SAADI v UNITED KINGDOM

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SAADI v UNITED KINGDOM BEFORE THE EUROPEAN COURT OF HUMAN RIGHTS APPLICATION NO.13229/03 (The President, Judge Costa; Judges Rozakis, Batza, Zupancˇicˇ, Lorenzen, Tulkens, Vajic´, Tsatsa-Nikolovska, Boutoucharova, Kovler, Steinger, Garlicki, Hajiyev, Spielmann, Ziemele, BerroLefèvre, Hirvelä) (2008) 47 E.H.R.R. 17

January 29, 2008 Asylum seekers; Delay; Detention; Right to liberty and security H1

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The applicant was an Iraqi Kurd. In 2000 he had fled from Iraq to the United Kingdom and claimed asylum. He was granted temporary admission before being detained and taken to a secure facility for his asylum claim to be processed. He was released after seven days, shortly before his asylum claim was granted. The applicant sought judicial review of the decision to detain him. In October 2002, the House of Lords dismissed his case, holding that the State had the right to detain aliens in order to control their entry and process their claims, but only so long as there was some other factor, such as a risk of absconding or committing a crime. Mere administrative convenience was insufficient. His detention was found to be a humane and proportionate method of dealing with asylum applications. The applicant complained of violations of Art.5(1) and (2) of the Convention. Held: (1) by 11 votes to 6 that there had been no violation of Art.5(1); (2) unanimously that there had been a violation of Art.5(2); (3) that the finding of a violation was sufficient just satisfaction for any non-pecuniary damage sustained; (4) that the respondent State was to pay a sum of money in respect of costs and expenses. 1. Deprivation of liberty only in specified circumstances (Article 5(1)) (a) The applicant was plainly deprived of his liberty. [42] (b) Until a state had “authorised” entry to the country, any other entry had to be “unauthorised” and the detention of a person seeking to effect entry was obviously in order to “prevent his effecting an unauthorised entry”. However, this did not make it lawful to detain all asylum seekers. The detention was required to be in accordance with the aims of the Convention and to comply with Art.5. [65]–[66] (2008) 47 E.H.R.R., Part 3 䉷 Sweet & Maxwell

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(c) The national authorities had acted in good faith. They had designed an asylum system which was designed to ensure a speedy resolution of applications. The applicant’s detention was an aspect of this procedure. The conditions of his detention were adequate; provision was made for him to receive legal advice, medical care and access to religious and recreational facilities. He was only detained for seven days. [75]–[79] (d) There was no violation of Art.5(1). [80] 2. Right to be informed of the reasons for detention (Article 5(2)) (a) The applicant had been given general information and reasons for his detention. However, the specific reasons which had motivated the decision to detain him were not provided until 76 hours after his detention and even then were only provided orally. It could not be said that this had been sufficiently prompt to comply with Art.5(2) and there had been a violation of that Article. [84]–[85] 3. Just satisfaction: damage; costs and expenses; default interest (Article 41) (a) The finding of violation constituted sufficient just satisfaction for the violation of Art.5(2). [89] (b) Given the limited success of the applicant, an award of c3,000 in respect of costs and expenses was made. [92] (c) Provision was made for the payment of interest in default. [93] The following cases are referred to in the Court’s judgment: 1. Abdulaziz v United Kingdom (1985) 7 E.H.R.R. 471 2. Aerts v Belgium (2000) 29 E.H.R.R. 50 3. Al-Adsani v United Kingdom (2002) 34 E.H.R.R. 11 4. Amuur v France (1996) 22 E.H.R.R. 533 5. Bosphorus Hava Yollari Turizm Ve Ticaret Anonim Sirketi v Ireland (2006) 42 E.H.R.R. 1 6. Bouamar v Belgium (1989) 11 E.H.R.R. 1 7. Bozano v France (1987) 9 E.H.R.R. 297 8. Brogan v United Kingdom (1989) 11 E.H.R.R. 117 9. Chahal v United Kingdom (1997) 23 E.H.R.R. 413 ˇ onka v Belgium (2002) 34 E.H.R.R. 54 10. C 11. Engel v Netherlands (1979–80) 1 E.H.R.R. 647 12. Enhorn v Sweden (2005) 41 E.H.R.R. 30 13. Golder v United Kingdom (1979–80) 1 E.H.R.R. 524 14. Johnston v Ireland (1987) 9 E.H.R.R. 203 15. Lithgow v United Kingdom (1986) 8 E.H.R.R. 329 16. Litwa v Poland (2001) 33 E.H.R.R. 53 17. McVeigh v United Kingdom (1983) 5 E.H.R.R. 71 18. O’Hara v United Kingdom (2002) 34 E.H.R.R. 32 19. Stafford v United Kingdom (2002) 35 E.H.R.R. 32 20. Stec v United Kingdom (2006) 43 E.H.R.R. 47 21. T v United Kingdom (2000) 30 E.H.R.R. 121 22. Vasileva v Denmark (2005) 40 E.H.R.R. 27 23. Winterwerp v Netherlands (1979–80) 2 E.H.R.R. 387 (2008) 47 E.H.R.R., Part 3 䉷 Sweet & Maxwell

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24. Application No.40905/98, Hafsteinsdóttir v Iceland, June 8, 2004 25. Application No.25389/05, Gebremedhin v France, April 26, 2007 H14

The following domestic cases are referred to in the Court’s judgment: 26. R. (on the application of Saadi) v Secretary of State for the Home Department [2001] EWHC Admin 670 27. R. (on the application of Saadi) v Secretary of State for the Home Department [2001] EWCA Civ 1512 28. R. (on the application of Saadi) v Secretary of State for the Home Department [2002] UKHL 41 29. Szoma v Secretary of State for the Department of Work and Pensions [2005] UKHL 64

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The following UN Human Rights Committee cases are referred to in the Court’s judgment: 30. Communication No.456/1991, Celepi v Sweden, CCPR/C/51/D/456/1991 31. Communication No.560/1993, A v Australia, CCPR/C/59/D/560/1993 32. Communication No.900/1999, C v Australia, CCPR/C/76/D/900/1999

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The following UN Human Rights Committee cases are referred to in the joint partly dissenting Opinion: 33. Communication No.560/1993, A v Australia, CCPR/C/59/D/560/1993 34. Communication No.305/1988, Van Alphen v Netherlands, CCPR/C/39/ D/305/1988 35. Communication No.1069/2002, Bakhtiyari v Australia, CCPR/C/79/D/1069/ 2002

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Mr J. Grainger (Agent), Mr D. Pannick Q.C. (Counsel), Mr M. Fordham Q.C. (Counsel), Ms N. Samuel (Adviser), Mr S. Barrett (Adviser) for the Government. Mr R. Scannell (Counsel), Mr D. Seddon (Counsel), Mr M. Hanley (Adviser), Ms S. Ghelani (Adviser) for the applicant. THE FACTS I. The circumstances of the case

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The applicant, an Iraqi Kurd, was born in 1976 and now lives and works as a doctor in London. A. The applicant’s temporary admission to the United Kingdom

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In December 2000 the applicant fled the Kurdish Autonomous Region of Iraq when, in the course of his duties as a hospital doctor, he treated and facilitated the escape of three fellow members of the Iraqi Workers’ Communist Party who had been injured in an attack. He arrived at Heathrow airport on December 30, 2000 and immediately claimed asylum.

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The immigration officer contacted the Oakington Reception Centre,1 but there was no immediate room there, so the applicant was granted “temporary admission”2 to stay at the hotel of his choice and return to the airport the following morning. On December 31, 2000 he reported as required and was again granted temporary admission until the following day. When the applicant again reported as required he was, for the third time, granted temporary admission, until the following day, January 2, 2001 at 10.00. B. Detention at Oakington and the asylum proceedings

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On this last occasion, when the applicant reported as required, he was detained and transferred to Oakington. When being taken into detention, the applicant was handed a standard form, “Reasons for Detention and Bail Rights”, indicating that detention was used only where there was no reasonable alternative, and setting out a list of reasons such as risk of absconding, with boxes to be ticked by the immigration officer where appropriate. The form did not include an option indicating the possibility of detention for fast-track processing at Oakington. On January 4, 2001 the applicant met at Oakington with a lawyer from the Refugee Legal Centre, who contacted the Home Office to enquire why the applicant was being detained and to request his release. On January 5, 2001, when the applicant had been detained for 76 hours, the lawyer was informed over the telephone by an immigration officer that the applicant was being detained because he was an Iraqi who fulfilled the Oakington criteria. The lawyer then wrote to the Home Office requesting the applicant’s release on the ground that it was unlawful. When refused, the applicant applied for judicial review of the decision to detain him, claiming it was contrary to domestic law and Art.5(1) and (2) of the Convention. The applicant’s asylum claim was initially refused on January 8. The following day he was released from Oakington and again granted temporary admission pending the determination of his appeal. On January 14, 2003 his appeal was allowed and he was granted asylum. C. The judicial review proceedings

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In the proceedings for judicial review of the decision to detain the applicant, Collins J. on September 7, 20013 found that the Secretary of State had such a power to detain under the Immigration Act 1971.4 However, relying on the Court’s judgment in Amuur v France,5 and what he considered to be a “sensible reading” of Art.5(1)(f), he found that it was not permissible under the Convention to detain, solely for purposes of administrative efficiency, an asylum seeker who had followed the proper procedures and presented no risk of absconding. Even if the detention did fall within Art.5(1)(f), it was disproportionate to detain asylum 1 2 3 4 5

“Oakington”: see [23]–[25] below See [20]–[21] below. R. (on the application of Saadi) v Secretary of State for the Home Department [2001] EWHC Admin 670. See [19] below. Amuur v France (1996) 22 E.H.R.R. 533 at [43].

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seekers for the purpose of quickly processing their claims, since it had not been demonstrated that stringent conditions of residence, falling short of 24-hour detention, might not suffice. He also found (as did the Court of Appeal and House of Lords) that the applicant had not been given adequate reasons for his detention. On October 19, 2001 the Court of Appeal unanimously overturned this judgment.6 Lord Phillips of Worth Matravers M.R., who gave the lead judgment, first considered whether the policy of detaining asylum seekers for fast-track processing at Oakington was irrational, such as to render it unlawful under domestic law. He observed that over recent years applications for asylum to the United Kingdom and other countries had been escalating. In the United Kingdom the average monthly number of applications from July to September 1999 was nearly 7,000; 60 per cent higher than the previous year. Coping with huge numbers of asylum seekers posed heavy administrative problems, and it was in the interests of all asylum seekers to have their status determined as quickly as possible. He continued: “We share the doubts expressed by Collins J as to whether detention is really necessary to ensure effective and speedy processing of asylum applications. But in expressing these doubts we . . . are indulging in assumption and speculation. It is not in doubt that, if asylum applications are to be processed within the space of seven days, the applicants are necessarily going to have to be subjected to severe restraints on their liberty. In one way or another they will be required to be present in a centre at all times when they may be needed for interviews, which it is impossible to schedule to a pre-determined timetable. Would applicants voluntarily submit to such a regime, if not detained? Many no doubt would, but it is impossible to condemn as irrational the policy of subjecting those asylum seekers whose applications appear susceptible to rapid resolution to a short period of detention designed to ensure that the regime operates without dislocation. This is not a conclusion that we have reached easily. Asylum seekers are detained at Oakington only if it seems likely that their applications can be resolved within a week. But they must also be persons who are not expected to attempt to abscond or otherwise misbehave. At first blush it seems extreme to detain those who are unlikely to run away simply to make it easier to process their claims. But the statistics that we have set out at the start of our judgment cannot be ignored. As [the Home Office minister] observed in debate in the House of Lords on 2 November 1999, faced with applications for asylum at the rate of nearly 7,000 per month, ‘no responsible government can simply shrug their shoulders and do nothing’ . . .. A short period of detention is not an unreasonable price to pay in order to ensure the speedy resolution of the claims of a substantial proportion of this influx. In the circumstances such detention can properly be described as a measure of last resort.” The Court of Appeal next considered whether the detention fell within the first limb of Art.5(1)(f), and held that the right to liberty in Art.5(1)(f) was intended to preserve the sovereign power of Member States to decide whether to allow aliens 6

Saadi [2001] EWCA Civ 1512.

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to enter their territories on any terms whatsoever and that detention of an alien would be covered by the sub-paragraph unless and until entry was authorised, subject to the proviso, derived from Chahal v United Kingdom7 that the asylum or deportation procedure should not be prolonged unreasonably. On October 31, 2002 the House of Lords unanimously dismissed the applicant’s appeal.8 Having taken note of evidence that the applications of approximately 13,000 asylum seekers a year were processed at Oakington, which entailed scheduling up to 150 interviews a day, Lord Slynn of Hadley, with whom the other Law Lords agreed, held as follows: “In international law the principle has long been established that sovereign states can regulate the entry of aliens into their territory. . . . This principle still applies subject to any treaty obligation of a state or rule of the state’s domestic law which may apply to the exercise of that control. The starting point is thus in my view that the United Kingdom has the right to control the entry and continued presence of aliens in its territory. Article 5 § 1(f) seems to be based on that assumption. The question is therefore whether the provisions of para. 1(f) so control the exercise of that right that detention for the reasons and in the manner provided for in relation to Oakington is in contravention of the Article so as to make the detention unlawful. In my view it is clear that detention to achieve a quick process of decision-making for asylum seekers is not of itself necessarily and in all cases unlawful. What is said however is that detention to achieve speedy process ‘for administrative convenience’ is not within para. 1(f). There must be some other factor which justifies the exercise of the power to detain such as the likelihood of the applicant absconding, committing a crime or acting in ways not conducive to the public good. . . . It is . . . to be remembered that the power to detain is to ‘prevent’ unauthorised entry. In my opinion until the State has ‘authorised’ entry the entry is unauthorised. The State has power to detain without violating Article 5 until the application has been considered and the entry ‘authorised’. . . . There remains the issue whether, even if detention to achieve speedy asylum decision-making does fall within Article 5 § 1(f), ‘detention was unlawful on grounds of being a disproportionate response to the reasonable requirements of immigration control’. . . . The need for highly structured and tightly managed arrangements, which would be disrupted by late[ness] or non-attendance of the applicant for interview is apparent. On the other side applicants not living at Oakington, but living where they chose, would inevitably suffer considerable inconvenience if they had to be available at short notice and continuously in order to answer questions. It is regrettable that anyone should be deprived of his liberty other than pursuant to the order of a court but there are situations where such a course is justified. In a situation like the present with huge numbers and difficult decisions involved, with the risk of long delays to applicants seeking to come, 7 8

Chahal v United Kingdom (1997) 23 E.H.R.R. 413. Saadi [2002] UKHL 41.

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a balancing exercise has to be performed. Getting a speedy decision is in the interests not only of the applicants but of those increasingly in the queue. Accepting as I do that the arrangements made at Oakington provide reasonable conditions, both for individuals and families and that the period taken is not in any sense excessive, I consider that the balance is in favour of recognising that detention under the Oakington procedure is proportionate and reasonable. Far from being arbitrary, it seems to me that the Secretary of State has done all that he could be expected to do to palliate the deprivation of liberty of the many applicants for asylum here.” II. Relevant domestic law and practice A. The Immigration Act 1971 1. Detention 19

The Immigration Act 1971 (the 1971 Act) Sch.2 para.2, entitles an immigration officer to examine any person arriving in the United Kingdom to determine whether he or she should be given leave to enter. Paragraph 16(1) provides: “A person who may be required to submit to examination under paragraph 2 above may be detained under the authority of an immigration officer pending his examination and pending a decision to give or refuse him leave to enter.” Paragraphs 8, 9 and 10 enable an immigration officer to remove those refused leave to enter or illegal entrants and para.16(2) (as substituted by the Immigration and Asylum Act 1999: “the 1999 Act”) provides: “If there are reasonable grounds for suspecting that a person is someone in respect of whom directions may be given under any of paragraphs 8 to 10 . . . that person may be detained under the authority of an immigration officer pending—(a) a decision whether or not to give such directions; (b) his removal in pursuance of such directions.” 2. Temporary admission

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Paragraph 21(1) of Sch.2 to the 1971 Act enables an immigration officer to grant temporary admission to the United Kingdom to any person liable to be detained. Paragraph 21(2) (as amended by the 1999 Act) provides: “So long as a person is at large in the United Kingdom by virtue of this paragraph, he shall be subject to such restrictions as to residence, as to his employment or occupation and as to reporting to the police or an immigration officer as may from time to time be notified to him in writing by an immigration officer.” Sub-paragraphs 2(A)–2(E) give powers to the Secretary of State to make regulations placing residence restrictions on persons granted temporary admission. (2008) 47 E.H.R.R., Part 3 䉷 Sweet & Maxwell

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Section 11 of the 1971 Act provides as follows: “A person arriving in the United Kingdom by ship or aircraft shall for purposes of this Act be deemed not to enter the United Kingdom unless and until he disembarks, and on disembarkation at a port shall further be deemed not to enter the United Kingdom so long as he remains in such area (if any) at the port as may be approved for this purpose by an immigration officer; and a person who has not otherwise entered the United Kingdom shall be deemed not to do so as long as he is detained, or temporarily admitted or released while liable to detention . . .” In Szoma v Secretary of State for the Department of Work and Pensions [2005] UKHL 64, the House of Lords held that the purpose of s.11 of the 1971 Act was to exclude a person temporarily admitted from the rights available to those granted leave to enter, in particular the right to seek an extension of leave to remain, but that an alien granted temporary admission was nonetheless “lawfully present” in the United Kingdom for the purposes of social security entitlement. B. Pre-Oakington policy on detention and temporary admission

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Before March 2000, when the opening of Oakington was announced,9 the Home Office policy on the use of detention was set out in a White Paper (policy paper) published in 1998 entitled “Fairer, Faster and Firmer—A Modern Approach to Immigration and Asylum”10 in these terms11: “The Government has decided that, whilst there is a presumption in favour of temporary admission or release, detention is normally justified in the following circumstances: ● where there is a reasonable belief that the individual will fail to keep the terms of temporary admission or temporary release; ● initially, to clarify a person’s identity and the basis of their claim; ● where removal is imminent. In particular, where there is a systematic attempt to breach the immigration control, detention is justified wherever one or more of those criteria is satisfied.” In para.12.11 of the White Paper it was made clear that detention should be used for the shortest possible time and para.12.7 required written reasons to be given at the time of detention. C. The Oakington Reception Centre

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On March 16, 2000 the Minister, Barbara Roche MP, announced a change of the above policy in a written answer to a Parliamentary question, as follows: “Oakington Reception Centre will strengthen our ability to deal quickly with asylum applications, many of which prove to be unfounded. In addition to the existing detention criteria, applicants will be detained at Oakington where it 9 10 11

See [23] below. “Fairer, Faster and Firmer—A Modern Approach to Immigration and Asylum” Cm.4018. “Fairer, Faster and Firmer” Cm.4018 para.12.3.

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appears that their applications can be decided quickly, including those which may be certified as manifestly unfounded. Oakington will consider applications from adults and families with children, for whom separate accommodation is being provided, but not from unaccompanied minors. Detention will initially be for a period of about seven days to enable applicants to be interviewed and an initial decision to be made. Legal advice will be available on site. If the claim cannot be decided in that period, the applicant will be granted temporary admission or, if necessary in line with existing criteria, moved to another place of detention. If the claim is refused, a decision about further detention will similarly be made in accordance with existing criteria. Thus, detention in this latter category of cases will normally be to effect removal or where it has become apparent that the person will fail to keep in contact with the Immigration Service.” 24

The decision whether an asylum claim is suitable for decision at Oakington is primarily based on the claimant’s nationality. According to the Home “Operational Enforcement Manual”, detention at Oakington should not be used for inter alia “any case which does not appear to be one in which a quick decision can be reached”; minors; disabled applicants; torture victims; “[A]ny person who gives reason to believe that they might not be suitable for the relaxed Oakington regime, including those who are considered likely to abscond.”

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The detention centre is situated in former army barracks near Oakington, Cambridgeshire. It has high perimeter fences, locked gates and 24-hour security guards. The site is large, with space for outdoor recreation and general association and on-site legal advice is available. There is a canteen, a library, a medical centre, a social visits room and a religious observance room. Applicants and their dependents are generally free to move about the site, but must eat and return to their rooms at fixed times. Male applicants are accommodated separately from women and children and cannot stay with their families overnight. Detainees must open their correspondence in front of the security guards and produce identification if requested, comply with roll-calls and other orders. III. Relevant international law documents A. International treaties, declarations, conclusions, guidelines and reports 1. Vienna Convention on the Law of Treaties (1969)

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The Vienna Convention on the Law of Treaties, which entered into force on January 27, 1980, provides in Art.31: “General rule of interpretation 1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. (2008) 47 E.H.R.R., Part 3 䉷 Sweet & Maxwell

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SAADI V UNITED KINGDOM 2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes: (a) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty; (b) any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty. 3. There shall be taken into account, together with the context: (a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions; (b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; (c) any relevant rules of international law applicable in the relations between the parties. 4. A special meaning shall be given to a term if it is established that the parties so intended.”

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Article 32 provides: “Supplementary means of interpretation Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable.”

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Article 33 provides: “Interpretation of treaties authenticated in two or more languages 1. When a treaty has been authenticated in two or more languages, the text is equally authoritative in each language, unless the treaty provides or the parties agree that, in case of divergence, a particular text shall prevail. ... 3. The terms of the treaty are presumed to have the same meaning in each authentic text. 4. Except where a particular text prevails in accordance with paragraph 1, when a comparison of the authentic texts discloses a difference of meaning which the application of articles 31 and 32 does not remove, the meaning which best reconciles the texts, having regard to the object and purpose of the treaty, shall be adopted.” (2008) 47 E.H.R.R., Part 3 䉷 Sweet & Maxwell

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2. Universal Declaration of Human Rights (UDHR) 29

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The UDHR provides in Art.3 for the right to life, liberty and security; in Art.9 for the right not to be arbitrarily arrested, detained or exiled; and in Art.13 for the right to freedom of movement and residence. In Art.4(1) it declares that “everyone” has the fundamental right “to seek and to enjoy in other countries asylum from persecution”. 3. International Covenant on Civil and Political Rights (ICCPR) Article 9(1) of the ICCPR provides:

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“Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.” In its case law on this Article, the UN Human Rights Committee (HCR) has held, inter alia, that the failure by the immigration authorities to consider factors particular to the individual, such as the likelihood of absconding or lack of co-operation with the immigration authorities, and to examine the availability of other, less intrusive means of achieving the same ends, might render the detention of an asylum seeker arbitrary.12 In A v Australia the HCR observed that: “[T]he notion of ‘arbitrariness’ must not be equated with ‘against the law’ but be interpreted more broadly to include such elements as inappropriateness and injustice. Furthermore, remand in custody could be considered arbitrary if it is not necessary in all the circumstances of the case, for example to prevent flight or interference with evidence: the element of proportionality becomes relevant in this context.” 32

Article 12 of the ICCPR protects the right of freedom of movement to those “lawfully within the territory”. Under the case law of the HCR, a person who has duly presented an application for asylum is considered to be “lawfully within the territory”.13 4. Convention relating to the Status of Refugees (Geneva, 1951: “Refugee Convention”)

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The Refugee Convention, which entered into force on April 22, 1954, together with its 1967 Protocol, generally prohibits contracting states from expelling or returning a person with a well-founded fear of persecution to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.14 Under Art.31: 12

Comm. No.560/1993, A v Australia, CCPR/C/59/D/560/1993; Comm. No.900/1999 C v Australia, CCPR/C/76/ D/900/1999. Comm. No.456/1991, Celepi v Sweden, CCPR/C/51/D/456/1991. 14 Refugee Convention Arts 1 and 33. 13

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SAADI V UNITED KINGDOM “Refugees unlawfully in the country of refuge 1. The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom in was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence. 2. The Contracting States shall not apply to the movements of such refugees restrictions other than those which are necessary and such restrictions shall only be applied until their status in the country is regularized or they obtain admission into another country. The Contracting States shall allow such refugees a reasonable period and all the necessary facilities to obtain admission into another country.”

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On October 13, 1986, the Executive Committee of the United Nations High Commissioner for Refugees’ Programme adopted the following Conclusion relating to the detention of asylum seekers.15 The Conclusion was expressly approved by the General Assembly on December 4, 198616 and reads as follows: “The Executive Committee, Recalling Article 31 of the 1951 Convention relating to the Status of Refugees. Recalling further its Conclusion No.22 (XXXII) on the treatment of asylum-seekers in situations of large-scale influx, as well as Conclusion No.7 (XXVIII), paragraph (e), on the question of custody or detention in relation to the expulsion of refugees lawfully in a country, and Conclusion No.8(XXVIII), paragraph (e), on the determination of refugee status. Noting that the term ‘refugee’ in the present Conclusions has the same meaning as that in the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, and is without prejudice to wider definitions applicable in different regions. (a) Noted with deep concern that large numbers of refugees and asylum-seekers in different areas of the world are currently the subject of detention or similar restrictive measures by reason of their illegal entry or presence in search of asylum, pending resolution of their situation; (b) Expressed the opinion that in view of the hardship which it involves, detention should normally be avoided. If necessary, detention may be resorted to only on grounds prescribed by law to verify identity; to determine the elements on which the claim to refugee status or asylum is based; to deal with cases where refugees or asylumseekers have destroyed their travel and/or identity documents or have used fraudulent documents in order to mislead the authorities of the State in which they intend to claim asylum; or to protect national security or public order; 15 16

Conclusion relating to the detention of asylum seekers No.44 (XXXVII) 1986. Resolution 41/124 of the General Assembly December 4, 1986.

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(c) Recognized the importance of fair and expeditious procedures for determining refugee status or granting asylum in protecting refugees and asylum-seekers from unjustified or unduly prolonged detention; (d) Stressed the importance for national legislation and/or administrative practice to make the necessary distinction between the situation of refugees and asylum-seekers, and that of other aliens; (e) Recommended that detention measures taken in respect of refugees and asylum-seekers should be subject to judicial or administrative review; (f) Stressed that conditions of detention of refugees and asylum seekers must be humane. In particular, refugees and asylum-seekers shall, whenever possible, not be accommodated with persons detained as common criminals, and shall not be located in areas where their physical safety is endangered; (g) Recommended that refugees and asylum-seekers who are detained be provided with the opportunity to contact the Office of the United Nations High Commissioner for Refugees or, in the absence of such office, available national refugee assistance agencies; (h) Reaffirmed that refugees and asylum-seekers have duties to the country in which they find themselves, which require in particular that they conform to its laws and regulations as well as to measures taken for the maintenance of public order; (i) Reaffirmed the fundamental importance of the observance of the principle of non-refoulement and in this context recalled the relevance of Conclusion No.6 (XXVIII).” 35

To give effect to the above Conclusion, UNHCR published Guidelines in 1995, which it revised and reissued on February 10, 1999. The Guidelines made it clear that the detention of asylum seekers was “inherently undesirable”. Guideline 3 provides that such detention: “[M]ay exceptionally be resorted to for the reasons set out below . . . as long as this is . . . in conformity with general norms and principles of international human rights law (including Article 9 ICCPR) . . . Where there are monitoring mechanisms which can be employed as viable alternatives to detention, (such as reporting obligations or guarantor requirements) . . . these should be applied first unless there is evidence to suggest that such an alternative will not be effective in the individual case. Detention should therefore only take place after a full consideration of all possible alternatives, or when monitoring mechanisms have been demonstrated not to have achieved the lawful and legitimate purpose.” The Guideline continued: “[D]etention of asylum-seekers may only be resorted to, if necessary: (i) to verify identity. This relates to those cases where identity may be undetermined or in dispute; (ii) to determine the elements on which the claim for refugee status or asylum is based. This statement means that the asylum(2008) 47 E.H.R.R., Part 3 䉷 Sweet & Maxwell

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SAADI V UNITED KINGDOM seeker may be detained exclusively for the purpose of a preliminary interview to identify the basis of the asylum claim. This would involve obtaining the essential facts from the asylum-seeker as to why asylum is being sought and would not extend to a determination of the merits or otherwise of the claim. This exception to the general principle cannot be used to justify detention for the entire status determination procedure, or for an unlimited period of time; (iii) in cases where asylum-seekers have destroyed their travel and/or identity documents or have used fraudulent documents in order to mislead the authorities of the State in which they intend to claim asylum. What must be established is the absence of good faith on the part of the applicant to comply with the verification of identity process. . . . Asylum-seekers who arrive without documentation because they are unable to obtain any in their country of origin should not be detained solely for that reason.”

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On December 18, 1999 the UN Working Group on Arbitrary Detention, reporting on its visit to the United Kingdom17 recommended that the Government should: “[E]nsure that detention of asylum seekers is resorted to only for reasons recognised as legitimate under international standards and only when other measures will not suffice . . . Alternative and non-custodial measures, such as reporting requirements, should always be considered before resorting to detention. The detaining authorities must assess a compelling need to detain that is based on the personal history of each asylum seeker.” B. Council of Europe texts

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In 2003 the Committee of Ministers of the Council of Europe adopted a Recommendation18 that stated, inter alia: “The aim of detention is not to punish asylum seekers. Measures of detention . . . may be resorted to only in the following situations: (a) when their identity, including nationality, has in case of doubt to be verified, in particular when asylum seekers have destroyed their travel or identity documents or used fraudulent documents in order to mislead the authorities of the host state; (b) when elements on which the asylum claim is based have to be determined which, in the absence of detention, could not be obtained; (c) when a decision needs to be taken on their right to enter the territory of the state concerned; or (d) when protection of national security and public order so requires. . . . Measures of detention of asylum seekers should be applied only after a careful examination of their necessity in each individual case. Those measures should be specific, temporary and non-arbitrary and should be applied for the shortest possible time. Such measures are to be implemented as prescribed by law and in conformity with standards established by the relevant international instruments and by the case-law of the European Court of Human Rights. . . . Alternative and non-custodial measures, feasible in the 17 18

UN Working Group on Arbitrary Detention, report on its visit to the United Kingdom, E/CN.4/1999/63/Add.3. Recommendation (2003) 5.

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individual case, should be considered before resorting to measures of detention.” 38

On June 8, 2005, the Council of Europe Commissioner for Human Rights, in his report on his visit to the United Kingdom,19 noted that: “I would like to raise a number of points regarding [asylum] proceedings. The first concerns the frequent resort to detention for asylum seekers at the very outset of proceedings. Whilst detention is not automatic in such proceedings, there would appear to be a strong presumption in its favour; mooted plans to increase the asylum detention estate in precisely this area suggest that this is the direction in which the UK is headed. The UK authorities have indicated to me that the UK courts have approved detention for the sole purpose of processing asylum applications. I do not exclude the possibility of detention being appropriate in certain circumstances, but I do not believe that this would be an appropriate rule. Open processing centres providing on-site accommodation and proceedings are, I believe, a more appropriate solution for the vast majority of applicants whose requests are capable of being determined rapidly.” C. European Union instruments

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The EU Charter of Fundamental Rights (2000) proclaims in Art.18, “the right to asylum shall be guaranteed with due respect to the rules of the [Refugee Convention]”. Council Directive 2005/85,20 which must be transposed into Member States’ national law by December 1, 2008, provides in Art.7: “Applicants shall be allowed to remain in the Member State, for the sole purpose of the procedure, until such time as the determining authority has made a decision in accordance with the procedures at first instance set out in Chapter III. This right to remain shall not constitute an entitlement to a residence permit.” The Directive further provides in Art.18: “1. Member States shall not hold a person in detention for the sole reason that he/she is an applicant for asylum. 2. Where an applicant for asylum is held in detention, Member States shall ensure that there is a possibility of speedy judicial review.” JUDGMENT I. Alleged violation of Article 5(1) of the Convention

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The applicant alleged that he had been detained at Oakington in breach of Art.5(1) of the Convention, which provides: 19

Council of Europe Commissioner for Human Rights, report on his visit to the United Kingdom, CommDH(2005)6. Directive 2005/85 on minimum standards on procedures in Member States for granting and withdrawing refugee status [2005] OJ L326.

20

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

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It is not disputed by the Government that the applicant’s detention at Oakington amounted to a deprivation of liberty within the meaning of Art.5(1). The Grand Chamber considers it clear that, given the degree of confinement at Oakington, Mr Saadi was deprived of his liberty within the meaning of Art.5(1) during the seven days he was held there.21 Article 5(1)(a) to (f) contain an exhaustive list of permissible grounds of deprivation of liberty, and no deprivation of liberty will be lawful unless it falls within one of those grounds.22 In the present case the Government’s principal contention is that the detention was justified under the first limb of Art.5(1)(f); although they argue in the alternative that it might also have been justified under the second limb of that sub-paragraph. The Court must accordingly first ascertain whether the applicant was lawfully detained “to prevent his effecting an unauthorised entry into the country”.

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See, for example, Engel v Netherlands (1979–80) 1 E.H.R.R. 647 at [60]–[66]. See, inter alia, Litwa v Poland (2001) 33 E.H.R.R. 53 at [49].

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B. Whether the deprivation of liberty was permissible under sub-paragraph (f) of Article 5(1) 1. The Chamber judgment 44

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In its judgment of July 11, 2006 the Chamber held, by four votes to three, that the detention fell within the first limb of Art.5(1)(f). The Chamber observed that it was a normal part of states’ “undeniable right to control aliens’ entry into and residence in their country” that states were permitted to detain would-be immigrants who had applied for permission to enter, whether by way of asylum or not. Until a potential immigrant had been granted leave to remain in the country, he had not effected a lawful entry, and detention could reasonably be considered to be aimed at preventing unlawful entry. The Chamber continued that detention of a person was a major interference with personal liberty, and must always be subject to close scrutiny. Where individuals were lawfully at large in a country, the authorities might detain only if a “reasonable balance” was struck between the requirements of society and the individual’s freedom. The position regarding potential immigrants, whether they were applying for asylum or not, was different to the extent that, until their application for immigration clearance and/or asylum had been dealt with, they were not “authorised” to be on the territory. Subject, as always, to the rule against arbitrariness, the Chamber accepted that the state had a broader discretion to decide whether to detain potential immigrants than was the case for other interferences with the right to liberty. Accordingly, there was no requirement in Art.5(1)(f) that the detention of a person to prevent his effecting an unauthorised entry into the country be reasonably considered necessary, for example to prevent his committing an offence or fleeing. All that was required was that the detention should be a genuine part of the process to determine whether the individual should be granted immigration clearance and/or asylum, and that it should not otherwise be arbitrary, for example on account of its length. It was plain that in the present case the applicant’s detention at Oakington was a bona fide application of the policy on “fast-track” immigration decisions. As to the question of arbitrariness, the Chamber noted that the applicant was released once his asylum claim had been refused, leave to enter the United Kingdom had been refused, and he had submitted a notice of appeal. The detention lasted a total of seven days, which the Court found not to be excessive in the circumstances. It therefore found no violation of Art.5(1). 2. The parties’ submissions (a) The Government Before the Grand Chamber the Government emphasised several factual aspects of the case. First, the applicant had been detained for only seven days, in a relaxed regime, with access to legal advice and other facilities at the Centre. Secondly, in common with all others detained at the Centre, the applicant was seeking authorisation to enter the United Kingdom on the basis of asylum and human rights (2008) 47 E.H.R.R., Part 3 䉷 Sweet & Maxwell

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grounds, under the Refugee Convention23 and the European Convention on Human Rights. The fact that he had earlier been granted temporary admission for a short period, as an alternative to detention, did not affect his position as a person requiring authorisation to effect entry into the country. Thirdly, he was detained to enable speedy examination of his claim and a quick decision as to whether to give or refuse leave to enter. The domestic courts had referred to the increasingly high numbers of individuals seeking asylum in the United Kingdom at the time of the applicant’s detention24 and had recognised that the Oakington system was central to the Government’s procedure for processing such applications fairly and without undue delay. The Government reasoned that the phrase “to prevent his effecting an unauthorised entry” was describing the factual situation that the person was seeking to effect an entry, but had no authorisation. Article 5(1)(f) recognised that there might be detention in conjunction with the state’s deciding whether or not to grant authorisation, in the exercise of its sovereign role to control the entry into, and presence of aliens in its territory; a role which, as the national courts had observed, had long been recognised by international law. The Government relied on Chahal v United Kingdom,25 where the Grand Chamber had held, in connection with the second limb of Art.5(1)(f), that: “Article 5 § 1(f) does not demand that the detention of a person against whom action is being taken with a view to deportation be reasonably considered necessary, for example to prevent his committing an offence or fleeing.”

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They argued that there was no good reason for distinguishing between the two limbs of the sub-paragraph, so that a person who had been living within the community could be detained in conjunction with a deportation even though this was not necessary to prevent his absconding, but a person who had newly arrived could be detained in conjunction with his arrival only where this was necessary to prevent his absconding. The Government further denied that the applicant’s detention had been unlawful or arbitrary. It was clear, as the national courts at three instances unanimously confirmed, that the detention had complied with the substantive and procedural rules of national law.26 The detention was not arbitrary, since, as the Chamber had held, it had been a genuine part of the process to determine whether the individual should be granted immigration clearance and/or asylum, and its duration had been limited to that which was reasonably necessary for that purpose. To argue, as did the applicant, that the detention had been arbitrary because it might have been possible to achieve the same purpose by use of an “accommodation centre”, with similar conditions of residence but no confinement, was misplaced, since it involved seeking to reintroduce the “necessity” requirement through the requirement of lack of arbitrariness. In any event, the House of Lords had found that, given the tight schedule of interviews, any arrangement short of detention would not have been as effective.27 23 24 25 26 27

See [33] above. See [17] and [18] above. Chahal (1997) 23 E.H.R.R. 413 at [112]. See [16]–[18] above. See [18] above.

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(b) The applicant 51

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The applicant submitted that the Convention had to be interpreted in accordance with Arts 31–33 of the Vienna Convention on the Law of Treaties.28 He did not dispute the state’s sovereign right to control the entry and presence of aliens on its territory, but emphasised that this right had to be exercised consistently with the state’s international obligations, in particular those contained in the Convention, including Art.5. The purpose defined by Art.5(1)(f) first limb was to prevent unlawful immigration, that is, entry and residence in a country by the circumvention of immigration control. There had to be a direct and precise causal relationship between the detention and the risk of unauthorised entry. This purpose was underlined by the words “his effecting”, indicating that the focus was upon whether the particular individual, if not detained, would otherwise effect an entry that was unauthorised. It was clear from the facts of the applicant’s case that, if he had not been detained, he would have been lawfully present in the United Kingdom with “temporary admission”, an “authorised” status in fact and law.29 The interpretation he advanced would allow for initial detention for the purposes of verification and assessment of the individual risk of unauthorised entry; such procedure formed part of the ordinary process of immigration control, and was plainly detention for the purpose of preventing the individual effecting an unauthorised entry. It was not, however, permissible under Art.5(1)(f) to detain someone purely for administrative convenience. The applicant referred to the Court’s case law under other sub-paragraphs of Art.5(1), requiring an objective need for the detention of the particular individual to be demonstrated, and to the case law of the Human Rights Committee,30 and reasoned that similar principles should apply under Art.5(1)(f). Although the Court in Chahal v United Kingdom31 did not require a necessity test in respect of Mr Chahal’s detention under the second part of Art.5(1)(f), there was good reason for distinguishing between the two limbs. First, as was clear from [112] of the Chahal judgment, the contrast made with the other sub-paragraphs of Art.5(1) was based on the language of the provision under which Mr Chahal was detained, which required only that “action [was] being taken with a view to deportation”, whereas the first limb of Art.5(1)(f) stipulated that detention had to be for the purpose of preventing unauthorised entry. Secondly, on the facts of the Chahal case, it was evident that release on bail would have been inappropriate since it was alleged that Mr Chahal constituted a national security threat. In contrast, a necessity test should apply to those like the present applicant who “have [not] committed criminal offences but . . . who, often fearing for their lives, have fled from their own country”.32 In common with all other Oakington detainees, the applicant had been assessed as presenting no risk of absconding, and the sole purpose of the deprivation of liberty was to enable a quick decision to be made on his asylum claim. This was a 28 29 30 31 32

See [26]–[28] above. See, inter alia, the House of Lords’ judgment in Szoma [2005] UKHL 64. See [31] above. Chahal (1997) 23 E.H.R.R. 413. Amuur (1996) 22 E.H.R.R. 533 at [43].

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manifestly insufficient reason for the purposes of Art.5(1)(f), which required that there be a risk, in the particular case, of the subject making an unauthorised entry into the country. Detention at Oakington was not proportionate, since no lesser measure (for example, an accommodation centre) had first been tried. Moreover there was evidence to suggest that the decision to opt for detention at Oakington was led by the reaction of local residents and planning committees rather than a clear need for detention to enable speedy processing of asylum applications. 3. The third parties’ submissions (a) UNHCR 54

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UNHCR was concerned that the Chamber judgment, which: (1) assimilated the position of asylum seekers to ordinary immigrants; (2) considered that an asylum seeker effectively had no lawful or authorised status prior to the successful determination of the claim; and (3) rejected the application of a necessity test to the question whether detention was arbitrary, permitted states to detain asylum seekers on grounds of expediency in wide circumstances that were incompatible with general principles of international refugee and human rights law. Properly construed, Art.5(1)(f) should confer robust protection against detention for asylum seekers. The sub-paragraph stipulated a purpose, the effecting of an unauthorised entry, which detention must prevent. Asylum seekers had to be distinguished from general classes of illegal entrants or those facing deportation, and in order to detain an asylum seeker under Art.5(1)(f), there had to be something more than the mere absence of a decision on the claim; the detention had to be necessary, in the sense that less intrusive measures would not suffice, and proportionate to the aim pursued. UNHCR reminded the Court that, as with the Refugee Convention, the European Convention on Human Rights had to be interpreted in harmony with other rules of international law of which it formed part, particularly where such rules were found in human rights treaties which state parties to the Convention had ratified and were therefore willing to accept.33 It further had to be interpreted in a manner which ensured that rights were given a broad construction and that limitations were narrowly construed, in a manner which gave practical and effective protection to human rights, and as a living instrument, in light of present day conditions and in accordance with developments in international law so as to reflect the increasingly high standard being required in the area of the protection of human rights. Under international law, there was an obligation on states not to refoule persons who had accessed the jurisdiction or territorial frontier and claimed the fundamental right to seek and enjoy asylum. There was a further duty, except in mass influx situations, to admit such persons to fair and efficient determination procedures.34 Where a state admitted an asylum seeker to procedures, and the asylum seeker complied with national law, his temporary entry into and presence on the territory could not be considered as “unauthorised”; the grant of temporary 33 34

See Al-Adsani v United Kingdom (2002) 34 E.H.R.R. 11 at [55]. See Arts 3–31 of the Refugee Convention at [33] above.

