the Labour Courts Act (see in detail paragraph 30 below). They establish the procedure for determining which of the conflicting collective agreements is applicable in a given business unit.\n13.The applicants lodged a constitutional complaint with the Federal Constitutional Court directly targeting the Uniformity of Collective Agreements Act, arguing that the legal provisions as amended by this Act breached, in particular, their right to form associations to safeguard and improve working and economic conditions under Article 9 § 3 of the Basic Law.\n14.In a leading judgment of 11 July 2017 on the first and second applicants’ constitutional complaints, inter alia, the Federal Constitutional Court found, by six votes to two, that section 4a of the Collective Agreements Act as amended by the Uniformity of Collective Agreements Act was incompatible with Article 9 § 3 of the Basic Law in one respect only. The provision did not contain sufficient safeguards to ensure that the interests of those professional groups whose collective agreement became inapplicable under section 4a §2, second sentence, were sufficiently taken into account in the applicable collective agreement. Apart from this, the Uniformity of Collective Agreements Act, interpreted in line with the reasons given in the Constitutional Court’s judgment, was compatible with the Basic Law, and the applicants’ constitutional complaints were thus essentially dismissed (fileno.1 BvR 1571/15 and others).\n15.The Federal Constitutional Court found that the first and second applicants had themselves been directly affected, already at that stage, by the impugned provisions, as the latter had required them to take into account, in their current collective bargaining policy and organisational structure, the potential inapplicability of any future collective agreements negotiated by them. They therefore had standing to lodge a constitutional complaint.\n16.The court further found that section 4a § 2, second sentence, of the Collective Agreements Act considerably impaired the right to form associations to safeguard and improve working and economic conditions under Article 9 § 3 of the Basic Law. The provision led to the inapplicability of the provisions of a collective agreement resulting from a trade union’s collective bargaining. The members of the trade union in question were accordingly left without a collective agreement.\n17.Moreover, the provision led to trade unions which were in a minority position in a company no longer being considered as a serious collective bargaining partner by the employer. This weakened those trade unions’ ability to attract new members and to mobilise their members to strike. Furthermore, the trade unions’ freedom of association was impaired in that they might be obliged to disclose the number of their members in a business unit in labour court proceedings to determine the majority union (see section2a § 1 no. 6 and 99 of the Labour Courts Act, at paragraph 30 below), and thus their strength in the event of industrial action. Moreover, the provision affected their decisions on their negotiation policy and profile, and particularly on the professional groups they wished to represent. However, the provision did not curtail a trade union’s right to strike even where it was known in advance that the trade union taking industrial action had a smaller number of members than another trade union in the company concerned.\n18.The interferences with the right to freedom of association by the impugned provisions, interpreted in the light of the Basic Law, fell, for the most part, within the State’s margin of appreciation and were thus justified.\n19.Freedom of association could be restricted by legal provisions regulating the relationship between competing trade unions. The impugned provisions pursued the important legitimate aim of ensuring that a fair balance was struck in collective agreements on working and economic conditions and thus safeguarding the operation of the system of autonomous collective bargaining (Tarifautonomie). They aimed at influencing trade unions’ activities by encouraging them to cooperate and avoid negotiating different collective agreements for employees in similar positions. Fair collective bargaining would be jeopardised if employees with key positions in a business unit negotiated their working and economic conditions separately and thereby impaired the other employees’ ability to negotiate on an equal footing with the employer.