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admission was precisely an authorisation by the state temporarily to allow the individual to enter its territory consistent with the law. In such a situation, the asylum seeker was not seeking unauthorised entry, but rather, had been granted temporary but authorised entry for the purpose of having the asylum claim considered.35 UNHCR referred to a number of international instruments relating to the detention of asylum seekers, including Art.9 of the ICCPR as interpreted by the Human Rights Committee in cases such as A v Australia, Art.31 of the Refugee Convention, the Executive Committee’s Conclusion No.44 and the UNHCR’s Guidelines on detention of asylum seekers.36 It concluded that while the process of examining those who are seeking asylum might involve necessary and incidental interference with liberty, where detention was resorted to for permitted purposes but on a fact-insensitive blanket basis, or effected purely for reasons of expediency or administrative convenience, it failed the necessity test required by international refugee and human rights law. (b) Liberty, ECRE and the AIRE Centre

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The above three non-governmental organisations pointed out that this would be the first case in which the Court had to decide on the meaning of the first limb of Art.5(1)(f). They asked the Grand Chamber to hold, as a matter of general principle: (1) that in the absence of evidence that an individual asylum seeker would, but for being detained, effect or attempt to effect an unauthorised entry into the country, such detention does not fall within Art.5(1)(f); and (2) that the detention of asylum seekers under Art.5(1)(f), like detention under the other sub-paragraphs of Art.5(1) and the lesser restriction imposed on their freedom of movement under Art.2 of Protocol No.4, must be subject to the test of necessity and proportionality. The Chamber’s approach, based on the finding that the detention of an asylum seeker was covered by the second limb of Art.5(1)(f) where no positive decision on his or her claim had yet been made, sat uncomfortably with the principle that asylum seekers who had duly presented a claim for international protection were ipso facto lawfully within the territory for the purposes of Art.2 of Protocol No.4 and also Art.12 of the ICCPR.37 Whilst it was true, as the Chamber had held, that prolonged duration might render arbitrary a detention which was not so at the outset, the reverse was not the case; the brevity of the period could not justify unnecessary detention. Art.5(1)(f) of the Convention should be interpreted consistently with Art.9 of the ICCPR,38 which required that any deprivation of liberty imposed in an immigration context should be lawful, necessary and proportionate. Moreover, it would be inappropriate for the Court, in the first Grand Chamber judgment on the first limb of Art.5(1)(f), to adopt a lower level of protection than that which had already been agreed by the Member States through

35

See Art.31 of the Refugee Convention at [33] above; Szoma [2005] UKHL 64; Directive 2005/85 Art.7 at [40] above. See [31] and [33]–[35] above. 37 See [32] above. 38 See [31] above. 36

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the Committee of Ministers39 or than that which applied to mere restrictions on freedom of movement under Art.2 of Protocol No.4. In many states, the precise legal basis for the detention of asylum seekers was unclear, but cases were unlikely to reach the courts because of language difficulties, lack of legal representation and fear on the part of asylum seekers that complaints about detention might prejudice the outcome of their claims. The arbitrary nature of such detention would be exacerbated if the Grand Chamber were to uphold the Chamber’s view and give states complete freedom to deprive all asylum seekers of their liberty whilst their claims were being processed, without any requirement to show that the detention was necessary for the purpose specified in Art.5(1)(f), namely to prevent the making of an unauthorised entry. 4. The Court’s assessment (a) The meaning of the phrase “to prevent his effecting an unauthorised entry into the country”

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In the present case the Court is called upon for the first time to interpret the meaning of the words in the first limb of Art.5(1)(f), “lawful . . . detention of a person to prevent his effecting an unauthorised entry into the country”. In ascertaining the Convention meaning of this phrase, it will, as always, be guided by Arts 31 to 33 of the Vienna Convention on the Law of Treaties.40 Under the Vienna Convention on the Law of Treaties, the Court is required to ascertain the ordinary meaning to be given to the words in their context and in the light of the object and purpose of the provision from which they are drawn.41 The Court must have regard to the fact that the context of the provision is a treaty for the effective protection of individual human rights and that the Convention must be read as a whole, and interpreted in such a way as to promote internal consistency and harmony between its various provisions.42 The Court must also take into account any relevant rules and principles of international law applicable in relations between the contracting parties.43 Recourse may also be had to supplementary means of interpretation, including the preparatory works to the Convention, either to confirm a meaning determined in accordance with the above steps, or to establish the meaning where it would otherwise be ambiguous, obscure or manifestly absurd or unreasonable.44 When considering the object and purpose of the provision within its context, and the international law background, the Court has regard to the importance of Art.5 in the Convention system: it enshrines a fundamental human right, namely the

39

See [37] above. See [26]–[28] above, and see, for example, Golder v United Kingdom (1979–80) 1 E.H.R.R. 524 at [29]; Johnston v Ireland (1987) 9 E.H.R.R. 203 at [51] et seq.; Lithgow v United Kingdom (1986) 8 E.H.R.R. 329 at [114] and [17]; Litwa (2001) 33 E.H.R.R. 53 at [57]–[59]. 41 See Golder (1979–80) 1 E.H.R.R. 524 at [29]; Johnston (1987) 9 E.H.R.R. 203 at [51]; and Art.31(1) of the Vienna Convention. 42 Stec v United Kingdom (2006) 43 E.H.R.R. 47 at [48]. 43 See Al-Adsani (2002) 34 E.H.R.R. 11 at [55]; Bosphorus Hava Yollari Turizm Ve Ticaret Anonim Sirketi v Ireland (2006) 42 E.H.R.R. 1 at [150]; and Art.31(3)(c) of the Vienna Convention. 44 Vienna Convention Art.32. 40

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protection of the individual against arbitrary interferences by the state with his right to liberty.45 Whilst the general rule set out in Art.5(1) is that everyone has the right to liberty, Art.5(1)(f) provides an exception to that general rule, permitting states to control the liberty of aliens in an immigration context. As the Court has remarked before, subject to their obligations under the Convention, states enjoy an “undeniable sovereign right to control aliens’ entry into and residence in their territory”.46 It is a necessary adjunct to this right that states are permitted to detain would-be immigrants who have applied for permission to enter, whether by way of asylum or not. It is evident from the tenor of the judgment in Amuur that the detention of potential immigrants, including asylum seekers, is capable of being compatible with Art.5(1)(f). On this point, the Grand Chamber agrees with the Court of Appeal, the House of Lords and the Chamber, that until a state has “authorised” entry to the country, any entry is “unauthorised” and the detention of a person who wishes to effect entry and who needs but does not yet have authorisation to do so, can be, without any distortion of language, to “prevent his effecting an unauthorised entry”. It does not accept that, as soon as an asylum seeker has surrendered himself to the immigration authorities, he is seeking to effect an “authorised” entry, with the result that detention cannot be justified under the first limb of Art.5(1)(f). To interpret the first limb of Art.5(1)(f) as permitting detention only of a person who is shown to be trying to evade entry restrictions would be to place too narrow a construction on the terms of the provision and on the power of the state to exercise its undeniable right of control referred to above. Such an interpretation would, moreover, be inconsistent with Conclusion No.44 of the Executive Committee of the United Nations High Commissioner for Refugees’ Programme, the UNHCR’s Guidelines and the Committee of Ministers’ Recommendation,47 all of which envisage the detention of asylum seekers in certain circumstances, for example while identity checks are taking place or when elements on which the asylum claim is based have to be determined. While holding, however, that the first limb of Art.5(1)(f) permits the detention of an asylum seeker or other immigrant prior to the state’s grant of authorisation to enter, the Court emphasises that such detention must be compatible with the overall purpose of Art.5, which is to safeguard the right to liberty and ensure that no one should be dispossessed of his or her liberty in an arbitrary fashion. The Court must now consider what is meant by “freedom from arbitrariness” in the context of the first limb of Art.5(1)(f) and whether, in all the circumstances, the applicant’s detention was compatible with that provision. (b) The notion of arbitrary detention in the context of Article 5

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It is well established in the Court’s case law under the sub-paragraphs of Art.5(1) that any deprivation of liberty must, in addition to falling within one of the 45

See, inter alia, Winterwerp v Netherlands (1979–80) 2 E.H.R.R. 387 at [37] and Brogan v United Kingdom (1989) 11 E.H.R.R. 117 at [58]. See Amuur (1996) 22 E.H.R.R. 533 at [41]; Chahal (1997) 23 E.H.R.R. 413 at [73]; Abdulaziz v United Kingdom (1985) 7 E.H.R.R. 471 at [67]–[68]. 47 See [34]–[35] and [37] above. 46

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exceptions set out in sub-paras (a)–(f), be “lawful”. Where the “lawfulness” of detention is in issue, including the question whether “a procedure prescribed by law” has been followed, the Convention refers essentially to national law and lays down the obligation to conform to the substantive and procedural rules of national law. Compliance with national law is not, however, sufficient: Art.5(1) requires in addition that any deprivation of liberty should be in keeping with the purpose of protecting the individual from arbitrariness.48 It is a fundamental principle that no detention which is arbitrary can be compatible with Art.5(1) and the notion of “arbitrariness” in Art.5(1) extends beyond lack of conformity with national law, so that a deprivation of liberty may be lawful in terms of domestic law but still arbitrary and thus contrary to the Convention. While the Court has not previously formulated a global definition as to what types of conduct on the part of the authorities might constitute “arbitrariness” for the purposes of Art.5(1), key principles have been developed on a case-by-case basis. It is moreover clear from the case law that the notion of arbitrariness in the context of Art.5 varies to a certain extent depending on the type of detention involved.49 One general principle established in the case law is that detention will be “arbitrary” where, despite complying with the letter of national law, there has been an element of bad faith or deception on the part of the authorities.50 The condition that there be no arbitrariness further demands that both the order to detain and the execution of the detention must genuinely conform with the purpose of the restrictions permitted by the relevant sub-paragraph of Art.5(1).51 There must in addition be some relationship between the ground of permitted deprivation of liberty relied on and the place and conditions of detention.52 The notion of arbitrariness in the contexts of sub-paras (b), (d) and (e) also includes an assessment whether detention was necessary to achieve the stated aim. The detention of an individual is such a serious measure that it is justified only as a last resort where other, less severe measures have been considered and found to be insufficient to safeguard the individual or public interest which might require that the person concerned be detained.53 The principle of proportionality further dictates that where detention is to secure the fulfilment of an obligation provided by law, a balance must be struck between the importance in a democratic society of securing the immediate fulfilment of the obligation in question, and the importance of the right to liberty.54 The duration of the detention is a relevant factor in striking such a balance.55 The Court applies a different approach towards the principle that there should be no arbitrariness in cases of detention under Art.5(1)(a), where, in the absence of 48 See, among many other authorities, Winterwerp (1979–80) 2 E.H.R.R. 387 at [37]; Amuur (1996) 22 E.H.R.R. 533 at [50]; Chahal (1997) 23 E.H.R.R. 413 at [118]; and Litwa (2001) 33 E.H.R.R. 53 at [78]. 49 See further below. 50 See, for example, Bozano v France (1987) 9 E.H.R.R. 297; Cˇonka v Belgium (2002) 34 E.H.R.R. 54. 51 Winterwerp (1979–80) 2 E.H.R.R. 387 at [39]; Bouamar v Belgium (1989) 11 E.H.R.R. 1 at [50]; O’Hara v United Kingdom (2002) 34 E.H.R.R. 32 at [34]. 52 See Bouamar (1989) 11 E.H.R.R. 1 at [50]; Aerts v Belgium (2000) 29 E.H.R.R. 50 at [46]; Enhorn v Sweden (2005) 41 E.H.R.R. 30 at [42]. 53 See Litwa (2001) 33 E.H.R.R. 53 at [78]; App. No.40905/98, Hafsteinsdóttir v Iceland, June 8, 2004 at [51]; Enhorn (2005) 41 E.H.R.R. 30 at [44]. 54 See Vasileva v Denmark (2005) 40 E.H.R.R. 27 at [37]. 55 Vasileva (2005) 40 E.H.R.R. 27 at [37] and see also McVeigh v United Kingdom (1983) 5 E.H.R.R. 71.

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bad faith or one of the other grounds set out at [69] above, as long as the detention follows and has a sufficient causal connection with a lawful conviction, the decision to impose a sentence of detention and the length of that sentence are matters for the national authorities rather than for the Court under Art.5(1).56 Similarly, where a person has been detained under Art.5(1)(f), the Grand Chamber, interpreting the second limb of this sub-paragraph, held that, as long as a person was being detained “with a view to deportation”, that is, as long as “action [was] being taken with a view to deportation”, there was no requirement that the detention be reasonably considered necessary, for example to prevent the person concerned from committing an offence or fleeing.57 The Grand Chamber further held in Chahal that the principle of proportionality applied to detention under Art.5(1)(f) only to the extent that the detention should not continue for an unreasonable length of time; thus, it held58 that: “[A]ny deprivation of liberty under Article 5 § 1(f) will be justified only for as long as deportation proceedings are in progress. If such proceedings are not prosecuted with due diligence, the detention will cease to be permissible.”59

73

74

With regard to the foregoing, the Court considers that the principle that detention should not be arbitrary must apply to detention under the first limb of Art.5(1)(f) in the same manner as it applies to detention under the second limb. Since states enjoy the right to control equally an alien’s entry into and residence in their country,60 it would be artificial to apply a different proportionality test to cases of detention at the point of entry than that which applies to deportation, extradition or expulsion of a person already in the country. To avoid being branded as arbitrary, therefore, such detention must be carried out in good faith; it must be closely connected to the purpose of preventing unauthorised entry of the person to the country; the place and conditions of detention should be appropriate, bearing in mind that: “[T]he measure is applicable not to those who have committed criminal offences but to aliens who, often fearing for their lives, have fled from their own country”61; and the length of the detention should not exceed that reasonably required for the purpose pursued. (c) Was the applicant’s detention arbitrary?

75

Before examining whether the applicant’s detention at Oakington was arbitrary in the sense outlined above, the Court observes that the national courts at three levels found that it had a basis in national law, and the applicant does not contend that this conclusion was incorrect. 56

See T v United Kingdom (2000) 30 E.H.R.R. 121 at [103]; and also Stafford v United Kingdom (2002) 35 E.H.R.R. 32 at [64]. Chahal (1997) 23 E.H.R.R. 413 at [112]. 58 Chahal (1997) 23 E.H.R.R. 413 at [113]. 59 See also App. No.25389/05, Gebremedhin v France, April 26, 2007 at [74]. 60 See Winterwerp (1979–80) 2 E.H.R.R. 387 and Brogan (1989) 11 E.H.R.R. 117. 61 See Amuur (1996) 22 E.H.R.R. 533 at [43]. 57

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77

78

79

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In examining whether the applicant’s detention was compatible with the criteria set out at [74] above, the Court further recalls the following findings of the Court of Appeal and House of Lords,62 which it accepts. The national courts found that the purpose of the Oakington detention regime was to ensure the speedy resolution of some 13,000 of the approximately 84,000 asylum applications made in the United Kingdom per year at that time. In order to achieve this objective it was necessary to schedule up to 150 interviews a day and even small delays might disrupt the entire programme. The applicant was selected for detention on the basis that his case was suited for fast-track processing. In these circumstances, the Court finds that the national authorities acted in good faith in detaining the applicant. Indeed the policy behind the creation of the Oakington regime was generally to benefit asylum seekers; as Lord Slynn put it, “getting a speedy decision is in the interests not only of the applicants but of those increasingly in the queue”.63 Moreover, since the purpose of the deprivation of liberty was to enable the authorities quickly and efficiently to determine the applicant’s claim to asylum, his detention was closely connected to the purpose of preventing unauthorised entry. As regards the third criterion, the place and conditions of detention, the Court notes that the Oakington Centre was specifically adapted to hold asylum seekers and that various facilities, for recreation, religious observance, medical care and, importantly, legal assistance, were provided.64 While there was, undoubtedly, an interference with the applicant’s liberty and comfort, he makes no complaint regarding the conditions in which he was held and the Court holds that the detention was free from arbitrariness under this head. Finally, as regards the length of the detention, the Court recalls that the applicant was held for seven days at Oakington, and released the day after his claim to asylum had been refused at first instance. This period of detention cannot be said to have exceeded that reasonably required for the purpose pursued. In conclusion, therefore, the Court finds that, given the difficult administrative problems with which the United Kingdom was confronted during the period in question, with an escalating flow of huge numbers of asylum-seekers,65 it was not incompatible with Art.5(1)(f) of the Convention to detain the applicant for seven days in suitable conditions to enable his claim to asylum to be processed speedily. Moreover, regard must be had to the fact that the provision of a more efficient system of determining large numbers of asylum claims rendered unnecessary recourse to a broader and more extensive use of detention powers. It follows that there has been no violation of Art.5(1) in the present case. II. Alleged violation of Article 5(2) of the Convention

81

The applicant contended that he was not informed of the genuine reason for his detention until some 76 hours after his arrest, when the information was given orally to his legal representative in response to that person’s enquiry. He alleged a violation of Art.5(2) of the Convention, which provides as follows: 62 63 64 65

See [17]–[18] above. See [18] above. See [25] above. See also Amuur (1996) 22 E.H.R.R. 533 at [41].

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“Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.” 82

83

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The Government pointed to the general statements of intent regarding the Oakington detention regime. They accepted that the forms in use at the time of the applicant’s detention were deficient, but contended that the reasons given orally to the applicant’s on-site representative (who knew the general reasons) on January 5, 2001 were sufficient to enable the applicant to challenge the lawfulness of his detention under Art.5(4) if he wished. The applicant underlined that unsolicited reasons were not given at any stage, and that solicited reasons were given orally in the afternoon of January 5, 2001, some 76 hours after the arrest and detention. Mere reference to policy announcements could not displace the requirement to provide sufficiently prompt, adequate reasons to the applicant in relation to his detention. The Chamber found a violation of this provision, on the ground that the reason for detention was not given sufficiently “promptly”. It found that general statements—such as the parliamentary announcements in the present case—could not replace the need under Art.5(2) for the individual to be informed of the reasons for his arrest or detention. The first time the applicant was told of the real reason for his detention was through his representative on January 5, 2001,66 when the applicant had already been in detention for 76 hours. Assuming that the giving of oral reasons to a representative met the requirements of Art.5(2) of the Convention, the Chamber found that a delay of 76 hours in providing reasons for detention was not compatible with the requirement of the provision that such reasons should be given “promptly”. The Grand Chamber agrees with the Chamber’s reasoning and conclusion. It follows that there has been a violation of Art.5(2) of the Convention. III. Application of Article 41 of the Convention Article 41 of the Convention provides:

86

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 87

88

The Court notes that before the Chamber the applicant claimed c5,000 compensation for non-pecuniary damage in respect of the seven days he spent in detention in Oakington. The Chamber, which, like the Grand Chamber, found a violation of Art.5(2) of the Convention but not of Art.5(1), held that the finding of the violation provided sufficient just satisfaction. The applicant did not contest this award, neither in his request that the case be referred to the Grand Chamber nor in his written observations before the Grand Chamber. 66

See [14] above.

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In all the circumstances, the Grand Chamber decides to maintain the Chamber’s decision that the finding of a violation provided sufficient just satisfaction for the failure promptly to inform the applicant of the reasons for his detention. B. Costs and expenses

90

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The applicant claimed costs and expenses before the Grand Chamber of £28,676.51 plus VAT, in addition to £15,305.56 for costs incurred before the Chamber. The Government endorsed the approach taken by the Chamber under Art.41. It considered the costs before the Grand Chamber to be excessive, in particular the rate of £200 per hour charged by each of the two Counsel and the number of hours claimed. If the Court were to find a violation of Art.5(1), no more than £10,000 should be allowed for Counsels’ fees. If only a violation of Art.5(2) were found, only a small proportion of the costs claimed should be awarded. In connection with the Chamber costs, the Grand Chamber recalls the Chamber’s decision to award only c1,500, since it had found a violation of only Art.5(2) and since the major part of the work on the case had been directed at establishing a violation of Art.5(1). The Grand Chamber maintains this award in respect of the costs and expenses incurred up to the delivery of the Chamber’s judgment. Given that it, too, has found only a violation of Art.5(2), and that almost the entirety of the written and oral pleadings before it concerned Art.5(1), the Grand Chamber awards a further c1,500 in respect of the proceedings subsequent to the Chamber’s judgment of July 11, 2006, bringing the total costs and expenses awarded to c3,000 plus any VAT that might be payable. C. Default interest

93

The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added 3 percentage points. For these reasons, THE COURT: 1. Holds by 11 votes to 6 that there has been no violation of Art.5(1) of the Convention. 2. Holds unanimously that there has been a violation of Art.5(2) of the Convention. 3. Holds unanimously that the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant. 4. Holds unanimously: (a) that the respondent State is to pay the applicant, within three months, c3,000 (three thousand euros) in respect of costs and expenses, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable; (b) that from the expiry of the abovementioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the (2008) 47 E.H.R.R., Part 3 䉷 Sweet & Maxwell

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marginal lending rate of the European Central Bank during the default period plus 3 percentage points. 5. Dismisses unanimously the remainder of the applicant’s claim for just satisfaction. Joint Partly Dissenting Opinion of Judges Rozakis, Tulkens, Kovler, Hajiyev, Spielmann And Hirvelä67 O-I1

O-I2

We do not share the majority’s conclusion that there has been no violation of Art.5(1)(f) of the Convention in the instant case, in a situation where it is not disputed that the applicant’s detention for seven days in the Oakington Reception Centre amounted to a deprivation of liberty for the purposes of the Convention. The issues at stake in this case are important on two counts. First, the case concerns asylum seekers’ rights under the Convention and the increasingly worrying situation regarding their detention. Secondly, this is the first case in which the Court has been called upon to provide an interpretation of the first part of Art.5(1)(f), which authorises “the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country” and, in particular, of the requirement of necessity imposed by that provision. It is generally accepted that the aim of the first limb of Art.5(1)(f) of the Convention is to prevent illegal immigration, that is, entry into or residence in a country based on circumvention of the immigration control procedures. In the instant case the applicant fled the Kurdish Autonomous Region of Iraq after treating members of the Iraqi Workers’ Communist Party in the course of his duties as a doctor, and claimed asylum on his arrival at London Heathrow airport. The majority attach no importance to this fact, assimilating the situation of asylum seekers to that of ordinary immigrants. At [64] the judgment is very clear in this regard and from the outset situates the exception provided for by Art.5(1)(f) in the overall context of immigration control. After reiterating that states enjoy “an ‘undeniable sovereign right to control aliens’ entry into and residence in their territory’”, the majority state that: “It is a necessary adjunct to this right that States are permitted to detain would-be immigrants who have applied for permission to enter, whether by way of asylum or not.”

O-I3

In such a radical form, this statement sits uncomfortably with the principle that asylum seekers who have presented a claim for international protection are ipso facto lawfully within the territory of a state, in particular for the purposes of Art.12 of the International Covenant on Civil and Political Rights (liberty of movement) and the case law of the Human Rights Committee, according to which a person who has duly presented an application for asylum is considered to be “lawfully within the territory”.68 The particular circumstances of this case, moreover, demonstrate this implicitly but with certainty. On his arrival at the airport on December 30, 2000 the applicant was granted temporary admission,69 under the 67 68 69

Paragraph numbering added by the publisher. See [32] of the judgment. See [20]–[21] of the judgment.

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terms of which he could spend the night in the hotel of his choice but had to return to the airport the following morning. On December 31, 2000 the applicant reported as required and was again granted temporary admission until the next day. When he again reported to the airport as agreed he was granted temporary admission for the third time until 10.00 the following day, January 2, 2001. It was not until January 2, after reporting as required, that he was detained and transferred to the Oakington Reception Centre, where there is a prison-like atmosphere. In any event, the theoretical debate as to whether a person is unlawfully present within a country’s territory until he or she has been granted leave to enter is of no real relevance in this case, given that the applicant was in fact given permission to enter for three days. When considering the context, object and purpose of Art.5 of the Convention, the judgment rightly stresses “the importance of Article 5 in the Convention system”, which: “[E]nshrines a fundamental human right, namely the protection of the individual against arbitrary interferences by the State with his right to liberty.”70 However, the majority deem it necessary to consider what is meant by “protection against arbitrariness” in the present case, and take the view that: “[T]he principle that detention should not be arbitrary must apply to detention under the first limb of Art.5(1)(f) in the same manner as it applies to detention under the second limb. Since States enjoy the right to control equally an alien’s entry into and residence in their country . . ., it would be artificial to apply a different proportionality test to cases of detention at the point of entry than that which applies to deportation, extradition or expulsion of a person already in the country.”71

O-I5

O-I6

Hence, the judgment does not hesitate to treat completely without distinction all categories of non-nationals in all situations—illegal immigrants, persons liable to be deported and those who have committed offences—including them without qualification under the general heading of immigration control, which falls within the scope of states’ unlimited sovereignty. In the context of migration, according to the judgment, the only requirement which the detention measure must satisfy to avoid being branded as arbitrary is that it must have been carried out “in good faith”. It must also “be closely connected to the purpose of preventing unauthorised entry of the person to the country”.72 Are these requirements met in the instant case? With regard first of all to the question of good faith, the Court has no hesitation in subscribing to the observations of the domestic courts, which found that the detention regime in Oakington was designed to ensure the speedy resolution: “[O]f some 13,000 of the approximately 84,000 asylum applications made in the United Kingdom per year at that time. In order to achieve this objective it was necessary to schedule up to 150 interviews a day and even small delays 70 71 72

See [63]. See [73]. See [74].

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might disrupt the entire programme. The applicant was selected for detention on the basis that his case was suited for fast track processing.”73

O-I7

O-I8

O-I9

In these circumstances, the Court found that the national authorities acted in “good faith” in detaining the applicant. Indeed, the policy behind the creation of the Oakington regime was generally to benefit asylum seekers; detention was therefore in their best interests. If even “small delays” were considered to disrupt the entire programme, it is difficult to discern why, on arriving at the airport and lodging his asylum claim, the applicant was first allowed to remain at liberty and was requested to go to a hotel and report of his own accord on the following days to the authorities responsible for his case (which he duly did). More fundamentally, not just in the context of asylum but also in other situations involving deprivation of liberty, to maintain that detention is in the interests of the person concerned appears to us an exceedingly dangerous stance to adopt. Furthermore, to contend in the present case that detention is in the interests not merely of the asylum seekers themselves “but of those increasingly in the queue” is equally unacceptable. In no circumstances can the end justify the means; no person, no human being may be used as a means towards an end. Next, as regards the purpose of detention, in stating that: “[S]ince the purpose of the deprivation of liberty was to enable the authorities quickly and efficiently to determine the applicant’s claim to asylum, his detention was closely connected to the purpose of preventing unauthorised entry,”74

O-I10

O-I11

the Court does not hesitate to go a step further and assimilate all asylum seekers to potential illegal immigrants. In the interests of rigour we believe that for detention to be authorised the authorities must satisfy themselves in concreto that it has been ordered exclusively in pursuit of one of the aims referred to in the Convention, in this instance to prevent the person’s effecting unauthorised entry into the country. This has in no sense been established in the present case, as the applicant did not enter or attempt to enter the country unlawfully. On the other hand, if the authorities had objectively verifiable grounds to believe that the applicant was liable to abscond before his claim for asylum had been determined, they could have made use of detention in accordance with Art.5(1)(f) of the Convention. In that case, the detention would have been aimed at preventing the asylum seeker from entering or remaining in the country for a purpose other than that for which he had been granted temporary admission. Conversely, it is not permissible to detain refugees on the sole ground that they have made a claim for asylum. It is not disputed in the present case that the applicant’s detention was aimed at ensuring the speedy resolution of his claim for asylum and hence the adoption of a decision on the subject at the earliest date possible. His detention therefore pursued a purely bureaucratic and administrative goal, unrelated to any need to prevent his unauthorised entry into the country. As Judges Casadevall, Traja and Sˇikuta rightly 73 74

See [76]. See [77].

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observed in their dissenting opinion annexed to the Chamber judgment of July 11, 2006, such a situation creates great legal uncertainty for asylum seekers, stemming from the fact that they could be detained at any time during examination of their application without their being able to take the necessary action to avoid detention. Hence, the asylum seeker becomes an object rather than a subject of law. Lastly, following the same line of thinking, the Court accepts in the instant case that a seven-day period of detention “cannot be said to have exceeded that reasonably required for the purpose pursued”.75 In so doing, it is accepting a period of detention which it does not generally sanction in the other cases of deprivation of liberty contemplated by Art.5 of the Convention. Granted, it is understandable that in certain situations, for example concerning extradition, the state must be allowed greater latitude than in the case of other interferences with the right to liberty. However, we can see no justification for adopting such an approach in relation to asylum seekers, with the attendant risk that the scrutiny of deprivations of liberty under the European Convention on Human Rights will be substantially weakened as a result. Moreover, if a seven-day period of detention is not considered excessive, where and how do we draw the line for what is unacceptable? As regards detention generally, the requirements of necessity and proportionality oblige the state to furnish relevant and sufficient grounds for the measure taken and to consider other less coercive measures, and also to give reasons why those measures are deemed insufficient to safeguard the private or public interests underlying the deprivation of liberty. Mere administrative expediency or convenience will not suffice. We fail to see what value or higher interest can justify the notion that these fundamental guarantees of individual liberty in a state governed by the rule of law cannot or should not apply to the detention of asylum seekers. Hence, to the extent that these requirements must be encompassed in the notion of arbitrariness, the question of alternatives to detention should have been considered by the majority. They make no mention of it until the closing paragraphs of their reasoning where, paradoxically, they recognise that: “[T]he provision of a more efficient system of determining large numbers of asylum claims rendered unnecessary recourse to a broader and more extensive use of detention powers.”76

O-I15

It is thus clearly acknowledged that an alternative to detention might have existed enabling the problem to be dealt with at source, in other words at the level of the management of asylum applications; this further underscores the fact that detention was the wrong answer to the right question. The European Convention on Human Rights does not apply in a vacuum, but in conjunction with the other international fundamental rights protection instruments. In that regard, with reference to the United Nations, Art.9 of the International Covenant on Civil and Political Rights—which prohibits arbitrary 75 76

See [79]. See [80].

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arrest or detention and applies to all cases of deprivation of liberty, including in the context of immigration controls—has been interpreted by the Human Rights Committee’s case law to mean that detention must not simply be lawful, but must also not have been imposed on grounds of administrative expediency.77 In addition, it must satisfy the requirements of necessity and proportionality. Lastly, the review of a detention by the courts must not be confined to assessing whether it complies with domestic law, but must also make it possible to determine, even in cases of illegal entry, whether factors particular to the individual (likelihood of absconding, lack of co-operation, and so on) justify his or her detention.78 In its decision in Bakhtiyari v Australia, the Committee confirms that a court review which does not allow the courts to reexamine the justification of the detention in substantive terms will not satisfy the requirements of Art.9 of the Covenant.79 With reference to the European Union, mention should be made of Art.18 of the European Union Charter of Fundamental Rights, which recognises the right to asylum of refugees within the meaning of the Geneva Convention. Article 18(1) of Council Directive 2005/8580 provides that “Member States shall not hold a person in detention for the sole reason that he/she is an applicant for asylum”. This, in our view, is the minimum guarantee, and the assertion made in this provision provides a useful adjunct to the rules set forth in Art.7 of Council Directive 2003/9.81 Article 23(3) and (4) of Directive 2005/85 also makes provision for priority or accelerated examination procedures. As to the Council of Europe, Committee of Ministers Recommendation Rec(2003)5 of April 16, 2003 on measures of detention of asylum seekers states that the persons falling within the scope of the first limb of Art.5(1)(f) do not include “asylum seekers on criminal charges or rejected asylum seekers detained pending their removal from the host country”.82 It further states that measures of detention of asylum seekers: “[S]hould be applied only after a careful examination of their necessity in each individual case. These measures should be specific, temporary and non-arbitrary and should be applied for the shortest possible time. Such measures are to be implemented as prescribed by law and in conformity with standards established by the relevant international instruments.”83

O-I18

Finally, “[a]lternative and non-custodial measures, feasible in the individual case, should be considered before resorting to measures of detention”.84 The crux of the matter here is whether it is permissible today for the European Convention on Human Rights to provide a lower level of protection than that which is recognised and accepted in the other organisations. 77

See Comm. No.305/1988, Van Alphen v Netherlands, CCPR/C/39/D/305/1988. See Comm. No.560/1993, A v Australia, CCPR/C/59/D/560/1993. See Comm. No.1069/2002, Bakhtiyari v Australia, CCPR/C/79/D/1069/2002. 80 Directive 2005/85 on minimum standards on procedures in Member States for granting and withdrawing refugee status [2005] OJ L326/13. 81 Directive 2003/9 laying down minimum standards for the reception of asylum seekers [2003] OJ L31/18. 82 Committee of Ministers Recommendation Rec(2003)5 point 2. 83 Committee of Ministers Recommendation Rec(2003)5 point 4. 84 Committee of Ministers Recommendation Rec(2003)5 point 6. 78 79

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Ultimately, are we now also to accept that Art.5 of the Convention, which has played a major role in ensuring controls of arbitrary detention, should afford a lower level of protection as regards asylum and immigration which, in social and human terms, are the most crucial issues facing us in the years to come? Is it a crime to be a foreigner? We do not think so.

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NNYANZI v UNITED KINGDOM BEFORE THE EUROPEAN COURT OF HUMAN RIGHTS APPLICATION NO.21878/06 (The President, Judge Garlicki; Judges Bratza, Pavlovschi, Mijovic´, Björgvinsson, Sˇikuta and Hirvelä) (2008) 47 E.H.R.R. 18

April 8, 2008 Asylum seekers; Domestic remedies; Inhuman or degrading treatment or punishment; Necessary in democratic society; Prescribed by law; Right to respect for private and family life H1

H2

H3

The applicant was born in Uganda, the daughter of a former government minister. Following the change of regime in Uganda in 1986, the applicant’s father had been wanted by the new regime, the National Resistance Movement, on treason charges. He was first arrested in 1986 and has been detained since 1998. During this period the applicant herself had been the subject of a number of incidents. In 1987, she was followed, arrested and detained for the period of one day, during which she was questioned about her father’s whereabouts. She escaped by pretending to be unwell, and being allowed to visit a local hospital. In 1996, the applicant and her family went to live in Kenya, believing that her father had fled there to avoid being rearrested. She returned to Uganda in January 1997. Towards the end of that year, the applicant was again questioned about her father’s whereabouts, and her passport was confiscated. She obtained another passport, using her real name but a false date of birth, and was able to travel on this passport. In September 1998, the applicant’s home was raided by officers, who brought her father with them, in handcuffs. At the end of September 1998, the applicant travelled to the United Kingdom, originally planning to travel as a tourist. However, on her arrival in the United Kingdom, she claimed asylum, relying on her father’s political activities in Uganda. The applicant’s application for asylum was refused by the Secretary of State on the grounds, inter alia, that she was not herself involved in any political parties or activities in Uganda. It was noted that, had she been of particular interest to the authorities, it was unlikely that she would have been able to leave Uganda through the normal immigration channels. The Secretary of State’s decision was upheld by a special adjudicator and by a majority decision of the Immigration Appeal Tribunal (IAT) in September 2000. The majority in the IAT found, inter alia, that (2008) 47 E.H.R.R., Part 3 䉷 Sweet & Maxwell

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H4

H5

H6

H7

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NNYANZI V UNITED KINGDOM

although the events in Uganda had given rise to a genuine fear of persecution on her part, she had not been seriously ill-treated when detained in 1986. Furthermore, although the applicant believed that she had at times been watched and followed in the period between her return to Uganda in January 1997 and her departure for the United Kingdom in September 1998, it was notable that she had not been arrested during that period. The evidence indicated that the authorities’ interest in the applicant was confined to discovering her father’s whereabouts. He was now in custody. The IAT also considered the country information reports and concluded that there was no evidence that family members of political opponents were regarded negatively or persecuted. The IAT refused the applicant permission to appeal to the Court of Appeal on the basis that the grounds of appeal did not disclose any arguable point of law. The applicant made further representations to the Secretary of State, claiming that her removal from the United Kingdom would be a breach of the state’s obligations under Arts 3, 5, 8, 9 and 10 of the Convention and the Human Rights Act 1998. The Secretary of State rejected these representations. The applicant’s subsequent human rights appeal under s.65(1) was likewise rejected by an adjudicator. The adjudicator was of the opinion that it would be necessary for the applicant to show that exceptional circumstances had arisen since the decision of the IAT, in September 2000, sufficient to engage Art.3. The applicant’s legal representative conceded that the Art.3 claim would be difficult to sustain and sought to concentrate on the Art.8 claim, relying in particular on a relationship which the applicant enjoyed with a male friend and her employment in a church. The adjudicator considered that this was not sufficient to constitute a family life and, in the circumstances, her removal to Uganda would not be disproportionate. In March 2006, the Secretary of State refused the applicant discretionary leave to remain in the United Kingdom and found that the applicant’s further submissions did not amount to a fresh claim. The applicant complained that her expulsion to Uganda would violate her rights under Arts 3, 5 and 8 of the Convention. In July 2006, the President of the Chamber indicated to the Government of the United Kingdom, under r.39 of the Rules of Court, that the applicant should not be expelled to Uganda until further notice. Held unanimously: (1) that the application be declared admissible; (2) that the applicant’s removal to Uganda would not give rise to a violation of Art.3 of the Convention; (3) that no separate issue arose under Art.5 of the Convention; (4) that the applicant’s removal to Uganda would not give rise to a violation of Art.8 of the Convention. 1. Preliminary objection: exhaustion of domestic remedies (Article 35(1)) (a) In relation to the Government’s submission that the applicant had failed to renew her application for leave to appeal, against the IAT’s decision of September 2000, to the Court of Appeal, it was noted that the Immigration and Asylum Act 1999 provided only for appeals “on a question of law”. The IAT had refused (2008) 47 E.H.R.R., Part 3 䉷 Sweet & Maxwell

(2008) 47 E.H.R.R. 18

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permission to appeal on the basis that the applicant’s grounds of appeal did not disclose any arguable point of law. The Government had failed to persuade the Court that an application to the Court of Appeal would have met with any greater success. [43] (b) In relation to the Government’s submission that the applicant had failed to apply for permission to appeal from the adjudicator to the IAT in her human rights appeal, it was not clear which provisions were applicable to such an appeal, following a change to the relevant legislation. The Court also regarded the applicant’s concession that the Art.3 point was difficult to uphold as strong evidence that any further appeal would have little prospect of success. [44] (c) The Court likewise rejected the Government’s third submission that the applicant could have applied for judicial review of the Secretary of State’s decision of March 2006. The Court accepted the applicant’s submission that she had been advised not to pursue such a course of action since there was no new evidence to support her case. Similarly, the Court was not persuaded by the submission that the applicant could have made further submissions to the Secretary of State. The Government had itself admitted that there was no new material on which the applicant could rely. [45] 2. Prohibition of torture; implied obligation not to deport; relevant material; inhuman or degrading treatment (Article 3) (a) Contracting states have the right to control the entry, residence and removal of aliens, but the expulsion of a person by a contracting state might give rise to a breach of Art.3. If it could be shown that there were substantial grounds for believing that that a person, if deported, faced a real risk of being subject to treatment contrary to Art.3, there was an implied obligation on the state not to deport the person to that country. [50]–[51] (b) The Court’s examination of whether there was such a real risk must be a rigorous one. In principle it was for the applicant to adduce evidence capable of proving that there were substantial grounds for believing that she would face a real risk of being subjected to treatment contrary to Art.3. Where such evidence was adduced, it was for the Government then to dispel any doubts about it. In assessing the risk, the Court must examine the foreseeable consequences of deportation, considering both the general situation and the applicant’s personal circumstances. The Court had attached importance to reports of international human rights bodies and governmental sources. However, where the sources described a general situation, the applicant’s specific allegations had to be corroborated by other evidence. The existence of the risk had to be assessed primarily by reference to those facts which ought to have been known to the contracting state at the time of expulsion. In a case such as the present, the relevant time was the time of the proceedings before the Court. [52]–[56] (c) Ill-treatment must attain a minimum level of severity, but the assessment of this minimum level was relative and depended on all the circumstances of the case. [57] (d) Applying those principles to the instant case, the Court relied, inter alia, on the following factors: (2008) 47 E.H.R.R., Part 3 䉷 Sweet & Maxwell

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NNYANZI V UNITED KINGDOM (i) The most severe form of persecution experienced by the applicant before she came to the United Kingdom was her arrest and detention for one day. It was not suggested that she had been ill-treated during that detention, and indeed she had been allowed to visit hospital when she complained of feeling unwell. (ii) The applicant chose to return to Uganda in January 1997, which was evidence of the limited negative mental effects of her detention. (iii) The applicant was not harassed during the period from her return to Uganda and the end of 1997 and she had been able to obtain another passport in her own name. (iv) Neither the applicant nor her family were mistreated during the alleged raid on the family home in September 1998. (v) The applicant’s father had been in custody for almost 10 years. It was therefore unlikely that the authorities would seek further information from her about his political activities. In conclusion, the applicant’s treatment to date did not meet the minimum level of severity and there were no substantial grounds for believing that she would be persecuted on her return to Uganda. [58]–[61]

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3. Arbitrary detention (Article 5) (a) In the light of its conclusion on the Art.3 complaint, the Court held that there was no separate issue under Art.5. [68] 4. Interference with the right to respect for private and family life; “in accordance with the law”; “necessary in a democratic society” (Article 8) (a) It was not necessary to determine whether the circumstances relied upon by the applicant were sufficient to constitute private life within the meaning of Art.8(1). The proposed removal of the applicant to Uganda was in accordance with the law and was motivated by a legitimate aim, namely the maintenance and enforcement of immigration control. With regard to the necessity of the interference, when balanced against the legitimate public interest in effective immigration control, any interference with any private life which the applicant may have established in the United Kingdom, was not disproportionate. The applicant’s stay in the United Kingdom had always been precarious. [76] The following cases are referred to in the Court’s judgment: 1. Abdulaziz v United Kingdom (1985) 7 E.H.R.R. 471 2. Ahmed v Austria (1997) 24 E.H.R.R. 278 3. Al-Moayad v Germany (2007) 44 E.H.R.R. SE22 4. Bensaid v United Kingdom (2001) 33 E.H.R.R. 10 5. Boujlifa v France (2000) 30 E.H.R.R. 419 6. Chahal v United Kingdom (1997) 23 E.H.R.R. 413 7. Costello-Roberts v United Kingdom (1995) 19 E.H.R.R. 112 8. Hilal v United Kingdom (2001) 33 E.H.R.R. 2 9. HLR v France (1998) 26 E.H.R.R. 29 10. Jabari v Turkey 29 E.H.R.R. CD178 11. Jalloh v Germany (2007) 44 E.H.R.R. 32 (2008) 47 E.H.R.R., Part 3 䉷 Sweet & Maxwell

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12. Mamatkulov v Turkey (2005) 41 E.H.R.R. 25 13. Mouisel v France (2004) 38 E.H.R.R. 34 14. Moustaquim v Belgium (1991) 13 E.H.R.R. 802 15. Müslim v Turkey (2006) 42 E.H.R.R. 16 16. N v Finland (2006) 43 E.H.R.R. 12 17. Price v United Kingdom (2002) 34 E.H.R.R. 53 18. Said v Netherlands (2006) 43 E.H.R.R. 14 19. Sheekh v Netherlands (2007) 45 E.H.R.R. 50 20. Soering v United Kingdom (1989) 11 E.H.R.R. 439 21. T v United Kingdom (2000) 30 E.H.R.R. 121 22. Üner v Netherlands [2006] 3 F.C.R. 340 23. Vilvarajah v United Kingdom (1992) 14 E.H.R.R. 248 24. Application No.67679/01, Katani v Germany, May 31, 2001 25. Application No.58510/00, Venkadajalasarma v Netherlands, February 17, 2004 26. Application No.37201/06, Saadi v Italy, February 28, 2008 THE FACTS I. The circumstances of the case 6

The applicant, who was born in 1965, is a Ugandan national. Her mother and younger siblings live in Kenya. She is the daughter of Evaristo Nnyanzi, who was a government minister in Uganda between 1985 and 1986 and subsequently the Treasurer-General of the Democratic Party. 1. The events in Uganda

7

8

9 10

The applicant’s father has been detained since 1998 on treason charges. Her father was first arrested in 1986 when the present regime, the National Resistance Movement (NRM), took power. He was ultimately charged with treason and detained. In 1987 she was followed and arrested by two men when she went to visit her father in prison and detained for one day during which she was asked questions about her father’s political life. She escaped after claiming to be unwell and being allowed to visit a local hospital. She subsequently hid at a friend’s house until her father was acquitted and released later in 1987. In October 1996 the applicant’s father disappeared. He was believed to have fled to Kenya, having been warned that he was likely to be re-arrested. The family, including the applicant, also went to live in Kenya for a while, but she returned to Uganda in January 1997 hoping that the situation had improved. Towards the end of 1997 she was questioned about her father’s whereabouts and her passport was confiscated. She obtained another passport using her real name but a false date of birth. In July 1998 she again travelled to Kenya and then returned to Uganda. In September 1998 the applicant obtained a ticket and tourist visa for the United Kingdom, originally planning to travel as a tourist. On September 21, 1998 she was at home with family members when plain clothes police officers or soldiers raided the house, looking for evidence. They had (2008) 47 E.H.R.R., Part 3 䉷 Sweet & Maxwell

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brought the applicant’s father with them in handcuffs. The applicant stayed with a friend for a few days and then travelled to the United Kingdom via Germany. 2. The applicant’s arrival in the United Kingdom and the refusal of her asylum claim 11 12

13

14

On September 27, 1998 the applicant claimed asylum on arrival in the United Kingdom on the basis of her father’s political activities in Uganda. On November 21, 1999 the Secretary of State refused her application for asylum on the ground that she had not herself been involved in any political parties or activities in Uganda and that she had not claimed to have experienced any arrests, detention or significant problems from the time of her father’s release in 1987 until the claimed raid on her home in September 1998. This was considered to be evidence that she would not be of any adverse interest to the Ugandan authorities. Furthermore, she had used the passport she had obtained from the Ugandan authorities through the correct channels in the name of Evelyn Allen Nakato to leave Uganda without apparent difficulties, having previously used this passport to visit Kenya in 1998 for a holiday after which she had returned to Uganda. Despite her claims that her passport in the name of Evarista Nnyanzi had been confiscated earlier by the authorities and that the date of birth on the passport with which she had left Uganda was false, the names were ones which she used and which her parents had given her and she had submitted letters of residence to obtain the passport from the authorities. It was considered that she would not have been able to leave Uganda through normal immigration channels had she been of any particular or adverse interest to the authorities. On July 5, 2000 a special adjudicator dismissed the applicant’s appeal against the Secretary of State’s decision to refuse her asylum claim. He found that there was no evidence that she had been deeply associated with her father’s political activities. She held no personal political opinion, had not been politically active and had given no evidence at the hearing to demonstrate that she was any closer to her father than any other family members. Her arrest in 1987 had not occurred because of any imputed political opinion but was rather to inquire about her father. Following her release the authorities had shown no further interest in her. After returning from Kenya in 1997 she continued to live at home and was thus easy to locate. The applicant’s assertion that she was believed by the authorities in Uganda to be involved in rebel activities and to assist her father politically was emphatically rejected. On September 26, 2000 the Immigration Appeal Tribunal (IAT), by a majority of two to one, refused her appeal against the determination of the special adjudicator. It found that the special adjudicator was not correct in stating that there was no evidence of individuals being at risk of persecution because of the political activities of their relatives, as he should have considered and made a finding on a letter from the Democratic Party before him which contained evidence to the contrary. The special adjudicator had also erred in stating that the applicant had claimed to have been followed but never accosted or apprehended after she returned from Kenya in 1997 and it would have been better if he had referred to the (2008) 47 E.H.R.R., Part 3 䉷 Sweet & Maxwell

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applicant’s claim to have gone into hiding when concluding that the authorities had shown no further interest in her after her release. Though the applicant was a credible witness and events in Uganda had given rise to a genuine fear of persecution on her part, she had not been seriously ill-treated when detained for a short time in 1986 and questioned about her father’s political activities. Her representative had conceded at the hearing that she had not been subjected to past persecution. There was no evidence that the authorities were looking for the applicant in the period between her being questioned and her father’s release in 1987. However, it was noted that this may have been because she was in hiding. After the applicant’s father disappeared in October 1997 there was a period before she went to Kenya during which the authorities could have found her at her home and arrested her if they had wanted to do so. They could have arrested her at any time between her return to Uganda in January 1997 and September 1998, except for a brief period from July 1998 during which she returned to Kenya. During this period, the applicant believed that she was being watched and followed. If this was the case and the authorities had as serious an interest in her as she claimed, it was difficult to understand why they had not arrested her. Whilst in late 1997 she was accosted by two men who asked her if she knew where her father was and confiscated her original passport, they did not arrest her or subject her to the persecution she claimed to fear. If she was correct and the authorities were looking for her father they were as likely to obtain information from her during that period as they would be during the period after he was detained. The IAT also dismissed the applicant’s assertion that the authorities believed her to be involved in rebel activities and to have assisted her father politically. It considered that the authorities could have arrested the applicant either during the periods outlined above or in September 1998, when they brought her father to the house in handcuffs when she was present. There was no claim that the applicant or any other member of the family present at that time had been arrested. The evidence showed that the only real interest the authorities had in the applicant was in discovering her father’s whereabouts. They no longer needed this information since he was in custody. Though the applicant sought to argue that the Ugandan authorities might still wish to obtain information from her, which would assist the conviction of her father or his associates, it was likely that they were looking for incriminating evidence when they searched the home in September 1998. However they did not arrest the applicant. Having regard to the country information reports, the tribunal also found that there was no evidence that family members of political opponents were negatively associated or as a result persecuted in any way. The two-member majority of the IAT did not find that the applicant had established a reasonable degree of likelihood that, as a family member of an opposition politician, she would herself be at risk of persecution. The minority member, however, considered that the applicant, because of her father’s political position, would be perceived by the Ugandan Government as a political opponent. Moreover, the Government might attempt, by use of force if necessary, to obtain evidence from her to be used against her father at trial. The majority of the IAT recommended on humanitarian grounds that the Secretary of State reconsider the (2008) 47 E.H.R.R., Part 3 䉷 Sweet & Maxwell

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applicant’s position, in the light of her genuine subjective fear of returning to Uganda. On October 16, 2000 the IAT refused the applicant permission to appeal to the Court of Appeal on the basis that the grounds of appeal did not disclose any arguable point of law. 3. The applicant’s human rights appeal

18

19

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22

By a letter dated February 13, 2001 the applicant made further representations to the Secretary of State claiming that her removal from the United Kingdom would be a breach of the latter’s obligations under Arts 3, 5, 8, 9 and 10 of the Convention and the Human Rights Act 1998. By a letter dated June 4, 2001 the Secretary of State rejected these representations, inter alia, on the basis that the special adjudicator and IAT had addressed all the reasons in their determinations and that the concerns raised under Art.8 in relation to difficulties the applicant might suffer in Uganda did not engage the United Kingdom’s obligations. On January 11, 2005 an adjudicator refused the applicant’s human rights appeal under s.65(1) of the Immigration and Asylum Act 1999 (1999 Act).1 He was of the opinion that as the applicant’s claim had been considered and dismissed by both a special adjudicator and the IAT, albeit on a majority decision, he needed to consider whether there were any circumstances that had arisen since the date of the IAT’s decision that would provide exceptional circumstances sufficient to engage Art.3. Though the current conditions in Uganda were certainly no better than they were at the time the applicant had left the country, there was nothing to suggest that they had seriously deteriorated or that the position of her father had worsened. The adjudicator noted that the applicant’s cousin had informed her that the remainder of her family were well in Uganda and that her legal representative had conceded that there was no emphatic ground to contend that Art.3 would be breached should the applicant be returned to Uganda. He further observed that, with commendable honesty, the applicant’s legal representative had accepted that the Art.3 claim would be hard to uphold and had rather sought to concentrate on the Art.8 claim. As regards the applicant’s submissions under Art.8, the adjudicator found that the applicant had established a private and not family life in the United Kingdom as the relationship she enjoyed with a male friend did not constitute family life. Though she had established a private life during her stay in the United Kingdom in excess of six years, revolving around her employment in a church and her accountancy studies, her removal to Uganda, however sympathetic one might be to her circumstances, would not be disproportionate. In mid-February 2005 the applicant was detained with a view to effecting her removal from the United Kingdom and removal directions were set for her return to Uganda on February 19, 2005. On the evening of February 18, 2005 the applicant’s solicitors obtained an injunction from a High Court judge over the telephone restraining the Secretary of State from removing the applicant from the United Kingdom. 1

See [27] below.

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On February 19, 2005 the applicant issued an application for permission to apply for judicial review of her removal directions on the basis that her removal would be in breach of her rights under the Convention. By an order dated April 1, 2005, the applicant’s application for permission to apply for judicial review was refused by a High Court judge following consideration of the documents. The judge refused the application holding that it was an abuse of process and merely an attempt to frustrate her removal directions since there had been no application for permission to appeal against the adjudicator’s determination dated January 11, 2005. By a letter dated March 27, 2006 the Secretary of State refused the applicant discretionary leave to remain in the United Kingdom and found that the applicant’s further submissions did not amount to a fresh claim. All the points raised in her submissions had already been addressed when the applicant’s earlier claim had been determined and they were not significantly different from the material that had previously been considered. The applicant’s fears that she might be detained, tortured or subjected to degrading treatment given the manner of her escape were considered speculative as she had provided no evidence to support this claim. The applicant had failed to provide any evidence that the Ugandan authorities were of the opinion that she could assist them with any inquiries regarding her father. No new or compelling evidence had been provided. Article 8 had already been considered during her appeal against the refusal of her human rights application and all the issues she had raised in her current representations had also been raised before and considered thoroughly by the adjudicator. Furthermore, the applicant had the opportunity to apply for permission to appeal against the adjudicator’s determination of January 11, 2005 but had failed to do so. Following the application of r.39 and communication of this case to the Government for its observations, the applicant was released from detention and granted temporary admission into the United Kingdom, with a requirement to report on a fortnightly basis. The Government confirmed in writing that, as a result of the r.39 indication, the applicant would not be removed from the United Kingdom pending the conclusion of the proceedings before the Court. II. Relevant domestic law and practice A. Immigration legislation and rules

27

Paragraph 23 of the Immigration and Asylum Act 1999 (“1999 Act” in force at the relevant time) provided: “(1) If the Immigration Appeal Tribunal has made a final determination of an appeal brought under Part IV, any party to the appeal may bring a further appeal to the appropriate appeal court on a question of law material to that determination. (2) An appeal under this section may be brought only with the leave of the Immigration Appeal Tribunal or, if such leave is refused, of the appropriate appeal court. (2008) 47 E.H.R.R., Part 3 䉷 Sweet & Maxwell

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NNYANZI V UNITED KINGDOM (3) “Appropriate appeal court” means— (a) if the appeal is from the determination of an adjudicator made in Scotland, the Court of Session; and (b) in any other case, the Court of Appeal.”

28

Section 65 under Pt IV of the 1999 Act stipulates as follows: “(1) A person who alleges that an authority has, in taking any decision under the Immigration Acts relating to that person’s entitlement to enter or remain in the United Kingdom, acted in breach of his human rights may appeal to an adjudicator against that decision unless he has grounds for bringing an appeal against the decision under the [1997 c. 68.] Special Immigration Appeals Commission Act 1997. (2) For the purposes of this Part, an authority acts in breach of a person’s human rights if he acts, or fails to act, in relation to that other person in a way which is made unlawful by section 6(1) of the [1998 c. 42.] Human Rights Act 1998. (3) Subsections (4) and (5) apply if, in proceedings before an adjudicator or the Immigration Appeal Tribunal on an appeal, a question arises as to whether an authority has, in taking any decision under the Immigration Acts relating to the appellant’s entitlement to enter or remain in the United Kingdom, acted in breach of the appellant’s human rights. (4) The adjudicator, or the Tribunal, has jurisdiction to consider the question. (5) If the adjudicator, or the Tribunal, decides that the authority concerned acted in breach of the appellant’s human rights, the appeal may be allowed on that ground.”

29

Paragraph 22 (1) of Sch.4 to the 1999 Act provided: “(1) Subject to any requirement of rules made under paragraph 3 as to leave to appeal, any party to an appeal, other than an appeal under section 71 (removal of asylum claimants to safe third countries), to an adjudicator may, if dissatisfied with his determination, appeal to the Immigration Appeal Tribunal. (2) The Tribunal may affirm the determination or make any other determination which the adjudicator could have made.”

30

Section 82 of the Nationality, Immigration and Asylum Act 2002 (2002 Act) reads, as relevant: “1) Where an immigration decision is made in respect of a person he may appeal to an adjudicator. (2) In this Part “immigration decision” means— (a) refusal of leave to enter the United Kingdom, (b) refusal of entry clearance, (c) refusal of a certificate of entitlement under section 10 of this Act, (2008) 47 E.H.R.R., Part 3 䉷 Sweet & Maxwell

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(d) refusal to vary a person’s leave to enter or remain in the United Kingdom if the result of the refusal is that the person has no leave to enter or remain, (e) variation of a person’s leave to enter or remain in the United Kingdom if when the variation takes effect the person has no leave to enter or remain, (f) revocation under section 76 of this Act of indefinite leave to enter or remain in the United Kingdom, (g) a decision that a person is to be removed from the United Kingdom by way of directions under section 10(1)(a), (b) or (c) of the Immigration and Asylum Act 1999 (c. 33) (removal of person unlawfully in United Kingdom), (h) a decision that an illegal entrant is to be removed from the United Kingdom by way of directions under paragraphs 8 to 10 of Schedule 2 to the Immigration Act 1971 (c. 77) (control of entry: removal), (i) a decision that a person is to be removed from the United Kingdom by way of directions given by virtue of paragraph 10A of that Schedule (family), (j) a decision to make a deportation order under section 5(1) of that Act, and (k) refusal to revoke a deportation order under section 5(2) of that Act . . .” 31

Section 101 of the 2002 Act states that: “A party to an appeal to an adjudicator under section 82 or 83 may, with the permission of the Immigration Appeal Tribunal, appeal to the Tribunal against the adjudicator’s determination on a point of law.”

32

Regulation 3 of the Nationality, Immigration and Asylum Act 2002 (Commencement No.4) Order 2003 (“Commencement Order 2003”) provided: “(1) Subject to Schedule 2, the new appeal provisions are not to have effect in relation to events which took place before 1 April 2003 and notwithstanding their repeal by the provisions of the 2002 Act commenced by this Order, the old appeals provisions are to continue to have effect in relation to such events.”

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34

Regulation 4(3) of the Commencement Order 2003 specified that an event had taken place under the old Immigration Acts where, inter alia: (a) a notice was served; or (b) a decision was made or taken. The Nationality, Immigration and Asylum Act 2002 (Commencement No.4) (Amendment) (No.2) Order 2003 (Commencement Amendment Order 2003) amended the Commencement Order 2003. Article 4, which came into force on June 9, 2003, amended the transitional provisions for appeals by applying ss.101(1)–(3), 102 and 103 of the 2002 Act (which relate to further appeals by a party to an appeal to an adjudicator, and to statutory review of decisions of the (2008) 47 E.H.R.R., Part 3 䉷 Sweet & Maxwell

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Immigration Appeal Tribunal upon applications for permission to appeal against an adjudicator’s determination) in relation to an appeal under Pt IV of the 1999 Act which was determined by an adjudicator on or after June 9, 2003. Paragraph 353 of the Immigration Rules2 states that: “When a human rights or asylum claim has been refused and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content: (i) had not already been considered; and (ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection.” III. Relevant country background information on Uganda

36

Paragraph 3.7.12 of the Home Office Operational Guidance Note on Uganda issued on January 15, 2007 states: “Despite the relaxation on the rules governing political parties and the move towards multi-party politics, opposition political parties continued to face restrictions on their ability to assemble and organise and their supporters were subject to harassment and sometimes ill-treatment by the authorities. Some opposition supporters were detained by the security forces and some face charges of treason. However, others who were similarly detained were released without charge. In some cases particularly those of prominent members of political parties or those accused of treason who have been detained for long periods of time and who have suffered ill-treatment at the hands of the Ugandan authorities a grant of asylum or Humanitarian Protection may be appropriate. However, in other cases such as that of a low level activist detained for few days and then released without charge the harassment suffered will not reach the level of persecution or breach Article 3 of the ECHR and therefore they will not qualify for grant of asylum or Humanitarian Protection.”

37

The US State Department (USSD) Report on Human Rights Practices in Uganda released on March 8, 2006 states at para.1(f) that, “[t]here were reports that the government punished family members of suspected criminals and political opposition members”. However the next USSD Report on Uganda released on March 6, 2007 explains at para.1(f) that: “Unlike in the previous year, there were no reports that the government punished family members of suspected criminals and political opposition members.” 2

Immigration Rules HC 395, as amended by HC 1112.

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The Immigration and Refugee Board of Canada’s report entitled “Uganda: Treatment of family members of political opponents and suspected members of rebel movements such as Allied Defence Forces (ADF) and the Lords Resistance Army (LRA)” published on October 4, 2000 cites the following incident: “A mother of an alleged ADF rebel chief, Jamil Mukulu, whom security forces questioned several times regarding her son’s whereabouts, was reportedly harassed and tortured by members of the Directorate of Military Intelligence (The Monitor 16 August 1999).” JUDGMENT

39

The applicant complained that her expulsion to Uganda would violate her rights protected by Arts 3, 5 and 8 of the Convention. I. The Government’s objection on non-exhaustion A. The parties’ submissions

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The Government submitted that the applicant had failed to exhaust all available domestic remedies. Relying on para.23 of the 1999 Act, it argued first that the applicant had failed to renew her application for leave to appeal against the IAT’s decision of September 26, 2000 before the Court of Appeal once such leave had been refused by the IAT.3 Secondly, the applicant had failed to apply for permission to appeal from the adjudicator to the IAT in her human rights appeal.4 As the decision under appeal in the present case had been taken on June 4, 2001, when the Secretary of State had initially refused her appeal on human rights grounds, the 1999 Act was still applicable following the provisions of the Commencement Order 2003.5 Thirdly, the applicant had failed to apply for permission to apply for judicial review of the Secretary of State’s decision of March 27, 2006. Finally, the applicant could have made further representations to the Secretary of State if there had been a relevant change of circumstances which she had not previously raised before the domestic authorities. If any such further submissions had been accepted as a fresh claim, she would have a right of appeal under s.82 of the 2002 Act.6 If her further submissions were rejected and not accepted as amounting to a fresh claim she could bring judicial review proceedings. The High Court could grant an injunction to prevent her removal from taking place before her judicial review application had been considered. However, this was very unlikely given the lack of evidence of a relevant change of circumstances and the comments made by the High Court judge in relation to her last application for leave to apply for judicial review. The applicant did not respond to the first two of the Government’s submissions. With regards to the Government’s assertion that she could have applied for permission for judicial review of the decision of March 27, 2006, she claimed that 3 4 5 6

See [26] above. See [28] above. See [31] and [32] above. See [29] above.

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her previous solicitors had advised her that as her first application for judicial review had been refused and that there had been no change of circumstances, a successful second application for judicial review was unlikely. As for the Government’s final submission that she could have made further representations to the Secretary of State, the applicant contended that the Government itself had recognised that there was no material that had not been previously considered and that therefore a fresh claim was not a realistic remedy. Furthermore, the Government had not argued that she would have stood any realistic prospects of success in any judicial review or fresh application. B. The Court’s assessment 42

43

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The Court recalls that the rule of exhaustion of domestic remedies in Art.35(1) of the Convention requires applicants first to use the remedies provided by the national legal system, thus dispensing states from answering before the European Court for their acts before they have had an opportunity to put matters right through their own legal system. The burden of proof is on the Government claiming non-exhaustion to satisfy the Court that an effective remedy was available in theory and in practice at the relevant time, namely, that the remedy was accessible, capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success.7 Further, where there is a choice of remedies open to an applicant, Art.35 must be applied to reflect the practical realities of the applicant’s position in order to ensure the effective protection of the rights and freedoms guaranteed by the Convention.8 As to the Government’s submission that the applicant failed to exhaust available domestic remedies by not renewing her application for leave to appeal against the IAT’s decision of September 26, 2000 to the Court of Appeal, the Court notes that this option was available to her under para.23 of the 1999 Act which provided only for appeals on “a question of law”. According to the reasons given by the IAT, permission to appeal to the Court of Appeal was refused on the basis that the applicant’s grounds of appeal did “not disclose any arguable point of law”. Having regard to the clear position taken by the IAT, the Court is not persuaded that the Government have shown that a renewed application to the Court of Appeal for leave to appeal would have offered any reasonable prospects of success. As regards the Government’s second submission regarding non-exhaustion,9 even assuming that the applicant could have applied to the IAT against the adjudicator’s refusal of her human rights appeal of January 11, 2005 following the provisions of the Commencement Order 2003, despite the entry into force of the Commencement Amendment Order 2003 cited above,10 the Court does not regard this as a remedy which was accessible, capable of providing redress and offering reasonable prospects of success. In so finding, the Court observes that it was not entirely clear which provisions were applicable to the applicant’s case due to the change to the applicable legislation introduced by the 2002 Act and its concomitant Commencement Orders. The Court further notes the adjudicator’s observation 7

See T v United Kingdom (2000) 30 E.H.R.R. 121 at [55]. Hilal v United Kingdom (2001) 33 E.H.R.R. 2. See [39] above. 10 See [33] above. 8 9

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during the January 2005 hearing that the applicant’s representative herself had conceded that the Art.3 point was difficult to uphold and considers this to be strong evidence that any further appeal, if available, would offer little if any prospects of success. In light of the foregoing, the Court finds that the applicant’s application to the Secretary of State on human rights grounds and her subsequent appeal against that decision to an adjudicator under s.65 of the 1999 Act, all following the failure of her initial asylum claim, were sufficient to dispense her from the obligation to exhaust all domestic remedies under Art.35(1) of the Convention. As to the Government’s third submission that the applicant could have applied for permission to apply for judicial review of the Secretary of State’s decision of March 27, 2006, the Court notes the applicant’s explanation that she was advised by her solicitors not to pursue leave to apply for judicial review for a second time, as there was no new evidence to support her claims. In light of the applicant’s unsuccessful application for leave to apply for judicial review in April 2005 and the lack of any new evidence, the Court similarly finds that this remedy offered little if any prospects of success. Finally, the Court does not consider the Government’s final submission that the applicant could have made further representations to the Secretary of State tenable, as by the Government’s own admission there was no material which had not been considered previously. It follows that this was not an adequate or effective remedy for the purposes of Art.35(1) of the Convention. In view of the foregoing, the Court dismisses the Government’s objections on non-exhaustion. It concludes that the application is not manifestly ill-founded within the meaning of Art.35(3) of the Convention. Nor have any other grounds for declaring it inadmissible been established. It must therefore be declared admissible. II. Alleged violation of Article 3 of the Convention

47

The applicant complained that her expulsion to Uganda would violate Art.3 of the Convention as there was a real risk that she would be ill-treated upon return. Article 3 reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. The parties’ submissions 1. The applicant

48

The applicant submitted that she faced a real and immediate risk of ill-treatment and arbitrary detention if returned to Uganda. She would be targeted due to the political activities of her father who had been detained without trial in Uganda since 1998 on treason charges. The authorities might ill-treat her in order to extract information concerning her father. She argued that the fact that her original passport had been confiscated and that she had once been detained and twice interrogated before her arrival in the United Kingdom was evidence of her past persecution. She emphasised that the domestic authorities had all found her to be credible and had concluded that she had a genuine subjective, if not objectively reasonable, fear of persecution. She relied on the 2006 US State Department (2008) 47 E.H.R.R., Part 3 䉷 Sweet & Maxwell

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Report which referred to accounts that the Ugandan Government had punished family members of, inter alia, political opponents11 and the 2000 report published by the Immigration and Refugee Board of Canada, which recounted an incident when the mother of an alleged rebel chief was harassed and tortured after being questioned several times concerning her son’s whereabouts,12 as objective country evidence that family members of political opponents were at risk in Uganda. 2. The Government 49

The Government submitted that the applicant had produced no evidence to displace the findings of the IAT on her asylum claim and the adjudicator on her human rights appeal that her return to Uganda would not constitute a breach of Art.3. In particular, it noted that her legal representative had accepted that her Art.3 claim “would be hard to uphold” before the adjudicator on January 11, 2005. The IAT and both adjudicators had concluded that the applicant held no political opinion of her own, had not been politically active and had not in any way been perceived as having assisted her father politically. Available country information on Uganda did not indicate that the applicant might suffer persecution in her own right or by any form of association with her father. While it was accepted that the Ugandan Government might still target political opponents, the applicant would not be perceived as a political opponent herself and neither was there any reasonable likelihood that she would be targeted merely because of her father. B. The Court’s assessment (a) General principles (i) Responsibility of contracting states in the event of expulsion

50

51

It is the Court’s settled case law that as a matter of well-established international law, and subject to their treaty obligations, including those arising from the Convention, contracting states have the right to control the entry, residence and removal of aliens.13 In addition, neither the Convention nor its Protocols confer the right to political asylum.14 However, expulsion by a contracting state may give rise to an issue under Art.3, and hence engage the responsibility of that state under the Convention, where substantial grounds have been shown for believing that the person concerned, if deported, faces a real risk of being subjected to treatment contrary to Art.3. In such a case Art.3 implies an obligation not to deport the person in question to that country.15 11

See [36] above. See [37] above. See, among many other authorities, Abdulaziz v United Kingdom (1985) 7 E.H.R.R. 471 at [67], and Boujlifa v France (2000) 30 E.H.R.R. 419 at [42]. 14 See Vilvarajah v United Kingdom (1992) 14 E.H.R.R. 248 at [102], and Ahmed v Austria (1997) 24 E.H.R.R. 278 at [38], cited in App. No.37201/06, Saadi v Italy, February 28, 2008 at [124]. 15 See Soering v United Kingdom (1989) 11 E.H.R.R. 439 at [90]–[91]; Vilvarajah (1992) 14 E.H.R.R. 248 at [103]; Ahmed (1997) 24 E.H.R.R. 278 at [39]; HLR v France (1998) 26 E.H.R.R. 29 at [34]; Jabari v Turkey 29 E.H.R.R. CD178 at [38]; Sheekh v Netherlands (2007) 45 E.H.R.R. 50 at [135]; and App. No.37201/06, Saadi, February 28, 2008 at [125]. 12 13

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(ii) Material used to assess the risk of exposure to treatment contrary to Article 3 of the Convention 52

53

54

55

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In determining whether substantial grounds have been shown for believing that there is a real risk of treatment incompatible with Art.3, the Court will take as its basis all the material placed before it or, if necessary, material obtained proprio motu.16 In cases such as the present the Court’s examination of the existence of a real risk must necessarily be a rigorous one.17 It is in principle for the applicant to adduce evidence capable of proving that there are substantial grounds for believing that, if the measure complained of were to be implemented, he would be exposed to a real risk of being subjected to treatment contrary to Art.3.18 Where such evidence is adduced, it is for the Government to dispel any doubts about it. In order to determine whether there is a risk of ill-treatment, the Court must examine the foreseeable consequences of sending the applicant to the receiving country, bearing in mind the general situation there and his personal circumstances.19 To that end, as regards the general situation in a particular country, the Court has often attached importance to the information contained in recent reports from independent international human-rights protection associations such as Amnesty International, or governmental sources, including the US State Department.20 At the same time, it has held that the mere possibility of ill-treatment on account of an unsettled situation in the receiving country does not in itself give rise to a breach of Art.321 and that, where the sources available to it describe a general situation, an applicant’s specific allegations in a particular case require corroboration by other evidence.22 With regard to the material date, the existence of the risk must be assessed primarily with reference to those facts which were known or ought to have been known to the contracting state at the time of expulsion. However, if the applicant has not yet been extradited or deported when the Court examines the case, the relevant time will be that of the proceedings before the Court.23 This situation typically arises when, as in the present case, deportation or extradition is delayed as a result of an indication by the Court of an interim measure under r.39 of the Rules of Court.24 Accordingly, while it is true that historical facts are of interest in so far as they shed light on the current situation and the way it is likely to develop, the present circumstances are decisive.25 16

See HLR (1998) 26 E.H.R.R. 29 at [37], and Hilal (2001) 33 E.H.R.R. 2 at [60]. See Chahal v United Kingdom (1997) 23 E.H.R.R. 413 at [96]; and App. No.37201/06, Saadi, February 28, 2008 at [128]. 18 See N v Finland (2006) 43 E.H.R.R. 12 at [167]. 19 See Vilvarajah (1992) 14 E.H.R.R. 248 at [108] in fine; and App. No.37201/06, Saadi, February 28, 2008 at [128]–[129]. 20 See, for example, Chahal (1997) 23 E.H.R.R. 413 at [99]–[100]; Müslim v Turkey (2006) 42 E.H.R.R. 16 at [67]; Said v Netherlands (2006) 43 E.H.R.R. 14 at [54]; and Al-Moayad v Germany (2007) 44 E.H.R.R. SE22 at [65]–[66]. 21 See Vilvarajah (1992) 14 E.H.R.R. 248 at [111], and App. No.67679/01, Katani v Germany, May 31, 2001. 22 See Mamatkulov v Turkey (2005) 41 E.H.R.R. 25 at [67], [73]; Müslim (2006) 42 E.H.R.R. 16 at [68]; and App. No.37201/06, Saadi v Italy, February 28, 2008 at [131]. 23 See Chahal (1997) 23 E.H.R.R. 413 at [85]–[86], and App. No.58510/00, Venkadajalasarma v Netherlands, February 17, 2004 at [63]. 24 See Mamatkulov (2005) 41 E.H.R.R. 25 at [69]. 25 See App. No.37201/06, Saadi v Italy, February 28, 2008 at [133]. 17

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(iii) The concepts of “inhuman or degrading treatment” 57

According to the Court’s settled case law, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Art.3. The assessment of this minimum level of severity is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim.26 (b) Application of the above principles to the present case

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The Court notes that the most severe form of persecution that the applicant experienced in Uganda before coming to the United Kingdom was her arrest by two unidentified men when visiting her father in prison in 1987 and her subsequent detention for one day during which she was questioned about her father’s political activities. At no point has it been suggested that she was ill-treated during her detention. In fact, the applicant’s own account is that she was allowed to visit the local hospital after claiming to be unwell. Accordingly, the Court does not consider that the circumstances of the applicant’s detention for one day’s duration reach the minimum level of severity required to fall within the scope of Art.3.27 As to the mental effects that such treatment had on the applicant, the Court notes that she opted to return to Uganda in January 1997, following her flight to Kenya in the wake of her father’s disappearance, as by her own admission she was hopeful that the situation would improve. The Court regards the applicant’s voluntary return to Uganda and admitted optimism as to the future as evidence of the limited negative mental effects of her detention. The Court further observes that the applicant was then left undisturbed until the end of 1997 when she was questioned about her father’s whereabouts and her passport was confiscated. Furthermore, she was not in any way harassed in the time between her return to Uganda in January 1997 and her alleged questioning at the end of 1997. It is also noteworthy that she was subsequently able to obtain another passport under another one of her known and actively used names, with which she was able to travel to Kenya without any difficulty in July 1998 before again voluntarily returning to Uganda. The Court views the applicant’s account that she had initially planned to visit the United Kingdom as a tourist before late September 1998, when her father was brought to the family home handcuffed by the authorities who were searching for evidence, as an indication that she was not fearful of the situation in Uganda until that event. It further notes the observations of the domestic authorities in this regard, in particular that of the IAT in its majority decision of September 26, 2000, that neither the applicant nor any other family members were arrested or in any way mistreated during the said raid on the family home, and their conclusion that if the authorities had intended to use the applicant to extract information to assist in her father’s conviction they would have done so during the raid of September 1998 26 See, among other authorities, Price v United Kingdom (2002) 34 E.H.R.R. 53 at [24]; Mouisel v France (2004) 38 E.H.R.R. 34 at [37]; and Jalloh v Germany (2007) 44 E.H.R.R. 32 at [67]. 27 See Price (2002) 34 E.H.R.R. 53 at [24].

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when they were specifically looking for incriminating evidence. Despite the raid on her family home, the Court notes that the applicant managed to leave Uganda on her own passport a few days after the incident without any reported difficulties. Moreover, the Court cannot ignore the fact that the applicant’s father has now been in detention and in the custody of the Ugandan authorities for almost 10 years. It considers further that if the authorities had wanted information concerning the applicant’s father they would have been more likely to detain her before he was found and taken into their exclusive custody. Nor has it been explained why the applicant would be expected to know any more about her father’s political activities than he himself, particularly after the passage of almost 10 years during which she has been out of the country. Having regard to all these considerations, the Court finds that no substantial grounds have been shown for believing that the applicant is of any continuing special interest to the Ugandan authorities or that she will be persecuted upon her return. In support of its above conclusion, the Court takes into consideration the applicant’s representative’s concession before the adjudicator on January 11, 2005 that the Art.3 complaint would be hard to uphold and that there was “no emphatic ground” on which to contend that Art.3 would be breached. It also notes that despite the fact that the applicant’s mother and siblings appear to reside in Kenya, the rest of the family, including her niece, were doing well in Uganda at the time of the adjudicator’s determination of January 2005. As is incumbent upon it, the Court has taken into account all relevant country information submitted by the parties and that obtained proprio motu. As to the 2006 US State Department (USSD) report on Uganda which the applicant submitted and its references to reports that the Ugandan Government has punished family members of opposition members, the Court observes that the more recent USSD report released in March 2007 explains that: “[U]nlike in the previous year, there were no reports that the government punished family members of suspected criminals and political opposition members.”28

64

Similarly the Court takes into consideration the Home Office’s recent Operational Guidance Note on Uganda of January 15, 2007,29 which states that in cases of low-level activists detained for a few days and then released without charge the harassment suffered would not reach a level of persecution in breach of Art.3 of the Convention. The Court notes that by the applicant’s own admission she was not politically active in any way in Uganda, a fact which was highlighted by the domestic courts and the respondent Government. Considering that the country information shows that even low-level activists would not be at risk of persecution in Uganda, the Court finds no reason to believe that someone who has never been active at all would be at risk merely by association with a relative. This conclusion is further supported by the 2007 USSD report cited above. The Court observes that the only suggestion of potential targeting of the family members of political opponents is to be found in the applicant’s reference to the Immigration and Refugee Board of Canada report dated October 2000, which 28 29

See [36] above. See [35] above.

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refers to an event in 1999 when a mother of an alleged rebel chief, whom security forces had questioned several times regarding her son’s whereabouts, was reportedly harassed and tortured by members of the Directorate of Military Intelligence. The Court notes that this event occurred a significant time ago, approximately nine years, and that it is unsupported by any other corroborating country evidence as to the existence of a general risk to the families of political opponents. Furthermore, this reported incident can be distinguished from the facts of the present case in that it involved questioning as to a son’s whereabouts on numerous occasions on which the mother had presumably initially failed to co-operate. In the instant case, however, the applicant’s father’s location is known as he has been in detention and in the custody of the authorities for almost 10 years. Furthermore, the applicant has not been detained or questioned during several periods when it was clearly open to the authorities to do so. Therefore, after examining the individual circumstances of the applicant in the light of the current general situation in Uganda,30 the Court finds that no substantial grounds have been established for believing that she would be exposed to a real risk of torture or inhuman or degrading treatment within the meaning of Art.3 of the Convention if expelled. Accordingly, the expulsion of the applicant to Uganda would not be in violation of Art.3 of the Convention. III. Alleged violation of Article 5 of the Convention

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The applicant complained that her expulsion to Uganda would also violate Art.5 of the Convention as there was a real risk that she would be detained arbitrarily upon return. In light of its conclusions on the applicant’s Art.3 complaint, the Court finds that no separate issue arises under Art.5 of the Convention. IV. Alleged violation of Article 8 of the Convention

69

The applicant further complained that her removal to Uganda would constitute a disproportionate interference with her right to respect for her private life in breach of Art.8 of the Convention, which provides as relevant: “1. Everyone has the right to respect for his private . . . life . . . 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. The parties’ submissions

70

The applicant submitted that she had established a private life in the United Kingdom which involved close ties with her church and her part-qualification as an 30

See Vilvarajah (1992) 14 E.H.R.R. 248 at [108].

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accountant. She had a male friend and hoped that the relationship would develop. Furthermore, the State was responsible for several instances of delay during the processing of her asylum claim and subsequent human rights appeal, which rendered her case exceptional. She had been living in the United Kingdom for almost 10 years. Moreover, her removal to Uganda would be traumatic and would likely exacerbate her asthmatic condition. The Government contested that argument. It submitted that the applicant’s circumstances were not capable of coming within the ambit of private life under Art.8 of the Convention as the provision did not provide a right to choose the country in which a person sought to reside and work without regard to that country’s immigration laws. Even assuming that the applicant had established private life in the United Kingdom and that it had been interfered with, such interference was in accordance with the law, pursued a legitimate aim, namely the maintenance and enforcement of immigration control, inter alia, for the preservation of the economic well-being of the country, the protection of health and morals and the protection of the rights and freedoms of others and was proportionate in the circumstances. B. The Court’s assessment 1. Relevant principles

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The Convention does not guarantee the right of an alien to enter or to reside in a particular country. However, the removal of a person from a country where close members of his family are living may amount to an infringement of the right to respect for family life as guaranteed in Art.8(1) of the Convention.31 The Court has also recognised that, regardless of the existence or otherwise of “family life”, and depending on the circumstances of a particular case, such removal may also give rise to an infringement of an applicant’s right to respect for his private life.32 The Court also reiterates its finding in Bensaid v United Kingdom33 that: “[N]ot every act or measure which adversely affects moral or physical integrity will interfere with the right to respect to private life guaranteed by Article 8.”

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However, the Court’s case law does not exclude that treatment which does not reach the severity of Art.3 treatment may nonetheless breach Art.8 in its private-life aspect where there are sufficiently adverse effects on physical and moral integrity.34 Any interference with Art.8 rights will infringe the Convention if it does not meet the requirements of para.2 of Art.8. It is therefore necessary to determine whether the interference was “in accordance with the law”, motivated by one or more of the legitimate aims set out in that paragraph, and “necessary in a democratic society”. 31 32 33 34

See Moustaquim v Belgium (1991) 13 E.H.R.R. 802 at [36]. See Üner v Netherlands (2006) 45 E.H.R.R. 14 at [59]. Bensaid v United Kingdom (2001) 33 E.H.R.R. 10 at [46]. See Costello-Roberts v United Kingdom (1995) 19 E.H.R.R. 112 at [36].

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2. Application of the above principles to the present case 76

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The Court does not consider it necessary to determine whether the applicant’s accountancy studies, involvement with her church and friendship of unspecified duration with a man during her stay of almost 10 years in the United Kingdom constitute private life within the meaning of Art.8(1) of the Convention. Even assuming this to be the case, it finds that her proposed removal to Uganda is “in accordance with the law” and is motivated by a legitimate aim, namely the maintenance and enforcement of immigration control. As to the necessity of the interference, the Court finds that any private life that the applicant has established during her stay in the United Kingdom when balanced against the legitimate public interest in effective immigration control would not render her removal a disproportionate interference. In this regard, the Court notes that, unlike the applicant in the case of Üner,35 the present applicant is not a settled migrant and has never been granted a right to remain in the respondent State. Her stay in the United Kingdom, pending the determination of her several asylum and human rights claims, has at all times been precarious and her removal, on rejection of those claims, is not rendered disproportionate by any alleged delay on the part of the authorities in assessing them. Nor does the Court find there to be sufficient evidence that the applicant’s removal with her asthma condition, which she asserts is exacerbated by stress, would have such adverse effects on her physical and moral integrity as to breach her rights under Art.8 of the Convention. Accordingly, the applicant’s removal to Uganda would not give rise to a violation of Art.8 of the Convention. For these reasons, THE COURT unanimously: 1. Declares the application admissible. 2. Holds that the applicant’s removal to Uganda would not give rise to a violation of Art.3 of the Convention. 3. Holds that no separate issue arises under Art.5 of the Convention. 4. Holds that the applicant’s removal to Uganda would not give rise to a violation of Art.8 of the Convention.

35

Üner (2006) 45 E.H.R.R. 14.

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BOYLE v UNITED KINGDOM BEFORE THE EUROPEAN COURT OF HUMAN RIGHTS APPLICATION NO.55434/00 (The President, Judge Casadevall, Judges Brazta, Pavlovschi, Garlicki, Mijovic´, Sˇikuta, Hirvelä) (2008) 47 E.H.R.R. 19

January 8, 2008 Army; Commanding officers; Prosecutors; Detention; Right to be brought before judge; Service discipline; Service personnel H1

H2

H3 H4

The applicant was a member of the British Army. In 1999 he had been stationed in Germany when he was alleged to have been involved in the rape of a woman. He was arrested and brought before his commanding officer, where he was charged with indecent assault. He was transferred to a military detention centre in the United Kingdom to await trial. The applicant’s parents instructed a solicitor on his behalf and, after representations from the solicitor, including the issuing of proceedings for a writ of habeas corpus, the defendant was released from custody pending his trial. In May 2001, the applicant was acquitted. The applicant alleged a violation of Art.5(3) of the Convention. Held unanimously: (1) there had been a violation of Art.5(3) as regards the lack of independence and impartiality of the applicant’s commanding officer; (2) there had been no violation of Art.5(3) as regards the alleged failure to inform the applicant of the reasons for his detention pending trial; (3) there had been no violation of Art.5(3) as regards the alleged lack of a factual or legal basis for the applicant’s detention; (4) it was not necessary to consider the remainder of the complaints under Art.5(3); (5) the finding of a violation constituted sufficient just satisfaction for any non-pecuniary damage; (6) the respondent State was to pay a sum of money in respect of costs and expenses

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H5

H6

H7

H8

H9 H10 H11 H12

BOYLE V UNITED KINGDOM

1. Right to be brought promptly before a judge or other lawfully authorised officer (Article 5(3)) (a) The commanding officer was both the prosecuting authority and the judicial tribunal. He had the power to amend or substitute a charge; to dismiss the charge; and to decide upon the mode of trial. He was responsible for the discipline of the unit and had the power to detain the applicant. [35] (b) The commanding officer thus lacked the impartiality required by Art.5(3). [36] 2. Alleged failure to inform the applicant of the reasons for his detention (a) The Government contended that the applicant had been orally informed of the reasons for his detention on a number of occasions. Written records were sent to his solicitors once they were requested. The applicant had not commented on these arguments. It was desirable that a detainee be informed in writing of the reasons for his detention, but the failure to do so did not amount to a violation of Art.5(3). [38]–[39] 3. Alleged lack of a factual or legal basis for the applicant’s detention (a) Written reports were completed on a regular basis. The applicant did not complain of a violation of Art.5(1)(c). There was a fear that—if released—the applicant would attempt to pervert the course of justice. These reasons were relevant and sufficient for the purposes of Art.5(3). [41]–[42] 4. Just satisfaction: damage; costs and expenses; default interest (Article 41) (a) The finding of a violation constituted sufficient just satisfaction for the violations found. [48] (b) The applicant was awarded c3,096 in respect of costs and expenses. [51] (c) Provision was made for the payment of interest in default. [52] The following cases are referred to in the Court’s judgment: 1. Hood v United Kingdom (2000) 29 E.H.R.R. 365 2. Jordan v United Kingdom (2001) 31 E.H.R.R. 6 3. Schiesser v Switzerland (1979–80) 2 E.H.R.R. 417 4. Thompson v United Kingdom (2005) 40 E.H.R.R. 11 5. X v United Kingdom (1982) 4 E.H.R.R. 188 THE FACTS I. The circumstances of the case

6 7

8

The applicant was born in 1974 and lives in London. The applicant joined the British Army in 1990. In 1999 he was serving as a gunner with the 12th Regiment of the Royal Artillery and was stationed in Germany. On November 1, 1999 a woman alleged that she had been raped and on November 2 the applicant was arrested, along with two other soldiers, by the (2008) 47 E.H.R.R., Part 3 䉷 Sweet & Maxwell

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10

11 12

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service police. The service police interviewed the applicant on November 4, 1999 and it appears that he was assisted by a lieutenant from Army Legal Services. On that date he also signed a certificate acknowledging that he had been informed of his right to have the assistance of an “accused advisor” during any summary hearing before his commanding officer (CO). On November 5, 1999 he was charged by his CO, pursuant to s.70 of the Army Act 1955 (the 1955 Act), with indecent assault contrary to s.14(1) of the Sexual Offences Act 1956. It appears that his two co-accused were charged with rape. The charge was read; the CO said that the matter was to be referred to a higher authority given the seriousness of the charge; the applicant was asked if he had anything to say and he replied that he had not. He was given a four-page document immediately before that hearing, which document was taken back from him immediately thereafter. A certificate dated November 6, 1999 and signed by the applicant has been submitted: it confirms that the applicant received the pamphlet “The Rights of a Soldier Charged with an Offence under the Army Act 1955” and that he had had the opportunity to be advised by an officer of his choice. On the same date, the CO referred the case to the Higher Authority and remanded the applicant in close arrest. A short note by the CO (“referred to Higher Authority”) constitutes the sole record before the Court of that hearing. On November 16, 1999 the applicant was transferred to the Military Correctional Training Centre (MCTC) in the United Kingdom. Twelve “8-day delay” reports were completed during the applicant’s pre-trial detention. The first, dated November 12, 1999, was signed by his CO in the 12th Regiment of the Royal Artillery and the reasons for detention were recorded as being “undesirable that he should remain at [large]”. All subsequent reports1 were signed by the CO of the MCTC and recorded two reasons for his continued detention: it was considered that he was likely to suborn witnesses and that, given the “nature and prevalence of the alleged offence under investigation” it was “undesirable in the interests of discipline that he should be at large or consort with his comrades”. The final report dated February 7, 2000 recorded for the first time an additional charge against the applicant pursuant to s.70 of the 1955 Act: rape contrary to s.1(1) of the Sexual Offences Act 1956. Six “16-day arrest” forms were also completed2 on November 19, December 3 and December 20, 1999 and on January 4, January 20 and February 7, 2000. The CO of the MCTC signed these forms and recorded that the applicant had been brought before him to consider any representations the applicant may have had concerning his arrest status and that he had been informed of his right to apply to the military authorities for his release. No representations from the applicant were recorded as having been made. No reasons were noted as to why the applicant had been detained except in the last form3 which recorded the same reasons as in the above-noted eight-day reports namely: 1

Dated November 19, November 25, December 3, December 13, December 20 and December 29, 1999 and dated January 4, January 12, January 20, January 28 and February 7, 2000. Pursuant to r.22 of the Investigation and Summary Dealing (Army) Regulations 1997. 3 Dated February 7, 2000. 2

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BOYLE V UNITED KINGDOM “He is likely to suborn witnesses. Having regard to the nature or prevalence of the offence under investigation it is undesirable in the interests of discipline that he should be at large or consort with his comrades.”

14

15

16

17

18

19 20

A Special Report form dated January 4, 2000 (relating to detention beyond the 72nd day which would fall on January 13, 2000) also recorded that the applicant was likely to suborn witnesses and that it was undesirable in the interests of discipline that he be allowed to consort with his comrades due to the seriousness of the alleged offence. A Special Report, dated January 10, 2000 and completed by a lieutenant colonel (chief of staff) of Headquarters Land Command, recorded that approval had been given for the continued detention of the applicant on the grounds that he was a habitual absentee and was likely to absent himself again if released. Headquarters was to be informed if he had not been brought to trial by February 14, 2000. On January 12, 2000 a solicitor was instructed by the applicant’s parents. On January 13, 2000 that solicitor took instructions from the applicant. The latter alleged that the accused advisor had taken no part in the review procedures. On January 14, 2000 his solicitor requested the military authorities to provide copies of the relevant documentation concerning the applicant’s detention. By letter dated February 11, 2000 the acting brigade commander of the 16th Air Assault Brigade sent the above-described reports to the applicant’s solicitor. On February 1, 2000 his solicitor sought a review of the applicant’s detention by the general officer commanding 4th Division. He was initially orally informed that the review would take place on February 15, 2000 but was then informed on February 16, 2000 that the review had not taken place. On February 18, 2000 the applicant’s representative applied for a writ of habeas corpus to the High Court. A return date was fixed for March 3, 2000. The application was served on the CO of the MCTC on February 19, 2000. On February 22, 2000 the CO of the MCTC released the applicant from close arrest and he was posted to the 47th Regiment Royal Artillery. On March 2, 2000, the same CO swore an affidavit setting out the reasons for the applicant’s release. He stated: “I decided, on balance, following a thorough review of the Applicant’s case, that the interests of justice could be met by releasing the Applicant into open arrest even though the allegation against him was that he had committed rape and indecent assault . . . and despite the fact that there was evidence that he, with others, concocted a story and interfered with a witness. I decided that the Applicant should be posted with immediate effect to a different unit in a different country namely the UK, and issued with specific orders preventing him from being able to influence the witnesses.”

21

The applicant and his two co-defendants were tried by Army General Court Martial on a joint charge of rape between May 14 and May 25, 2001. All three defendants were acquitted.

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II. Relevant domestic law and practice 22

23

At the relevant time the provisions governing the detention and trial of members of the army were contained in the Army Act 1955 as amended by the Armed Forces Act 1996 (the 1955 Act as amended), the Investigation and Summary Dealing (Army) Regulations 1997 (the 1997 Regulations) and the Queen’s Regulations for the Army 1975 (the Queen’s Regulations). Since the applicant’s detention, the law has been amended by the Armed Forces Discipline Act 20004 and the Army Custody Rules 20005 which replaced the 1997 Regulations. The provisions detailed below are those applicable at the time of the applicant’s arrest and detention. 1. The investigation and laying of charges

24

Section 70 of the 1955 Act provided that any person subject to military law who committed a civil offence, whether in the United Kingdom or elsewhere, was guilty of an offence against that section. Section 76(1) and (2) of the 1955 Act as amended provided that any allegation that a person subject to military law had committed an offence under, inter alia, s.70 was to be reported, in the form of a charge, to his CO, who would investigate the charge. The CO then had power, under s.76(3) of the 1955 Act as amended, to amend the charge or substitute another charge. After investigating the charge, he had the power, under s.76(5) of the 1955 Act as amended, either to refer the charge to a higher authority, or to deal with it summarily, or to dismiss it. If he referred the charge to a higher authority, that higher authority could either refer the case on to the prosecuting authority or refer the case back to the CO, with an order that he deal with the case summarily, that he stay it or that he dismiss it.6 If the case was referred to the prosecuting authority, that authority could, inter alia, decide that the case should be tried by court-martial or discontinue the proceedings.7 However, reg.26(2) of the 1997 Regulations made clear that, even if the prosecuting authority decided not to bring court-martial proceedings or to discontinue such proceedings, the CO retained the power to “take action to deal with the charge”. 2. Arrest, detention and reviews

25

26

At the material time, s.75(2) of the 1955 Act as amended provided that whenever a person subject to military law remained under arrest for longer than eight days without a hearing, a special report on the necessity for further delay had to be made by his CO to the prescribed authority and a similar report had to be made every eight days (unless not reasonably practicable) until the applicant was tried or released. Regulations 19–24 of the 1997 Regulations were entitled “Arrest and Avoidance of Delay” and provided as follows:

4 5 6 7

Amending, inter alia, s.75 of the Army Act 1955. Army Custody Rules 2000 (SI 2000/2368). See s.76A(1) and (2) of the 1955 Act as amended. See s.83B of the 1955 Act as amended.