\n20.The court stated that, in order to be proportionate, the impugned provisions had to be interpreted restrictively. Firstly, all parties to collective agreements in a business unit could agree on the agreement of a minority trade union not becoming inapplicable under section 4a § 2, second sentence, of the Collective Agreements Act where several conflicting collective agreements had been concluded. Furthermore, a collective agreement only became inapplicable in certain circumstances, that is to say if, and for as long as, there was an overlap with the majority union’s agreement as regards the place, time, business unit and employees’ position covered and if at least part of the provisions on working conditions differed in the agreements (conflicting collective agreements). Even where such a conflict occurred, long-term benefits or guarantees concerning the personal life planning agreed upon in a minority’s collective agreement, such as longer-term contributions to a pension, job guarantees or provisions on the duration of working life, could not be rendered inapplicable unless there was a comparable benefit or guarantee in the majority’s agreement.\n21.Moreover, the right to adopt the majority union’s collective agreement under section 4a § 4 of the Collective Agreements Act was to be interpreted broadly and applied to the majority’s agreement in its entirety and not only to the issues in respect of which the agreements overlapped. Furthermore, a collective agreement did not become inapplicable where the rules on notification of collective bargaining and on hearing other competing trade unions (section 4a § 5 of the Collective Agreements Act), which served to safeguard the minority unions’ rights under Article 9 § 3 of the Basic Law, had not been respected. Finally, the proceedings under section 99 of the Labour Courts Act had to be led in such a way as to avoid, as far as possible, disclosing the number of members in a given trade union. This could be achieved by a notary certifying only the fact which union organises the majority of employees in a business unit, without disclosing the names and number of members of the trade unions concerned.\n22.Section 4a § 2, second sentence, of the Collective Agreements Act was, however, disproportionate in so far as it did not provide for safeguards against neglecting the interests of employees in particular professions or sectors by the majority trade union (in which these employees may be un- or under-represented) in the collective agreement negotiated by that union. That provision remained applicable until it was amended by the legislature (until 31 December 2018 at the latest), with the proviso that a collective agreement could only become inapplicable if it had been substantiated that the majority trade union had seriously and effectively taken into account the interests of the professional groups whose collective agreement became inapplicable.\n23.Rules of public international law, including, inter alia, Article 11 of the Convention and the European Social Charter, contained no guarantees going beyond the protection provided by Article 9 § 3 of the Basic Law.\n24.By decision of 10 August 2017, served on counsel for the applicants on 28 September 2017, the Federal Constitutional Court, referring to its leading judgment of 11 July 2017, declined to consider the constitutional complaints by the applicants in the third to fifth applications (fileno.1BvR1803/15).", "75": "Allegation: 10\n2.The applicant was born in 1959 and lives in Nicosia. He was represented before the Court by Ms L. Cariolou and Mr C. Velaris, lawyers practising in Nicosia.\n3.The Government were represented by their Agent, Mr G. Savvides, Attorney General of the Republic of Cyprus.\n4.The facts of the case may be summarised as follows.\n5.The applicant is a journalist by profession. At the relevant time he wrote articles for Politis – a national daily newspaper – and had his own column entitled “ΕΝ-ΣΤΑΣΕΙΣ”, in which he commented on current political affairs.\n6.On 13 November 2001, following a recommendation of the Attorney General, the Public Service Commission decided to proceed with the compulsory retirement of S.P., who at the time was a high-ranking attorney in the Law Office of the Republic of Cyprus.\n7.On 31 January 2003, following a recourse (no. 1004/2001) lodged by the applicant, the Supreme Court set aside the Public Service Commission’s decision and S.P. was reinstated to his position as of that date.\n8.On 20 January 2005, following a request by S.P. to that effect, the Council of Ministers decided to extend his term of service by one year, for reasons of public interest. The decision noted that S.P. had been deprived of his right to exercise his duties in full during the fifteen months in which he had been removed from office, and that the Public Service Commission’s decision had been set aside by the Supreme Court.