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BOYLE V UNITED KINGDOM “Avoidance of delay by commanding officers in investigating charges 19 (1) Subject to paragraphs (2) and (3) below, when a person subject to military law is detained by military, naval or airforce authority in arrest, his commanding officer shall within 60 hours of his being detained, have such person brought before him, and read and, if necessary, explain to him the charge on which he is being held . . . Detention of an accused in arrest 20 (1) When a commanding officer investigates a charge against an accused in accordance with section 76(1) of the [Army Act 1955], and he intends to detain the accused in arrest, he shall have the accused brought before him and inform him:— (a) whether he is to be detained in open or close arrest; (b) the reason why he is so to be detained . . . Continued retention of the accused in arrest 22. When the accused has been detained in arrest for a period of sixteen days the commanding officer shall, subject to the exigencies of the service, but, in any event, within twenty days of the accused being so detained, take the following action:— (a) have the accused brought before him; (b) having heard anything the accused or an officer on his behalf may have to say and considered any written representation that have been made by a person on his behalf, determine whether the accused should be further detained in arrest, and if so, whether in open or close arrest; (c) inform the accused of his decision and the reasons for it . . . Review of the retention of the accused in arrest by the commanding officer 23 (1) Subject to paragraph (2) below, the commanding officer shall repeat the action required in regulation 22 at further successive intervals of sixteen days from the date on which the accused was first detained in arrest, until his trial begins, or he is dealt with summarily, or he is released from all forms of arrest. (2) If, because of the exigencies of the service, the commanding officer is unable to take the action required by paragraph (1) above on the appropriate day, he may defer taking such action for a maximum period of four further days. In the event of such deferral the date on which action shall next be required by him in accordance with paragraph (1) above will be sixteen days from the date on which (2008) 47 E.H.R.R., Part 3 䉷 Sweet & Maxwell

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such action would have been taken but for the operation of this paragraph.” 27

Part 2 of c.6 of the Queen’s Regulations further regulated the arrest of persons subject to military law. The relevant sections provided as follows: “Arrest—Determination of Need and Category 6.005 The mere allegation that a person subject to military law has committed an offence does not of itself necessarily call for or warrant placing that person under arrest of any description . . . The circumstances which would warrant placing an offender under close arrest include those where: ... d. He is likely to suborn witnesses. ... f. Having regard to the nature or prevalence of the alleged offence which is under investigation, it is undesirable in the interests of discipline that he should be at large or allowed to consort with his comrades. Change in form of arrest 6.007 Subject to paras 6.005, 6006, 6.115 and 6.118, and to the general principle that an accused is not to be unnecessarily held under arrest, commanding officers are responsible that in each case the need to keep an accused under arrest, and what the form of arrest should be, is kept under constant review. As necessary the form of arrest may be changed, or the accused released without prejudice to rearrest, or rearrested.” JUDGMENT I. Alleged violation of Article 5(3) of the Convention A. The parties’ submissions

28

The applicant alleged a violation of Art.5(3) of the Convention which provides as follows: “Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.” 1. The applicant

29

The applicant’s main complaint was that his CO could not constitute a suitable judge or other officer because he was part of the prosecution machinery, because his power to decide on close arrest conflicted with his responsibility for discipline within his command and because he lacked the necessary qualifications or (2008) 47 E.H.R.R., Part 3 䉷 Sweet & Maxwell

490

30

BOYLE V UNITED KINGDOM

experience. The applicant relied in particular on the Court’s judgment in Hood v United Kingdom (2000) 29 E.H.R.R. 365. Secondly, he complained that he was not provided with any form of representation (legal or otherwise). Thirdly, he submitted that the decision to keep him in close arrest was made before the hearing on November 6, 1999, probably by the military police, and before the applicant could present any reasons to the contrary. Fourthly, he submitted that he was not told of the reasons for his detention in close arrest until January 14, 2000, when his solicitor intervened and, as a result, he had no opportunity to correct errors (such as the assertion that he was a habitual absconder). Fifthly, he claimed that there was no basis in fact or law for his detention (in particular, the claim that he was a habitual absconder was unfounded). No document had been produced providing the factual basis for these reasons. Moreover, it was unlikely that the commanding officer at 12th Regiment of the Royal Artillery or at the MCTC knew why the applicant was being held in close arrest. Lastly, he alleged that no officer concerned carried out his obligations under the Army’s rules until the applicant’s final release into open arrest (although the applicant was unaware of this because there was no provision that he be provided with the paperwork). 2. The Government

31

The Government observed that applicant’s detention was reviewed by his CO on November 12, 1999. At each subsequent review the reasons for his detention were recorded in the relevant delay reports at the applicable time. The applicant appeared before the CO under the 16-day arrest procedure on November 19, December 3 and December 20, 1999, and February 7, 2000. A further review took place on January 4, 2000 and the applicant was also interviewed on January 25, 2000 following a request from the applicant’s solicitor. On each occasion the applicant was orally informed of the reasons for holding him under close arrest, although the CO did not record these reasons in the 16-day arrest proforma. The applicant’s solicitors were provided with copies of all the relevant documents at their request on February 11, 2000. B. The Court’s assessment

32

Before examining the merits of the applicant’s individual complaints, the Court recalls its findings in Hood where it considered that a commanding officer was liable to play a central role in the prosecution of a case against an accused so that an accused’s misgivings about his commanding officer’s impartiality, when the latter decided on the necessity of the pre-trial detention of the former, were considered to be objectively justified.8 In Hood the Court also found that the commanding officer’s concurrent responsibility for discipline and order in his command would provide an additional reason for an accused reasonably to doubt that officer’s impartiality when deciding on the necessity of the pre-trial detention of an accused in his command.9 8

See Hood (2000) 29 E.H.R.R. 365 at [57]; Thompson v United Kingdom (2005) 40 E.H.R.R. 11 at [33]; and Jordan v United Kingdom (2001) 31 E.H.R.R. 6 at [27]. See Hood (2000) 29 E.H.R.R. 365 at [58].

9

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(2008) 47 E.H.R.R. 19 33

491

The requirement that the judge or other judicial officer be independent and impartial is a necessary but not sufficient condition for compliance with the requirements of Art.5(3) of the Convention. As the Court stated in Schiesser v Switzerland (1979–80) 2 E.H.R.R. 417 at [31], in addition, there is both a procedural and a substantive requirement. The procedural requirement places the “officer” under the obligation of hearing himself the individual brought before him; the substantive requirement imposes on him the obligations of reviewing the circumstances militating for or against detention, of deciding, by reference to legal criteria, whether there are reasons to justify detention and of ordering release if there are no such reasons. 1. Whether the applicant’s CO was a “judge or other officer”

34

35

36

In examining the applicant’s complaint about the lack of independence and qualifications of “the commanding officer”, the Court notes at the outset that the applicant in particular complained of “the commanding officer” being responsible for discipline within the applicant’s unit. Thus, his complaint is directed against his own CO in the 12th Regiment of the Royal Artillery, not against either the CO of the MCTC, who carried out reviews of the lawfulness of his detention from November 16, 1999 onward; or the lieutenant colonel who completed a Special Report on January 10, 2000.10 The Court will therefore confine its examination of the applicant’s complaint to the independence and impartiality of this first CO only, covering the period from November 6 to November 16, 1999. The Court considers that there was a violation of Art.5(3) in this respect for essentially the same reasons as in Hood (2000) 29 E.H.R.R. 365. Even after the introduction of the 1997 Regulations, the CO retained a conflicting prosecution role, a role the Court identified in Hood as giving rise to objectively justified misgivings as to his impartiality.11 Although the CO did not draw up the charges himself, he had the power to amend or substitute any charge presented to him.12 He then had the power to decide whether to dismiss the charge, try it summarily or refer it to a higher authority. Even when the CO referred the charge to a higher authority (as occurred in the present case), the possibility still remained that the CO might play a prosecuting role: he retained the power to take subsequent action to deal with the charge if the prosecuting authority decided not to institute proceedings or to discontinue such proceedings.13 Secondly, the conflict remained between the CO’s pre-trial detention decision-making and his responsibility for unit discipline.14 As a result, the Court considers that the CO was not sufficiently impartial to be considered “an officer authorised by law to exercise a judicial power”. It therefore finds that there has been a violation of Art.5(3) of the Convention. In light of this conclusion, it does not consider it necessary to examine the applicant’s additional complaints concerning proceedings before this officer, including his alleged lack of qualifications, the alleged lack of legal representation in the proceedings before 10 11 12 13 14

See [14] above. See Hood (2000) 29 E.H.R.R. 365 at [57]. See s.76(1) and (2) of the 1955 Act as amended; [24] above; and Schiesser (1979–80) 2 E.H.R.R. 417 at [34]. See reg.26 of the 1997 Regulations and Hood (2000) 29 E.H.R.R. 365 at [57]. See Hood (2000) 29 E.H.R.R. 365 at [58].

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BOYLE V UNITED KINGDOM

him and the CO’s alleged failure to decide on the applicant’s detention on November 6, 1999.15 2. Other complaints 37

The Court notes that the applicant’s fourth, fifth and sixth complaints cover the entire time he was detained and not simply the time he was detained by his CO in the 12th Regiment of the Royal Artillery. It will therefore now examine these complaints relating, respectively, to the alleged failure to inform him of the reasons for his detention until January 14, 2000, the alleged lack of a factual or legal basis for the applicant’s detention and the alleged failure of officers to carry out their obligations under the relevant rules. (a) The alleged failure to inform the applicant of the reasons for his detention until January 14, 2000

38

39 40

In examining the merits of the applicant’s complaint under this heading, the Court observes first that the reasons for his detention were recorded,16 albeit only from November 12, 1999 onwards. While it is not clear whether the applicant was provided with copies of the reports on which these reasons were recorded, the Court notes that the Government maintain that he was orally informed of the reasons each time he appeared before the CO. It further notes that the applicant made no comment on the Government’s submissions on this point. The Court would also add that copies of the written records were sent to the applicant’s solicitors on request on February 11, 2000 and were therefore available to them when they applied to the High Court for a writ of habeas corpus on February 18, 2000. In the Court’s view, it is always desirable that when a detainee is informed orally of the reasons for his detention he then be provided with a follow-up, written copy of these reasons. However, in the present case, any failure to do so is mitigated by the fact that written records were kept and later provided to the applicant’s representatives thus allowing them to take proceedings to have the lawfulness of the detention reviewed.17 The Court therefore finds no violation in respect of this complaint during the period November 12, 1999 until his release on February 22, 2000. As regards the applicant’s detention from November 6, 1999 to November 12, 1999, the Court considers that, given its conclusion at [36] above as to the independence and impartiality of this CO, it is not necessary to rule on this part of this complaint. (b) The alleged lack of a factual or legal basis for the applicant’s detention

41

In respect of this complaint, the Court would again recall that periodic reports were completed on the applicant’s detention every eight days starting on November 12, 1999 and he appeared before his CO every 16 days. It also notes that in arguing that there was no basis in fact or law for the decision to keep him in close arrest, the applicant did not invoke Art.5(1)(c) or complain about the lawfulness of 15 16 17

See, for example, Hood (2000) 29 E.H.R.R. 365 at [59]. See [12]–[14] above. See, a contrario, X v United Kingdom (1982) 4 E.H.R.R. 188 at [66].

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42

493

his initial arrest. Nor did he complain about the length of his detention. Instead, the applicant’s complaint under this heading would appear to be that, in their decisions to retain him under close arrest, the reviewing authorities failed to fulfil the last aspect of the substantive condition in Schiesser,18 namely to order release when there are no reasons for detention. It further appears that this complaint relates not to any specific decision but rather to every periodic decision to keep him in close arrest by both his CO in the 12th Regiment of the Royal Artillery and the CO of the MCTC. The Court observes that the reasons for the applicant’s continued detention were recorded in these periodic decisions, starting on November 12, 1999. On November 12, 1999, in the review by the applicant’s CO in the 12th Regiment of the Royal Artillery, the reason was recorded as “undesirable that he should remain at [large]”. In every subsequent review by the CO of the MCTC the reason was recorded that the applicant was likely to suborn witnesses and that it was undesirable, given the nature of the offence, that he be allowed to consort with his comrades. The Court also notes the affidavit sworn by the CO of the MCTC on March 2, 2000, stating that there was evidence that the applicant, with others, concocted a story and interfered with a witness. While noting that the applicant disputes the factual basis for these reasons, the Court finds these reasons to be relevant and sufficient for the purposes of Art.5(3). It therefore finds no violation of Art.5(3) of the Convention in relation to this complaint in respect of the period from November 12, 1999 until the applicant’s release on February 22, 2000. As regards the applicant’s detention from November 6, 1999 to November 12, 1999, the Court considers that given its conclusion at paragraph 36 above as to the independence and impartiality of his CO in the 12th Regiment of the Royal Artillery, it is not necessary to rule on this part of the complaint. (c) The alleged failure of officers to carry out their obligations under the relevant rules

43

In relation to the applicant’s complaint under this heading the Court finds that, as formulated, this submission does not give rise to any Convention issue separate from those examined above. The Court therefore finds that no separate issue arises under Art.5(3) of the Convention in relation to this complaint. II. Application of Article 41 of the Convention

44

Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage

45

The applicant did not allege any pecuniary damage. As regards non-pecuniary damage, he claimed compensation of £20,000 (approximately c28,690). He 18

Schiesser (1979–80) 2 E.H.R.R. 417 at [31].

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46

47

48

BOYLE V UNITED KINGDOM

contended that he had been confused and distressed during his detention since he had no information about the progress of his case and did not know why he was being held in close arrest or how he might challenge it. Furthermore, the Ministry of Defence did not contest the habeas corpus proceedings and had reacted to the issuing of the writ by immediately releasing the applicant, thereby admitting that his detention was unnecessary and without merit. The Government submitted that no sum should be awarded and recalled that no award had been made in Hood. It further relied on [50] of the Court’s judgment in Thompson (2005) 40 E.H.R.R. 11, where the Court recalled that just satisfaction could be awarded only in respect of damage resulting from a deprivation of liberty that the applicant would not have suffered if he had had the benefit of the guarantees of Art.5(3) of the Convention. In the present case, the applicant was charged with a very serious offence and there was no evidence that had different procedures been in place he would not have been detained for a period pending trial. The decision to release the applicant was taken independently of the habeas corpus proceedings. The Court finds no particular circumstances in the instant case which would require it to depart from its findings in Hood and Thompson. The materials before the domestic authorities, in particular the sworn affidavit of the CO of the MCTC that there was evidence that the applicant had concocted a story with others and interfered with a witness, does not support the view that the applicant would not have been detained prior to his court-martial had there been no breach of Art.5(3). Accordingly, the Court finds that the present judgment in itself constitutes just satisfaction for any non-pecuniary damage arising from the violations of Art.5(3) of the Convention. B. Costs and expenses

49

50

51

The applicant claimed a total of £2,159.06 in legal costs and expenses (inclusive of VAT), which is approximately c3,096, representing 12-and-a-quarter hours’ work. The Government commented that an hourly rate of £150 was excessive for a firm outside London and that a rate of no more than £100 per hour should be permitted. The Court considers that the amount claimed is not excessive in light of the nature of the dispute, particularly given the factual complexity of the case. It therefore considers that the applicant’s costs and expenses should be met in full and thus awards him c3,096, inclusive of VAT. C. Default interest

52

The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added 3 percentage points. (2008) 47 E.H.R.R., Part 3 䉷 Sweet & Maxwell

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495

For these reasons, THE COURT unanimously: 1. Holds that there has been a violation of Art.5(3) of the Convention in respect of the lack of independence and impartiality of the applicant’s commanding officer in the 12th Regiment of the Royal Artillery. 2. Holds that there has been no violation of Art.5(3) of the Convention in respect of the alleged failure to inform him of the reasons for the applicant’s detention in relation to the period November 12, 1999 to February 22, 2000. 3. Holds that there has been no violation of Art.5(3) of the Convention in respect of the alleged lack of a factual or legal basis for the applicant’s detention in relation to the period November 12, 1999 to February 22, 2000. 4. Holds that it is not necessary to consider the remainder of the applicant’s complaints under Art.5(3) of the Convention. 5. Holds that the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant. 6. Holds: (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Art.44(2) of the Convention, c3,096 (three thousand and ninety-six euros), inclusive of VAT, in respect of costs and expenses, to be converted into pounds sterling at the rate applicable at the date of settlement; (b) that from the expiry of the abovementioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus 3 percentage points. 7. Dismisses the remainder of the applicant’s claim for just satisfaction.

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MASLOV V AUSTRIA

MASLOV v AUSTRIA BEFORE THE EUROPEAN COURT OF HUMAN RIGHTS APPLICATION NO.1638/03 (The President, Judge Rozakis; Judges Loucaides, Vajic´, Steiner, Hajiyev, Spielmann and Jebens) (2008) 47 E.H.R.R. 20

March 22, 2007 Austria; Criminal conduct; Deportation; Necessary in democratic society; Right to respect for private and family life; Young offenders H1

H2

H3

H4

The applicant was a Bulgarian national whose family had moved to Austria in 1990 when he was six years old. He went to school in Austria and spoke German. The case concerned a 10-year residence prohibition imposed on him by the Vienna Federal Police Authority in January 2001, following criminal convictions in 1999 and 2000. His first conviction was for burglary, extortion, assault and unauthorised use of a vehicle. He received an 18-month prison sentence, 13 months of which were suspended, and was instructed to start drug therapy. His second conviction was for a series of burglaries and resulted in 15 months’ imprisonment. The court noted that he had failed to undergo drug therapy. He left prison in May 2002 and, after appealing unsuccessfully against the residence prohibition, was deported to Bulgaria in December 2003. Relying upon Art.8 of the Convention, the applicant claimed that the residence prohibition and his expulsion to Bulgaria had violated his right to respect for his private and family life. He claimed just satisfaction under Art.41. Held by four votes to three: (1) that there had been a violation of Art.8; (2) that the respondent State was required to pay the applicant c5,759.96 for costs and expenses. 1. Right to respect for private and family life: interference; “in accordance with the law”; legitimate aim; “necessary in a democratic society”; fair balance; proportionality; aliens; deportation; residence prohibition (Article 8) (a) The residence prohibition against the applicant and the ensuing expulsion amounted to an interference with his right to respect for his private and family life. [29] (2008) 47 E.H.R.R., Part 3 䉷 Sweet & Maxwell

(2008) 47 E.H.R.R. 20 H5 H6 H7

H8

H9

H10

H11

H12 H13

H14

H15

497

(b) The residence prohibition had a basis in domestic law and it could not be said that the authorities had arbitrarily refused to apply the provision in question. [30] (c) The residence prohibition served a legitimate aim, namely the prevention of disorder and crime. [31] (d) It was for states to maintain public order, in particular by exercising their right, as a matter of international law and subject to their treaty obligations, to control the entry and residence of aliens. To that end they had the power to deport aliens convicted of criminal offences. In so far as they might interfere with a right protected by Art.8(1), however, decisions in this field had to be necessary in a democratic society, i.e. justified by a pressing social need and, in particular, proportionate to the legitimate aim pursued. [33] (e) Those principles applied to all categories of aliens. Even long-term immigrants who had been born in the host state or arrived there during early childhood could not derive a right from Art.8 not to be expelled on the basis of their criminal record. [34] (f) The Court’s task was to determine whether the authorities had struck a fair balance between the relevant interests, namely the applicant’s right to respect for his private and family life, on the one hand, and the prevention of disorder and crime, on the other. [35] (g) The relevant criteria in a case concerning a second-generation immigrant who had not yet founded a family of his own in the host country were the nature and gravity of the offences committed by the applicant; the length of his stay in the host country; the period which had elapsed between the commission of the offences and the impugned measure; the applicant’s conduct during that period; and the solidity of his social, cultural and family ties with the host country and with the country of destination. [36] (h) Having regard to the circumstances of the case, particularly the nature and severity of the offences, which were to be qualified as non-violent juvenile delinquency, the applicant’s good conduct after his release from prison and his lack of ties with his country of origin, a 10-year residence prohibition was disproportionate to the legitimate aim pursued. Consequently, there had been a violation of Art.8. [37]–[46] 2. Just satisfaction: damage; costs and expenses; default interest (Article 41) (a) The finding of a violation constituted sufficient just satisfaction for any non-pecuniary damage suffered by the applicant. [50] (b) Since the costs and expenses claimed by the applicant had been actually and necessarily incurred and were reasonable as to quantum, they were awarded in full. [53] (c) Default interest was based on the marginal lending rate of the European Central Bank, plus 3 percentage points. [54] The following cases are referred to in the Court’s judgment: 1. Amann v Switzerland (2000) 30 E.H.R.R. 843 2. Baghli v France (2001) 33 E.H.R.R. 32 3. Bouchelkia v France (1998) 25 E.H.R.R. 686 4. Boujlifa v France (2000) 30 E.H.R.R. 419 (2008) 47 E.H.R.R., Part 3 䉷 Sweet & Maxwell

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5. Boultif v Switzerland (2001) 33 E.H.R.R. 50 6. Dalia v France (2001) 33 E.H.R.R. 26 7. El Bouchaïdi v France (2000) 30 E.H.R.R. 223 8. Jakupovic v Austria (2004) 38 E.H.R.R. 27 9. Mehemi v France (2000) 30 E.H.R.R. 739 10. Radovanovic v Austria (2005) 41 E.H.R.R. 6 11. Üner v Netherlands (2007) 45 E.H.R.R. 14 12. Yildiz v Austria (2003) 36 E.H.R.R. 32 13. Yilmaz v Germany (2004) 38 E.H.R.R. 23 14. Application No.35112/92, Jankov v Germany, January 13, 2000 15. Application No.47160/99, Ezzouhdi v France, February 13, 2001 16. Application No.53441/99, Benhebba v France, July 10, 2003 H16

The following cases are referred to in the dissenting Opinion: 17. Al-Adsani v United Kingdom (2002) 34 E.H.R.R. 11 18. Berrehab v Netherlands (1989) 11 E.H.R.R. 322 19. McElhinney v Ireland (2002) 34 E.H.R.R. 13 20. Olsson v Sweden (1989) 11 E.H.R.R. 259 21. W v United Kingdom (1988) 10 E.H.R.R. 29

H17

The following cases are referred to in the statement of dissent: 22. Üner v Netherlands (2007) 45 E.H.R.R. 14

H18

The following cases are referred to in the dissenting Opinion of Judge Steiner: 23. Boultif v Switzerland (2001) 33 E.H.R.R. 50 24. Jakupovic v Austria (2004) 38 E.H.R.R. 27 25. Radovanovic v Austria (2005) 41 E.H.R.R. 6 26. Üner v Netherlands (2007) 45 E.H.R.R. 14 27. Yilmaz v Germany (2004) 38 E.H.R.R. 23 28. Application No.35112/92, Jankov v Germany, January 13, 2000 29. Application No.47160/99, Ezzouhdi v France, February 13, 2001 30. Application No.53441/99, Benhebba v France, July 10, 2003 THE FACTS

6 7

8

The applicant was born in 1984 and currently lives in Bulgaria. In November 1990 the applicant lawfully entered Austria together with his parents and two siblings. Subsequently, he was legally resident in Austria. His parents were lawfully employed and have meanwhile acquired Austrian nationality. The applicant attended school in Austria. In late 1998 criminal proceedings were instituted against the applicant. He was, inter alia, suspected of having broken into cars, shops and vending machines, of having stolen empties from a stock ground, of having forced another boy to steal 1,000 Austrian schillings (SCH) from the latter’s mother, of having beaten this boy and thereby having bruised him, and of having used a motor vehicle without the owner’s authorisation. (2008) 47 E.H.R.R., Part 3 䉷 Sweet & Maxwell

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10

11

12 13

14

15 16

17

499

On September 7, 1999 the Vienna Juvenile Court convicted the applicant of some 22 counts of partially completed and partially attempted aggravated gang burglary, of extortion, of partially completed and partially attempted assault, and of the unauthorised use of a vehicle committed between November 1988 and June 1999. He was sentenced to 18 months’ imprisonment, 13 of which were suspended on probation. Moreover, he was instructed to start drug therapy. On February 11, 2000 the applicant was arrested and further criminal proceedings were opened against him relating to a series of burglaries committed between June 1999 and January 2000. The applicant and his accomplices were suspected of having broken into shops or restaurants, where they stole cash and goods. On February 11, 2000 the Vienna Juvenile Court remanded him in custody. On May 25, 2000 the Vienna Juvenile Court convicted the applicant of 18 counts of partially completed and partially attempted aggravated burglary and sentenced him to 15 months’ imprisonment. When fixing the sentence the court noted the applicant’s confession as a mitigating circumstance, the number of offences committed as well as the rapid relapse into crime after the last conviction as aggravating circumstances. It also observed that the applicant, though still living with his parents had completely elapsed their educational influence, had repeatedly been absent from home, and had dropped out of school. It also noted that the applicant had failed to comply with the instruction to undergo drug withdrawal treatment. Consequently, the suspension of the prison term imposed by the judgment of September 7, 1999 was revoked. Following the Vienna Juvenile Court’s judgment, the applicant served his prison term until May 24, 2002. He did not benefit from early release. Meanwhile, on January 3, 2001 the Vienna Federal Police Authority, relying on s.36(1) of the 1997 Aliens Act, imposed a 10 years’ residence prohibition on the applicant. Having regard to the applicant’s convictions, it found that his further stay in Austria was contrary to the public interest. Considering the applicant’s relapse into crime after his first conviction, the public interest in the prevention of disorder and crime outweighed the applicant’s interest in staying in Austria. The applicant, assisted by counsel, appealed. He submitted that the residence prohibition violated his rights under Art.8 of the Convention as he was a minor who had come to Austria at the age of six, his entire family lived in Austria and he had no relatives in Bulgaria. He also referred to s.38(1) (4) of the 1997 Aliens Act, pursuant to which a residence prohibition may not be issued against an alien who has been lawfully residing in Austria from an early age. By decision of July 19, 2001 the Vienna Public Security Authority dismissed the appeal. It confirmed the Federal Police Authority’s finding. On August 17, 2001 the applicant filed complaints both with the Administrative Court and the Constitutional Court. He stressed that he had come to Austria at the age of six, had attended school in Austria and was not able to speak Bulgarian. He had no relatives and other social contacts in Bulgaria. Moreover, he drew attention to the fact that he was still a minor. On September 18, 2001 the Administrative Court dismissed the complaint and found that the residence prohibition was justified under Art.8(2) of the Convention. It considered that the applicant had come to Austria only at the age of six, whereas—according to its constant case law—s.38(1) (4) only excluded a (2008) 47 E.H.R.R., Part 3 䉷 Sweet & Maxwell

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18 19 20

21

MASLOV V AUSTRIA

residence prohibition for aliens who had been legally resident from the age of three at the latest. Considering the gravity and the number of offences committed by the applicant, the fact that the first conviction was rapidly followed by a second one and the severity of the penalties imposed, it found that the residence prohibition did not constitute a disproportionate interference with the applicant’s rights under Art.8, despite his lengthy residence and family ties in Austria. On November 25, 2002 the Constitutional Court declined to deal with the complaint for lack of prospects of success. On August 18, 2003 the Vienna Federal Police Authority requested the applicant to leave Austria. On October 14, 2003 the Vienna Federal Police Authority ordered the applicant’s detention with a view to his expulsion. He was arrested on November 27, 2003. On December 22, 2003 the applicant was deported to Sofia. JUDGMENT I. Alleged violation of Article 8 of the Convention

22

The applicant complained about the residence prohibition against him and about his subsequent expulsion to Bulgaria. He relied on Art.8 of the Convention which reads as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. The submissions of the parties

23

24

The applicant alleged that the impugned residence prohibition was not in accordance with the law, as the Administrative Court’s interpretation of s.38(1) (4) of the 1997 Aliens Act distinguished arbitrarily between the group of secondgeneration immigrants who came to Austria before the age of three, who may not be subject to a residence prohibition, and other second-generation immigrants like him, who still came at pre-school age but may be subject to a residence prohibition. In the applicant’s contention, the residence prohibition against him was disproportionate. He pointed out in particular that he was a second-generation immigrant, having lived in Austria from the age of six. He had received his entire schooling there and had developed all his social, cultural and linguistic ties there, while he had no links with Bulgaria, except his nationality and two brief periods of holidays he spent there. He had no relatives or friends there and did not speak or write Bulgarian. Moreover, the applicant criticised that the impugned decisions did not take account of various factors speaking in his favour; he had committed the (2008) 47 E.H.R.R., Part 3 䉷 Sweet & Maxwell

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25

26

27

28

501

offences at issue at the age of 14 and 15 respectively, that is during a difficult period of adolescence and had only played a subordinate role in their commission. Later, he had not committed any further offences. The fact that the residence prohibition was limited to 10 years made little difference, as the major damage was done by his sudden removal from his family background and social ties in Austria. The Government contested the applicant’s argument that the residence prohibition against him was not in accordance with s.38(1) (4) of the 1997 Aliens Act. It argued, in particular, that the Administrative Court applied its established case law that the term “from an early age” in that provision meant aliens who had grown up in Austria as of the age of three at the latest. As to the necessity of the interference, the Government asserted that the authorities had duly balanced the interests at stake, when finding that the public interest in issuing the residence ban outweighed the applicant’s interest in remaining in Austria. It gave regard to the nature of the offences committed by the applicant, the severity of the penalties imposed and the rapid relapse into crime after his first conviction. Further, the Government observed that the applicant only raised the argument that he did not speak or read Bulgarian at a late stage of the domestic proceedings. In any case, it found that he must have some knowledge of Bulgarian, as he had spent the first six years of his life in his country of origin. While conceding that the applicant received his schooling in Austria, the Government noted that he had dropped out of school and had not shown any interest in pursuing vocational training or to take up employment. Finally, the Government emphasised that the authorities limited the residence ban to 10 years. Moreover, the applicant’s expulsion was only carried out once he had reached the age of majority. B. The Court’s assessment 1. Whether there was an interference

29

It is not in dispute that the residence prohibition against the applicant and the ensuing expulsion amount to an interference with his right to respect for his private and family life. It is therefore necessary to determine whether this interference satisfied the condition of para.2 of Art.8, that is to say whether it was “in accordance with the law”, pursued one or more of the legitimate aims set out in that paragraph, and was “necessary in a democratic society” for the achievement of that aim or aims. 2. “In accordance with the law”

30

As to the applicant’s argument that the residence prohibition was not “in accordance with the law”, the Court reiterates that it is primarily for the national authorities, notably the courts, to interpret and apply domestic law.1 In the present case, the residence prohibition had a basis in domestic law, namely s.36(1) of the 1997 Aliens Act. Further, the Court notes that, according to the Administrative 1

See Amann v Switzerland (2000) 30 E.H.R.R. 843 at [52], and Yildiz v Austria (2003) 36 E.H.R.R. 32 at [38].

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Court’s constant case law, the exclusion of a residence prohibition provided for in s.38(1) (4) of the said Act, only applies to aliens who have been legally resident in Austria from the age of three at the latest. Given that the applicant only came to Austria at the age of six, it cannot be said that the authorities arbitrarily refused to apply the provision at issue in his case. 3. Legitimate aim 31

It is not in dispute between the parties that the residence prohibition served a legitimate aim, namely the prevention of disorder and crime. 4. “Necessary in a democratic society”

32 33

34

35

36

The parties’ arguments concentrated on the question whether the interference was “necessary in a democratic society”. The Court reiterates that it is for the contracting states to maintain public order, in particular by exercising their right, as a matter of well-established international law and subject to their treaty obligations, to control the entry and residence of aliens. To that end they have the power to deport aliens convicted of criminal offences. However, their decisions in this field must, in so far as they may interfere with a right protected under para.1 of Art.8, be necessary in a democratic society, that is to say justified by a pressing social need and, in particular, proportionate to the legitimate aim pursued.2 The Court has recently confirmed that these principles apply to all categories of aliens. Even long-term immigrants who were born in the host State or arrived there during early childhood cannot derive a right from Art.8 not to be expelled on the basis of their criminal record, since para.2 of that provision is couched in terms which clearly allow for exceptions to be made to the rights guaranteed in the first paragraph.3 Accordingly, the Court’s task in the present case consists in ascertaining whether the Austrian authorities, by imposing a 10 years’ residence prohibition on the applicant, struck a fair balance between the relevant interests, namely the applicant’s right to respect for his private and family life, on the one hand, and the prevention of disorder and crime, on the other. The relevant criteria the Court will assess in a case like the present one, concerning a second-generation immigrant, who has not yet founded a family of his own in the host country are the following: ● the nature and gravity of the offences committed by the applicant; ● the length of his stay in the host country; ● the period which elapsed between the commission of the offences and the impugned measure and the applicant’s conduct during that period; 2

See, for instance, Üner v Netherlands (2007) 45 E.H.R.R. 14 at [54]; Boultif v Switzerland (2001) 33 E.H.R.R. 50 at [46] with a reference to Dalia v France (2001) 33 E.H.R.R. 26 at [52], and Mehemi v France (2000) 30 E.H.R.R. 739 at [34]. 3 Üner (2007) 45 E.H.R.R. 14 at [55].

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● the solidity of social, cultural and family ties with the host country and with the country of destination.4 37

38

39

40

41

The applicant came to Austria at the age of six and had lived there for 12 years with his parents and siblings when the residence prohibition became final. He speaks German and received his entire schooling in Austria. As to the applicant’s criminal record, the Court notes that the applicant was convicted in September 1999 of numerous counts of aggravated burglary committed as a member of a gang, unauthorised use of a vehicle, extortion and bodily assault. A prison term of 18 months of which 13 were suspended on probation was imposed on him and he was ordered to undergo drug therapy. He was convicted a second time in rapid succession, namely in May 2000, of numerous counts of burglary committed as a member of a gang and was sentenced to a prison term of 15 months. As he had failed to undergo drug therapy as ordered, the partial suspension of the first prison term was revoked. The Court does not deny that the offences committed by the applicant were of a certain gravity. Nor does the Court disregard the fact that severe penalties were imposed on the applicant, amounting to a total of two years and nine months’ unconditional imprisonment. However, it observes that the applicant committed the offences at the age of 14 and 15, during the difficult period of adolescence. The offences committed are rather typical examples of juvenile delinquency and, with one exception, did not involve any acts of violence. Nor was the applicant involved in drug dealing. In the Court’s view the present case can, therefore, be distinguished from a number of cases concerning applicants in a comparable personal situation (i.e. second-generation immigrants who were at the time of the impugned measures young single adults who had not yet founded a family of their own in the host country) in which the Court found no violation as regards the imposition of a residence ban. These cases concerned violent crime, such as rape or armed robbery, for which unconditional prison terms of five or more years had been imposed5 or offences of drug dealing for which at least partly unconditional prison terms had been imposed, whereby drug dealing is an area where the Court has shown understanding of domestic authorities’ firmness with regard to those actively involved in the spread of this scourge.6 Moreover, the Court attaches weight to the period of good conduct after the applicant’s release. It notes that the commission of the offences ended in January 2000. From February 2000 until May 2002 the applicant was in prison. Subsequently, he stayed in Austria for another one-and-a-half years, namely until his expulsion in December 2003. During this time he did not commit any further offences. The fact that he was able to resume life in freedom without relapsing into crime during a substantial period mitigates the fear that the applicant may constitute a danger to public order and security.7 4

See for instance, App. No.53441/99, Benhebba v France, July 10, 2003 at [32]–[33], with a reference, among others, to Boultif (2001) 33 E.H.R.R. 50 at [48], and Mehemi (2000) 30 E.H.R.R. 739 at [36]; see also, mutatis mutandis, Üner (2007) 45 E.H.R.R. 14 at [57]–[58], relating to the situation of a long-term immigrant having a life companion and children of young age, all being nationals of the host country. 5 See for instance, Bouchelkia v France (1998) 25 E.H.R.R. 686 at [50]–[53], and Boujlifa v France (2000) 30 E.H.R.R. 419 at [44]. 6 El Bouchaïdi v France (2000) 30 E.H.R.R. 223 at [41], and Baghli v France (2001) 33 E.H.R.R. 32 at [48]. 7 See, Boultifa (2000) 30 E.H.R.R. 419 at [51].

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43

44

45

46

MASLOV V AUSTRIA

As to the solidity of the applicant’s social, cultural and family ties in Austria, the Court observes that the applicant has spent the formative years of his childhood and youth there and that all his close family members are living there. As to the applicant’s ties with his country of origin, the Government asserted that the applicant speaks Bulgarian while the latter denies this. The Court notes that while it appears likely that the applicant, who lived in Bulgaria until the age of six has some basic knowledge of the spoken language, it seems credible that he does not read or write Cyrillic since he never went to school in Bulgaria. Nor does it appear that he has any close relatives there or that he maintained any other contacts with his country of origin, except for spending holidays there twice. Finally, the Government argued that the residence prohibition was limited in duration. It is true that the duration of a residence prohibition is to be taken into account when assessing its proportionality. However, it is only one factor among others.8 Having regard to the circumstances of the present case, in particular to the nature and severity of the offences, which are to be qualified as non-violent juvenile delinquency, the applicant’s good conduct after his release from prison and his lack of ties with his country of origin, a 10-years’ residence prohibition appears nevertheless disproportionate to the legitimate aim pursued. Consequently, there has been a violation of Art.8 of the Convention. II. Application of Article 41 of the Convention Article 41 of the Convention provides:

47

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 48 49 50

The applicant claimed c5,000 for non-pecuniary damage suffered as a result of the separation from his family. The Government argued that the finding of a violation would in itself provide sufficient just satisfaction. Having regard to its findings in comparable cases,9 the Court agrees with the Government that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage suffered by the applicant.

8

See, as cases in which the unlimited duration of a residence prohibition was considered as a factor supporting the conclusion that it was disproportionate: App. No.47160/99, Ezzouhdi v France, February 13, 2001 at [35]; Yilmaz v Germany (2004) 38 E.H.R.R. 23 at [48]–[49]; Radovanovic v Austria (2005) 41 E.H.R.R. 6 at [37]; see as cases in which the limited duration of a residence probation was considered as a factor in favour of its proportionality: App. No.53441/99, Benhebba, July 10, 2003 at [37]; App. No.35112/92, Jankov v Germany, January 13, 2000; Üner (2007) 45 E.H.R.R. 14 at [65]. 9 See for instance Yildiz (2003) 36 E.H.R.R. 32 at [51]; Jakupovic v Austria (2004) 38 E.H.R.R. 27 at [37]; Radovanovic v Austria (2005) 41 E.H.R.R. 6 at [11]; Mehemi (2000) 30 E.H.R.R. 739 at [41].

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B. Costs and expenses 51

52

53

The applicant claimed a total amount of c5,759.96, inclusive of VAT. This sum is composed of c3,797.96 for the domestic proceedings and c1,962 for the proceedings before the Court. The Government observed that the Court was not bound by domestic rates of fees, although they could serve as a starting point for the assessment of the applicant’s claims. The Court is satisfied that the costs and expenses claimed by the applicant have been actually and necessarily incurred and are reasonable as to quantum. It therefore awards them in full, i.e. c5,759.96, inclusive of VAT. C. Default interest

54

The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added 3 percentage points. For these reasons, THE COURT: 1. Holds by four votes to three that there has been a violation of Art.8 of the Convention. 2. Holds by four votes to three: (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Art.44(2) of the Convention, c5,759.96 (five thousand seven hundred and fifty-nine euros ninety-six cents) in respect of costs and expenses; (b) that from the expiry of the abovementioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus 3 percentage points. 3. Dismisses unanimously the remainder of the applicant’s claim for just satisfaction. Dissenting Opinion of Judge Loucaides10

O-I1

I am unable to agree with the majority in this case that there has been a violation of Art.8 of the Convention. The majority, in reaching their conclusion, took into account the following facts in particular: (1) that the offences of which the applicant was convicted were “to be qualified as non-violent juvenile delinquency”; (2) “the applicant’s good conduct after his release from prison”; (3) “his lack of ties with his country of origin”; and (4) the fact that the residence prohibition was going to have a duration of 10 years. The majority found that the prohibition in question was disproportionate to the legitimate aim pursued. There are, I believe, other facts which may lead to a different conclusion, such as those referred to in the dissenting opinion of Judge Steiner, with which I agree. 10

Paragraph numbering added by the publisher.

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MASLOV V AUSTRIA

What has been crucial for me is my conclusion that the residence prohibition in this case cannot be said to have exceeded the margin of appreciation of the respondent State. I believe that the majority did not give sufficient weight to this aspect of the case. According to the Court’s case law: “In determining whether an interference was ‘necessary in a democratic society’, the Court makes allowance for the margin of appreciation that is left to the Contracting States.”11

O-I3

O-I4

In view of the nature of the case, it may be useful to bear in mind the approach of international law on which the power to expel aliens is founded, to the extent that this approach is compatible with the relevant provisions of the Convention and the case law concerning them. According to international law,12 states have the power to expel aliens, though this power is not absolute. Aliens must be treated in a civilised manner and the power of expulsion must be exercised in good faith. Due consideration must be given to the interests of the individual, including his basic human rights, his family and other links with the state of residence. These must be weighed against the competing demands of state interests as regards such matters as public safety and prevention of disorder or crime. International law allows states a fairly wide margin of appreciation in determining whether these interests justify an expulsion. They have the right to judge by national criteria whether the facts and circumstances warrant the expulsion. As regards both the grounds for expulsion and the question whether an individual qualifies for expulsion on those grounds, the expelling state is in the best position to pronounce upon such matters. State practice accepts that expulsion is justified in cases of involvement in criminal activities. This applies to the facts in the present case. I have in the past expressed the view that: “[G]eneral principles of international law are not embodied in the Convention except in so far as reference is expressly made to them by the Convention . . . Therefore, one should be reluctant to accept restrictions on Convention rights derived from principles of international law.”13

O-I5

However, in the present case the above principles of international law are not irreconcilable with the provisions of Art.8 of the Convention which are at issue in this case. It is, I think, useful to recall here the principle established by the case law of the Court to the effect that the Convention “should so far as possible be interpreted in harmony with other rules of international law of which it forms part”.14 In fact I believe that in the present case it is reasonably possible to give effect to both the international law principles and the relevant Convention right without any problem of contradiction between them. I referred to the principles of international law and used them as an aid for the interpretation and application of the concept of “margin of appreciation” in the context of expulsion of aliens, which is a permissible restriction of the right to 11

See Berrehab v Netherlands (1989) 11 E.H.R.R. 322 at [28]; and also W v United Kingdom (1988) 10 E.H.R.R. 29 at [60](b) and (d), and Olsson v Sweden (1989) 11 E.H.R.R. 259 at [67]. See, inter alia, Guy S. Goodwin-Gill, “The Limits of the Power of Expulsion in Public International Law” (1974–1975) 47 B.Y. 55 et seq. 13 See my dissenting opinion in McElhinney v Ireland (2002) 34 E.H.R.R. 13. 14 See Al-Adsani v United Kingdom (2002) 34 E.H.R.R. 11 at [55]. 12

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O-I6

O-I7

507

respect for private life under Art.8 of the Convention and the jurisprudence of the Court. It is obvious that the “margin of appreciation” for expelling aliens plays a special role in such cases. The case law of the Court has interpreted the right to respect for private life in a progressive manner. According to this case law, the right in question includes the prohibition of the absolute power to expel aliens from a country where they have their residence. Care should be taken, however, not to overprotect in practice the corresponding right of non-nationals under Art.8 of the Convention so as to emasculate the power of states to effectively enjoy a fairly wide margin of appreciation in safeguarding their interests in respect of which an expulsion under Art.8 of the Convention is permissible and determining whether the continued residence of any alien is or is not necessary. Having regard to the foregoing considerations, and taking into account the facts and circumstances of the case and, in particular, the nature, seriousness and repetition of the applicant’s offences, his lack of social ties in Austria, and the fact that the residence prohibition was not unlimited in time, I find that this prohibition was within the margin of appreciation of the respondent State in the interests of public safety and for the prevention of disorder or crime, and therefore does not amount to a violation of Art.8. Statement of Dissent by Judge Vajic´15

O-II1

I do not share the opinion of the majority as to the interpretation made of the general principles of the Court’s case law as set out in the recent judgment Üner v Netherlands.16 Dissenting Opinion of Judge Steiner17

O-III1 O-III2

O-III3

O-III4

I voted against the finding of a violation of Art.8 for the following reasons: 1. The applicant came to Austria at the age of six and had lived there for 12 years with his parents and siblings when the residence prohibition became final. He speaks German and received his entire schooling in Austria. 2. As to the nature and gravity of the offences, I note that the applicant was convicted in September 1999 of numerous counts of aggravated burglary committed as a member of a gang, unauthorised use of a vehicle, extortion and bodily assault. A prison term of 18 months of which 13 were suspended on probation was imposed on him and he was ordered to undergo drug therapy. He was convicted a second time in rapid succession, namely in May 2000, of numerous counts of burglary committed as a member of a gang and was sentenced to a prison term of 15 months. As he had failed to undergo drug therapy as ordered, the partial suspension of the first prison term was revoked. 3. Although the applicant committed these offences as a juvenile, they are far from being of a petty nature. Their considerable number, the lengthy period over which they were committed (November 1998 until January 2000), the fact that two of the offences, namely extortion and assault, included threat of violence or use of 15 16 17

Paragraph numbering added by the publisher. Üner v Netherlands (2007) 45 E.H.R.R. 14. Paragraph numbering added by the publisher.

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O-III5

O-III6

O-III7

O-III8

O-III9

O-III10

MASLOV V AUSTRIA

violence against a person and in particular the rapid recidivism after the first conviction illustrate their serious nature. This is also expressed by the severity of the penalties imposed. In sum, the applicant received unconditional prison terms of two years and nine months. 4. The applicant argues that he committed the offences at an early age and did not re-offend later. I note that the applicant committed offences until January 2000. It is true that a period of some 3 years and 11 months elapsed before the applicant’s expulsion in December 2003 without the commission of any further offences. However, the applicant spent the major part of this period, namely from February 2000 until May 2002, in prison. He did not benefit from early release. Therefore, it cannot be said that the applicant’s conduct in the period intervening between the commission of the offences and the impugned measure mitigates the fear that he constitutes a danger to public order and security.18 5. As regards the solidity of the applicant’s social, cultural and family ties in Austria, the authorities noted his lack of integration, in particular that he had elapsed his parent’s educational influence, had dropped out of school and had failed to undergo drug therapy.19 6. As to his ties with Bulgaria, the Government assert that the applicant speaks Bulgarian while the latter denies this. I note that the applicant has spent the first six years of his life in Bulgaria. It is therefore not credible that he does not at least have some basic knowledge of Bulgarian. However, given that he never went to school there it appears credible that he does not read or write Cyrillic. Nor does it appear that he has any close relatives there or that he maintained any other contacts with his country of origin, except spending holidays there twice. 7. As to the proportionality of the impugned measures, I finally note that the authorities imposed a residence ban of limited duration. In this context, I observe that in a number of cases it found a residence prohibition disproportionate on account of its unlimited duration20 while, in other cases, it has considered the fixed duration of a residence prohibition as a factor speaking in favour of its proportionality.21 8. Having regard to the foregoing considerations and in particular to the gravity and repetition of the applicant’s offences and his lack of social ties, I find that by imposing a 10 years’ residence prohibition the authorities duly balanced the interests at stake. Moreover, I observe that although the residence ban was imposed when the applicant was still a minor, the authorities did not proceed to his expulsion before he reached majority.22 Although, in the present case, his expulsion must have uprooted the applicant, he was already an adult at the time and was moreover not left without any perspective of returning to Austria. I therefore find that the measures complained of were proportionate to the legitimate aim pursued. 9. Consequently, there has been no violation of Art.8. 18

A contrario, see Boultif (2001) 33 E.H.R.R. 50 at [51]. See [11] above. See, for instance, App. No.47160/99, Ezzouhdi, February 13, 2001 at [35]; Yilmaz (2004) 38 E.H.R.R. 23 at [48]–[49]; and Radovanovic (2005) 41 E.H.R.R. 6 at [37]. 21 See App. No.53441/99, Benhebba, July 10, 2003 at [37]; App. No.35112/92, Jankov, January 13, 2000; and Üner (2007) 45 E.H.R.R. 14 at [65]. 22 See, a contrario, Jakupovic (2004) 38 E.H.R.R. 27 at [29], where we attached weight to the fact that the applicant was only 16 years old when he was expelled. 19 20

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509

EB v FRANCE BEFORE THE EUROPEAN COURT OF HUMAN RIGHTS APPLICATION NO.43546/02 (The President, Judge Rozakis, Judges Costa, Bratza, Zupancˇicˇ, Lorenzen, Tulkens, Loucaides, Cabral Barreto, Türmen, . Ugrekhelidze, Mularoni, Steiner, Fura-Sandström, Myjer, Jocˇiene, Popovic´, Jebens) (2008) 47 E.H.R.R. 21

January 22, 2008 Adoption; Equal treatment; France; Homosexuality; Right to respect for private and family life; Sexual orientation discrimination H1

H2

H3 H4

H5 H6

The applicant was in a long-term same-sex relationship. In 1998, she decided to attempt to adopt a child. The relevant Social Services Department advised that her request be refused on the grounds that her partner was not adequately committed to raising a child and her family situation failed to provide adequate safeguards for the child’s stable and well-adjusted development, in particular, the presence of male role-models. This recommendation was followed and the applicant was refused permission to adopt a child. The applicant sought reconsideration, but this was refused. The applicant subsequently applied to have the decision set aside by the Administrative Court. Her application was granted in 2000 but was overturned on appeal later that year. The applicant complained of a violation of Arts 8 and 14 of the Convention. Held: (1) unanimously that the application was admissible; (2) by 10 votes to 7 that there had been a violation of Art.14 taken with Art 8; (3) by 11 votes to 6 that the respondent State was to pay a sum of money in respect of non-pecuniary damage, costs and expenses. 1. Admissibility; application of the Convention (Article 35(3)) (a) There was no right to found a family or adopt under Art.8. There was also no right to adopt in domestic or international law. [41]–[42] (b) However, the notion of “private life” could include the right to establish and develop relationships with other humans. In addition—in this case—the applicant had also complained of discrimination on the grounds of her sexuality. [43]–[45] (2008) 47 E.H.R.R., Part 3 䉷 Sweet & Maxwell

510 H7

H8

H9

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H11 H12

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H14

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H16 H17 H18

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(c) The resolution of this application did not depend on whether or not it could be said that a right to adopt was part of Art.8. It was sufficient that the facts could be said to come within the ambit of Art.8 or Art.14. [46]–[48] (d) The preliminary objection was dismissed. The case raised complex matters of law and fact which required a full hearing as to the merits. [52] 2. Discrimination in the enjoyment of Convention rights (Article 14 taken with Article 8) (a) The lack of a paternal (or maternal) figure in the household of the person seeking to adopt might be a relevant consideration. However, the merits of such an objection would have to be examined in each case. The state had to take care to ensure that such a requirement did not render ineffective the right of single persons to apply for permission to adopt. Potentially, this consideration could serve as a pretext for rejecting applications by homosexuals. [73] (b) The attitude of the applicant’s partner was also a material consideration. It was right and proper for the state to seek the views of the applicant’s partner before placing a child with the family and it would have been more surprising if this feature had been ignored. [76]–[77] (c) There was nothing to suggest that this aspect of the refusal of permission was in any way discriminatory. [79] (d) However, the decision to refuse permission was flawed. The errors made when considering the lack of a paternal figure had the effect of contaminating the whole decision. [80]–[88] (e) The decision-making process contained (at the lowest) implicit references to the applicant’s sexuality which, ultimately, was a decisive factor in refusing her application. [89] (f) Domestic law allowed for adoption by single persons, which must include single homosexual persons. There was no reference in domestic law for the need for an applicant to show that a person of the opposite sex would be a part of the life of the adopted child. [94]–[95] (g) In all the circumstances, the applicant’s rights under Art.14, taken with Art.8 had been violated. [96]–[98] 3. Just satisfaction: damage; costs and expenses; default interest (Article 41) (a) The applicant was awarded c10,000 in non-pecuniary damage, together with c14,528 by way of costs. [102]–[105] (b) Provision was made for the payment of interest in default. [106] The following cases are referred to in the Court’s judgment: 1. Abdulaziz v United Kingdom (1985) 7 E.H.R.R. 471 2. Bensaid v United Kingdom (2001) 33 E.H.R.R. 10 3. Burghartz v Switzerland (1994) 18 E.H.R.R. 101 4. Dudgeon v United Kingdom (1982) 4 E.H.R.R. 149 5. Evans v United Kingdom (2006) 43 E.H.R.R. 21 6. Fretté v France (2004) 38 E.H.R.R. 21 7. Johnston v Ireland (1987) 9 E.H.R.R. 203 8. Karner v Austria (2004) 38 E.H.R.R. 24 (2008) 47 E.H.R.R., Part 3 䉷 Sweet & Maxwell

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511

9. Laskey v United Kingdom (1997) 24 E.H.R.R. 39 10. Lustig-Prean v United Kingdom (2000) 29 E.H.R.R. 548 11. Marckx v Belgium (1979–80) 2 E.H.R.R. 330 12. Niemietz v Germany (1993) 16 E.H.R.R. 97 13. Öztürk v Turkey (2003) 37 E.H.R.R. 5 14. Petrovic v Austria (2001) 33 E.H.R.R. 14 15. Pini v Romania (2005) 40 E.H.R.R. 13 16. Pretty v United Kingdom (2002) 35 E.H.R.R. 1 17. Sahin v Germany (2003) 36 E.H.R.R. 43 18. Salgueiro da Silva Mouta v Portugal (2001) 31 E.H.R.R. 47 19. Schmidt v Germany (1994) 18 E.H.R.R. 513 20. SL v Austria (2003) 37 E.H.R.R. 39 21. Smith v United Kingdom (2000) 29 E.H.R.R. 493 22. Stec v United Kingdom (2006) 43 E.H.R.R. 47 23. Application No.1474/62, Case “Relating to certain aspects of the laws on the use of languages in education in Belgium” v Belgium (Merits), July 23, 1968 24. Application No.27110/95, Nylund v Finland, June 29, 1999 H19

The following cases are referred to in the dissenting Opinion of Judge Costa: 25. Fretté v France (2004) 38 E.H.R.R. 21 26. Salgueiro da Silva Mouta v Portugal (2001) 31 E.H.R.R. 47

H20

The following cases are referred to in the dissenting Opinion of Judge Loucaides: 27. Fretté v France (2004) 38 E.H.R.R. 21 28. Application No.37614/02, Ismailova v Russia, November 29, 2007

H21

The following cases are referred to in the dissenting Opinion of Judge Mularoni: 29. Dickson v United Kingdom (2007) 44 E.H.R.R. 21 30. Evans v United Kingdom (2006) 43 E.H.R.R. 21 31. Fretté v France (2004) 38 E.H.R.R. 21 32. Pini v Romania (2005) 40 E.H.R.R. 13 33. Salgueiro da Silva Mouta v Portugal (2001) 31 E.H.R.R. 47 34. Application No.76240/01, Wagner v Luxembourg, June 28, 2007

H22

Ms E. Belliard (Agent), Ms A. F. Tissier (Adviser), Ms MG. Merloz (Adviser), Ms L. Neliazi (Adviser), Ms F. Turpin (Adviser) for the Government. Ms C. Mécary (Counsel), Mr R. Wintermute (Adviser), Mr H. Ytterberg (Adviser), Mr A. Weiss (Adviser) for the applicant.

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EB V FRANCE THE FACTS I. The circumstances of the case

7 8 9

10

The applicant was born in 1961 and lives in Lons-le-Saunier. She has been a nursery school teacher since 1985 and, since 1990, has been in a stable relationship with a woman, Ms R who is a psychologist. On February 26, 1998 the applicant made an application to the Jura Social Services Department for authorisation to adopt a child. She wanted to investigate the possibility of international adoption, in particular in Asia, South America and Madagascar. She mentioned her sexual orientation and her relationship with her partner, Ms R. In a report dated August 11, 1998 the socio-educational assistant and paediatric nurse noted the following points among others: “Ms B. and Ms R. do not regard themselves as a couple, and Ms R., although concerned by her partner’s application to adopt a child, does not feel committed by it. Ms B. considers that she will have to play the role of mother and father, and her partner does not lay claim to any right vis-à-vis the child but will be at hand if necessary. ... Ms B. is seeking to adopt following her decision not to have a child herself. She would prefer to explain to a child that he or she has had a father and mother and that what she wants is the child’s happiness than to tell the child that she does not want to live with a man. ... Ms B. thinks of a father as a stable, reassuring and reliable figure. She proposes to provide a future adopted child with this father figure in the persons of her own father and her brother-in-law. But she also says that the child will be able to choose a surrogate father in his or her environment (a friend’s relatives, a teacher, or a male friend . . .). ... CONCLUSION On account of her personality and her occupation, Ms B. is a good listener, is broad-minded and cultured, and is emotionally receptive. We also appreciated her clear-sighted approach to analysing problems and her child-raising and emotional capacities. However, regard being had to her current lifestyle: unmarried and cohabiting with a female partner, we have not been able to assess her ability to provide a child with a family image revolving around a parental couple such as to afford safeguards for that child’s stable and well-adjusted development. Opinion reserved regarding authorisation to adopt a child.”

11

On August 28, 1998, in her report on the interviews she had had with the applicant, the psychologist examining her application recommended in the following terms that authorisation be refused: (2008) 47 E.H.R.R., Part 3 䉷 Sweet & Maxwell

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“Ms [B] has many personal qualities. She is enthusiastic and warm-hearted and comes across as very protective of others. Her ideas about child-rearing appear very positive. Several question marks remain, however, regarding a number of factors pertaining to her background, the context in which the child will be cared for and her desire for a child. Is she not seeking to avoid the ‘violence’ of giving birth and genetic anxiety regarding a biological child? Idealisation of a child and under-estimation of the difficulties inherent in providing one with a home: is she not fantasising about being able to fully mend a child’s past? How certain can we be that the child will find a stable and reliable paternal referent? The possibilities of identification with a paternal role model are somewhat unclear. Let us not forget that children forge their identity with an image of both parents. Children need adults who will assume their parental function: if the parent is alone, what effects will that have on the child’s development? ... We do not wish to diminish Ms [B.]’s confidence in herself in any way, still less insinuate that she would be harmful to a child; what we are saying is that all the studies on parenthood show that a child needs both its parents. Moreover, when asked whether she would have wanted to be brought up by only one of her parents, Ms B. answered no. ... A number of grey areas remain, relating to the illusion of having a direct perception of her desire for a child: would it not be wiser to defer this request pending a more thorough analysis of the various—complex—aspects of the situation?” 12

On September 21, 1998 a technical officer from the children’s welfare service recommended that authorisation be refused, observing that the applicant had not given enough thought to the question of a paternal and male role model, and assumed that she could easily take on the role of father and mother herself, while mentioning a possible role for her father and/or brother-in-law, who lived a long way away, however, meaning that meetings with the child would be difficult. The officer also wondered about the presence of Ms R in the applicant’s life, noting that they refused to regard themselves as a couple and that Ms R had not at any time been involved in the plan to adopt. The reasoning of the opinion ended as follows: “I find myself faced with a lot of uncertainties about important matters concerning the psychological development of a child who has already experienced abandonment and a complete change of culture and language.”

13

On October 12, 1998 the psychologist from the children’s welfare service, who was a member of the adoption board, recommended that authorisation be refused on the ground that placing a child with the applicant would expose the child to a certain number of risks relating to the construction of his or her personality. He referred among other things to the fact that the applicant lived with a girlfriend but did not consider herself to be in a couple, which gave rise to an unclear or even an (2008) 47 E.H.R.R., Part 3 䉷 Sweet & Maxwell

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unspoken situation involving ambiguity and a risk that the child would have only a maternal role model. The psychologist went on to make the following comments: “It is as though the reasons for wanting a child derived from a complicated personal background that has not been resolved with regard to the role as child-parent that [the applicant] appears to have had to play (vis-à-vis one of her sisters, protection of her parents), and were based on emotional difficulties. Has this given rise to a feeling of worthlessness or uselessness that she is trying to overcome by becoming a mother? Unusual attitude towards men in that men are rejected. In the extreme, how can rejection of the male figure not amount to rejection of the child’s own image? (A child eligible for adoption has a biological father whose symbolic existence must be preserved, but will this be within [the applicant’s] capabilities?)” 14

On October 28, 1998 the Adoption Board’s representative from the Family Council for the association of children currently or formerly in state care recommended refusing authorisation to adopt in the following terms: “From my personal experience of life with a foster family I am now, with the benefit of hindsight, in a position to assess the importance of a mixed couple (man and woman) in providing a child with a home. The role of the ‘adoptive mother’ and the ‘adoptive father’ in the child’s day-to-day upbringing are complementary, but different. It is a balance that will be shaken by the child to a degree that may sometimes vary in intensity according to how he or she experiences the realisation and acceptance of the truth about his or her origins and history. I therefore think it necessary, in the interests of the child, for there to be a solid balance between an ‘adoptive mother’ and an ‘adoptive father’ where adoption is being envisaged.”

15

On November 4, 1998 the Board’s representative from the Family Council, present on behalf of the union of family associations for the département (UDAF), referring to the Convention on the Rights of the Child of November 20, 1989, recommended that authorisation be refused on the ground of the lack of a paternal referent and added: “It appears impossible to build a family and bring up a child without the full support of this partner [R] for the plan. The psychologists’ and welfare reports show her clear lack of interest in Ms [B]’s plan . . . In the further alternative, the material conditions for providing a child with a suitable home are not met. It will be necessary to move house, solve the issue of how to divide expenses between both partners, whose plans differ at least in this respect.”

16

On November 24, 1998 the head of the children’s welfare service also recommended that authorisation be refused, noting expressly that: “Ms [B] lives with a female partner who does not appear to be a party to the plan. The role this partner would play in the adopted child’s life is not clearly defined. (2008) 47 E.H.R.R., Part 3 䉷 Sweet & Maxwell

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There does not appear to be room for a male referent who would actually be present in the child’s life. In these circumstances, there is a risk that the child would not find within this household the various family markers necessary to the development of his or her personality and well-being.” 17

In a letter of November 26, 1998 the decision of the president of the council for the département refusing authorisation to adopt was served on the applicant. The following reasons, among others, were given: “[I]n examining any application for authorisation to adopt I have to consider the child’s interests alone and ensure that all the relevant safeguards are in place. Your plan to adopt reveals the lack of a paternal role model or referent capable of fostering the well-adjusted development of an adopted child. Moreover, the place that your partner would occupy in the child’s life is not sufficiently clear: although she does not appear to oppose your plan, neither does she seem to be involved, which would make it difficult for the child to find its bearings. Accordingly, all the foregoing factors do not appear to ensure that an adopted child will have a sufficiently structured family framework in which to flourish.”

18 19

20 21

22

On January 20, 1999 the applicant asked the president of the council for the département to reconsider the decision refusing her authorisation to adopt. The children’s welfare service asked a clinical psychologist to prepare a psychological assessment. In her report of March 7, 1999, drawn up after an interview with the applicant, the psychologist concluded that “Ms B. ha[d] plenty to offer in providing a home for a child (patience-values-creativity-time)”, but considered that adoption was premature having regard to a number of problematic points (confusion between a non-directive and laissez-faire attitude, and ignorance of the effects of the introduction of a third person into the home set-up). On March 17, 1999 the president of the council for the département of the Jura confirmed the refusal to grant the request for authorisation. On May 13, 1999 the applicant applied to the Besançon Administrative Court seeking to have the administrative decisions of November 26, 1998 and March 17, 1999 set aside. She also contested the manner in which the screening process in respect of her request for authorisation had been conducted. She pointed out that many people involved in the process had not met her, including the psychologist from the adoption board. In a judgment of February 24, 2000 the Administrative Court set aside the decisions of November 26, 1998 and March 19, 1999, ruling as follows: “[T]he president of the council for the département of the Jura based his decision both on ‘the lack of a paternal role model or referent capable of fostering the well-adjusted development of an adopted child’ and on ‘the place [her] partner would occupy in the child’s life’. The reasons cited are not in themselves capable of justifying a refusal to grant authorisation to adopt. The documents in the case file show that Ms B., who has undisputed personal (2008) 47 E.H.R.R., Part 3 䉷 Sweet & Maxwell

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EB V FRANCE qualities and an aptitude for bringing up children, and who is a nursery school teacher by profession and well integrated into her social environment, does offer sufficient guarantees—from a family, child-rearing and psychological perspective—that she would provide an adopted child with a suitable home. . . . Ms B. is justified, in the circumstances of this case, in seeking to have the decisions refusing her authorisation set aside.”

23

The département of the Jura appealed. The Nancy Administrative Court of Appeal, in a judgment of December 21, 2000, set aside the lower court’s judgment. It found, first, that: “B. maintain[ed] that she ha[d] not been sent a personality test, but [did] not allege that she [had] asked for the document and that her request [had been] refused”, and that the 4th paragraph of Art.63 of the Family and Social Welfare Code: “[Did] not have the effect of precluding a report from being drawn up on the basis of a summary of the main points of other documents. Hence, the fact that a psychologist [had drawn] up a report just on the basis of information obtained by other people working on the case and without hearing submissions from the applicant [did] not invalidate the screening process carried out in respect of Ms B.’s application for authorisation to adopt.”

24

The court went on to find that: “[T]he reasons for the decisions of 26 November 1998 and 17 March 1999, which were taken following an application for reconsideration of the decision of the president of the council for the département of the Jura rejecting the application for authorisation to adopt submitted by Ms B., are the absence of ‘identificational markers’ due to the lack of a paternal role model or referent and the ambivalence of the commitment of each member of the household to the adoptive child. It can be seen from the documents in the file, and particularly the evidence gathered during the examination of Ms B.’s application, that having regard to the latter’s lifestyle and despite her undoubted personal qualities and aptitude for bringing up children, she did not provide the requisite safeguards—from a family, child-rearing and psychological perspective—for adopting a child . . .; . . . contrary to Ms B.’s contentions, the president of the council for the département did not refuse her authorisation on the basis of a position of principle regarding her choice of lifestyle. Accordingly, and in any event, the applicant is not justified in alleging a breach . . . of the requirements of Articles 8 and 14 of the Convention.”

25

The applicant appealed on points of law. On June 5, 2002 the Conseil d’Etat dismissed her appeal in a judgment giving the following reasons: (2008) 47 E.H.R.R., Part 3 䉷 Sweet & Maxwell

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“Regarding the grounds for refusing Ms B. authorisation: ... Firstly, the fact that a request for authorisation to adopt a child is submitted by a single person, as is permitted by Article 343-1 of the Civil Code, does not prevent the administrative authority from ascertaining, in terms of child-rearing and psychological factors that foster the development of the child’s personality, whether the prospective adoptive parent can offer—in her circle of family and friends—a paternal ‘role model or referent’ where the application is submitted by a woman . . .; nor, where a single person seeking to adopt is in a stable relationship with another person, who will inevitably be required to contribute to providing the child with a suitable home for the purposes of the above-mentioned provisions, does this fact prevent the authority from determining—even if the relationship in question is not a legally binding one—whether the conduct or personality of the third person, considered on the basis of objective considerations, is conducive to providing a suitable home. Accordingly, the Administrative Court of Appeal did not err in law in considering that the two grounds on which the application by Ms [B] for authorisation as a single person was refused—namely, the ‘absence of identificational markers due to the lack of a paternal role model or referent’ and ‘the ambivalence of the commitment of each member of the household to the adoptive child’—were capable of justifying, under the above-mentioned provisions of the decree of 1 September 1998, the refusal to grant authorisation; Secondly, with regard to Ms [B]’s assertion that, in referring to her ‘lifestyle’ to justify the refusal to grant her authorisation to adopt, the Administrative Court of Appeal had implicitly referred to her sexual orientation, it can be seen from the documents submitted to the tribunals of fact that Ms [B] was, at the time of the examination of her application, in a stable homosexual relationship. As that relationship had to be taken into consideration in the needs and interests of an adopted child, the court neither based its decision on a position of principle in view of the applicant’s sexual orientation nor breached the combined requirements of Articles 8 and 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms; nor did it breach the provisions of Article L. 225-2 of the Criminal Code prohibiting sexual discrimination; Thirdly, in considering that Ms [B], ‘having regard to her lifestyle and despite her undoubted personal qualities and aptitude for bringing up children, did not provide the requisite safeguards— from a family, child-rearing and psychological perspective—for adopting a child’, the Administrative Court of Appeal, which did not disregard the elements favourable to the applicant in the file submitted to it, did not distort the contents of the file; (2008) 47 E.H.R.R., Part 3 䉷 Sweet & Maxwell

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EB V FRANCE It follows from the foregoing that Ms [B.] is not justified in seeking to have set aside the above-mentioned judgment, which contains adequate reasons.” II. Relevant law and practice A. Domestic law

1. The Civil Code 26

The relevant provisions at the material time read as follows: “Article 343 Adoption may be applied for by a married couple who have not been judicially separated and have been married for more than two years or are both over twenty-eight years of age. Article 343-1 Adoption may also be applied for by any person over twenty-eight years of age.” 2. Family and Social Welfare Code

27

The relevant provisions at the material time read as follows: “Article 63 Children in State care may be adopted either by persons given custody of them by the children’s welfare service wherever the emotional ties that have been established between them warrant such a measure or by persons granted authorisation to adopt . . . Authorisation shall be granted for five years, within nine months of the date of the application, by the president of the council for the relevant département after obtaining the opinion of a[n] [adoption] board. Article 100-3 Persons wishing to provide a home for a foreign child with a view to his or her adoption shall apply for the authorisation contemplated in Article 63 of this Code.” 3. Decree 98-771 of September 1, 1998 establishing the arrangements for appraising applications for authorisation to adopt a child in state care

28

The relevant provisions of the decree read as follows: “Article 1 Any person wishing to obtain the authorisation contemplated in the first paragraph of Article 63 and Article 100-3 of the Family and Social Welfare (2008) 47 E.H.R.R., Part 3 䉷 Sweet & Maxwell

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Code must submit an application to that end to the president of the council for the département in which he or she resides. Article 4 Before issuing authorisation, the president of the council for the relevant département must satisfy himself that the conditions in which the applicant is proposing to provide a child with a home meet the needs and interests of an adopted child from a family, child-rearing and psychological perspective. To that end, he shall order inquiries into the applicant’s circumstances. Article 5 The decision shall be taken by the president of the council for the relevant département after consulting the adoption board.” B. International Conventions 1. Draft European Convention on the Adoption of Children 29

The relevant provisions of this draft Convention, currently being examined by the Committee of Ministers of the Council of Europe, provide inter alia: “Article 7—Conditions for adoption 1. The law shall permit a child to be adopted: a. by two persons of different sex i. who are married to each other, or ii. where such an institution exists, have entered into a registered partnership together; b. by one person. 2. States are free to extend the scope of this convention to same-sex couples who are married to each other or who have entered into a registered partnership together. They are also free to extend the scope of this convention to different-sex couples and same-sex couples who are living together in a stable relationship.” 2. International Convention on the Rights of the Child

30

The relevant provisions of the Convention on the Rights of the Child adopted by the General Assembly of the United Nations on November 20, 1989 and which came into force on September 2, 1990 read as follows: “Article 3 1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. (2008) 47 E.H.R.R., Part 3 䉷 Sweet & Maxwell

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EB V FRANCE 2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures. 3. States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision. Article 4 States Parties shall undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognized in the present Convention. With regard to economic, social and cultural rights, States Parties shall undertake such measures to the maximum extent of their available resources and, where needed, within the framework of international co-operation. Article 5 States Parties shall respect the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention. Article 20 1. A child temporarily or permanently deprived of his or her family environment, or in whose own best interests cannot be allowed to remain in that environment, shall be entitled to special protection and assistance provided by the State. 2. States Parties shall in accordance with their national laws ensure alternative care for such a child. 3. Such care could include, inter alia, foster placement, kafalah of Islamic law, adoption or if necessary placement in suitable institutions for the care of children. When considering solutions, due regard shall be paid to the desirability of continuity in a child’s upbringing and to the child’s ethnic, religious, cultural and linguistic background. Article 21 States Parties that recognize and/or permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration and they shall: (2008) 47 E.H.R.R., Part 3 䉷 Sweet & Maxwell

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(a) Ensure that the adoption of a child is authorized only by competent authorities who determine, in accordance with applicable law and procedures and on the basis of all pertinent and reliable information, that the adoption is permissible in view of the child’s status concerning parents, relatives and legal guardians and that, if required, the persons concerned have given their informed consent to the adoption on the basis of such counselling as may be necessary; (b) Recognize that inter-country adoption may be considered as an alternative means of child’s care, if the child cannot be placed in a foster or an adoptive family or cannot in any suitable manner be cared for in the child’s country of origin; (c) Ensure that the child concerned by inter-country adoption enjoys safeguards and standards equivalent to those existing in the case of national adoption; (d) Take all appropriate measures to ensure that, in inter-country adoption, the placement does not result in improper financial gain for those involved in it; (e) Promote, where appropriate, the objectives of the present article by concluding bilateral or multilateral arrangements or agreements, and endeavour, within this framework, to ensure that the placement of the child in another country is carried out by competent authorities or organs.” 3. Hague Convention of May 29, 1993 on the Protection of Children and Cooperation in Respect of International Adoption 31

The relevant provisions of the Hague Convention of May 29, 1993 provide: “Article 5 An adoption within the scope of the Convention shall take place only if the competent authorities of the receiving State: a) have determined that the prospective adoptive parents are eligible and suited to adopt; b) have ensured that the prospective adoptive parents have been counselled as may be necessary; and c) have determined that the child is or will be authorized to enter and reside permanently in that State. Article 15 1. If the Central Authority of the receiving State is satisfied that the applicants are eligible and suited to adopt, it shall prepare a report including information about their identity, eligibility and suitability to adopt, background, family and medical history, social environment, reasons for adoption, ability to undertake an intercountry adoption, as well as the characteristics of the children for whom they would be qualified to care. 2. It shall transmit the report to the Central Authority of the State of origin.” (2008) 47 E.H.R.R., Part 3 䉷 Sweet & Maxwell

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The applicant alleged that she had suffered discriminatory treatment that had been based on her sexual orientation and had interfered with her right to respect for her private life. She relied on Art.14 of the Convention taken in conjunction with Art.8, which provide: “Article 8 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. Article 14 The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” I. Admissibility A. Submissions of the parties 1. The applicant

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The applicant stated that adoption by homosexuals fell into three quite distinct categories: first, it might be a single person seeking to adopt, in a Member State where adoptions by single persons were permitted (even if only in exceptional cases), in which case any partner the individual might have acquired no parental rights as a result of the adoption (individual adoption); second, one member of a same-sex couple might seek to adopt the child of the other partner, so that both partners had parental rights vis-à-vis the child (second-parent adoption); and lastly, both members of a same-sex couple might jointly seek to adopt a child with no prior connection with either partner, so that both partners simultaneously acquired parental rights vis-à-vis the child (joint adoption). The applicant specified that she had applied for individual adoption, which was the simpler legal option. She emphasised the importance of obtaining authorisation, which, in practice, was a precondition to adopting a child in France or abroad. The applicant did not claim a right to adopt, which—irrespective of the sexual orientation of the prospective adoptive parent—did not exist. Nevertheless, she submitted that Art.14 of the Convention, taken in conjunction with Art.8, was applicable to the present case. First, the opportunity or chance of applying for authorisation to adopt fell within the scope of Art.8 both with regard to “private (2008) 47 E.H.R.R., Part 3 䉷 Sweet & Maxwell

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life”, since it concerned the creation of a new relationship with another individual, and “family life”, since it was an attempt to create a family life with the child being adopted. Secondly, a person’s sexual orientation, which was an aspect of their private life, accordingly fell within the scope of Art.8. 2. The Government 36

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The Government contended that the application was inadmissible, since the complaint fell outside the scope of Art.8 of the Convention and, consequently, Art.14. In any event, unlike in Fretté v France,1 the refusal to grant the applicant authorisation had not been based, explicitly or implicitly, on the applicant’s sexual orientation and could not therefore amount to direct or indirect discrimination based on her homosexuality. The reason for refusing her authorisation had been dictated by the child’s interests alone and had been based on two grounds: lack of a paternal referent and the ambivalence of the applicant’s partner’s commitment to her adoption plans. With regard to the ground relating to the lack of a paternal referent, the Government pointed out that many professionals considered that a model of sexual difference was an important factor in a child’s identity and that it was perfectly understandable that the social services of the département should take into consideration the lack of markers enabling a child to construct its identity with reference to a father figure. The Government cited decisions of the domestic courts in support of its submission that any other heterosexual applicant whose immediate circle of family and friends did not include a member of the opposite sex would have had their application refused on the same ground. With regard to the second ground, the Government submitted at the outset that the lack of commitment on the part of the applicant’s partner was an established fact. It observed that the applicant continued to deny the relevance of that fact, whereas it was legitimate to have regard to the conduct of a prospective adoptive parent’s immediate circle of family and friends where there were plans to bring a child into the home. Irrespective of the lack of legal consequences for the partner, the arrival of a child would change the balance of the receiving couple and the family unit, and an adopted child’s previous history made it all the more important to assess the solidity of a couple’s approach to any plan to adopt. Accordingly, apart from the fact that R would necessarily be involved in the child’s day-to-day life, her lack of involvement could be seen as a source of insecurity for the child with the risk that the child would find him or herself in competition with the applicant’s partner for the applicant’s time and affection. In the Government’s submission, that ground could not be said to be related to the applicant’s sexual orientation, as had been borne out by the decisions of the domestic courts. In the Government’s view, the circumstances of the present case were therefore very different from those in Fretté2 and it should be stressed that the French administrative and judicial authorities had given paramount consideration to what lay in the best interests of the child. Those best interests were central to many international instruments binding on France. There was no right to a child or right 1 2

Fretté v France (2004) 38 E.H.R.R. 21 at [32]. Fretté (2004) 38 E.H.R.R. 21.

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to authorisation to adopt one. Adoption was a measure taken for the child’s protection and was designed to provide him or her with a family. The sole purpose of the authorisation procedure was to identify from among the many candidates the person who could provide a child with the most suitable home in every respect. Accordingly, the desire for a child must not prevail over the child’s interests. B. The Court’s assessment 41

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The Court, noting that the applicant based her application on Art.14 of the Convention, taken in conjunction with Art.8, reiterates at the outset that the provisions of Art.8 do not guarantee either the right to found a family or the right to adopt.3 Neither party contests this. The right to respect for “family life” does not safeguard the mere desire to found a family; it presupposes the existence of a family,4 or at the very least the potential relationship between, for example, a child born out of wedlock and his or her natural father,5 or the relationship that arises from a genuine marriage, even if family life has not yet been fully established.6 Nor is a right to adopt provided for by domestic law or by other international instruments, such as the Convention on the Rights of the Child, adopted by the United Nations General Assembly on November 20, 1989, or the Hague Convention of May 29, 1993 on the Protection of Children and Co-operation in Respect of International Adoption.7 The Court has, however, previously held that the notion of “private life” within the meaning of Art.8 of the Convention is a broad concept which encompasses, inter alia, the right to establish and develop relationships with other human beings,8 the right to “personal development”9 or the right to self-determination as such.10 It encompasses elements such as names,11 gender identification, sexual orientation and sexual life, which fall within the personal sphere protected by Art.8.12 Admittedly, in the instant case the proceedings in question do not concern the adoption of a child as such, but an application for authorisation to adopt one subsequently. The case therefore raises the issue of the procedure for obtaining authorisation to adopt rather than adoption itself. However, the parties do not contest that in practice authorisation is a precondition for adopting a child. It should also be noted that the applicant claimed to have been discriminated against on the ground of her avowed homosexuality, resulting in a violation of the provisions of Art.14 of the Convention taken in conjunction with Art.8. The Court is not therefore called upon to rule whether the right to adopt, having regard, inter alia, to developments in the legislation in Europe and the fact that the Convention is a living instrument which must be interpreted in the light of 3

See Fretté (2004) 38 E.H.R.R. 21 at [32]. See Marckx v Belgium (1979–80) 2 E.H.R.R. 330 at [31]. See App. No.27110/95, Nylund v Finland, June 29, 1999. 6 See Abdulaziz v United Kingdom (1985) 7 E.H.R.R. 471 at [62], or the relationship that arises from a lawful and genuine adoption (see Pini v Romania (2005) 40 E.H.R.R. 13 at [148]). 7 See [30]–[31] above. 8 See Niemietz v Germany (1993) 16 E.H.R.R. 97 at [29]. 9 See Bensaid v United Kingdom (2001) 33 E.H.R.R. 10 at [47]. 10 See Pretty v United Kingdom (2002) 35 E.H.R.R. 1 at [61]. 11 See Burghartz v Switzerland (1994) 18 E.H.R.R. 101 at [24]. 12 See, for example, Dudgeon v United Kingdom (1982) 4 E.H.R.R. 149 at [41], and Laskey v United Kingdom (1997) 24 E.H.R.R. 39 at [36], and the right to respect for both the decisions to have and not to have a child (see Evans v United Kingdom (2006) 43 E.H.R.R. 21 at [71]). 4 5

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present-day conditions,13 should or should not fall within the ambit of Art.8 of the Convention taken alone. With regard to Art.14, which was relied on in the present case, the Court reiterates that it only complements the other substantive provisions of the Convention and the Protocols thereto. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions.14 The application of Art.14 does not necessarily presuppose the violation of one of the substantive rights protected by the Convention. It is necessary but it is also sufficient for the facts of the case to fall “within the ambit” of one or more of the Arts of the Convention.15 The prohibition of discrimination enshrined in Art.14 thus extends beyond the enjoyment of the rights and freedoms which the Convention and the Protocols thereto require each state to guarantee. It applies also to those additional rights, falling within the general scope of any Convention Article, for which the state has voluntarily decided to provide. This principle is well entrenched in the Court’s case law.16 The present case does not concern adoption by a couple or by the same-sex partner of a biological parent, but solely adoption by a single person. Whilst Art.8 of the Convention is silent as to this question, the Court notes that French legislation expressly grants single persons the right to apply for authorisation to adopt and establishes a procedure to that end. Accordingly, the Court considers that the facts of this case undoubtedly fall within the ambit of Art.8 of the Convention. Consequently, the state, which has gone beyond its obligations under Art.8 in creating such a right—a possibility open to it under Art.53 of the Convention—cannot, in the application of that right, take discriminatory measures within the meaning of Art.14.17 The applicant alleged in the present case that, in the exercise of her right under the domestic law, she had been discriminated against on the ground of her sexual orientation. The latter is a concept covered by Art.14 of the Convention.18 The Court also points out that in Fretté v France,19 to which the parties expressly referred, the applicant complained that the rejection of his application for authorisation to adopt had implicitly been based on his sexual orientation alone. The Chamber found that Art.14 of the Convention, taken in conjunction with Art.8, was applicable.20 Accordingly, Art.14 of the Convention, taken in conjunction with Art.8, is applicable in the present case. In these circumstances the Court dismisses the preliminary objection raised by the Government. It also considers, in the light of the parties’ submissions, that this 13

See, in particular, Johnston v Ireland (1987) 9 E.H.R.R. 203 at [53]. See, among many other authorities, Sahin v Germany (2003) 36 E.H.R.R. 43 at [85]. See Abdulaziz (1985) 7 E.H.R.R. 471 at [71]; Schmidt v Germany (1994) 18 E.H.R.R. 513 at [22]; and Petrovic v Austria (2001) 33 E.H.R.R. 14 at [22]. 16 See App. No.1474/62, Case “relating to certain aspects of the laws on the use of languages in education in Belgium” v Belgium (Merits), July 23, 1968 at [9]; Abdulaziz (1985) 7 E.H.R.R. 471 at [78]; and Stec v United Kingdom (2006) 43 E.H.R.R. 47 at [40]. 17 See, mutatis mutandis, App. No.1474/62, “Languages in education in Belgium” v Belgium (Merits), July 23, 1968. 18 See Salgueiro da Silva Mouta v Portugal (2001) 31 E.H.R.R. 47 at [28]. 19 Fretté (2004) 38 E.H.R.R. 21. 20 Fretté (2004) 38 E.H.R.R. 21 at [33]. 14 15

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complaint raises complex issues of fact and law which cannot be resolved at this stage in the examination of the application, but require examination on the merits. It follows that this complaint cannot be declared manifestly ill-founded within the meaning of Art.35(3) of the Convention. No other ground for declaring it inadmissible has been established. It must therefore be declared admissible. II. Alleged violation of Article 14 of the Convention taken in conjunction with Article 8 A. Submissions of the parties 1. The applicant 53

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The applicant maintained that the refusal to grant her authorisation to adopt had been based on her “lifestyle”, in other words her homosexuality. In her view, this was borne out by the screening of her application and the opinion of the adoption board. She also considered that part of the judgment delivered by the Conseil d’Etat was worded in the same terms as the judgment it had rendered in the case of Fretté,21 which showed that the Conseil d’Etat adopted a discriminatory approach. With regard to the ground based on the lack of a paternal referent, she argued that while the majority of French psychoanalysts believed that a child needed a dual maternal and paternal referent, there was no empirical evidence for that belief and it had been disputed by many other psychotherapists. Moreover, in the present case the Government had not shown that there was a practice of excluding single heterosexual women who did not have a male partner. With regard to the argument based on her partner’s place in and attitude to her plan to adopt, she submitted that this was an illegal ground. Articles 343 and 343-1 of the Civil Code provided that adoption was open to married couples and single persons: partners were not concerned and therefore were not a party to the adoption procedure and did not enjoy any legal status once the child was adopted. Having regard to her right to be subject to foreseeable legal rules, the applicant contested a ground for rejection of her application that had no basis in the law itself. The applicant went on to stress that she and her partner had had a meeting with the social worker and that subsequently the various officials involved in screening her application for authorisation had never asked to meet her partner. Either steps should have been taken to interview her partner or this ground had in reality served as a pretext for rejecting her application purely on the basis of her sexual orientation. The applicant submitted that the difference in treatment in her regard had no objective and reasonable justification. Particularly serious reasons were required to justify a difference in treatment based on sexual orientation. There were no such reasons in this case. With regard to the division in the scientific community,22 particularly serious reasons were required to justify a difference in treatment of homosexuals. The burden of proving the existence of any scientific reasons was on the Government 21 22

Fretté (2004) 38 E.H.R.R. 21. Fretté (2004) 38 E.H.R.R. 21 at [42].

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and if they had failed to prove in Fretté and in the instant case that there was a consensus in the scientific community, this was because there was no known study on the subject. The applicant disputed the existence of a “legitimate aim”, since children’s health was not really in issue here and the Conseil d’Etat had not explained how the child’s health might be endangered. She submitted that three risks were generally cited: first, the alleged risk of the child becoming homosexual, which, quite apart from the fact that there was nothing reprehensible about such an eventuality and that the majority of homosexuals had heterosexual parents, was a prejudiced notion; second, the child would be exposed to the risk of developing psychological problems: that risk had never been proved and recent studies showed that being raised in a homoparental family did not incline a child to any particular disorder; besides that, the right to adopt that existed in some democratic countries showed that there was no risk for the child. Lastly, there was no long-term risk that the child would suffer on account of homophobic prejudices towards the parents and, in any event, the prejudices of a sexual majority did not constitute sufficient justification. She pointed out that the practice of the administrative authorities was inconsistent in France, where some départements no longer refused authorisation to single homosexual applicants. She also stated that the civil courts allowed adoption by the same-sex partner of the original parent. In Europe there had been a steady development in the law in favour of adoption by same-sex couples since the Fretté judgment,23 with some 10 European states now allowing it. The applicant also referred to a European consensus in favour of making adoption available to single homosexuals in the Member States of the Council of Europe which allowed adoption by single persons, other than France where decisions were made on a discretionary basis. The same was true outside Europe, where case law developments were in favour of adoption by homosexuals in the interests of children needing a home. Lastly, she disputed the argument that there were insufficient numbers of children eligible for adoption, to which the Court had adhered in its Fretté judgment,24 arguing that the number of children eligible for adoption in the world exceeded the number of prospective adoptive parents and that making a legal possibility available should not depend on the effective possibility of exercising the right in question. 2. The Government

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The Government pointed out that authorisation to adopt was issued at local, and not national, level by the president of the council for the département after obtaining the opinion of an adoption board at département level. In 2005, 13,563 new applications had been submitted, of which barely 8 per cent had not been satisfied (with less than 6 per cent being refused authorisation and about 2 per cent being withdrawn). In 2006, 4,000 visas had been granted by the relevant authorities to foreign children being adopted. The Government stated that it could not provide statistics relating to the applicants’ sexual orientation, as the collecting 23 24

Fretté (2004) 38 E.H.R.R. 21 at [41]. Fretté (2004) 38 E.H.R.R. 21 at [42].

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or processing of personal data about a person’s sexual life were prohibited under French law. The Government submitted, in the alternative, that the present case did not lend itself to a review of the Court’s finding in the Fretté judgment,25 since present-day conditions had not sufficiently changed to justify a departure from precedent. With regard to national laws, there was no European consensus on the subject, with only 9 out of 46 Member States of the Council of Europe moving towards adoption by same-sex couples and some countries not making adoption available to single persons or allowing it under more restrictive conditions than in France. Moreover, that observation should be qualified by the nature of those laws and the conditions that had to be met. The conclusion reached by the Court in Fretté regarding the division in the scientific community was still valid today. The Government justified the failure to produce studies identifying problems or differences in development in children raised by homosexual couples by the fact that the number of children raised by a homosexual couple was unknown and the estimated numbers highly variable. Besides the complexity of the various situations that might be encountered, the existing studies were insufficiently thorough because they were based on insufficiently large samples, failed to take a detached approach and did not indicate the profile of the single-parent families in question. Child psychiatrists or psychoanalysts defended different theories, with a majority arguing that a dual maternal and paternal referent in the home was necessary. There were also still wide differences in public opinion since Fretté.26 The Government confirmed that the reality was that applications to adopt outnumbered children eligible for adoption. Its international obligations, particularly Arts 5 and 15 of the Hague Convention, compelled them to select candidates on the basis of those best able to provide the child with a suitable home. Lastly, it pointed out that none of the 60 or so countries from which French people adopted children authorised adoption by same-sex couples. International adoption might therefore remain a purely theoretical possibility for homosexuals despite the fact that their domestic law allowed it. B. The Court’s assessment

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The Court observes that in Fretté v France27 the Chamber held that the decisions to reject the application for authorisation had pursued a legitimate aim, namely to protect the health and rights of children who could be involved in an adoption procedure.28 With regard to whether a difference in treatment was justified, and after observing that there was no common ground between the legal systems of the contracting states, the Chamber found it quite natural that the national authorities should enjoy a wide margin of appreciation when they were asked to make rulings on such matters, subject to review by the Court.29 Having regard to the competing 25 26 27 28 29

Fretté (2004) 38 E.H.R.R. 21. Fretté (2004) 38 E.H.R.R. 21 at [42]. Fretté (2004) 38 E.H.R.R. 21. Fretté (2004) 38 E.H.R.R. 21 at [38]. Fretté (2004) 38 E.H.R.R. 21 at [41].