\n9.On 9 March 2005 Politis published an article entitled “They changed their mind” (“Άλλα έλεγαν τότε κι άλλα κάνουν σήμερα”). The gist of the article was that although in the past it had been the regular practice of the AKEL and DIKO parties to submit amendments during the voting of the State budget which were aimed at banning the employment of retired persons by the State, nonetheless, under the presidency of T.P. (former member of DIKO) and the support of ministers from AKEL, the Council of Ministers had extended the service of S.P. for one year beyond retirement age. According to the article, this was not the first time that the service of a public servant had been extended. However, what was now deemed a matter of “public interest” by the Council of Ministers had been considered in the past by the coalition government to be an “unacceptable form of political favour” (“απαράδεκτο είδος ρουσφετιού”). The article stated that, legal though that decision might have been, it was politically wrong (“Άλλο όμως η νομοθεσία και άλλο το ιερό και όσιο του κάθε ενός βουλευτή, υπουργού ή προέδρου της Δημοκρατίας και των κομμάτων”).\n10.On 9 March 2005 the same newspaper published an article containing the opinion of S.P., who believed that the main aim of the above-mentioned article had been to cause disruption and reduce the chances of his being appointed to the position of Attorney General. The Council of Ministers’ decision had been in accordance with the law and was similar to decisions in respect of other civil servants who had had their service extended.\n11.Other publications also reported the opinion of a politician who described the decision as a scandal and unlawful, as it did not serve the public interest.The General Secretary of the Pancyprian Public Employees’ Trade Union requested that the decision be declared void, complaining that the union had not been consulted on the matter – which constituted a breach of contractual agreement – and nor had the Attorney General. Other politicians highlighted the contradictions of the coalition government, characterised the decision as “a scandal” and “a peculiar case”, as it appeared to have been made in the absence of the Attorney General, or without having been requested by him, and that it had been aimed at favouring certain causes and had been driven by clientelism (“προφανέστατα εξυπηρετεί ευνοιοκρατικούς σκοπούς και σκοπιμότητες και υπηρετεί ουσιαστικά μια λογική πελατειακών σχέσεων”; “σε περιπτώσεις που κάποιοι θεωρούνται δικά μας παιδιά δείχνει μια ελαστικότητα, κατά την άποψή μου, ανεπίτρεπτη”).\n12.On the same day, the government spokesman explained that the decision whether to extend the term of office of a civil servant belonged to the Council of Ministers. It was fair that S.P. should be allowed to offer his services for a prescribed period given his absence from the service on account of the previous unlawful decision. On the question of whether the Attorney General had been consulted on the matter, he replied that he “[thought] that when the decision was taken, the Attorney General was abroad” (“νομίζω ότι όταν ελήφθη απόφαση ο Γενικός Εισαγγελέας έλειπε στο εξωτερικό”).\n13.On 10 March 2005 the applicant, a journalist by profession, published an article titled “The regime (of the south) promotes paranoia” in Politis. The article read as follows:\n“The Council of Ministers approved in secret the extension of service of the attorney of the Republic [S.P.] for reasons of public interest! No one knows what those reasons are. Attorney General [S.N.], [S.P.’s] superior, did not request such an extension. He was not even informed afterwards about the decision of the Council of Ministers. So much for the respect shown to the institutions by the current government. In his statements to the media, the interested party [S.P.] said that he himself had submitted a request to the Council of Ministers. He also said that because he had entered the service at the age of 33, it was not fair for him to retire at the age of 60! So, the public interest is whatever Mr [S.P.] feels is fair or unfair for himself.\nToday’s government is the most unreliable and inconsistent government Cyprus has ever had. With the votes of AKEL and DIKO [political parties that supported the coalition at the time], Parliament cut the salary of the secretary of the Council of Ministers [C.F.] during the presidency of [G.C.], when the government at the time had decided to extend his term of office. Now they are extending [S.P.’s] term of office because he is kissing up to [γλείφει] [D.C., the President of the House of Representatives], who is preparing him for the position of Attorney General! [S.P.] also complained that the opposition was making noise [δημιουργεί θόρυβο] in order to damage his candidacy for the position of Attorney General.\nWe don’t know if [T.P., the President of the Republic of Cyprus] will do that too. But, as we wrote yesterday, the current government has only one inviolable principle: the quid pro quo [Τη συναλλαγή]. Personally, I do not believe that [T.P.] has the slightest appreciation for [S.P.], nor would he have taken him into account if that decision had not been a part of a broader quid pro quo [συναλλαγή] with [D.C.].\nOnly if [S.P.] had not met the patriotic criteria would [T.P.] not have done a political favour [ρουσφέτι] for [D.C.]