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interests of the applicant and children who were eligible for adoption, and to the paramountcy of the latter’s best interests, it noted that the scientific community was divided over the possible consequences of a child being adopted by one or more homosexual parents, that there were wide differences in national and international opinion and that there were not enough children to adopt to satisfy demand.30 Taking account of the broad margin of appreciation to be left to states in this area and to the need to protect children’s best interests to achieve the desired balance, the Chamber considered that the refusal to authorise adoption had not infringed the principle of proportionality and that, accordingly, the justification given by the Government appeared objective and reasonable and the difference in treatment complained of was not discriminatory within the meaning of Art.14 of the Convention.31 The Court notes that the present case also concerns the question of how an application for authorisation to adopt submitted by a homosexual single person is dealt with; it nonetheless differs in a number of respects from the case of Fretté (2004) 38 E.H.R.R. 21. The Court notes in particular that whilst the ground relating to the lack of a referent of the other sex features in both cases, the domestic administrative authorities did not—expressly at least—refer to EB’s “choice of lifestyle”.32 Furthermore, they also mentioned the applicant’s qualities and her child-raising and emotional capacities, unlike in Fretté where the applicant was deemed to have had difficulties in envisaging the practical consequences of the upheaval occasioned by the arrival of a child.33 Moreover, in the instant case the domestic authorities had regard to the attitude of EB’s partner, with whom she had stated that she was in a stable and permanent relationship, which was a factor that had not featured in the application lodged by Mr Fretté. In the instant case the Court notes that the domestic administrative authorities, and then the courts that heard the applicant’s appeal, based their decision to reject her application for authorisation to adopt on two main grounds. With regard to the ground relied on by the domestic authorities relating to the lack of a paternal or maternal referent in the household of a person seeking authorisation to adopt, the Court considers that this does not necessarily raise a problem in itself. However, in the circumstances of the present case it is permissible to question the merits of such a ground, the ultimate effect of which is to require the applicant to establish the presence of a referent of the other sex among her immediate circle of family and friends, thereby running the risk of rendering ineffective the right of single persons to apply for authorisation. The point is germane here because the case does not concern an application for authorisation to adopt by a—married or unmarried—couple, but by a single person. In the Court’s view, that ground might therefore have led to an arbitrary refusal and have served as a pretext for rejecting the applicant’s application on grounds of her homosexuality. The Court observes, moreover, that the Government, on whom the burden of proof lay,34 were unable to produce statistical information on the frequency of 30 31 32 33 34

Fretté (2004) 38 E.H.R.R. 21 at [42]. Fretté (2004) 38 E.H.R.R. 21 at [42] and [43]. See Fretté (2004) 38 E.H.R.R. 21 at [32]. Fretté (2004) 38 E.H.R.R. 21 at [28] and [29]. See, mutatis mutandis, Karner v Austria (2004) 38 E.H.R.R. 24 at [41]–[42].

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reliance on that ground according to the—declared or known—sexual orientation of the persons applying for adoption, which alone could provide an accurate picture of administrative practice and establish the absence of discrimination when relying on that ground. In the Court’s view, the second ground relied on by the domestic authorities, based on the attitude of the applicant’s partner, calls for a different approach. Although she was the long-standing and declared partner of the applicant, Ms R did not feel committed by her partner’s application to adopt. The authorities, which constantly remarked on this point—expressly and giving reasons—concluded that the applicant did not provide the requisite safeguards for adopting a child. It should first be noted that, contrary to the applicant’s submissions, the question of the attitude of her partner, with whom she stated that she was in a stable and lasting relationship, is not without interest or relevance in assessing her application. It is legitimate for the authorities to ensure that all safeguards are in place before a child is taken into a family. Accordingly, where a male or female applicant, although unmarried, has already set up home with a partner, that partner’s attitude and the role he or she will necessarily play on a daily basis in the life of the child joining the home set-up require a full examination in the child’s best interests. It would moreover be surprising, to say the least, if the relevant authorities, having been informed of the existence of a de facto couple, pretended to be unaware of that fact when assessing the conditions in which the child would be given a home and his future life in that new home. The legal status of a person seeking to adopt is not incompatible with an examination of his or her actual situation and the subsequent finding of not one but two adults in the household. The Court notes, moreover, that Art.4 of the Decree of September 1, 199835 requires the president of the council for the relevant département to satisfy himself that the conditions in which the applicant is proposing to provide the child with a home meet the needs of an adopted child from a family, child-rearing and psychological perspective. The importance of these safeguards—of which the authorities must be satisfied before authorising a person to adopt a child—can also be seen in the relevant international instruments, be it the United Nations Convention on the Rights of the Child of November 20, 1989, the Hague Convention of May 29, 1993 or the draft European Convention on the Adoption of Children.36 In the Court’s view, there is no evidence to establish that the ground in question was based on the applicant’s sexual orientation. On the contrary, the Court considers that this ground, which has nothing to do with any consideration relating to the applicant’s sexual orientation, is based on a simple analysis of the known, de facto situation and its consequences for the adoption of a child. The applicant cannot therefore be deemed to have been discriminated against on the ground of her sexual orientation in that regard. Nonetheless, these two main grounds form part of an overall assessment of the applicant’s situation. For this reason, the Court considers that they should not be 35 36

See [28] above. See [29]–[31] above.

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considered alternatively, but concurrently. Consequently, the illegitimacy of one of the grounds has the effect of contaminating the entire decision. With regard to the administrative phase, the Court observes that the president of the council for the département did not base his decision exclusively or principally on the second ground, but on “all” the factors involved—that is, both grounds— without it being possible to consider that one of them was predominant or that one of them alone was sufficient to make him decide to refuse authorisation.37 With regard to the judicial phase, the Nancy Administrative Court of Appeal noted that the decision was based on two grounds: the lack of a paternal referent and the ambivalence of the commitment of each member of the household. It added that the documents in the file and the conclusions reached after examining the application showed that the applicant’s lifestyle did not provide the requisite safeguards for adopting a child, but disputed that the president of the council for the département had refused authorisation on the basis of a position of principle regarding her choice of lifestyle, namely, her homosexuality.38 Subsequently, the Conseil d’Etat held that the two grounds on which the applicant had been refused authorisation to adopt were in keeping with the statutory provisions. It also held that the reference to the applicant’s “lifestyle” could be explained by the documents in the file submitted to the tribunals of fact, which showed that the applicant was, at the time of her application, in a stable homosexual relationship, but that this could not be construed as a decision based on a position of principle regarding her sexual orientation or as any form of discrimination.39 The Court therefore notes that the administrative courts went to some lengths to rule that although regard had been had to the applicant’s sexual orientation, it had not been the basis for the decision in question and had not been considered from a hostile position of principle. However, in the Court’s opinion the fact that the applicant’s homosexuality featured to such an extent in the reasoning of the domestic authorities is significant. Besides their considerations regarding the applicant’s “lifestyle”, they above all confirmed the decision of the president of the council for the département. The Court points out that the latter reached his decision in the light of the opinion given by the adoption board whose various members had expressed themselves individually in writing, mainly recommending, with reasons in support of that recommendation, that the application be refused on the basis of the two grounds in question. It observes that the manner in which certain opinions were expressed was indeed revealing in that the applicant’s homosexuality was a determining factor. In particular, the Court notes that in his opinion of October 12, 1998 the psychologist from the children’s welfare service recommended that authorisation be refused, referring to, among other things, an “unusual attitude [on the part of the applicant] to men in that men are rejected”.40 The Court observes that at times it was her status as a single person that was relied on as a ground for refusing the applicant authorisation to adopt, whereas the 37 38 39 40

See [17] above. See [24] above. See [25] above. See [13] above.

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law makes express provision for the right of single persons to apply for authorisation to adopt. This emerges particularly clearly from the conclusions of the psychologist who, in her report on her interviews with the applicant of August 28, 1998, stated, with express reference to the applicant’s case and not as a general comment—since she prefaces her remark with the statement that she is not seeking to diminish the applicant’s confidence in herself or to insinuate that she would be harmful to a child—that “all the studies on parenthood show that a child needs both its parents”.41 On October 28, 1998 the adoption board’s representative from the Family Council for the association of children currently or formerly in state care recommended refusing authorisation on the ground that an adoptive family had to be composed “of a mixed couple (man and woman)”.42 Regarding the systematic reference to the lack of a “paternal referent”, the Court disputes not the desirability of addressing the issue, but the importance attached to it by the domestic authorities in the context of adoption by a single person. The fact that it is legitimate for this factor to be taken into account should not lead the Court to overlook the excessive reference to it in the circumstances of the present case. Thus, notwithstanding the precautions taken by the Nancy Administrative Court of Appeal, and subsequently by the Conseil d’Etat, to justify taking account of the applicant’s “lifestyle”, the inescapable conclusion is that her sexual orientation was consistently at the centre of deliberations in her regard and omnipresent at every stage of the administrative and judicial proceedings. The Court considers that the reference to the applicant’s homosexuality was, if not explicit, at least implicit. The influence of the applicant’s avowed homosexuality on the assessment of her application has been established and, having regard to the foregoing, was a decisive factor leading to the decision to refuse her authorisation to adopt.43 The applicant therefore suffered a difference in treatment. Regard must be had to the aim behind that difference in treatment and, if the aim was legitimate, to whether the different treatment was justified. The Court reiterates that, for the purposes of Art.14, a difference in treatment is discriminatory if it has no objective and reasonable justification, which means that it does not pursue a “legitimate aim” or that there is no “reasonable proportionality between the means employed and the aim sought to be realised”.44 Where sexual orientation is in issue, there is a need for particularly convincing and weighty reasons to justify a difference in treatment regarding rights falling within Art.8.45 In that connection the Court observes that the Convention is a living instrument, to be interpreted in the light of present-day conditions.46 In the Court’s opinion, if the reasons advanced for such a difference in treatment were based solely on considerations regarding the applicant’s sexual orientation this would amount to discrimination under the Convention.47 41

See [11] above. See [14] above. See, mutatis mutandis, Salgueiro da Silva Mouta (2001) 31 E.H.R.R. 47 at [35]. 44 See, inter alia, Schmidt (1994) 18 E.H.R.R. 513 at [24]; Petrovic (2001) 33 E.H.R.R. 14 at [30]; and Salgueiro da Silva Mouta (2001) 31 E.H.R.R. 47 at [29]. 45 See, mutatis mutandis, Smith v United Kingdom (2000) 29 E.H.R.R. 493 at [89]; Lustig-Prean v United Kingdom (2000) 29 E.H.R.R. 548 at [82]; and SL v Austria (2003) 37 E.H.R.R. 39 at [37]. 46 See, inter alia, Johnston (1987) 9 E.H.R.R. 203 at [53]. 47 See Salgueiro da Silva Mouta (2001) 31 E.H.R.R. 47 at [36]. 42 43

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The Court points out that French law allows single persons to adopt a child,48 thereby opening up the possibility of adoption by a single homosexual, which is not disputed. Against the background of the domestic legal provisions, it considers that the reasons put forward by the Government cannot be regarded as particularly convincing and weighty such as to justify refusing to grant the applicant authorisation. The Court notes, lastly, that the relevant provisions of the Civil Code are silent as to the necessity of a referent of the other sex, which would not, in any event, be dependent on the sexual orientation of the adoptive single parent. In this case, moreover, the applicant presented, in the terms of the judgment of the Conseil d’Etat, “undoubted personal qualities and an aptitude for bringing up children”, which were assuredly in the child’s best interests, a key notion in the relevant international instruments.49 Having regard to the foregoing, the Court cannot but observe that, in rejecting the applicant’s application for authorisation to adopt, the domestic authorities made a distinction based on considerations regarding her sexual orientation, a distinction which is not acceptable under the Convention.50 Consequently, having regard to its finding under [80] above, the Court considers that the decision in question is incompatible with the provisions of Art.14 taken in conjunction with Art.8. There has accordingly been a breach of Art.14 of the Convention taken in conjunction with Art.8. III. Application of Article 41 of the Convention

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Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage

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The applicant pointed out that without the authorisation that had been refused her it was legally impossible for her to adopt a foreign child and impossible in practice to adopt a French child. Even if the French Government were to act quickly to grant her the authorisation, the discriminatory delay would be between 9 and 10 years. That delay was not only a psychological strain and unfair, but also reduced her chances of being able to adopt a child one day on account of her age; she had been 37 when she had applied to adopt and so would be 46 at the youngest if authorisation were finally to be granted. Accordingly, she sought an award of c50,000 for non-pecuniary damage. The Government did not express a view. The Court considers that the applicant must have suffered non-pecuniary damage that is not sufficiently compensated by a mere finding of a violation of 48 49 50

See [49] above. See [29]–[31] above. See Salgueiro da Silva Mouta (2001) 31 E.H.R.R. 47 at [36].

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Art.14 of the Convention taken together with Art.8. Accordingly, ruling on an equitable basis, the Court awards her c10,000 in just satisfaction. B. Costs and expenses 103

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The applicant claimed c14,352 in lawyer’s fees from the introduction of the application until the outcome of the proceedings (60 hours’ work at the rate of c200 per hour exclusive of VAT), plus c176 for the travel and accommodation expenses incurred in attending the hearing before the Grand Chamber, that is, a total of c14,528. The Government did not express a view. The Court observes that, according to the criteria laid down in its case law, it must ascertain whether the costs and expenses claimed were actually and necessarily incurred and were reasonable as to quantum.51 Applying the said criteria to the present case, the Court considers reasonable the amount of c14,528 claimed by the applicant and awards her that sum. C. Default interest

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The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added 3 percentage points. For these reasons, THE COURT: 1. Declares unanimously the application admissible. 2. Holds by 10 votes to 7 that there has been a violation of Art.14 of the Convention taken in conjunction with Art.8. 3. Holds by 11 votes to 6: (a) that the respondent State is to pay the applicant, within three months, c10,000 (ten thousand euros) in respect of non-pecuniary damage and c14,528 (fourteen thousand five hundred and twenty-eight euros) for costs and expenses, plus any tax that may be chargeable; (b) that from the expiry of the abovementioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus 3 percentage points. 4. Dismisses unanimously the remainder of the applicant’s claim for just satisfaction.

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See, among other authorities, Öztürk v Turkey (2003) 37 E.H.R.R. 5 at [83].

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Dissenting Opinion of Judge Costa joined by Judges Türmen, Ugrekhelidze . and Jocˇiene52 O-I1

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In a case such as this the Grand Chamber53 can be expected to give a leading judgment on a “serious question” affecting the interpretation of the Convention, in this case of Art.14 taken in conjunction with Art.8. In so far as the Court has adopted a position of principle I can, I think, accept it, but I am not at all sure that in this specific case the interference attributed to the respondent State has proved to be contrary to that position or incompatible with the Convention provisions. I shall attempt to explain what I mean. With regard to the question of principle, the main thrust of the majority’s reasoning—making particular reference to the Court’s earlier decision in Salgueiro da Silva Mouta v Portugal54—is based on alleged discrimination against the applicant because her application for authorisation to adopt a child was allegedly refused on the ground of her homosexual orientation, and she considers such discrimination to be unjustified. In Fretté v France,55 which the present judgment overturns (as of course the Grand Chamber can), the majority of the Chamber had considered that such a ground was not contrary to Arts 14 and 8, or—to be more precise—that the reasons for which the French authorities had rejected the application for authorisation to adopt made by the applicant, who was a homosexual, were justified (in the best interests of the child likely to be adopted). I did not subscribe to that reasoning, and whilst I did vote with the majority in favour of finding that there had not been a violation that was because, in my view, the Articles of the Convention relied on were not applicable because the Convention does not guarantee a right to adopt (but the Chamber did not agree with my reasoning on that point, and I will not go into it again here—perseverare diabolicum). In my concurring opinion, in which I was joined by my colleagues Judge Jungwiert and Judge Traja, I pointed out that the French Civil Code (since 1966) allowed adoption by a single person and did not in any way prohibit adoption by a homosexual (or, which comes down to the same thing, did not require that the applicant be heterosexual). I therefore thought—and see no reason to change my view now—that a refusal to grant authorisation based exclusively on the avowed or established homosexuality of the applicant in question would be contrary to both the Civil Code and the Convention. I am equally convinced that the message sent by our Court to the states parties is clear: a person seeking to adopt cannot be prevented from doing so merely on the ground of his or her homosexuality. This point of view might not be shared by all, for good or not so good reasons, but—rightly or wrongly—our Court, whose duty under the Convention is to interpret and ultimately apply it, considers that persons can no more be refused authorisation to adopt on grounds of their homosexuality than have their parental responsibility withdrawn on those grounds.56 I agree. 52 53 54 55 56

Paragraph numbering added by the publisher. To which jurisdiction was relinquished by a Chamber under Art.30 of the Convention. Salgueiro da Silva Mouta (2001) 31 E.H.R.R. 47. Fretté (2004) 38 E.H.R.R. 21. Salgueiro da Silva Mouta (2001) 31 E.H.R.R. 47.

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If we leave the theoretical domain, however, and address the specific case of the applicant—which even in a judgment that sets out be a leading judgment it is the Court’s primary duty to do—I do not agree. The domestic administrative and judicial case files show, unequivocally in my view, that authorisation was refused (and that that refusal was deemed legal) for two reasons, which can be summarised as follows. First, there would be no male or “paternal” referent among Ms EB’s circle of family and friends. Secondly, the woman with whom she was in a stable relationship at the time of her application did not feel concerned by her partner’s plan to adopt; although she might not have been actually opposed or hostile to it, she was certainly indifferent. To my mind, the first of these grounds is illegal under French law because if the law allows a single person to adopt it is against the law to require that person, whether a man or a woman, to have a member of the opposite sex among their circle of family and friends who could serve as a “referent” (to use bureaucraticopsychological jargon). A single person cannot be required to artificially rebuild a “home” for the purpose of being able to exercise a statutory subjective right; would a single person have to be single only in name in order to be able to adopt? I note, though, that however illegal it may be the first ground should not be confused with homophobic discrimination. Whether or not Ms EB had been homosexual, the council for the département would still have refused her—or could still have refused her—authorisation on the ground of the lack of a “referent” of the other sex. It is not therefore clear that even this bizarre reasoning was based on the applicant’s sexual orientation or that it alone suffices to justify the conclusion reached by the majority, at least by their reasoning. The second ground, in any case, does not appear to me to be unreasonable or disproportionate. It is a fact that Ms EB was living with another person. Regardless of the latter’s sex or sexual orientation, it is established and moreover not seriously disputed that this person did not support the adoption plan. In these conditions, if approval had been granted and the civil courts had subsequently allowed Ms EB to adopt it is very unlikely that the guarantees required under French law,57 in the child’s best interests, would have been met and it is assuredly not for the Court, if it is not to set itself up as a fourth instance, to decide otherwise. A delicate problem of law therefore arises. Was the first ground (which moreover I have just said is not discriminatory, at least as far as the applicant’s sexual orientation is concerned) decisive? Did it suffice to “contaminate” the administrative decision in question? Is it not more realistic to consider that, regarding a specific application by a person in a specific situation, the authorities were entitled to undertake an assessment of all the factors pertaining to that situation? Just as our court is not a court of fourth instance, nor is it a court of cassation that considers a particular ground to be founded, holds that it is not necessary to examine the other grounds and contents itself with the wellfoundedness of the first ground to quash the decision and remit the case. This is what the judgment actually does however. In that connection my position is close to that of my colleague Judge Mularoni, who, in her own dissenting opinion, criticises the majority for finding that Ms EB’s 57

From a “family child-rearing and psychological” perspective—see [28] of the judgment.

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homosexual orientation was the decisive ground for refusing her authorisation. I, like her, consider this assertion to be somewhat gratuitous. In my opinion, the Grand Chamber could have solemnly declared that a refusal of this kind could not be based on homosexuality without violating Arts 14 and 8, and thus given an important leading judgment, while dismissing Ms EB’s application because in this case it was not her homosexuality that had prevented her from obtaining authorisation. In my view, this would have corresponded more closely to the reality of the case, at least as regards my own interpretation of it. This is why—in the present case—I cannot follow the majority’s reasoning, and I consider that France has not violated the Convention. Dissenting Opinion of Judge Zupancˇicˇ58

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The issue is in some respects disguised, but the crucial question in this case is discrimination—on the basis of the applicant’s sexual orientation—concerning the privilege of adopting a child. That this is a privilege is decisive for the examination of the case; it implies—and the majority recognises this—that we are not dealing with the applicant’s right in terms of Art.8. The difference between a privilege and a right is decisive. Discrimination in terms of unequal treatment is applicable to situations that involve rights; it is not applicable to situations that essentially concern privileges. These are situations in which the granting vel non of the privilege make it legitimate for the decisionmaking body, in this case an administrative body, to exercise discretion without fear that the right of the aggrieved person will be violated. Put in the simplest terms, the theoretical principle according to which a right is subject to litigation and according to which a violation of that right requires a remedy does not apply to situations in which a privilege is being granted. An exaggerated example of such a situation would be the privilege of being granted a decoration or a prize, or other situations of special treatment reserved for those who are exceptionally deserving. In other words, it would be “bizarre” for anybody to claim that he ought to have received a particular award, a particular decoration or a particular privilege. There are, of course, middle-ground situations such as applications for a particular post for which the aggrieved person is a candidate. One may for example conceive of a situation in which an applicant wished to become a judge or a notary public or was a candidate for a similar position but, for whatever reason, was denied that position. Even in that case it would be unusual for the Court to entertain a refusal to grant a privilege as something that is subject to the discrimination criteria. In this particular case, the preliminary question of essential importance is to determine whether the privilege of adopting a child is subject to the discrimination criteria under Art.14. As pointed out above, the majority is not inclined to consider the privilege of adopting a child as a right. It is therefore inconsistent to consider that there has been any kind of violation as long as the Court persists in its (justifiable!) position according to which the possibility of adopting a child is clearly not a right and is in any event at best a 58

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privilege. The question is then what kind of discretion the administrative body is entitled to exercise when making a decision concerning the privilege of adopting a child. On the other hand, is it possible to imagine the Nobel Prize Committee being accused of discrimination because it never awards any Nobel Prizes to scientists of a particular race or nationality? Such an assertion would, of course, require statistical proof. Statistical evidence is, indeed, very prevalent in employment discrimination and similar cases. In other words, if in this particular situation the European Court of Human Rights were to establish that the French administrative authorities systematically discriminate against lesbian women wishing to adopt a child, the issue would be much clearer. But we are dealing here with an individual case in which discrimination is alleged purely on the basis of a single occurrence. This, as I have pointed out, does not permit the Court to reach the conclusion that there is in France a general discriminatory attitude against homosexuals wishing to adopt a child. The issue of systematic discrimination has not been explored in this specific case and it would probably not be possible to even admit such statistical proof in support of the allegation. If it were possible, however, the treatment of the case would be completely different from what we now face. It is therefore incumbent on the Court to extrapolate a consistent line of reasoning from its preliminary position, according to which the privilege of adopting a child is in any event not a right. A separate issue under the same head is whether the procedures leading to the negative answer to the lesbian woman were such as to evince discrimination. This question seems to be the distinction upon which the majority’s reasoning is based. The question distilled from this kind of reasoning is whether the procedures— even when granting, not a right, but a privilege—ought to be free of discrimination. In terms of administrative law, perhaps, the distinction is between a decision which lies legitimately within the competence of the administrative bodies and their legitimate discretion on the one hand and one which moves into the field of arbitrary decision. A decision is arbitrary when it is not based on reasonable grounds (substantive aspect) and reasonable decision-making (procedural aspect) but rather derives from prejudice, in this case prejudice against homosexuals. It is well established in the legal theory that the discrimination logic does not apply to privileges, but it may well apply to the procedures in which the granting or not of the privilege is the issue. It is alleged that the procedures in French administrative law were discriminatory against this particular female homosexual, but the question then arises as to whether this kind of discriminatory procedure is nevertheless compatible with the legitimate discretion exercised by the administrative body. I am afraid that in most cases precisely this kind of “contamination” of substance by procedure is at the centre of the controversy. I cannot dwell on it here59 but the question could be posed as follows. If the granting of privileges is not a matter of rights, is it not then true that the bestower of privilege is entitled—argumento a 59

I have dealt with the issue at length in The Owl of Minerva, Essays on Human Rights (Utrecht: Eleven International Publishing, 2008), Ch.14, pp.413–28.

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majori ad minus—not only to discretion but also to discrimination in terms of substance as well as in terms of procedure? The short answer to this is that in the public sphere—as opposed to the purely private sphere of awards, prizes and so forth—there are some privileges which are apt to become rights, such as adopting a child, being considered for a public function, and so on. Decidedly, in so far as this process of the privilege potentially “becoming a right” is affected by arbitrariness, prejudice and frivolity the discrimination logic should apply. The rest is a question of fact. Like Judge Loucaides, I do not subscribe to the osmotic contamination theory advanced by the majority. There is one final consideration. The non-represented party, whose interest should prevail absolutely in such litigation, is the child whose future best interests are to be protected. When set against the absolute right of this child, all other rights and privileges pale. If in custody matters we maintain that it is the best interests of the child that should be paramount—rather than the rights of the biological parents—how much more force will that assertion carry in cases such as this one where the privileges of a potential adoptive parent are at issue? Concurring Opinion of Judges Lorenzen and Jebens60

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We have voted with the majority for finding a violation of Art.14 of the Convention in conjunction with Art.8 and we can also broadly agree with the reasons in the judgment leading to this conclusion. However, we would like to clarify our vote as follows. In the present case the domestic authorities, when rejecting the application for authorisation to adopt, relied on two grounds that were both accepted as legitimate by the French courts in the appeal proceedings: first, the lack of a paternal referent in the household of the applicant and secondly, the indifferent attitude of the applicant’s partner. We fully agree with the judgment’s reasoning61 that the latter ground was a relevant factor to be taken into account when deciding the application. As to the first ground, we do not find it to be irrelevant or discriminatory as such in cases where the application for adoption is made by a single person. However, it may be so if it is used in combination with a direct or indirect reference to the applicant’s sexual orientation. In this respect we again agree with the majority that, despite the national courts’ attempts to explain what was meant or not meant by the reference to the applicant’s “lifestyle”, it is not possible to conclude that her sexual orientation had no real importance for that ground. The refusal to grant the authorisation was accordingly based on one ground that was legitimate and another ground that was not legitimate in the circumstances of the case, and was thus discriminatory in terms of the Convention. Consequently, a violation was found in the present case because the refusal to adopt was partly based on illegitimate reasons. This does not of course imply that the applicant could not have been refused authorisation based on grounds that were in conformity with the Convention, for example the indifferent attitude of her partner in itself. It is the opinion of the minority that the refusal was justified on that 60 61

Paragraph numbering added by the publisher. At [75]–[78].

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ground alone, and we do not exclude that this might be so. However, in our opinion—and this is in fact the point on which we most disagree with the minority—it is not for this Court to rule on that question, but exclusively for the French courts to decide. In view of the more procedural character of the violation, we would have considered the finding of a violation or a minor pecuniary award sufficient just satisfaction in respect of any non-pecuniary damage sustained by the applicant, but we did not find it necessary to dissent on that point. Dissenting Opinion of Judge Loucaides62

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I disagree with the majority in this case. I find that the decision of the domestic authorities to refuse the applicant authorisation to adopt a child was legitimate and well within their margin of appreciation. The decision of the domestic authorities was based on two main grounds. First, the “absence of ‘identificational markers’ due to the lack of a paternal role model or referent” and second, “the ambivalence of the commitment of each member of the household to the adoptive child”. As regards the first ground, I agree with the majority that it is incompatible with the effective right of single persons to apply for authorisation to adopt, a right which is recognised by French law, and that it should therefore be rejected as inapplicable to the present case. The second ground was the attitude of the applicant’s partner, Ms R, who, despite the fact that she was the long-standing and declared partner of the applicant, did not feel committed by the latter’s application to adopt. This ground by itself could legitimately justify the decision of the domestic authorities. That is not really disputed by the majority. But what the majority finds to be wrong is the fact that, as they put it, the “illegitimacy of one of the grounds ha[d] the effect of contaminating the entire decision”. Personally I do not accept this contamination theory—a theory more appropriate to medical science—for the simple reason that each of the grounds that led to the decision was separate and autonomous and its effectiveness was in no way dependent on or linked to the other one. First, if the domestic authorities felt that the two reasons should operate jointly, they would have said so. Secondly, if—as the majority finds—the sexual orientation of the applicant, supposedly referred to implicitly in the reasoning of one of the grounds, was the real reason for refusing authorisation, I do not see why the authorities had to mention the other ground. Given that we are dealing with decisions of the French administrative authorities, I might also add that it is a basic principle of French administrative law that if an administrative decision is based on several grounds, it is sufficient for one of the grounds to be legally acceptable in order for the decision to be valid. In any event, I find that the reasoning of the domestic authorities in its entirety was in line with the Convention. The authorities in question did not refer to the sexual orientation of the applicant as the reason for their refusal. However, contrary to my view, the majority finds that “the reference to the applicant’s homosexuality was, if not explicit, at least implicit”, and that the: 62

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“[I]nfluence of the applicant’s avowed homosexuality on the assessment of her application has been established and . . . was a decisive factor leading to the decision to refuse her authorisation to adopt.”

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Reading the judgment of the majority I have the feeling that there is a constant effort to interpret the decision of the domestic authorities as being based on the sexual orientation of the applicant, although nothing was said to that effect and the authorities repeatedly made it clear that their refusal of authorisation was not made on the basis of a “position of principle regarding her choice of lifestyle” or “in view of the applicant’s sexual orientation”. Be that as it may, I am of the opinion that, even if the applicant’s sexual orientation had been a factor in refusing authorisation to adopt, the refusal in question could not be said to be incompatible with Art.8 taken in conjunction with Art.14, account being taken of all the relevant circumstances and the meaning and effect of such a factor in relation to the question that had to be decided. It is true that Art.14 of the Convention prohibits discrimination in the enjoyment of the rights set forth in the Convention on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. Of course, sexual orientation is a different matter from sex, but even on the assumption that it is encompassed by the concept of “status” (which I do not think is correct), I must make this clarification which, to my mind, is necessary for the purposes of this case. There may be situations where different treatment is necessary on grounds of sex, religion, etc. or other status, if the consequences of the relevant status have a bearing on the particular question under examination. For instance, a person’s religion may give rise to manifestations or practices which produce effects contrary to the interests of that person’s children, a fact that can legitimately be taken into account when the welfare of the children is at issue. A typical example of this is the recent case of Application No.37614/02, Ismailova v Russia, judgment in which was delivered by the First Section on November 29, 2007. There, the applicant complained that the decisions of the domestic courts granting custody of her two children to their father had been in breach of Art.8 of the Convention taken in conjunction with Art.14, as they amounted to discrimination on the ground of her religion. The Court, in rejecting the applicant’s complaint, referred to some incidents which had arisen out of the religious practices of the applicant on account of her membership of a certain religious organisation, and which had had negative effects on her children. The Court stated the following: “The reasoning presented by the domestic courts shows that they focused solely on the interests of the children. The courts did not rely on their mother being a member of the Jehovah’s Witnesses, but on the applicant’s religious practices, in which she had included her children and failed to protect them. In the view of the domestic courts, this had led to social and psychological repercussions for the children. The courts considered that this would have negative effects on the children’s upbringing. . . . In such circumstances, the Court cannot but conclude that there existed a reasonable relationship of (2008) 47 E.H.R.R., Part 3 䉷 Sweet & Maxwell

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Likewise, in the present case, I find that in deciding what was in the best interests of the child to be adopted, the domestic authorities could legitimately take into account the sexual orientation and lifestyle of the applicant as practised in the particular circumstances of the case, namely the fact that the applicant cohabitated with her same-sex partner. I might add—on the basis of the majority’s approach, which treats the two reasons given by the authorities as one—that the partner in question was not even interested in being a party to the adoption plan. I believe that the erotic relationship with its inevitable manifestations and the couple’s conduct towards each other in the home could legitimately be taken into account as a negative factor in the environment in which the adopted child was expected to live. Indeed there was, in these circumstances, a real risk that the model and image of a family in the context of which the child would have to live and develop their personality would be distorted. This situation differs substantially from one in which a homosexual applicant does not cohabit with their partner. And, personally, I would most probably have approached the matter differently in the latter case. It is my firm belief that nobody can invoke his religion, sex or any other status in order to rely on the prohibition of discrimination as a ground for exemption from disqualification in respect of a particular activity on account of the negative consequences that such status may have in relation to a specific issue. Homosexuals, like anybody else, have a right to be themselves and should not be the target of discrimination or any other adverse treatment because of their sexual orientation. However, they must, like any other persons with some peculiarity, accept that they may not qualify for certain activities which, by their nature and under certain circumstances, are incompatible with their lifestyle or peculiarity. Therefore—proceeding on the assumption accepted by the majority that one of the reasons which influenced the entire decision to refuse authorisation to adopt was the sexual orientation of the applicant—I find that in the light of the particular facts and circumstances of the case the legitimacy of the refusal in issue was in any event not open to question. I believe that there existed a reasonable relationship of proportionality between the means employed and the legitimate aim pursued. Finally and incidentally, I must put on record that the judgment in this case overturns the Fretté v France judgment.63 The efforts to distinguish the present case from Fretté are, in my opinion, unsuccessful and unnecessary so long as the central question in both cases, according to the approach of the majority, is substantially the same. Accordingly I take the view that there has been no violation in this case. Dissenting Opinion of Judge Mularoni64 I do not share the opinion of the majority in this case.

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With regard to the admissibility of the application, I feel it important to specify straight away that I consider the application admissible but for reasons that differ from those given by my colleagues. The Court reiterates at [43] of the judgment that the notion of private life is a very broad one that encompasses many rights and possibilities. The Convention institutions’ interpretation of Art.8 has greatly evolved. Very recently, in two applications concerning techniques of artificial insemination, the Court explicitly stated that this provision protected the right to respect for both the “decisions” to have and not to have a child.65 Admittedly, both cases concerned the decision to have a “biological” child. However, I cannot forget that for centuries adoption, an age-old procedure that is known throughout most countries in the world, was the only means whereby couples unable to conceive could found a family with children. While it is undisputed that Art.8 does not guarantee a right to found a family, such a right is, however, guaranteed by Art.12 of the Convention. And whilst a “right” to adopt does not exist, I consider, in the light of our case law, which over the years has brought more and more rights and possibilities within the ambit of Art.8, that the time has come for the Court to assert that the possibility of applying to adopt a child under the domestic law falls within the ambit of Art.8. Consequently, Art.14 would be applicable. My approach would therefore be to stop declaring incompatible ratione materiae with the provisions of the Convention applications lodged by persons entitled under domestic law to apply to adopt a child. In my opinion, all applicants who are in the same personal situation of either being unable or finding it extremely difficult to conceive should be protected in the same way by the Convention regarding their legitimate desire to become parents, whether they choose to have recourse to techniques of artificial insemination or seek to adopt a child in accordance with the provisions of domestic law. I do not see any strong arguments in favour of a difference of treatment. With all due respect to my colleagues, for the reasons explained below I find the legal reasoning in favour of declaring the application admissible rather weak; it reiterates the arguments already used to this end in the case of Fretté.66 As is rightly stressed at [47] of the judgment, the facts of the case must at least fall within the ambit of one of the Arts of the Convention—in this case Art.8—for Art.14 to be applicable. If the Court is not prepared to modify old case law that is still applied to this day, according to which all stages prior to the issue of an adoption order by the domestic courts fall outside the Court’s scrutiny,67 I have difficulty in understanding how it can come to the contrary conclusion that the right to seek authorisation to adopt “undoubtedly” falls within the scope of Art.8 of the Convention.68 65

See Evans v United Kingdom (2006) 43 E.H.R.R. 21 at [71], and Dickson v United Kingdom (2007) 44 E.H.R.R. 21 at [66]. Fretté (2004) 38 E.H.R.R. 21 at [30]–[33]. 67 See on this point, among other authorities, Pini (2005) 40 E.H.R.R. 13 at [140]–[142], and App. No.76240/01, Wagner v Luxembourg, June 28, 2007 at [121]–[122]. 68 See [49] of the judgment. 66

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In my view, we should not be asking—and leaving unanswered—the wrong question, namely, whether the “right” to adopt should or should not fall within the ambit of Art.8 of the Convention taken alone.69 No right to adoption is recognised by domestic legislation or by the relevant international instruments, and the parties do not dispute this. On the other hand, we should establish—and this absolutely must be done and done clearly—whether the possibility of adopting a child afforded by domestic legislation does or does not fall within the ambit of Art.8. If the answer remains that it does not, I find it incomprehensible, as I have said above, to conclude that the right to seek authorisation “undoubtedly” falls within the ambit of Art.8 and that, accordingly, Art.14 taken together with Art.8 is applicable. Frankly, I find this conclusion illogical. I would add that the approach followed in Fretté has had the practical effect of allowing applications relating to the preliminary phases in the process of adopting a child brought by homosexuals under Art.14 taken in conjunction with Art.8 to be declared admissible, whereas those brought by heterosexuals relying on Art.8 alone have to be dismissed as incompatible ratione materiae with the provisions of the Convention. Admittedly, in recent years the Court’s interpretation of Art.14 has greatly evolved. However, I consider that an interpretation which leads to declarations of applicability that generate discrimination a contrario in the treatment of applications does not correspond to the spirit and letter of Art.14. As regards the violation

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With regard to the merits, I share neither the reasoning nor the conclusion of the majority. The Court observed that the domestic administrative authorities and then the courts which dealt with the applicant’s case had based their decisions to reject her application on two main grounds: the lack of a paternal referent and the ambivalence of the commitment of each member of the household. Regarding the first ground, which was based on the lack of a paternal referent in the applicant’s household, I admit that I have serious doubts as to its compatibility with Art.14 of the Convention. The present case concerns an application for authorisation to adopt lodged not by a couple, but by a single person. To my mind, the decision whether or not to grant single persons the possibility of adopting a child is within the State’s margin of appreciation; once such a possibility has been granted, however, requiring a single person to establish the presence of a referent of the other sex among his or her immediate circle of family and friends runs the risk of rendering ineffective the right of single persons to apply for authorisation. However, I consider that the second ground on which the domestic authorities based their decision, which was based on the attitude of the applicant’s partner, calls for a different approach. Although she was the long-standing and declared partner of the applicant, Ms R, who lived with the applicant, clearly distanced herself from the application for authorisation to adopt. The authorities, which constantly remarked on this point—expressly and giving reasons—concluded that the applicant did not provide the requisite safeguards for adopting a child. 69

See [46] of the judgment.

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O-V16

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O-V19

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Article 4 of Decree 98-771 of September 1, 1998 requires the president of the council for the relevant département to satisfy himself that the conditions in which an applicant is proposing to provide a child with a home meet the child’s needs from a family, child-rearing and psychological perspective. The importance of these safeguards—of which the authorities must be satisfied before authorising a person to adopt a child—can also be seen in the relevant international instruments, be it the United Nations Convention on the Rights of the Child of November 20, 1989, the Hague Convention of May 29, 1993 or the draft European Convention on the Adoption of Children.70 Moreover, in the domestic legislation and in all the relevant international instruments it is the child’s best interests that are paramount,71 as has always been accepted and stressed by our Court in all cases concerning minors. Like the Conseil d’Etat, I consider that where a single person seeking to adopt is in a stable relationship with another person, who will inevitably be required to contribute to providing the child with a suitable home, the administrative authority has the right and the duty to ensure—even if the relationship in question is not a legally binding one—that the conduct or personality of the third person, considered on the basis of objective considerations, is conducive to providing a suitable home. It is incumbent on the state to ensure that the conditions in which a child—who very often has experienced great suffering and difficulty in the past—is provided with a home are the most favourable possible. I therefore consider that the second ground is sufficient and relevant reason alone for refusing to grant the applicant authorisation.I therefore do not subscribe to the “contamination” theory propounded by the majority at [80] et seq. of the judgment. On this point I share the considerations expressed by Judge Loucaides. I prefer to confine myself to the law of the legal systems I know best, according to which, where a decision is based on a number of grounds, it is sufficient for one of those grounds to be valid for the decision as a whole to be regarded as valid. I would add that I find the majority’s interpretation of the conclusions reached by the domestic courts to be unjustified: although the latter constantly asserted that it was not the applicant’s homosexuality that was the basis of the refusal to grant authorisation, the majority consider that the reference to the applicant’s homosexuality was, if not explicit, at least implicit, and that the influence of this consideration on the assessment of her application has been established and was a decisive factor.72 However, it was actually the applicant herself who had declared her homosexuality given that at the time at which her application was being processed she was in a stable homosexual relationship. I do not find anything discriminatory about the national authorities’ reference, in their decisions, to the applicant’s avowed homosexuality and her relationship. Would it not also be relevant to refer to the personality of a heterosexual partner cohabiting with a prospective adoptive parent in a stable relationship and to his or her attitude to the partner’s plans to adopt? I do 70

See [28]–[31] of the judgment. United Nations Convention on the Rights of the Child of November 20, 1989, the Hague Convention of May 29, 1993 or the draft European Convention on the Adoption of Children. 72 See [89] of the judgment. 71

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not see any valid reasons for arguing that the authorities should not have made the slightest reference to these factors. The child was to arrive in a household composed of two people; the personality and attitude of those two people therefore had to be taken into account by the authorities. Nor do I understand on what basis it can be concluded that the influence of the applicant’s homosexuality was a decisive factor whereas, unlike in the case of Salgueiro da Silva Mouta v Portugal, the domestic authorities always specified that it was not the applicant’s sexual orientation that had founded the decision to refuse to grant her authorisation. For all the foregoing reasons, I find that there has not been a violation of Art.14 taken together with Art.8.