. But [S.P.] is the author of the great work, The Falsified Annan Plan and Rosemary’s Baby. For those who don’t know, Rosemary’s baby is the devil’s child. This 1,482-page book is a monument of incoherence and turbulent thought and was presented to the public by his friend [D.C]. Enjoy an excerpt from the book written by [S.P.]: ‘But, Mr President, [D.C.], friend of the Then and Then and in the Then-Then, I remember the things of the Then-Then, that you were saying and doing and proclaiming [λαλούσες] publicly and privately, both to the outside and to the inside, to those with a complex or without, the corrupted of the corruption ... [κομπλεξικά και μη διαπλεκόμενους της διαπλοκής].’\nThe problem, dear readers, is not the inconsistency of the reasons and actions of the duo [T.P.] and [D.C]. Nor is it the lack of respect for the institutions, or the favouritism [κουμπαροκρατία] and gerontocracy [γεροντοκρατία]. The problem is much more serious, and, I am afraid, incurable. The current regime – because it is a regime – spits on logic, insults common sense [λοιδορεί τη σωφροσύνη] and promotes paranoia. If you haven’t understood that, we are in deep trouble.”\n14.On 30 March 2005 S.P. brought civil defamation proceedings before the Nicosia District Court against the applicant and the publishing house of the newspaper Politis in relation to the article of 10 March 2005.\n15.It appears from S.P.’s and the applicant’s written submissions to the District Court that on 1 May 2008, while the proceedings were pending, S.P. was appointed to the position of Deputy Attorney General.\n16.S.P. argued that the article had been written in bad faith to damage his image and the public’s opinion of him; the extension of his service had been based on the law and was the result of the unfairness he had suffered owing to the unlawful termination of his service. According to S.P., he had only later realised from the articles in the newspaper that the Attorney General might not have been aware of the decision, but there was no such obligation to inform him under the law. He also asserted that his personal and professional reputation as an attorney, a writer and a person publishing articles concerning political, legal and current happenings in Cyprus had been harmed.\n17.The applicant argued that his article had been published in the context of a wider public debate concerning the extension of S.P.’s service. It had been aimed at criticising the inconsistencies of the coalition government and the political, as opposed to the legal, correctness of the decision to extend S.P.’s mandate, at a time when S.P. was also being considered for the post of Attorney General. He had written the article having regard to the previously published opinions on the matter, including that of S.P. He felt that the decision at issue had not respected the State institutions, as it appeared from the publications at the time that it had been made in the absence and without the prior knowledge of the Attorney General and had been supported by political parties which had strongly opposed similar actions in the past. He further argued that he had used strong expressions with the aim of shocking the reader and raising concern over the development of the country and the need to restore its institutions. He had therefore contributed to a political discussion in accordance with the duties of the press on a matter of public interest concerning a public person, and although his expressions might have been harsh or shocking, they should be afforded greater protection.\n18.The applicant also contended that the expression that S.P. had “kissed up” to D.C. had been used to indicate the close relationship between S.P. and D.C. He had based that opinion on information that he had borne in mind during that period, such as the fact that D.C. was the only person who had presented S.P.’s books to the public; that D.C. and his party, AKEL, had openly criticised the decision on S.P’s early retirement as an attempt to “eliminate” S.P.; that S.P. shared similar politically left-wing ideals with D.C.; and that in his books, S.P. had praised or excessively flattered D.C. while heavily criticising other politicians. On the basis of these facts, the applicant believed that D.C. wanted S.P. to be the next Attorney General. As regards the excerpt from S.P.’s book, according to the applicant, the entire book was hard to follow and contained incoherent language, hence the expression “monument of incoherence and turbulent thought”. The title of the article, as well as the terms “regime”, “spits on logic” and “promotes paranoia”, had been aimed at pointing out the contradictory actions of the two men, T.P. and D.C. The expression “patriotic criteria” was supported by the fact that both T.P. and S.P. had been against the Annan Plan of 2004, as was also evident from S.P.’s book The Falsified Annan Plan and Rosemary’s Baby.