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BAJRAMI v ALBANIA BEFORE THE EUROPEAN COURT OF HUMAN RIGHTS APPLICATION NO.35853/04 (The President, Judge Bratza; Judges Bonello, Pellonpää, Traja, Garlicki, Mijovi, and Sˇikuta) (2008) 47 E.H.R.R. 22

March 12, 2007 Albania; Child abduction; Children; Custody; Delay; Domestic remedies; Enforcement; Right to respect for private and family life H1

H2

H3

H4

H5

In 1993, the applicant, a resident of Kosovo, married an Albanian national, FM. They had a child, IB, but subsequently separated. FM moved, with IB, to her parent’s house in Albania. FM married an Albanian national who lived in Greece. Following that marriage, she frequently visited Greece for long periods, either leaving IB with her parents or taking her to Greece without the applicant’s consent. FM prohibited the applicant from having any contact with his child. In June 2003, the applicant initiated divorce proceedings in the Vlora District Court, Albania. He also requested the Vlora Police to block his daughter’s passport as he believed that FM was planning to take her to Greece. Notwithstanding this request, it appeared that FM took IB to Greece in January 2004. In February 2004, the Vlora District Court granted the divorce and granted custody of IB to the applicant. This ruling became final in March 2000 and a month later the Court issued a writ for the enforcement of its judgment of February 2004. In July 2004, the Vlora Bailiff’s Court informed the applicant that it would not be possible to enforce the judgment since IB was no longer in Albania. The applicant subsequently engaged in numerous attempts to secure enforcement of the judgment by the authorities, directing frequent requests to the Albanian authorities, the Greek Embassy in Albania and the Ombudsperson of Kosovo. He also initiated criminal proceedings against his wife, alleging child abduction. In March 2006, the Vlora Court of Appeal repealed the custody judgment of February 2004, on the basis that FM had not been duly informed of the proceedings, and the case was remitted to the Vlora District Court. The applicant complained that the failure of the Albanian authorities to enforce the judgment of February 2004, and to reunite him with his daughter, constituted a violation of his right to respect for family life, under Art.8 of the Convention. He further claimed a violation of his rights under Art.6 of the Convention, inter alia, on the basis of this failure to enforce the judgment. The applicant also complained of (2008) 47 E.H.R.R., Part 3 䉷 Sweet & Maxwell

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violations of Arts 12, 13 and 17 of the Convention, but without giving further details. H6

H7

H8

H9

H10

Held unanimously: (1) that the complaints concerning Art.6(1) (non-enforcement) and Art.8 be declared admissible and the remainder of the application inadmissible; (2) that there had been a violation of Art.8; (3) that there was no need to examine separately the complaint under Art.6(1); (4) that the state was to pay the applicant c15,000 in respect of non-pecuniary damage and c10,000 in respect of costs and expenses. 1. Preliminary objection: exhaustion of domestic remedies (Article 35(1)) (a) The Government submitted that the applicant had failed to raise the issue of the inactivity of the Bailiff’s Office with the Vlora District Court, in accordance with Art.610 of the Code of Civil Procedure. The Court reiterated the principle that the domestic remedies to be exhausted are only those which relate to the breaches alleged, and which are available and sufficient. The existence of such remedies must be sufficiently certain, not only in theory but also in practice. In the present case, it was for the authorities to ensure the execution of the judgment. The applicant could not be expected to make repeated requests of the bailiffs or to complain about them to a court in order to secure enforcement of the judgment. The remedies relied upon by the Government did not offer a reasonable prospect of success to the applicant. [39]–[42] 2. Right to respect for family life; positive obligations on the state; applicable test in relation to the enforcement of family law judgments (Article 8) (a) The Court reiterated that Art.8 entails both negative and positive obligations for the state. In relation to the state’s positive obligations in this context, the Court had repeatedly held that Art.8 encompasses a parent’s right to take measures with a view to being reunited with their child, and an obligation on the state to facilitate such a reunion.[50] (b) In cases concerning the enforcement of family law judgments, the Court had repeatedly held that the applicable test was whether the national authorities had taken all necessary steps to facilitate the execution as could reasonably be demanded in the special circumstances of each case. There was a need for swift action in cases of this kind and the use of sanctions should not be ruled out. [52]–[54] (c) The events clearly amounted to an interference with the applicant’s right to a family life since the failure to enforce the judgment restricted the applicant’s enjoyment of his daughter’s company. The question was whether that entailed the responsibility of the state. The judgment of 2004 had been valid and remained unenforced for a period of two years. That situation was not in any way attributable to the applicant. No satisfactory explanation for the delays had been put forward by the Government, and in particular no explanation had been given for the total failure to act once the authorities had ascertained that FM was living in Greece. The authorities took no steps to ascertain the whereabouts of FM in Greece, notwithstanding that such action would have been possible under the terms of a (2008) 47 E.H.R.R., Part 3 䉷 Sweet & Maxwell

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H12

H13

H14

H15

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bilateral agreement between Albania and Greece. That bilateral agreement required the intervention of the Ministries of Justice in each country, and hence the applicant could not be blamed for failing to address requests to the Greek courts himself. [57]–[64] (d) The Albanian legislation did not include any effective measures for securing the return of children to their parents, nor to punish cases of abduction of children, in a situation such as the present. The Convention required the contracting states to take all necessary measures of their choosing to secure the individual’s rights guaranteed by Art.8. [65] (e) Notwithstanding the State’s margin of appreciation, the efforts of the Albanian authorities to secure enforcement of the judgment were not sufficient to satisfy the positive obligation imposed on it by Art.8 of the Convention. [68] 3. Failure to comply with a final judgment (Article 6(1)) (a) This complaint was linked to the Art.8 complaint. Whilst it was therefore declared admissible, it was not necessary to examine whether there had been a violation of Art.6(1) in the instant case. [72], [74] 4. Other alleged violations of the Convention (a) The applicant’s complaint that the state had, in breach of Art.6(1), failed to initiate criminal proceedings against a civil servant, whom he alleged had falsified his daughter’s birth certificate, was inadmissible. The applicant’s complaints under Arts 12, 13 and 17 were wholly unsubstantiated. Those complaints were accordingly dismissed. [76]–[77] 5. Just satisfaction: damage; costs and expenses; default interest (Article 41) (a) There was no doubt that the applicant had suffered some distress as a result of the non-enforcement of the judgment and just satisfaction would not be provided solely by the finding of a violation. Accordingly, the applicant was awarded the sum of c15,000. It was reasonable to award the sum of c10,000 to cover the applicant’s costs and expenses. Default interest was based on the marginal lending rate of the European Central Bank, plus 3 percentage points. [82], [86], [87] The following cases are referred to in the Court’s judgment: 1. Akdivar v Turkey (1997) 23 E.H.R.R. 143 2. Al-Adsani v United Kingdom (2002) 34 E.H.R.R. 11 3. Elsholz v Germany (2002) 34 E.H.R.R. 58 4. Hentrich v France (1994) 18 E.H.R.R. 440 5. Hokkanen v Finland (1995) 19 E.H.R.R. 139 6. Iglesias Gil v Spain (2005) 40 E.H.R.R. 3 7. Ignaccolo-Zenide v Romania (2001) 31 E.H.R.R. 7 8. Keegan v Ireland (1994) 18 E.H.R.R. 342 9. Kutzner v Germany (2002) 35 E.H.R.R. 25 10. McMichael v United Kingdom (1995) 20 E.H.R.R. 205 11. Nuutinen v Finland (2002) 34 E.H.R.R. 15 12. Perez v France (2005) 40 E.H.R.R. 39 13. Qufaj Co SHPK v Albania (2006) 43 E.H.R.R. 28 (2008) 47 E.H.R.R., Part 3 䉷 Sweet & Maxwell

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14. Remli v France (1996) 22 E.H.R.R. 253 15. Streletz v Germany (2001) 33 E.H.R.R. 31 16. Sylvester v Austria (2003) 37 E.H.R.R. 17 17. Vernillo v France (1991) 13 E.H.R.R. 880 18. Application No.7116/75, X v Federal Republic of Germany, October 4, 1976 19. Application No.11079/02, BCˇ v Slovakia, March 14, 2006 THE FACTS I. The circumstances of the case 4 5

6 7 8

9

10

The applicant was born in 1964 and lives in Caralevë, in the municipality of Shtime (Kosovo). On April 28, 1993 the applicant married FM, an Albanian national. The couple had a child, IB, who was born on January 20, 1997. In 1998 the applicant and FM separated. FM, together with her daughter, moved to her parents’ house in Vlora, Albania. On May 6, 1999, using forged documents, the applicant’s wife married another person without being divorced from the applicant. It appears that on September 15, 1999 the Vlora District Court annulled FM’s second marriage. On an unspecified date she married HI, an Albanian national who resided in Greece. During the years that followed FM’s third marriage, she frequently travelled to Greece, leaving her daughter for long periods with her parents in Vlora, or taking her to Greece without the applicant’s consent. FM and her parents prohibited the applicant from having contact with his daughter. Since his separation from FM, the applicant has been permitted to see his daughter only twice, in September 2000 and May 2003. A. Divorce and custody proceedings

11 12

13

14

15

16

On June 24, 2003 the applicant brought divorce proceedings before the Vlora District Court. On June 26, 2003 the applicant requested the Vlora Police District to block his daughter’s passport in view of the fact that his wife was planning to take her to Greece without his consent. Despite the applicant’s requests to the Vlora Police District, it appears that his wife took the child to Greece on January 15, 2004, using an official certificate in which the applicant’s daughter had been registered with the name IM, using FM’s surname. The applicant’s wife was not present at the hearings. The latter’s father testified before the court that his grandchild was in Greece with her mother, who resided there as an economic refugee. On February 4, 2004 the Vlora District Court decreed the parties’ divorce. The court granted custody of the child to the applicant, having regard to the wife’s lack of interest in the child’s life, the instability of her residential arrangements and her long periods of separation from the child. On March 19, 2004 the divorce and custody decisions became final. (2008) 47 E.H.R.R., Part 3 䉷 Sweet & Maxwell

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B. Enforcement proceedings 17 18 19 20

21

22

23

On April 5, 2004 the Vlora District Court issued a writ for the enforcement of the Vlora District Court’s judgment of February 4, 2004. On July 13, 2004 the Vlora Bailiffs’ Office informed the applicant that it was impossible to enforce the judgment since the child was not in Albania. On August 15, 2004 and January 13, 2005 the applicant applied to the Albanian Ministry of Justice to secure the return of his daughter. On January 11, 2005, when questioned by the bailiffs, FM’s father declared that FM and the child were living abroad and that he had no news of their whereabouts. The bailiffs went to FM’s home on three occasions between January 2005 and May 2005. In May 2005 the Selenice District Police Station informed the bailiffs that FM and her daughter were not living in Athens and that FM’s father had moved to an unknown address in Tirana. In July 2005 the Bailiffs’ Office informed the applicant that in order to comply with the bilateral agreement between Albania and Greece he had to introduce a request and specify the precise address of the child in Greece. The applicant sent numerous requests to the Albanian authorities, the Greek Embassy in Albania, the Ombudsperson of Albania and the Ombudsperson of Kosovo, in order to obtain assistance in securing the enforcement of the custody decision. C. Criminal proceedings for child abduction

24 25

On August 14, 2004 the applicant initiated criminal proceedings with the Vlora District Court against his former wife, accusing her of child abduction. On October 13, 2004 the Vlora District Court informed the Albanian Ombudsperson that no lawsuit had been filed with it relating to the abduction of the applicant’s daughter. D. Criminal proceedings against AC

26

27

On December 15, 2003 the applicant initiated criminal proceedings against AC, a Civil Status Office employee. He accused her of falsifying various documents that had enabled FM to remove IB from Albania, and particularly of forging documents declaring his wife to be unmarried and altering his daughter’s surname. On January 26, 2004 the Vlora District Court decided to discontinue the proceedings. E. Recent developments

28

On August 22, 2006 the Government informed the Registry that on March 31, 2006 the Vlora Court of Appeal had repealed the custody judgment of February 4, 2004 on the grounds that FM had not been duly informed of the proceedings on the custody of her daughter. The domestic court decided to send the case to the Vlora District Court for a fresh examination and thus the custody proceedings are still pending. (2008) 47 E.H.R.R., Part 3 䉷 Sweet & Maxwell

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On August 23, 2006, following the Registry’s request, the applicant stated that he had neither been informed of the institution of the new proceedings nor about their outcome. The proceedings had been brought by FM’s lawyer and held in the applicant’s absence. II. Relevant international and domestic law A. Relevant international law 1. Hague Convention on the Civil Aspects of International Child Abduction

31

At present, Albania has not ratified the Hague Convention of October 25, 1980 on the Civil Aspects of International Child Abduction. 2. United Nations Convention on the Rights of the Child

32

Article 11 of the Convention on the Rights of the Child of November 20, 1989, ratified by Albania on February 27, 1992, requires states parties to take measures to combat the illegal transfer and non-return of children abroad. For that purpose, states should promote the conclusion of bilateral or multilateral agreements or accession to existing agreements. 3. Bilateral Agreement on Mutual Assistance in Civil and Criminal Matters between Greece and Albania

33

This Agreement, signed on May 17, 1993, was ratified by Albania pursuant to Law 7760 of October 14, 1993 and by Greece pursuant to Law 2311/1995. Articles 2, 3, 23 and 24 of the Agreement provide for the possibility for the Ministries of Justice of both contracting parties to co-operate in the recognition and execution in their territories of final judicial decisions given by the authorities of the other Party in civil, family and commercial matters. B. Relevant domestic law and practice

34

35 36

The Code of Civil Procedure, which governs, inter alia, execution of final judgments, does not contain any provisions specifically applicable to the transfer of custody of children. As a result, the general procedural rules on the execution of judgments are applicable mutatis mutandis. In cases where a parent’s refusal to comply constitutes a criminal offence, the matter should be referred to the prosecuting authorities. Failure to abide by a final decision concerning custody of children may be punishable under Art.127 of the Criminal Code. JUDGMENT I. The Government’s preliminary object[i]on

37

The Government contended that the applicant had not exhausted the domestic remedies at his disposal. They argued that the applicant had failed to raise the issue (2008) 47 E.H.R.R., Part 3 䉷 Sweet & Maxwell

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39

40

41

42

43

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of the inactivity of the Bailiffs’ Office with the Vlora District Court in accordance with Art.610 of the Code of Civil Procedure. In the Government’s submission, that provision afforded individuals the right to contest actions by the bailiffs before the District Court. Consequently, the applicant had failed to make use of this remedy despite having addressed his claims alleging inactivity on the part of the bailiffs to the Minister of Justice and other authorities. The applicant challenged the effectiveness of the remedy referred to by the Government. He argued that a further appeal could not have achieved his principal objective, namely reuniting him with his daughter. He stated that during the two years that followed the custody decision he had made several applications to the authorities. This included the initiation of criminal proceedings for the abduction of the child, and persistent requests to have the judgment speedily enforced in his daughter’s interests. Consequently, the applicant submitted that the Government’s statements were unsubstantiated. The Court reiterates that the purpose of Art.35 is to afford the contracting states the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to it.1 Thus the complaint to be submitted to the Court must first have been made to the appropriate national courts, at least in substance, in accordance with the formal requirements of domestic law and within the prescribed time limits. Nevertheless, the only remedies that must be exhausted are those that relate to the breaches alleged and at the same time are available and sufficient. The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness; it falls to the respondent State to establish that these various conditions are satisfied.2 The Court notes that the applicant complained that the authorities had failed to take the necessary measures to identify his daughter’s whereabouts in order to comply with the custody decision in his favour. The applicant obtained a writ for the enforcement of the judgment of February 4, 2004, in accordance with the requirements of domestic civil procedure, but the bailiffs were unable to enforce it since the applicant’s daughter was no longer in Albania. The Court finds that the Government have failed to substantiate their argument that the remedy referred to is either available or adequate to secure redress for the alleged breaches. Furthermore, the Court observes that in a similar case against Albania it found that the Albanian legal system was organised in a manner that did not provide effective remedies against actions by the bailiffs, since the Constitutional Court considered that it lacked jurisdiction to determine claims concerning enforcement proceedings and thus systematically declared them inadmissible.3 In any event, it was for the authorities to ensure the execution of the court decision since it is they 1

See, for example, Hentrich v France (1994) 18 E.H.R.R. 440 at [33], and Remli v France (1996) 22 E.H.R.R. 253 at [33]. See, in particular, Vernillo v France (1991) 13 E.H.R.R. 880 at [27], and Akdivar v Turkey (1997) 23 E.H.R.R. 143 at [65]–[68]. 3 See Qufaj Co SHPK v Albania (2006) 43 E.H.R.R. 28 at [41]. 2

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who have the necessary legal means and resources to discover the whereabouts of the child and to secure her return. In the circumstances, the applicant could not be expected to make repeated overtures to the bailiffs or to complain about their inactivity to a court in order to have the judgment implemented. Thus, the Court concludes that, at the relevant time, the remedies referred to by the Government did not offer reasonable prospects of success to the applicant. Accordingly, the Government’s preliminary objection must be dismissed. II. Alleged violation of Article 8 of the Convention

46

The applicant complained that the inefficiency of the Albanian authorities in failing to take the necessary measures to reunite him with his daughter in compliance with a final decision had violated his right to respect for family life as provided in Art.8 of the Convention, which reads as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. Admissibility

47

The Court notes that the complaint is not manifestly ill-founded within the meaning of Art.35(3) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties’ submissions

48

49

The applicant complained that the authorities had neglected to make the efforts that could normally be expected of them to ensure that his rights were respected. He further alleged that the failure of the authorities to involve the Greek authorities in helping to discover the whereabouts of his daughter was based on their assumption that FM and her current husband were unlawfully resident in Greece and not on any established facts. The Government contested the applicant’s arguments. It maintained that, in accordance with the positive obligation enshrined in Art.8 of the Convention, the authorities had taken all possible steps at their disposal to reunite the applicant with his daughter. They observed that approximately 500,000 Albanian nationals lived in Greece and that half of them resided there illegally. The Government could not therefore be held responsible for the failure of the applicant to give precise details of his daughter’s whereabouts and to request an urgent measure to be taken before FM left Albania taking the child with her. The Government maintained that since no precise address had been given for the child and her mother in Greece, the use of (2008) 47 E.H.R.R., Part 3 䉷 Sweet & Maxwell

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the instruments foreseen in the bilateral agreement between Albania and Greece had been ineffective.4 2. The Court’s assessment (a) General principles 50

51

52

53

54

55

The Court reiterates that the essential object of Art.8 is to protect the individual against arbitrary action by public authorities. There are in addition positive obligations inherent in effective “respect” for family life. In both contexts regard must be given to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the state enjoys a certain margin of appreciation.5 In relation to the State’s obligation to take positive measures, the Court has repeatedly held that Art.8 includes a parent’s right to the taking of measures with a view to his being reunited with his child and an obligation on the national authorities to facilitate such reunion.6 In cases concerning the enforcement of decisions in the sphere of family law, the Court has repeatedly held that what is decisive is whether the national authorities have taken all necessary steps to facilitate the execution as can reasonably be demanded in the special circumstances of each case.7 In cases of this kind the adequacy of a measure is to be judged by the swiftness of its implementation, as the passage of time can have irremediable consequences for relations between the child and the parent who does not live with him or her. The Court notes that Art.11 of the Hague Convention on the Civil Aspects of International Child Abduction of October 25, 1980 (to which Albania is not a state party) requires the judicial or administrative authorities concerned to act expeditiously in proceedings for the return of children and any inaction lasting more than six weeks may give rise to a request for a statement of reasons for the delay.8 The Court has also held that although coercive measures against children are not desirable in this sensitive area, the use of sanctions must not be ruled out in the event of unlawful behaviour by the parent with whom the children live.9 The Court reiterates that the Convention must be applied in accordance with the principles of international law, in particular with those relating to the international protection of human rights.10 Consequently, the Court considers that the positive obligations that Art.8 of the Convention lays on the contracting states in the matter

4

See [33] above. See Keegan v Ireland (1994) 18 E.H.R.R. 342 at [49]; Ignaccolo-Zenide v Romania (2001) 31 E.H.R.R. 7 at [94]; Iglesias Gil v Spain (2005) 40 E.H.R.R. 3 at [49]; and Sylvester v Austria (2003) 37 E.H.R.R. 17 at [51]. 6 See, among other authorities, Ignaccolo-Zenide (2001) 31 E.H.R.R. 7 at [94]; Iglesias Gil (2005) 40 E.H.R.R. 3 at [48]; and Nuutinen v Finland (2002) 34 E.H.R.R. 15 at [127]. 7 See Hokkanen v Finland (1995) 19 E.H.R.R. 139 at [58]; Ignaccolo-Zenide (2001) 31 E.H.R.R. 7 at [96]; Nuutinen (2002) 34 E.H.R.R. 15 at [128]; and Sylvester (2003) 37 E.H.R.R. 17 at [59]. 8 See Ignaccolo-Zenide (2001) 31 E.H.R.R. 7 at [102]. 9 See Ignaccolo-Zenide (2001) 31 E.H.R.R. 7 at [106]. 10 See Streletz v Germany (2001) 33 E.H.R.R. 31 at [90], and Al-Adsani v United Kingdom (2002) 34 E.H.R.R. 11 at [55]. 5

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of reuniting a parent with his or her children must be interpreted in the light of the Hague Convention of October 25, 1980.11 (b) Application of the general principles to the present case 56

57

58

59

60

61

62

63

The Court notes, first, that it is common ground that the relationship between the applicant and his daughter falls within the sphere of family life under Art.8 of the Convention. The events under consideration in this case, in so far as they give rise to the responsibility of the respondent State, clearly amounted to an interference with the applicant’s right to respect for his family life, as the failure to enforce the custody decision impaired his enjoyment of his daughter’s company. Notwithstanding that according to the latest developments the custody proceedings in question have been reopened and are still pending, the Court can but note that the custody judgment of February 4, 2004 had been valid and remained unenforced for approximately two years. Accordingly the Court must determine whether the national authorities took necessary and adequate steps to facilitate the enforcement of the judgment at issue. In the present case the Court observes that the proceedings to enforce the decision in the applicant’s favour have been pending since April 2004. It observes at the outset that this situation is not in any way attributable to the applicant, who has approached the national authorities to put an end to it and has regularly taken steps to secure the return of his daughter. It was only in April 2005, more than one year after the adoption of the custody decision, that the bailiffs requested the police to transmit information to them about the whereabouts of FM and her daughter. While these attempts to enforce the decision all took place within a period of four months in 2005, the same diligence cannot be observed in relation to the crucial period immediately following the custody decision. As noted above, it was not until January 2005 that the bailiffs began to investigate the whereabouts of FM It is further to be noted that no steps were taken after May 2005. The Court notes that no satisfactory explanation has put forward to justify those delays. Similarly, no explanation has been provided by the Government for the total inactivity of the authorities once they had ascertained that FM was living in Greece. It is to be observed in this connection that both the applicant and FM’s family had informed the authorities, including at the custody hearing, that FM was living in Athens as an economic migrant. The Court considers that the Government’s argument about the illegal status of FM in Greece is speculative. The authorities took no steps to try to ascertain the whereabouts of FM and her daughter from the Greek authorities, a possibility provided for by the bilateral agreement between the two countries. The Government alleged that the failure to enforce the decision in question resulted from the fact that the child was no longer in Albania, a situation which had also been caused in part by the applicant’s failure to apply for urgent measures during the custody proceedings. 11

See Ignaccolo-Zenide (2001) 31 E.H.R.R. 7 at [95].

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65

66

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However, it appears that the applicant’s attempts to inform the authorities of the risk of the child’s abduction had gone unheeded. The Court considers that the applicant’s omission to request an interim measure cannot be taken to absolve the authorities from their obligations in the matter of execution of judgments, since it is they who exercise public authority and have the means at their disposal to overcome problems in the way of execution. Moreover, the applicant could not be blamed for not having addressed requests to the Greek courts since the bilateral agreement on the matter expressively required the involvement of the Ministries of Justice of both countries for the enforcement of custody judgments in their territory.12 As noted previously, the Government has not explained to the Court’s satisfaction what measures, if any, they took under that agreement to secure the return of the applicant’s daughter from Greece or at least to trace the whereabouts of FM. The Court further observes that the wide range of legislative measures that have been implemented by the Albanian Government in order to comply with the rule of law as well as European and international treaties, do not include any effective measure for securing the reunion of parents with their children in a situation such as the applicant’s. In particular, there is no specific remedy to prevent or punish cases of abduction of children from the territory of Albania.13 At present, Albania is not a state party to the above-cited Hague Convention and it has not yet implemented the UN Convention on the Rights of the Child of November 20, 1989.14 The Court recalls that the European Convention on Human Rights does not impose on states the obligation to ratify international conventions. However, it does require them to take all necessary measures of their choosing to secure the individual’s rights guaranteed by Art.8 of the Convention and in particular to secure the reunion of parents with their children in accordance with a final judgment of a domestic court. Irrespective of the non-ratification by Albania of relevant international instruments in this area, the Court finds that the Albanian legal system, as it stands, has not provided any alternative framework affording the applicant the practical and effective protection that is required by the State’s positive obligation enshrined in Art.8 of the Convention. In the circumstances of the instant case, notwithstanding the respondent State’s margin of appreciation in the matter, the Court concludes that the efforts of the Albanian authorities were neither adequate nor effective to discharge their positive obligation under Art.8. There has accordingly been a violation of Art.8 of the Convention. II. Alleged violation of Article 6(1) of the Convention

70

The applicant complained that the Albanian authorities failed to comply with a final judgment that granted him custody of his daughter. He relied on Art.6(1) of 12 13 14

See [33] above. See [34] et seq. above. See [31] and [32] above.

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the Convention, which in its relevant part reads as follows, “[i]n the determination of his civil rights and obligations . . ., everyone is entitled to a fair . . . hearing . . . by [a] . . . tribunal”. The Government contested that argument. The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible. The Court reiterates the difference in the nature of the interests protected by Arts 6 and 8 of the Convention. While Art.6 affords a procedural safeguard, namely the “right to a court” in the determination of one’s “civil rights and obligations”, Art.8 serves the wider purpose of ensuring proper respect for, inter alia, family life. The difference between the purpose pursued by the respective safeguards afforded by Arts 6 and 8 may, in the light of the particular circumstances, justify the examination of the same set of facts under both Articles.15 However, in the instant case and having regard to the finding relating to Art.8,16 the Court considers that it is not necessary to examine whether in the instant case there has been a violation of Art.6(1).17 III. Other alleged violations of the Convention

75

76

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The applicant complained under Art.6(1) about the authorities’ failure to initiate criminal proceedings against AC, who, he alleged, had forged documents that had enabled his former wife to abduct his daughter. Lastly, with reference to the falsification of his daughter’s birth certificate, the applicant complained under Arts 12, 13 and 17, without giving due reasons. As to the applicant’s complaint under Art.6(1), the Court reiterates that the right to bring criminal proceedings against private persons is not guaranteed under the Convention.18 It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Art.35(3) and must be dismissed in accordance with Art.35(4). In so far as the applicant complained of a violation of Arts 12, 13 and 17 of the Convention without giving further details, the Court considers the matter to be wholly unsubstantiated. This complaint must therefore be dismissed in accordance with Art.35(3) and (4) of the Convention as being manifestly ill-founded. IV. Application of Article 41 of the Convention

78

Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 15

See, for instance, McMichael v United Kingdom (1995) 20 E.H.R.R. 205 at [91], and Sylvester (2003) 37 E.H.R.R. 17 at [76]. See [69] above. 17 See, among other authorities, Sylvester (2003) 37 E.H.R.R. 17 at [77]. 18 ˇ v Slovakia, See App. No.7116/75, X v Federal Republic of Germany, October 4, 1976, and App. No.11079/02, BC March 14, 2006 and also Perez v France (2005) 40 E.H.R.R. 39 at [70]. 16

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A. Damage 79

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81 82

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The applicant claimed c10,000 in respect of pecuniary damage, covering his loss of wages and opportunities, and c15,000 in respect of non-pecuniary damage for the distress caused as a result of the failure to enforce the decision reuniting him with his daughter. The Government contested the applicant’s claim since in their view the application was inadmissible. They did not submit any arguments relating to the amounts claimed for pecuniary and non-pecuniary damage. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore dismisses this claim. As to non-pecuniary damage, the Court sees no reason to doubt that the applicant suffered some distress as a result of the non-enforcement of the final judgment at issue and that sufficient just satisfaction would not be provided solely by the finding of a violation. Having regard to the sums awarded in comparable cases,19 and making an assessment on an equitable basis as required by Art.41, the Court awards the sum of c15,000 under this head. B. Costs and expenses

84 85 86

The applicant also claimed c17,000 for the costs and expenses incurred before the domestic courts and the Court. The Government did not express any view. According to the Court’s case law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that they have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court considers it reasonable to award the sum of c10,000 covering costs under all heads. C. Default interest

87

The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added 3 percentage points. For these reasons, THE COURT unanimously: 1. Declares the complaints concerning Art.6(1) (non-enforcement) and Art.8 of the Convention admissible and the remainder of the application inadmissible. 2. Holds that there has been a violation of Art.8 of the Convention. 3. Holds that there is no need to examine separately the complaint under Art.6(1) of the Convention. 19

See, for instance, Ignaccolo-Zenide (2001) 31 E.H.R.R. 7 at [117]; Hokkanen (1995) 19 E.H.R.R. 139 at [77]; see also, mutatis mutandis, Elsholz v Germany (2002) 34 E.H.R.R. 58 at [71], and Kutzner v Germany (2002) 35 E.H.R.R. 25 at [87].

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4. Holds: (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Art.44(2) of the Convention, the following amounts, to be converted into the national currency of the respondent State at the rate applicable on the date of settlement, plus any tax that may be chargeable: (i) c15,000 (fifteen thousand euros) in respect of non-pecuniary damage; (ii) c10,000 (ten thousand euros) in respect of costs and expenses; (b) that from the expiry of the abovementioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus 3 percentage points. 5. Dismisses the remainder of the applicant’s claim for just satisfaction.

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EL MAJJAOUI AND STICHTING TOUBA MOSKEE v NETHERLANDS BEFORE THE EUROPEAN COURT OF HUMAN RIGHTS APPLICATION NO.25525/03 (The President, Mr J.P. Costa; Judges Rozakis, Bratza, Zupancˇicˇ, Lorenzen, Tulkens, Cabral Barreto, Bîrsan, Vajic´, TsatsaNikolovska, Zagrebelsky, Steiner, Pavlovschi, Gyulumyan, Mijovic´, Myjer, Thór Björgvinsson) (2008) 47 E.H.R.R. 23

November 28, 2007 Employment; Freedom of thought conscience and religion; Immigration; Islam; Netherlands H1

H2

H3

The applicant lived in Flushing, where the applicant foundation was also based. The applicant foundation operated a mosque serving Muslims belonging to the local Moroccan community. On December 2, 1999, the applicant foundation applied via the Employment Services Authority for a work permit under the Foreign Nationals (Employment) Act allowing it to appoint the applicant as its imam. On October 30, 2000, this was refused among other reasons on the basis that there was an adequate supply of priority labour (i.e. EU or EEA nationals or those with the equivalent status as regards the right to work) and that certain procedural requirements had not been satisfied by the applicant foundation. The applicants objected among other reasons on the grounds that the applicant had already been admitted to the Netherlands and that the Act did not apply to him and that it was well known there was a severe shortage of imams in the Netherlands. On September 19, 2001, the General Directors of the Employment Services Authority gave a decision against the applicant foundation, finding that it had not investigated the labour market at the time the initial application was made and that it had not reported the relevant position as required. The applicant had been previously admitted on different grounds, and the information on shortage of qualified persons was found not to be persuasive. The applicant and the foundation appealed to the Regional Court on several grounds including Art.9 of the Convention. Given the length of time taken up pending proceedings, and in the absence of any other candidate, the applicant had in the meantime started work as the imam of the applicant foundation’s mosque. The appeal was dismissed on October 11, 2002. The Regional Court found that any (2008) 47 E.H.R.R., Part 3 䉷 Sweet & Maxwell

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H4

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EL MAJJAOUI AND STICHTING TOUBA MOSKEE V NETHERLANDS

interference with freedom of religion that had occurred was necessary to protect “public order”, an expression which encompassed the labour market. Appeals were lodged with the Administrative Jurisdiction Division of the Council of State and were rejected on February 28, 2003. Following the issuing of an expulsion, the applicant returned to Morocco on August 4, 2005. Subsequently, a successful application for a work permit was lodged on behalf of the applicant by the applicant foundation. A work permit was issued on March 3, 2006. The applicants complained that there had been a violation of their rights under Arts 9 and 18 of the Convention. The Government contended that the case should be struck out, arguing that as the applicant had now attained a work permit, the applicants could not claim to be “victims” within the meaning of the Convention. Held: (a) by 14 votes to 3 that the matter had been resolved and should be struck out; (b) unanimously, that the respondent State was to pay the applicants’ costs. 1. Strike-out; matter resolved before Court hearing; religious freedom; whether foreign labour laws to be applied equally to religious positions (Articles 37, 9, 18) (a) The Court could strike-out a matter in accordance with Art.37(1) even if the applicant was still a “victim”. Accordingly, it was not necessary to decide whether the present applicants were “victims” within the meaning of the Convention. [27]–[29] (b) The Court had to ask two questions: first, did the circumstances complained of directly by the applicants still obtain; and, second, had the effects of a possible violation of the Convention on account of those circumstances been redressed. [30] (c) As to the first question, there was no doubt that the applicant was no longer prevented from working as imam at the applicant foundation’s mosque. As to the second question, the Court noted that the mere fact that the applicant foundation had to comply with certain requirements before it was able to employ the applicant did not as such raise an issue under Art.9. Since a work permit had now been granted, the complaints had been adequately and sufficiently remedied. [31]–[33] (d) The matter had been “resolved” within the meaning of Art.37(1)(b) and accordingly was struck out. [34]–[35] 2. Costs when case struck out (Rule 43(4) of the Rules of Court) (a) Costs following strike-out were at the discretion of the Court. The general principles governing reimbursement were essentially the same as under Art.41. In the circumstances the Court denied the majority of the applicants’ costs claim, but thought it reasonable to award the applicants c5,000 jointly for costs and expenses. [36]–[42] The following cases are referred to in the Court’s judgment: 1. Amuur v France (1996) 22 E.H.R.R. 533 2. Chapman v United Kingdom (2001) 33 E.H.R.R. 18 (2008) 47 E.H.R.R., Part 3 䉷 Sweet & Maxwell

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3. Dalban v Romania (2001) 31 E.H.R.R. 39 4. Eckle v Germany (1983) 5 E.H.R.R. 1 5. Ilas¸cu v Moldova and Russia (2005) 40 E.H.R.R. 46 6. Lavents v Latvia, no. 58442/00, § 154, 28 November 2002 7. Pisano v Italy (2002) 34 E.H.R.R. 27 8. Sisojeva v Latvia (2007) 45 E.H.R.R. 33 9. Swedish Engine Drivers’ Union v Sweden (1979–80) 1 E.H.R.R. 617 10. Labita v Italy, (2008) 46 E.H.R.R. 50 11. Application No.32168/96, Hüsnü Öz v Germany, December 3, 1996 12. Application No.58442/00, Lavents v Latvia, November 28, 2002 13. Application No.76642/01, Association SOS Attentats v France H14

The following cases are referred to in the joint dissenting Opinion: 14. Sisojeva v Latvia (2007) 45 E.H.R.R. 33 15. Application No.32168/96, Hüsnü Öz v Germany, December 3, 1996 THE FACTS I. The circumstances of the case A. Facts as submitted by the parties

8

9

10

11

12

The applicant was born in 1965 and lives in Flushing. The applicant foundation, also based in Flushing, operates a mosque in Flushing serving Muslim believers belonging to the local Moroccan community. On December 2, 1999 the applicant foundation applied, via the District Employment Services Authority, for a work permit under the Foreign Nationals (Employment) Act, which would allow it to appoint the applicant as its imam. On October 30, 2000 the General Directors of the Employment Services Authority, to whom the application had been forwarded, gave a decision refusing such a permit. It was considered that since the job vacancy had not been reported, it had to be assumed that there was an adequate supply of priority labour (i.e. nationals of Member States of the European Union or the European Economic Area, or others with equivalent status as regards residence and the right to work, possessing the requisite qualifications). In addition, it had not been shown that the applicant would earn the statutory minimum wage. Furthermore, it had not been demonstrated that the applicant foundation had made sufficient efforts to fill the position with priority labour available on the labour market, for example by advertising the position in the local and national press. The applicants lodged an objection with the General Directors of the Employment Services Authority on November 29, 2000. It was stated, among other things, that the applicant had already been admitted to the Netherlands in November 1998, so that s.8(1)(d) of the Foreign Nationals (Employment) Act did not apply to him, and that it was well known that there was a severe shortage of imams in the Netherlands. The General Directors of the Employment Services Authority gave their decision on September 19, 2001. It was found that the applicant foundation had not (2008) 47 E.H.R.R., Part 3 䉷 Sweet & Maxwell

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13

14

15

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investigated the labour market at the time when the application for a work permit was made, and that moreover the vacant position had not been reported to the Employment Services Organisation at least five weeks before the date of the application. The applicant had previously been admitted to the country to work as a teacher of religion, not as an imam, and although the applicants had submitted a draft contract of employment naming a sufficient monthly wage it was not stated that this wage was linked to the statutory index. The information supplied by the applicants as to the alleged shortage of suitably qualified persons on the Netherlands and EU labour markets was not persuasive. Finally, two training establishments for imams existed in the Netherlands; it had not been shown that the applicant foundation had tried to recruit its imam from one of these. The applicant appealed to the Regional Court of The Hague on 16 October 2001 and submitted his grounds of appeal on November 29, 2001. So did the applicant foundation, as a “third party” with an interest in the decision. It was stated, among other things, that already in September or October 1999 the applicant foundation had made unsuccessful attempts to find a suitable imam through the Labour Exchange. Given the unreasonable length of time taken up by the pending proceedings (by this time, nearly two years already) and in the absence of any other candidate for the position, the applicant had in the meantime started work as the imam of the applicant foundation’s mosque, to the satisfaction of all concerned. Moreover, the applicants submitted that, at the time the decision on the objection was taken, a policy had been in force of not applying the requirement relating to the reporting of a vacancy for a minister of religion; a failure on the part of the applicant foundation—if failure there was—ought therefore not to have been held against it. It was also argued that the decision of September 19, 2001 violated Art.9 of the Convention. Having held a hearing on August 30, 2002, the Regional Court gave its decision on October 11, 2002. The Regional Court repeated the findings of the General Directors of the Employment Services Authority—which had meanwhile been replaced by the Central Organisation for Work and Income—that the applicant foundation had not sufficiently investigated the availability of suitable alternative candidates, that the vacancy had not been reported to the Employment Services Organisation at least five weeks before a work permit was applied for, and—notwithstanding the submission of a bank statement and proof of payment in kind (i.e. free housing)—that it had not been demonstrated that the applicant was entitled to the statutory minimum wage. Whether or not the failure to report the vacancy could have been used as an independent ground for the refusal of the work permit, the fact remained that this failure contributed to the conclusion that the applicant foundation had in any event not sufficiently investigated the availability of alternative candidates. As to Art.9 of the Convention, the Regional Court found that any interference that might have occurred was prescribed by law and necessary in a democratic society for the protection of public order—an expression construed by the Regional Court as encompassing the labour market. The applicant and the applicant foundation each lodged appeals with the Administrative Jurisdiction Division of the Council of State on November 27, 2002. They alleged that the Regional Court had erred in finding that the vacancy for a qualified imam had not been duly reported to the Employment Services (2008) 47 E.H.R.R., Part 3 䉷 Sweet & Maxwell

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16

17

565

Organisation. Prior to the application for a work permit, efforts had been made to find an imam with residence rights through the informal circuit, as was customary in the case of Moroccan imams. It was only after the Labour Exchange had failed to produce a suitable candidate that the applicant’s name had been put forward and a work permit applied for. The applicant was being paid the statutory after-tax minimum wage, but the tax authorities were refusing to accept payment of the various withholding taxes and social-security contributions. Of the two institutions in the Netherlands which trained imams, one had ceased its activities because it was not recognised by the Muslim community in the Netherlands and the other did not train imams capable of functioning within Moroccan religious communities. Finally, the applicant foundation invoked Art.9 of the Convention. Having held a hearing on February 17, 2003, the Administrative Jurisdiction Division gave its decision on February 28, 2003. The applicants were held not to have corroborated with documentary evidence their allegation that the applicant foundation had sought to find a suitably qualified imam prior to lodging the application for a work permit, nor had they shown sufficient diligence in trying to find priority labour available on the labour market to fill the vacancy. The applicants’ statement that it would have been pointless for the applicant foundation to approach the one remaining training institute for imams operating in the Netherlands was also found to be unsubstantiated. Art.9 of the Convention could not be construed as entitling a religious community to employ as a teacher and minister of religion a foreign national who did not meet statutory requirements set for the purpose of preserving peace and public order. Following the issuing of an expulsion order, the applicant returned to Morocco on August 4, 2005. B. Developments subsequent to the Chamber’s decision to relinquish jurisdiction in favour of the Grand Chamber

18

In a letter of February 21, 2007 the Government informed the Court that on January 27, 2006 the applicant foundation had lodged a new application for a work permit on behalf of the applicant. This application had been successful and on March 3, 2006 a work permit had been issued, valid until March 6, 2009, as the applicant foundation had established that the conditions of ss.8 and 9 of the Foreign Nationals (Employment) Act had been fulfilled: the applicant foundation had showed evidence of having made sufficient efforts to fill the position with priority labour and of having reported the availability of the position to the Employment Services Organisation at least five weeks before the new application for the work permit was lodged, and had submitted an employment contract showing that the applicant’s wages met the minimum wage requirement. In addition, on November 16, 2006 the applicant had been granted a temporary residence permit, also valid until March 6, 2009.

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EL MAJJAOUI AND STICHTING TOUBA MOSKEE V NETHERLANDS II. Relevant domestic law and practice A. The Foreign Nationals (Employment) Act

19

Relevant sections of the Foreign Nationals (Employment) Act provide as follows: “Section 2 1. It is forbidden for an employer to employ a foreign national in the Netherlands without a work permit. Section 8 1. A work permit shall be refused: a. if, for the position (arbeidsplaats) concerned, there is a supply of priority labour available on the labour market; b. if the position is one whose availability has not been reported to the Employment Services Organisation at least five weeks before the application was lodged; ... d. if the foreign national concerned is one who has not been admitted [to the country] before, and who does not earn, from the work concerned, for a period of one month a sum equal to the minimum wage. Section 9 A work permit may be refused: a. if the employer cannot show evidence of sufficient efforts to fill the position with priority labour available on the labour market.” B. Practice

20

From February 1 until December 31, 2001 the Central Organisation for Work and Income followed a policy of not applying s.8(1)(b) of the Foreign Nationals (Employment) Act to ministers of religion. JUDGMENT I. Alleged violation of Articles 9 and 18 of the Convention

21

The applicants claimed that they were victims of a violation of their rights under Arts 9 and 18 of the Convention, the relevant parts of which provide: “Article 9 1. Everyone has the right to freedom of . . . religion; this right includes . . . freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. (2008) 47 E.H.R.R., Part 3 䉷 Sweet & Maxwell

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2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others. Article 18 The restrictions permitted under [the] Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed.” 22

During the proceedings before the Grand Chamber the Government raised an objection, submitting that, in view of intervening developments,1 the applicants could no longer claim to be “victims” within the meaning of Art.34 of the Convention. Moreover, since the matter had been effectively resolved, the application should be struck out of the Court’s list of cases in accordance with Art.37(1)(b) of the Convention. A. The parties’ submissions 1. The applicants

23

24

The applicants submitted that the legislation at issue—making the issuing of a work permit to a minister of religion dependent on the fulfilment of certain requirements—as well as the application of that legislation to their particular case contravened their Convention rights guaranteed by Arts 9 and 18. They submitted that they could still claim to be “victims” of the alleged violations and opposed the striking-out of the application. They were of the opinion that the work permit that had been granted could not erase the fact that ss.8 and 9 of the Foreign Nationals (Employment) Act were incompatible with Arts 9 and 18 of the Convention. The initial refusal of a work permit, based on those provisions, had resulted in the applicant foundation being forced to terminate the applicant’s contract of employment on February 28, 2003, the date on which the Administrative Jurisdiction Division of the Council of State had upheld that refusal. Even though the applicant had stayed on in the Netherlands for some time after that and lived off gifts from the community, he had effectively been deprived of his work as an imam, and the local Moroccan community had been deprived of an imam, until the work permit was finally issued. Moreover, the breaches of the Convention had not been acknowledged and neither had any redress been offered, both being conditions which, according to the Court’s case law, had to be met before a decision or measure favourable to the applicants could divest them of their “victim” status.2 2. The Government

25

In view of the fact that the applicant had now been issued a work permit, the Government argued that the applicants could not still be considered “victims” 1 2

See [17] above. See Eckle v Germany (1983) 5 E.H.R.R. 1 at [66].

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within the meaning of Art.34 of the Convention, for two reasons. First, the applicant, notwithstanding the absence of the required permits, had apparently worked for the applicant foundation as an imam until his departure from the Netherlands at the beginning of August 2005. Secondly, and as far as the eight-month period during which the applicant did not work for the applicant foundation was concerned, the Government submitted that victim status could not arise as a result of individuals failing to complete certain formalities in time. The situation that had arisen was entirely the result of negligence on the part of the applicants and they were thus not victims of acts or omissions by the authorities. The Government further argued that the case had, in any event, been resolved and requested the Court to strike it out of its list of cases in accordance with Art.37(1)(b) of the Convention. B. The Court’s assessment

27

28

29

After the Chamber’s decision to relinquish jurisdiction in favour of the Grand Chamber (December 7, 2006), the Government brought a new fact to the attention of the Court: the applicant foundation had lodged another application for a work permit on January 27, 2006, which application had been successful and had resulted in such a permit being issued to the applicant on March 3, 2006. The Court observes that the applicants did not see fit to apprise it of this development. The Government argued that, with the applicant now being allowed to work as imam for the applicant foundation, the applicants could no longer claim to be “victims” within the meaning of Art.34 of the Convention. As pointed out by the applicants, the Court held in the aforementioned Eckle judgment that a decision or measure favourable to the applicant was not sufficient to deprive him of his status as a “victim” unless the national authorities acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention.3 However, the Court’s case law also shows that it will examine events that have occurred subsequent to the lodging of an application with a view to determining whether the case should be struck out of its list on one or more of the grounds set out in Art.37 of the Convention, notwithstanding the fact that the applicant can still claim “victim” status.4 Indeed, in the instant case, the Court does not consider it necessary to reach a conclusion on the question whether the applicants can still claim to be “victims” of a violation of Arts 9 and 18 of the Convention. In the light of the new developments brought to its attention since February 21, 2007,5 the Court considers that, for the reasons set out below, there is no objective justification for continuing to examine these complaints and that it is thus appropriate to apply Art.37(1) of the Convention, which provides as follows: “The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that 3

See also Amuur v France (1996) 22 E.H.R.R. 533 at [36]; Dalban v Romania (2001) 31 E.H.R.R. 39 at [44]; Labita v Italy (2008) 46 E.H.R.R. 50 at [142]; and Ilas¸cu v Moldova and Russia (2005) 40 E.H.R.R. 46. See Pisano v Italy (2002) 34 E.H.R.R. 27 at [39], or even irrespective of the question whether the applicant can still claim such status (see Sisojeva v Latvia (striking-out) (2007) 45 E.H.R.R. 33 at [96]; App. No.76642/01, Association SOS Attentats v France at [41]). 5 See [18] above. 4

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(a) the applicant does not intend to pursue his application; or (b) the matter has been resolved; or (c) for any other reason established by the Court, it is no longer justified to continue the examination of the application. However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.” 30

31

32

33

34

In order to ascertain whether Art.37(1)(b) applies to the present case, the Court must answer two questions in turn: first, whether the circumstances complained of directly by the applicants still obtain and, second, whether the effects of a possible violation of the Convention on account of those circumstances have also been redressed.6 In the present case, that entails first of all establishing whether the refusal to allow the applicant to work as imam of the mosque operated by the applicant foundation persists; after that, the Court must consider whether the measures taken by the authorities constitute sufficient redress for the applicants’ complaint. As to the first question, it is not in doubt that there is no longer any question of the applicant being prevented from working as imam of the mosque operated by the applicant foundation and of the foundation not being allowed to employ him in that capacity. As regards the second question, the Court considers that the mere fact that the applicant foundation had to comply with certain requirements before it was able to employ the applicant does not as such raise an issue under Art.9. The Court agrees with the former Commission that that provision does not guarantee foreign nationals a right to obtain a residence permit for the purposes of taking up employment in a contracting state, even if the employer is a religious association.7 After all, the Convention does not lay down for the contracting states any given manner for ensuring within their internal law the effective implementation of the Convention. The choice as to the most appropriate means of achieving this is in principle a matter for the domestic authorities, who are in continuous contact with the vital forces of their countries and are better placed to assess the possibilities and resources afforded by their respective domestic legal systems.8 Since a work permit has been granted and the applicant is now lawfully employed by the applicant foundation, the Court considers, in the light of all the relevant circumstances of the case, that their complaints have been adequately and sufficiently remedied.9 Having regard to the above, the Court finds that both conditions for the application of Art.37(1)(b) of the Convention are met. The matter giving rise to the applicants’ complaints can therefore now be considered to be “resolved” within the meaning of Art.37(1)(b). Finally, no particular reason relating to respect for human rights as defined in the Convention requires the Court to continue its examination of the application under Art.37(1) in fine. 6

See Pisano (2002) 34 E.H.R.R. 27 at [42], Sisojeva (2007) 45 E.H.R.R. 33 at [97]. See App. No.32168/96, Hüsnü Öz v Germany, December 3, 1996. See Swedish Engine Drivers’ Union v Sweden (1979–80) 1 E.H.R.R. 617 at [50]; Chapman v United Kingdom (2001) 33 E.H.R.R. 18I at [91]; and Sisojeva (2007) 45 E.H.R.R. 33 at [90]. 9 See, mutatis mutandis, Sisojeva (2007) 45 E.H.R.R. 33 at [102]. 7 8

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EL MAJJAOUI AND STICHTING TOUBA MOSKEE V NETHERLANDS

Accordingly, the application should be struck out of the Court’s list of cases. II. Application of rule 43(4) of the Rules of Court

36 37

38 39

40

41

42

Rule 43(4) of the Rules of Court provides, “[w]hen an application has been struck out, the costs shall be at the discretion of the Court”. The applicants, in their claims under Art.41 of the Convention, sought reimbursement of costs and expenses incurred in attempting to forestall and/or secure redress for the alleged violations of the Convention both through the domestic legal system and in the proceedings before the Court to a total amount of c59,881.36. In so far as can be ascertained from the documents submitted, the sum claimed in respect of the Strasbourg proceedings amounted to c27,590.66 for the first applicant and c19,091.79 for the applicant foundation, that is a total of c46,682.45 The Government considered that the costs claimed for legal representation seemed excessive. The Court reiterates that the general principles governing reimbursement of costs under r.43(4) are essentially the same as under Art.41 of the Convention.10 In other words, in order to be reimbursed, the costs must relate to the alleged violation or violations and be reasonable as to quantum. Furthermore, under r.60(2) of the Rules of Court, itemised particulars of any claim made under Art.41 of the Convention must be submitted, together with the relevant supporting documents or vouchers, failing which the Court may reject the claim in whole or in part.11 In addition, it is clear from the structure of r.43(4) that, when the Grand Chamber makes a decision on the award of expenses, it must do so with reference to the entire proceedings before the Court.12 However, in the present case the Court notes that when the decision to relinquish jurisdiction was taken—on December 7, 2006—the applicant had already been in possession of a work permit for some nine months. Having regard to the information in its possession and to the criteria set out above, the Court considers it reasonable to award the applicants jointly c5,000 for costs and expenses. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank to which should be added 3 percentage points. For these reasons, THE COURT: 1. Holds by 14 votes to 3 that the matter giving rise to the applicants’ complaints has been resolved and decides to strike the application out of its list of cases. 2. Holds unanimously: (a) that the respondent State is to pay the applicants jointly, within three months, c5,000 (five thousand euros) for costs and expenses, plus any tax that may be chargeable; 10 11 12

See Pisano (2002) 34 E.H.R.R. 27 at [53]–[54]. See, for example, App. No.58442/00, Lavents v Latvia, November 28, 2002 at [154]. See Sisojeva (2007) 45 E.H.R.R. 33 at [133].