\n19.On 4 May 2011 the Nicosia District Court held that the publication was defamatory and ordered the applicant and the publishing house to pay damages, jointly and/or severally, in the amount of 25,000 euros (EUR), plus statutory interest calculated from the day on which the civil action had been brought until payment. The court also ordered the applicant and the publishing house to pay, jointly and/or severally, legal costs amounting to EUR3,472.59, plus statutory interest from the day on which the civil claim had been brought until payment, plus value-added tax (VAT).\n20.The District Court dismissed the applicant’s testimony. The court was not convinced that the expression “kissing up” had been aimed merely at portraying the relationship between S.P. and D.C. and in any event, the explanations provided to the court were not contained in the article. Nor did the article contain any reference to the excerpts from the book which had allegedly given the applicant the impression that S.P. was excessively flattering D.C. (see paragraph 18 above). According to the court, the article clearly stated that the extension of S.P.’s service had been granted “because he [was] kissing up to [D.C.]” (emphasis added by the domestic court), giving the impression to the reader that the extension had been the result of S.P.’s flattery of D.C. Τhe court further considered that the imputation that the writer of the book was a paranoid person was not limited to a criticism of the book itself. From the article, one might assume that S.P. had managed to secure the extension by “kissing up” to D.C., who had then turned to T.P. seeking to exchange political favours in the context of a broader political deal between the two.\n21.The court noted that the decision to extend the service of S.P. had indeed been a matter of public interest. However, the references in the article were factual allegations and the small excerpt from S.P.’s voluminous book had been used to reinforce the idea that S.P. was a paranoid person unsuited to holding a public post. The court further noted that even assuming that the reference to the general ethical and social duty of journalists to publish such articles had been adequate, the article was not limited to criticising either the circumstances of the extension or the Council of Ministers’ decision. Instead, it contained various allegations and innuendos concerning S.P. Its tone was aggressive, mocking and ironic. The court concluded that the publication, as it was written, exceeded what was reasonably appropriate under the circumstances.\n22.Lastly, in calculating the amount of damages to be awarded, the court considered S.P.’s personality, his ‘serious and responsible position’ (μια σοβαρή και υπεύθυνη θέση) in the Law Office, the seriousness of the defamation, the lack of an apology by the applicant, the absence of aggravating factors for the applicant and the number of copies of the paper sold on the day (6,697 copies).\n23.On 14 June 2011 the applicant lodged an appeal with the Supreme Court. He reiterated the arguments raised before the District Court and challenged the amount awarded in damages as excessively high.\n24.On 6 March 2015 the Supreme Court dismissed the appeal. It upheld the District Court’s assessment, finding that S.P. was a public person, not because of his position in the Law Office, but because he systematically wrote articles in the Cypriot press on various social and political issues, and he was the author of the political book which was “commented on” in the disputed article. According to the Supreme Court, S.P. had chosen to reveal to the general public further aspects of his personality which had attracted public interest – an element which was directly linked to possible interferences with his personality rights. He had therefore laid himself open to public scrutiny, which he should have been able to tolerate. However, the court held that such scrutiny should not unduly harm S.P.’s honour and reputation and that the freedom of expression and the right to reputation should be balanced, having regard to the principles of necessity and proportionality.\n25.The court considered that the applicant had not criticised S.P.’s book, nor was the article focused on criticising other political persons who might have been involved in the extension of S.P.’s mandate. Instead, it impinged on the honour and reputation of S.P. by presenting him as a paranoid person and therefore incapable of holding, or unfit to hold, a public post. To that end, the applicant had chosen four out of the 1,482 pages of S.P.’s book to mock his writing style. The Supreme Court also held that the defamatory references to S.P. in the article were not comments, but rather allegations of fact or insults (Ύβρεις, θα λέγαμε εμείς.). The court saw no reason to alter the amount awarded in damages at first instance.\n26.The amounts awarded in damages, as well as the costs of the legal proceedings ordered against the applicant and the publishing house, were paid in full by the publishing house." }