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(b) that from the expiry of the abovementioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus 3 percentage points. Joint Dissenting Opinion of Judges Zupancˇicˇ, Zagrebelsky and Myjer13 O-I1

O-I2

O-I3

O-I4

We did not vote with the majority to strike the application out of the Court’s list of cases. In our opinion the result of this case—as far as the applicant foundation (Stichting Touba Moskee) is concerned—shows that an extensive application of the criteria established at [97] of the judgment in the case of Sisojeva v Latvia14 may lead to an undesirable outcome. We can accept that the position of Mr El Majjaoui may be compared with that of the applicants in the Sisojeva case. As far as this applicant is concerned the case is essentially about the admission of a foreign national to the domestic labour market. According to the standard case law, the contracting states have a legitimate interest in controlling the entry, residence and expulsion of aliens. Article 9 of the Convention does not as such guarantee foreign nationals a right to obtain a residence permit for the purposes of taking up employment, even if the employer is a religious association.15 We agree with the conclusion of the majority that since he is now allowed to stay in The Netherlands and a work permit has been issued, the matter giving rise to his complaints may be considered to have been resolved within the meaning of Art.37(1)(b). We have, however, serious doubts that the same can be said about the applicant foundation. Is the fact that Mr El Majjaoui was eventually issued a work permit enough to conclude that this was adequate and sufficient to remedy or resolve the initial complaint of the applicant foundation? The case of the applicant foundation should, in our opinion, not be considered solely as one involving the admission of a foreign national to the domestic labour market. In certain circumstances a measure which results in a religious community being prevented from appointing the minister of religion of its choice may constitute an interference with that community’s rights under Art.9, even if the minister concerned is a foreign national. And looking at the facts of this case it is clear that between February 28, 2003 (the date on which the Administrative Jurisdiction Division of the Council of State upheld the refusal to issue a work permit to the applicant) and March 3, 2006 (the date on which a work permit was issued) the applicant foundation—and the local Moroccan community—were effectively deprived of the services of the imam they had sought to employ. Is it acceptable to simply disregard what happened in the past and conclude that everything has now been remedied and resolved? It is not unrealistic to think that the Chamber relinquished jurisdiction to the Grand Chamber so that it would determine the issue whether it was acceptable from the standpoint of Art.9 for a contracting state to apply the same requirements 13 14 15

Paragraph numbering added by the publisher. Sisojeva (2007) 45 E.H.R.R. 33. See, mutatis mutandis, App. No.32168/96, Hüsnü Öz v Germany, December 3, 1996.

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for the delivery of a work permit to a foreign national who is invited to work as a religious minister as to foreign nationals who work in other professions. Is it permissible under Art.9 that a contracting state, which according to the Court’s abundant case law has the duty of neutrality as regards the regulation of religious groups, should require that the foreign national who is to be appointed as a religious minister must earn the statutory minimum wage?16 And does Art.9 stand in the way of a contracting state requiring, as far as religious ministers are concerned, that an employer first make sufficient efforts to fill the post by recourse to the domestic labour market, for example by advertising the position in the local and national press? Can such a requirement be considered legitimate when regard is had to the fact that in the choice of a religious minister/pastor/rabbi/imam much will depend on whether the religious community would have confidence in the person concerned? The answer given by the majority at [32] does little to clarify these issues: “The Court considers that the mere fact that the applicant foundation had to comply with certain requirements before it was able to employ the applicant does not as such raise an issue under Article 9.” O-I5

We have no difficulty in accepting that some requirements should be complied with even in such cases. And it is also clear that the restrictions laid down in para.2 of Art.9 may apply. From the standpoint of Art.9 the central issue in the present case calls for an examination of the legitimacy of the requirements imposed and a determination of those conditions which are objectionable. In our opinion the Court should have examined the merits and should have tried to give a clearer answer to these questions.

16

See in respect of Netherlands: Ineke Hendrickx and Tessel de Lange, Toelating van vreemdelingen voor verblijf bij religieuze organisaties (Admission of aliens for the purpose of residence with religious organisations) (Wolf Legal Publishers, Centrum voor Migratierecht, WODC Ministerie van Justitie, 2004).

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ISLAMIC REPUBLIC OF IRAN SHIPPING LINES v TURKEY BEFORE THE EUROPEAN COURT OF HUMAN RIGHTS APPLICATION NO.40998/98 (The President, Judge Zupancˇicˇ; Judges Bîrsan, Türmen, Gyulumyan, Myjer, Ziemele and Berro-Lefèvre) (2008) 47 E.H.R.R. 24

December 13, 2007 Fair balance; Non-governmental organisations; Proportionality; Protection of property; Time limits; Turkey H1

H2

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The applicant was an Iranian shipping company and the case concerned the seizure by the Turkish authorities of a Cypriot-owned vessel chartered by the company. On October 22, 1991, while transiting the Bosphorous, the ship was boarded and seized by Turkish authorities who suspected that it was carrying arms to Cyprus from where they would be smuggled into Turkey. On October 28, 1991, a judge of Istanbul State Security Court approved the arrest of the vessel and the detention of its crew, noting that the “smuggled weapons could be used against the security of the Republic of Turkey”. An objection filed on behalf of the vessel and its Master was dismissed on November 4, 1991. The following day, the Public Prosecutor indicted the Master, first officer and radio operator, charging them with organised transportation of firearms and shells. He considered that Turkey was at war with Cyprus and that the vessel’s seizure was justified under the Montreux Convention. In November and December 1991, the Iranian Government sought the vessel’s release through diplomatic representations. On November 13, the applicant’s lawyer requested the Istanbul State Security Court to ask the Turkish Ministry of Foreign Affairs whether Turkey was at war with Cyprus. In letters dated December 13 and 26, 1991, the Ministry of Foreign Affairs responded that Turkey and Cyprus were not in a state of war and that the Montreux Convention allowed commercial vessels free passage through the Bosphorus. On December 16, 1991, the State Security Court released the vessel’s Master on bail but ordered the seizure and confiscation of the vessel and its cargo. On January 10, 1992, the Public Prosecutor reiterated that the vessel and cargo should be seized and the Master imprisoned. The applicant applied successfully to be joined as an intervening party in the proceedings. In February, the Prime Minister issued a certificate confirming that Turkey was not in a state of war with any country. On (2008) 47 E.H.R.R., Part 3 䉷 Sweet & Maxwell

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ISLAMIC REPUBLIC OF IRAN SHIPPING LINES V TURKEY

March 12, 1992, the State Security Court convicted the Master of importing arms into Turkey without permission but acquitted the first officer and radio operator. It ordered that the arms cargo be confiscated and that the remainder of the cargo be returned to the applicant, but the non-arms cargo was not returned. On June 3, 1992 the Court of Cassation quashed the State Security Court’s judgment, holding that there was no evidence that the arms would have been unloaded in Turkey and referring to the letters of the Prime Minister and the Foreign Ministry. The case was remitted to the State Security Court for retrial. Pending the retrial, the applicant sought removal of the lien which had been imposed over the cargo but in September 1992 the Court of Commerce refused the applicant’s request for removal of the lien. Later that month, the Master was acquitted. The Court of Cassation dismissed the Public Prosecutor’s appeal and the vessel left Turkey on December 8, 1992. The applicant instituted compensation proceedings before the Court of Commerce, arguing that the seizure and detention of the vessel and its cargo had been unjustified. However, the claim for compensation was dismissed as was the applicant’s appeal. In accordance with the charter-party, a dispute between the applicant and the vessel’s owner concerning the hire charges and other expenses was referred to arbitration in London. On September 20, 1995, the arbitration panel decided that the charter-party had been frustrated by the State Security Court’s decision of March 12, 1992. The applicant was therefore able to recover from the owner the hire charges and other expenses paid in respect of the period after that date. However, it could not recover the money paid in respect of the period between the vessel’s seizure and the State Security Court’s judgment. Relying upon Art.1 of Protocol No.1, in particular, the applicant company complained that the seizure of the vessel and its cargo had amounted to an unjustified control of use of its property. It claimed just satisfaction under Art.41 of the Convention. Held unanimously: (1) that the complaint under Art.1 of Protocol No.1 was admissible and the remainder of the application inadmissible; (2) that there had been a violation of Art.1 of Protocol No.1; (3) that the State was required to pay the applicant c35,000 for costs and expenses, plus any tax chargeable. 1. Admissibility: “non-governmental organisation”; six month rule; “victim” (Articles 34 and 35(1)) (a) A legal entity: “[C]laiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention and the Protocols thereto”,

H9

could submit an application to the Court, provided that it was a “non-governmental organisation” within the meaning of Art.34. [78] (b) The term “governmental organisations”, as opposed to “non-governmental organisations” within the meaning of Art.34, included legal entities which participated in the exercise of governmental powers or ran a public service under (2008) 47 E.H.R.R., Part 3 䉷 Sweet & Maxwell

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H10

H11

H12

H13

H14 H15

H16 H17

575

government control. In order to determine whether any given legal person other than a territorial authority fell within that category, account had to be taken of its legal status and, where appropriate, the rights which that status gave it, the nature of the activity it carried out and the context in which it was carried out, and the degree of its independence from the political authorities. [79] (c) The applicant was a corporate body which carried out commercial activities subject to the ordinary law of the Republic of Iran. It neither participated in the exercise of governmental powers nor had a public-service role or a monopoly in a competitive sector. Although at the relevant time it was wholly owned by the State and an important part of its shares still belonged to the State and a majority of the members of the board of directors were appointed by the State, it was legally and financially independent of the State. [80] (d) Governmental bodies or public corporations under the strict control of a state were not entitled to bring an application under Art.34, the point being to prevent a contracting party acting both as applicant and as respondent before the Court. The circumstances of the case were different from those cited by the Government. The fact that the applicant was incorporated in a state which was not party to the Convention made no difference. Furthermore, the applicant company was governed essentially by company law, did not enjoy any powers beyond those conferred by ordinary law in the exercise of its activities and was subject to the jurisdiction of the ordinary courts. It was run as a commercial business and there was nothing to suggest that the application had effectively been brought by Iran. Accordingly, the applicant was entitled to bring an application under Art.34. [81]–[82] (e) Since the proceedings were of a civil nature and the applicant had lodged its application within six months of the service of the Court of Cassation’s final decision, it had complied with the six month rule. [83] (f) The complaint based on Art.1 of Protocol No.1 was not manifestly ill-founded nor inadmissible on any other grounds. It was therefore admissible. [84] (g) Article 34 required that an individual applicant should claim to have been directly and actually affected by the violation alleged. [108] (h) The criminal proceedings had been brought against only the crew of the vessel, not against the applicant itself. Furthermore, the applicant had successfully appealed to the Court of Cassation and secured the release of the cargo belonging to it. Accordingly, it could not claim to be a victim of a violation of Art.6. This part of the application was therefore incompatible ratione personae with the Convention. [109]–[110] 2. Protection of property: interference; control of use; fair balance; proportionality; denial of compensation (Article 1 Protocol No.1) (a) The matters complained of constituted an interference with the peaceful enjoyment of the applicant’s possessions. [85] (b) Article 1 of Protocol No.1 comprised three distinct rules. The first, set out in the first sentence of the first paragraph, was of a general nature and enunciated the principle of the peaceful enjoyment of property. The second, contained in the second sentence of the first paragraph, covered deprivation of possessions and (2008) 47 E.H.R.R., Part 3 䉷 Sweet & Maxwell

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H19

H20

H21

H22

H23

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ISLAMIC REPUBLIC OF IRAN SHIPPING LINES V TURKEY

subjected it to certain conditions. The third, stated in the second paragraph, recognised that states were entitled to control the use of property in accordance with the general interest, by enforcing such laws as they deemed necessary for that purpose. The second and third rules were concerned with particular instances of interference with the right to peaceful enjoyment of property and had to be construed in the light of the general principle enunciated in the first rule. [86] (c) There had been neither a confiscation nor a forfeiture, as the applicant company had regained possession of the cargo following a temporary detention of the vessel. There had been control of the use of property. Accordingly, the second paragraph of Art.1 applied. [87] (d) The Montreux Convention was lex specialis for the transit regime through the Bosphorus. While the Court noted the parties’ conflicting interpretation of the Convention, it was not its role to pronounce on the interpretation and application of the Montreux regime by Turkey since there had been an arbitrary interference with the applicant’s property rights. [93] (e) An interference had to strike a “fair balance” between the demands of the general interest and the requirements of the protection of the individual’s fundamental rights. There had to be a reasonable relationship of proportionality between the means employed and the aim pursued. The State enjoyed a wide margin of appreciation with regard to choosing the means of enforcement and ascertaining whether the consequences of enforcement were justified in the general interest for the purpose of achieving the object of the law in question. [94] (f) In order to assess the proportionality of the interference, it was necessary to examine the degree of protection from arbitrariness afforded by the proceedings and whether a total lack of compensation was justifiable. [96] (g) The vessel and its cargo should have been released, at the latest, on March 12, 1992, when the State Security Court had issued its decision. Their detention from that date onwards was arbitrary since there had been no basis for suspecting an offence of arms smuggling or any general power to seize the ship due to a state of war between Turkey and Cyprus. [98] (h) The compensation proceedings were also material when assessing whether the interference had respected the requisite fair balance and, notably, whether it had imposed a disproportionate burden on the applicant. The arbitrary control of use of property for a prolonged period of time without justification would normally constitute a disproportionate interference and a total lack of compensation could be considered unjustifiable under Art.1 of Protocol No.1. [99] (i) The applicant’s claim for compensation had been dismissed by the Court of Commerce. However, the Court of Cassation had already found that there was no offence of arms smuggling and that Art.6(1) of the Montreux Convention did not apply. Accordingly, even though the civil courts were not bound by the findings of the criminal courts, the reasons given by the Court of Commerce could not justify its decision to deny the applicant compensation for the damage suffered from March 12, 1992. Thus, the interference with the applicant’s rights was disproportionate and had not struck a fair balance between the competing interests. Accordingly, there had been a violation of Art.1 of Protocol No.1. [100]–[103]

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H25 H26

H27

H28

577

3. Just satisfaction: damage; costs and expenses; default interest (Article 41) (a) There had to be a clear causal link between the damage claimed by the applicant and the violation of the Convention. [114] (b) The applicant company had suffered damage as a result of disproportionate interference with its rights under Art.1 of Protocol No.1. However, it had already recovered the losses sustained in respect of the period after March 12, 1992. Its claim for damages related only to the period between the date of the vessel’s arrest and March 12, 1992. The Court had found that the vessel and its cargo should have been released by March 12, 1992 and that their detention from that date onwards was arbitrary. Accordingly, no award could be made for the period before that date and the applicant’s claims for pecuniary damage were therefore dismissed. [115] (c) An applicant was entitled to reimbursement of costs and expenses only in so far as it was shown that they had been actually and necessarily incurred and were reasonable as to quantum. The Court was not satisfied that all the costs and expenses claimed had been necessarily and actually incurred. [118] (d) Default interest was based on the marginal lending rate of the European Central Bank, plus 3 percentage points. [119]

H29

The following cases are referred to in the Court’s judgment: 1. AGOSI v United Kingdom (1987) 9 E.H.R.R. 1 2. Agrotexim v Greece (1996) 21 E.H.R.R. 250 3. Air Canada v United Kingdom (1995) 20 E.H.R.R. 150 4. Barberà v Spain (1987) 9 E.H.R.R. CD101 5. Holy Monasteries v Greece (1995) 20 E.H.R.R. 1 6. Ireland v United Kingdom (1979–80) 2 E.H.R.R. 25 7. Papachelas v Greece (2000) 30 E.H.R.R. 923 8. Radio France v France (2005) 40 E.H.R.R. 29 9. Application No.15090/89, Ayuntamiento de M v Spain, January 7, 1991 10. Application No.35216/97, RENFE v Spain, September 8, 1997 11. Application No.38788/97, Société Faugyr Finance SA v Luxembourg, March 23, 2000 . 12. Application No.39706/98, Tahsin Ipek v Turkey, November 7, 2000 13. Application No. 35841/02, Österreichischer Rundfunk v Austria, December 7, 2006 14. Application Nos 5767/72, 5922/72, 5929–5931/72, 5953–5957/72, 5984– 5988/73 and 6011/73, 16 Austrian Communes and some of their Councillors v Austria

H30

The following domestic cases are referred to in the Court’s judgment: 15. Decision No.978/8-189–245, Vassoula, June 19, 1978 THE FACTS I. The circumstances of the case

5

The facts of the case, as submitted by the parties, may be summarised as follows.

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ISLAMIC REPUBLIC OF IRAN SHIPPING LINES V TURKEY A. Background to the case

6

7

8

9

10

By a charter dated September 12, 1991 the applicant company chartered a Cypriot-owned vessel called the Cape Maleas (the vessel). The charter-party was on an amended New York Produce Exchange time-charter form, and was for a time-charter trip to the South Iranian ports. The voyage duration was stated to be 50 days and the intended service for the carriage of general cargo, steels and commercial containers. By agreement between the parties, namely the applicant company and the owner of the vessel, Seabeach Shipping Ltd, on September 18, 1991 the charter-party became subject to “Addendum No.1”. This provided that the applicant charterer could load 2,500 cubic metres of “IMCO 1” cargo. The “IMCO 1” denotes cargoes which fall within “Class 1—Explosives” category of the International Maritime Dangerous Goods Code. The applicant ordered the vessel to proceed to the port of Bourgas in Bulgaria and, on October 8, 1991, further cargo commenced loading. This consisted of a general cargo but also included a cargo of arms, ammunition and military spare parts which fell within the “IMCO Class 1” category (The arms cargo). The applicant’s agent in Bourgas drew up bills of lading in respect of the cargo, including the arms cargo (The Bills of Lading). These Bills of Lading described the arms cargo as “special equipment”, followed by a reference to a numbered contract. The port of discharge for the “special equipment” was specified as Tartous Sar in Syria. The shipper was stated to be “Socotrade” and the consignee as “to order”. The applicant’s agent in Bourgas also prepared a manifest of cargo. Like the Bills of Lading, this described the arms cargo as “special equipment”, and gave the port of discharge as Tartous Sar. The applicant at all times intended that the arms cargo should be discharged at the port of Bandar Abbas in Iran. The vessel sailed from Bourgas at 19.00 on October 21, 1991 and was ordered to proceed to Setubal in Portugal in order to load further cargo. In order to reach Setubal from Bourgas, the vessel had to transit through the Bosphorus. B. The seizure of the vessel

11

12

13

On October 22, 1991 at about 15.30, the vessel was about to commence transit through the Bosphorus. Before entering the Straits, the Master of the vessel requested the assistance of a pilot for navigation through the Bosphorus. The vessel was flying the international signal flag to indicate that it carried dangerous cargo. As a result of information received by the Turkish customs authorities from a Turkish vessel, which had recently arrived from Bulgaria, the Turkish authorities believed that the arms cargo on board the vessel was bound for Cyprus, from where it would be smuggled into Turkey. According to the Turkish authorities, the vessel was first sighted when it was 10 miles outside the Straits. After the vessel had entered the Straits, a pilot went on board and invited the Master to declare any hazardous materials which were on (2008) 47 E.H.R.R., Part 3 䉷 Sweet & Maxwell

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15

16

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board. The Master duly did so, and the vessel proceeded for a few minutes through the Straits, before the pilot instructed the Master to stop the engine of the vessel. The Turkish coast guard and other Turkish authorities boarded and seized the vessel. Since the waters were rough at the point where the vessel was stopped, it was towed by a military boat to the Turkish port of Büyükdere. All parties to the case subsequently proceeded on the basis that the seizure of the vessel had taken place in the Straits governed by the Montreux Convention of July 20, 1936. At Büyükdere the vessel was searched, and the Bills of Lading and Manifest of Cargo examined. The Turkish authorities discovered the arms cargo and questioned the Master of the vessel. The statement entitled “Protocol of Facts”, in which the Turkish authorities summarised their allegations and the actions which they had taken in respect of the vessel, was prepared and signed by all the officials who were present at the seizure and search of the vessel. The Master, the first officer and the radio operator of the vessel were taken into custody by the Turkish authorities. On October 24, 1991 statements were taken from the Master and first officer in the form of affidavits. These formed part of the file which was submitted by the Public Prosecutor to a single judge of the Istanbul State Security Court. C. The proceedings before the Istanbul State Security Court

17

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19 20

On October 28, 1991, having examined the file and citing, inter alia, Arts 5 and 6 of the Montreux Convention, a single judge of the Istanbul State Security Court, approved the arrest of the vessel and the detention of its crew, i.e. the Master, the first officer and radio operator. The judge referred in his decision to “systematic weapon smuggling” and stated that the “evidence confirmed that the aforementioned smuggled weapons could be used against the security of the Republic of Turkey”. On October 30, 1991 this decision was served on the lawyer instructed on behalf of the vessel and the Master. The following day, the lawyer filed an objection against the above decision, setting out the relevant provisions of the Montreux Convention and noting that Turkey was not in any state of war with any country within the meaning of the provisions of its Constitution and that there was neither threat of war, nor such a risk. On November 4, 1991 the Istanbul State Security Court dismissed this objection. On November 5, the Chief Public Prosecutor at the Istanbul State Security Court indicted the Master, the first officer and the radio officer of the vessel, charging them with organised transportation of firearms and shells. In the Public Prosecutor’s view, Turkey was at war with Cyprus. He cited various decrees of the Turkish Parliament which had authorised the sending of troops to Cyprus, and stated that: “[N]otwithstanding the cease-fire achieved through the efforts of the United Nations Organisation putting an end to the armed conflict, no treaty having yet been signed, the state of war is ongoing from a legal point of view. (2008) 47 E.H.R.R., Part 3 䉷 Sweet & Maxwell

580

ISLAMIC REPUBLIC OF IRAN SHIPPING LINES V TURKEY Consequently, it becomes necessary to enforce Article 5 of the Montreux Convention. (. . .) Pursuant to [Article 5 of the Montreux Convention], the commercial vessels of countries at war with Turkey shall not enjoy free passage through the Straits. Therefore, there being no right of unrestricted passage through the Straits of a ship flying the Cypriot flag and laden with weapons, the Turkish Government may exercise, for its own security and based on its sovereign rights and Article 5 of the said Convention, control over this ship and the weapons contained therein.”

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Since the vessel was registered as a Cypriot ship and flew the Cypriot flag, the Turkish authorities concluded that they had been entitled under Art.5 of the Montreux Convention to seize the vessel and to launch proceedings for arms smuggling. During November and December 1991 the Government of the Islamic Republic of Iran sought the release of the vessel and its cargo through high-level diplomatic meetings. The issue was raised at presidential level and, on November 11, 1991, the Iranian Ambassador to Turkey visited the Deputy Foreign Minister to deliver copies of one of the Bills of Lading and of the Montreux Convention. This was intended to establish that the arms cargo was indeed being carried on behalf of the Iranian State. By a letter dated November 12, 1991 the Foreign Minister of Turkey wrote to the Ministry of Justice giving an account of the meetings which had taken place, enclosing copies of the Bill of Lading and the Montreux Convention and offering to obtain further information on the “special equipment” listed on the Bill of Lading. By a petition dated November 13, 1991 the lawyer acting on behalf of the owners of the vessel and the Master, pointed out to the Istanbul State Security Court that the assumption according to which Turkey and Cyprus were at war with each other was the “crucial point” of the case. He requested the Istanbul State Security Court to enquire immediately of the Ministry of Foreign Affairs as to whether a state of war existed. He also submitted that the Presidency of the Parliament should be asked whether there had been a declaration of war. On November 18, 1991 the lawyer filed another petition with the court reiterating that Turkey was not at war with any country (Cyprus included) and seeking the release of the Master on bail. On November 25, 1991 the lawyer submitted a petition to the Istanbul State Security Court asking the court to rephrase the question which it had put to the Turkish Ministry of Foreign Affairs. He objected to the question which had been put, namely “whether the peace operations in Cyprus have ended with a treaty of peace”, and submitted that the proper question to be asked was “whether the Republic of Turkey is in a state of war or not with the State of Cyprus”. Under cover of a petition dated November 29, 1991 the applicant’s lawyer sent to the Istanbul State Security Court translations of the charter-party and the Bills of Landing. He explained that the nature of a time-charter was similar to a lease, and that the applicant charterers had control over the cargo and its documentation. (2008) 47 E.H.R.R., Part 3 䉷 Sweet & Maxwell

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The Turkish Ministry of Foreign Affairs responded to the questions posed by the Istanbul State Security Court in two letters dated December 13 and 26, 1991. The letters stated: “[A]s there is no ‘state of war’ between Turkey and any other country, including the Greek Cypriot Administration, it is obvious that the seizure of the ship cannot be based on Articles 5 and 6 of the Montreux Convention. In fact, ships carrying the flag of the Greek Cypriot Administration have always traversed the Straits freely. 2. In the Note sent to our Ministry by the Iranian Embassy in Ankara, it was stated that the arms found on the ship belonged to Iran. This had been certified by the Iranian authorities on several occasions. On the other hand, Bulgarian authorities stated that the said arms had officially been sold to Iran by an agreement signed between Bulgaria and Iran in 1989 and that the arms had been loaded in Bourgas. 3. Except for the limitations set out in Articles 4 and 5 of the Montreux Convention on the ‘state of war’, commercial ships flying foreign flags enjoy full freedom of transit passage at times of peace, whatever their flag and cargo may be. As stated above, it is impossible to invoke the ‘state of war’ provisions of the Montreux Convention in this case because no state of war with the Greek Cypriot Administration exists. Moreover, in accordance with customary international and treaty laws, ships have the ‘right of innocent passage’ through the territorial waters of other countries.”

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On December 16, 1991 the Istanbul State Security Court issued a decision for the release of the Master on bail, but ordered the seizure and confiscation of the vessel and its cargo used for commission or preparation of a crime. On January 10, 1992 the Public Prosecutor filed his written observations on the merits. He maintained his earlier position, relying upon Art.5 of the Montreux Convention, contending that the vessel and the arms cargo should be seized and the Master imprisoned. By January 1992 the applicant had concluded that attempts to secure the release of the vessel and its cargo through diplomatic negotiations were unlikely to succeed. The applicant applied through its Turkish lawyer, Mr Aydin, to intervene in the proceedings before the Istanbul State Security Court. In its application, the applicant set out its interest in the case as the owner of the cargo and stressed that the arms cargo was being carried as part of a normal and legal commercial transaction and that Turkey was not at war with any country. He therefore asked for the unconditional release of the vessel and its cargo. The court ordered that the applicant be joined as intervening party in the proceedings. On February 22, 1992 the then Prime Minister of Turkey, Mr Süleyman Demirel, issued a certificate which stated, “[t]he Republic of Turkey is not in a state of war with any country, Southern Cyprus included”. By a judgment of March 12, 1992 the Istanbul State Security Court acquitted the first officer and the radio operator, but convicted the Master of the vessel of importing arms into Turkey without official permission. It therefore sentenced him to five years’ imprisonment and a fine of 50,000 Turkish lira (TRL). The court ordered that the arms cargo and the vessel be confiscated pursuant to the final (2008) 47 E.H.R.R., Part 3 䉷 Sweet & Maxwell

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paragraph of Art.12 of Law 6136, that the cargo other than the arms be returned to the applicant and that the Master bear the costs of the court hearing. With reference to a judgment of the Court of Cassation in a similar case,1 the Istanbul State Security Court held that in the present case there was bad faith on the part of the applicant since the Bill of Lading gave inaccurate information as to the contents of the cargo and the route of the vessel. It noted that there was no justification for not informing the Turkish authorities of Iranian weapons passing through the Straits. The court further considered the following in relation to the Montreux Convention: “The second question is whether the Turkish authorities were entitled to seize the munitions and weapons. Pursuant to the relevant Article of the Montreux Convention, passage of ships carrying firearms and owned by any state with which Turkey is in a state of war is forbidden. The other important issue is whether Turkey is in a state of war with the Greek Cypriot State, or in other words, whether a peace agreement has been reached after the war. It is known that Turkey has engaged in war with the Greek Cypriot State, as a result of which Cyprus has been divided into two sections, that the Turkish Republic of Northern Cyprus has been established, that the Greek Cypriot State has not recognised the Turkish Republic of Northern Cyprus, and that until now, no agreement could be reached, and that the interstate negotiations are in progress. Therefore, the letter of the Ministry for Foreign Affairs . . . and the letter of the Prime Ministry . . . were disregarded.” 34 35

The judgment went on to refer to the Vassoula case,2 concerning another vessel, and concluded that “the existence of the state of war has been confirmed”. Following the judgment of the Istanbul State Security Court, the applicant paid the hire and expenses due to the owner and the charter-party amounting to US $1,161,374.50. Although the judgment of the Istanbul State Security Court had ordered the return of the non-arms cargo to the applicant, it was not returned and by order dated May 29, 1992 the Istanbul Court of Commerce granted an injunction to the owner of the vessel which imposed a lien of TRL 4,111,168,608 over the cargo to secure unpaid hire. The owner of the vessel, the Seabeach Shipping Ltd, then commenced enforcement proceedings for encashment of the lien over the cargo which belonged to the applicant. D. The appeal

36

On March 13, 1992 the applicant appealed against the judgment of the Istanbul State Security Court. The applicant disputed the court’s conclusion that a state of war existed between Turkey and Cyprus. The ground of appeal also questioned the legitimacy of the reliance which the court had placed upon the earlier Vassoula case, and pointed out that the arms cargo had only been in transit through the Straits. 1

By decision Decision No.978/8-189–245, “Vassoula” case, June 19, 1978, the General Criminal Panel of the Court of Cassation held that the state of war had not yet ended following the Cyprus Peace Operation which started on July 20, 1974. 2 Decision No.978/8-189–245, “Vassoula” case, June 19, 1978.

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By a decision of June 3, 1992 the Court of Cassation quashed the Istanbul State Security Court’s judgment. It held that there was no material evidence in the file indicating that the arms would be discharged from the vessel in Turkey. As regards the applicability of the provisions of the Montreux Convention, the Court of Cassation held: “[T]hat the state of war mentioned in Article 4 of the Convention did not exist as also evidenced by the letters of the Foreign Ministry and the Prime Minister which explicitly state that ‘Turkey is not in war with any country, including the Southern Greek Cyprus Administration’ (. . .) and that there is no room for application of Article 6 of the Montreux Convention.”

38 39

40

41

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The case was remitted to the State Security Court for retrial. By a petition of September 3, 1992, pending the re-trial of the Master of the vessel before the Istanbul State Security Court, the applicant sought removal of the lien, which had been imposed by the Istanbul Court of Commerce over the cargo. On September 8, 1992 the Istanbul Court of Commerce refused the applicant’s request and therefore, on September 18, 1992, the applicant agreed to pay to the owner some of the hire charges, without prejudice as to liability. In return, the owner agreed to relinquish its lien on the non-arms cargo. Under this agreement, the applicant had to pay 80 per cent of the hire in respect of the period from March 14, 1992 to September 13, 1992 inclusive (US $1,118,074.40). The applicant also agreed to pay 100 per cent of future charges, as and when the payments fell due. The owner provided to the applicant a guarantee to repay the sum of US $1,118,074.40. The applicant considered that it was obliged to pay the hire due, otherwise the Istanbul Court of Commerce and the owner would not have released the vessel and its cargo. On September 30, 1992 the Istanbul State Security Court acquitted the Master on re-trial. The Public Prosecutor’s appeal against this judgment was dismissed by the Court of Cassation’s decision of November 12, 1992, which was approved on November 13, 1992. On November 18, 1992 the Istanbul State Security Court ordered that the vessel and the arms cargo should be released. The vessel left Turkey on December 8, 1992 and was re-delivered to the owner by the applicant under the terms of the charter-party on March 9, 1993. E. The compensation proceedings

43

By a written petition dated July 22, 1993 the applicant brought an action before the Istanbul Court of Commerce claiming TRL 38,087,249,964 (equivalent to US $3,386,598.98) plus interest against the Ministry of Finance and Customs, with reference to the Ministry of the Interior and the Ministry of Defence. The applicant based its claim upon Art.41 of the Code of Obligations and submitted that the seizure and detention of the vessel and its cargo was unjustified. It argued in this connection that the arms and ammunition belonged to the Islamic Republic of Iran, that as a result of these tortious acts the vessel had been released after 413 days and 2 hours and 30 minutes, which required it to pay US $3,263,522.92 to the owner and US $81,978.86 for fuel charges and US $41,097.20 in harbour fees. (2008) 47 E.H.R.R., Part 3 䉷 Sweet & Maxwell

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The petition went on to refer to and to distinguish the Vassoula case, and to explain the circumstances in which the applicant was forced to pay the hire charges and other expenses to the owner of the vessel. On September 28, 1994 a first expert report was submitted to the Court of Commerce following its interlocutory order of March 9, 1994. The experts advised that the applicant’s claim should be declared inadmissible, principally on the basis that the applicant had chosen voluntarily and without legal compulsion to pay the hire charges under the charter-party. The applicant objected to the first report and the Court of Commerce ordered the preparation of a second expert’s report on November 11, 1994. On April 3, 1995 the second expert report was submitted to the court with the conclusion that the applicant’s claim should be rejected. This second panel of experts considered that the owner of the vessel, but not the applicant, could in appropriate circumstances claim compensation from the Turkish State. They expressed the opinion that the applicant’s claim might succeed in relation to dock and fuel expenses incurred, as well as supplementary losses under Art.105 of the Code of Obligations, but that the claim in respect of hire charges should fail. On June 13, 1995 the applicant filed an objection against the second report and requested the court to rule on the case without obtaining a further report, or alternatively to obtain a third expert report. By a decision dated September 20, 1995 the Istanbul Court of Commerce dismissed the applicant’s claim for compensation, holding that the vessel was not a merchant vessel since it was carrying, in part, a cargo of arms. It considered that the security authorities had only carried out their statutory duty to investigate the serious allegations of arms smuggling. The court therefore ruled that there had been no breach of the Montreux Convention or of Turkish law, in particular Art.41 of the Code of Obligations. On November 6, 1995 the applicant appealed. On December 27, 1996 the Court of Cassation dismissed the appeal and upheld the judgment of the Istanbul Court of Commerce. The applicant’s request for rectification of this decision was rejected by the Court of Cassation’s further decision of May 22, 1997. The latter decision was served on the applicant on June 22, 1997. F. The London arbitration

52

53

The charter-party provided, inter alia, that any dispute arising under it should be referred to arbitration in London. As a result of the seizure and subsequent detention of the vessel and its cargo by the respondent Government, a dispute arose between the applicant and the owner of the vessel concerning the hire charges and other expenses paid by the applicant. Following arbitration proceedings in London, on September 20, 1995, the arbitration panel decided that the charter-party had been frustrated by the Istanbul State Security Court’s decision of March 12, 1992. The applicant therefore recovered from the owner of the vessel the hire charges and other expenses which had been paid in respect of the period after March 12, 1992, but was unable to (2008) 47 E.H.R.R., Part 3 䉷 Sweet & Maxwell

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recover US $1,300,403.83 which it had paid or which it thereupon had to pay to the owner in respect of the period between the seizure on October 22, 1991 and March 12, 1992. G. The proceedings instituted by the owner of the vessel and the cargo receiver 54

55

56

57

58

Meanwhile, the owner of the vessel, Seabeach Shipping Ltd, brought an action in the Beyog˘lu Commercial Court in Istanbul claiming lien on the cargo for the hire charges. In a decision of May 29, 1992 the Beyog˘lu Commercial Court accepted the owner’s claim on the ground that it was owed freight charges. The cargo receiver, the Mobarakeh Steel Complex, also brought an action in the Beyog˘lu Commercial Court claiming US $2,236,208 for damages from the Ministry of the Finance on behalf of the Ministry of the Interior and the Ministry of Defence. It submitted that it had lost profit as a result of the detention of its merchandise carried on the vessel and that new commercial goods had been purchased in order to replace the seized merchandise. In a judgment dated January 17, 2000 the Beyog˘lu Commercial Court dismissed this claim on the grounds that the seizure of the vessel had been lawful since the arms cargo was not clearly indicated in the Bill of Lading. On appeal by the plaintiff, the Court of Cassation quashed the judgment. Relying on the outcome of the criminal proceedings, the Court of Cassation noted that the goods in question were not contraband or of a kind requiring them to be confiscated. On that account, it held that the defendant must be liable for the damage resulting from wrongful confiscation of the goods. In a judgment of December 15, 2000 the Beyog˘lu Commercial Court persisted in its earlier judgment and held that the plaintiff’s claim must be dismissed on the grounds that the seizure and detention of the vessel complied with the domestic law and the Montreux Convention governing the Straits. Taking into account the facts that the vessel was sailing under the Cypriot flag and that there was an inconsistency between the cargo and the documents, the court considered that there was no unlawfulness in seizing the vessel. The court further noted that the State of Turkey had acted with the aim of preventing activities designed to undermine it. The plaintiff again appealed against this judgment. On November 21, 2000 the Court of Cassation sitting in full civil court upheld the judgment of the Beyog˘lu Commercial Court and dismissed the action. It considered that, while under the Montreux Convention merchant ships were entitled to innocent passage, this did not outweigh Turkey’s sovereign rights. This being so, any arms trafficking would adversely affect Turkey and would thus mean that that passage was no longer innocent. It further stated the following: “On the other hand, the bill of lading described the 2,131 boxes opened as containing ‘Special Equipment’. The Turkish Commercial Code specifies in Articles 1,098 and 1,114 the points to be included in the bill of lading. The cargo received or loaded onto the vessel for transportation must be described on the bill of lading in order for the acknowledgement of receipt and the delivery contract to be complete . . . This description, which is an essential element of the bill of lading, must be such as to allow the cargo to be distinguished at all times from the other cargoes on the vessel and must be (2008) 47 E.H.R.R., Part 3 䉷 Sweet & Maxwell

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ISLAMIC REPUBLIC OF IRAN SHIPPING LINES V TURKEY complete. The carrier is obliged to indicate on the bill of lading the amount, brand and external appearance and characteristics of the cargo . . . Clearly, as is apparent from the bills of lading in the case-file, these indications, some of which are mandatory, were not included on the bill of lading and invited suspicion. A country may purchase the arms it needs for its defence from another country, or may secure them by means such as aid or donations. In other words, arms-trading between states is a normal and lawful procedure. Transportation of these arms is also normal and lawful. Arms purchased and transported must be indicated clearly, as they are, on the bill of lading and other documents, in accordance with international rules. There should be no need to conceal them or make use of other channels. The file did not include a sales contract to the effect that the party sending these arms had purchased them lawfully, nor did it include any evidence to the effect that a letter of credit had been opened by banks. Given the manner in which the arms were loaded onto the vessel, it was essential from the point of view of Turkey’s security to inspect the vessel. In the matter of innocent passage, the coastal state has the right to impose sanctions on the vessel and cargo in accordance with the rule on the prevention of non-innocent passage which stems from customary law and the Montreux Convention. The Montreux Convention, customary law and the principle of ex aequo et bono do not prevent Turkey from exercising this right. For these reasons, the trial court’s decision to dismiss the action must be upheld on the grounds that it is in conformity with the law and with statutory procedure.” II. Relevant domestic legal materials and domestic law A. The Montreux Convention of December 11, 1936

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The former signatories to the Treaty of Lausanne (1923) together with Yugoslavia and Australia, met at Montreux, Switzerland, in 1936 and abolished the International Straits Commission, returning the Straits zone to Turkish military control. Turkey was authorised to close the Straits to warships of all countries when it was at war or threatened by aggression. Merchant ships were to be allowed free passage during peacetime and, except for countries at war with Turkey, during wartime. The convention was ratified by Turkey, Great Britain, France, the USSR, Bulgaria, Greece, Germany, and Yugoslavia, and—with reservations—by Japan. The preamble of the Convention stated that the desire of the [parties] was to regulate transit and navigation in the Straits of the Dardanelles, the Sea of Marmara and the Bosphorus comprised under the general term “Straits” in such manner as to safeguard, within the framework of Turkish security and of the security, in the Black Sea, of the riparian states, [pursuant to] the principle enshrined in Art.23 of the Treaty of Peace signed at Lausanne on July 24, 1923. “Article 1 The High Contracting Parties recognise and affirm the principle of freedom of transit and navigation by sea in the Straits. (2008) 47 E.H.R.R., Part 3 䉷 Sweet & Maxwell

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The exercise of this freedom shall henceforth be regulated by the provisions of the present Convention. Article 2(1) and (2) In time of peace, merchant vessels shall enjoy complete freedom of transit and navigation in the Straits, by day and by night, under any flag and with any kind of cargo, without any formalities, except as provided in Article 3 below. In order to facilitate the collection of these taxes or charges merchant vessels passing through the Straits shall communicate to the officials at the stations referred to in Article 3 their name, nationality, tonnage, destination and last port of call (provenance). Article 3 All ships entering the Straits by the Aegean Sea or by the Black Sea shall stop at a sanitary station near the entrance to the Straits for the purposes of the sanitary control prescribed by Turkish law within the framework of international sanitary regulations. This control, in the case of ships possessing a clean bill of health or presenting a declaration of health testifying that they do not fall within the scope of the provisions of the second paragraph of the present Article, shall be carried out by day and by night with all possible speed, and the vessels in question shall not be required to make any other stop during their passage through the Straits. Vessels which have on board cases of plague, cholera, yellow fever exanthemic typhus or smallpox, or which have had such cases on board during the previous seven days, and vessels which have left an infected port within less than five times twenty-four hours shall stop at the sanitary stations indicated in the preceding paragraph in order to embark such sanitary guards as the Turkish authorities may direct. No tax or charge shall be levied in respect of these sanitary guard and they shall be disembarked at a sanitary station on departure from the Straits. Article 4 (1) In time of war, Turkey not being belligerent, merchant vessels, under any flag or with any kind of cargo, shall enjoy freedom of transit and navigation in the Straits subject to the provisions of Articles 2 and 3. Article 5(1) In time of war, Turkey being belligerent, merchant vessels not belonging to a country at war with Turkey shall enjoy freedom of transit and navigation in the Straits on condition that they do not in any way assist the enemy. Article 6(1) Should Turkey consider herself to be threatened with imminent danger of war, the provisions of Article 2 shall nevertheless continue to be applied except that vessels must enter the Straits by day and their transit must be (2008) 47 E.H.R.R., Part 3 䉷 Sweet & Maxwell

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ISLAMIC REPUBLIC OF IRAN SHIPPING LINES V TURKEY effected by the route which shall, in each case, be indicated by the Turkish authorities. Article 24 The functions of the International Commission set up under the Convention relating to the regime of the Straits of the 24th July, 1923, are hereby transferred to the Turkish Government. The Turkish Government undertake to collect statistics and to furnish information concerning the application of Article 11,12, 14 and 18 of the present Convention. They will supervise the execution of all the provisions of the present Convention relating to the passage of vessels of war through the Straits. As soon as they have been notified of the intended passage through the Straits of a foreign naval force the Turkish Government shall inform the representatives at Angora of the High Contracting Parties of the composition of that force, its tonnage, the date fixed for its entry into the Straits, and, if necessary, the probable date of its return. The Turkish Government shall address to the Secretary-General of the League of Nations and to the High Contracting Parties an annual report giving details regarding the movements of foreign vessels of war through the Straits and furnishing all information which may be of service to commerce and navigation, both by sea and by air, for which provision is made in the present Convention. Article 25 Nothing in the present Convention shall prejudice the rights and obligations of Turkey, or of any of the other High Contracting Parties members of the League of Nations, arising out of the Covenant of the League of Nations.”

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Relevant provisions provide as follows: “Article 35—Scope of this Part Nothing in this Part affects: a) any areas of internal waters within a strait, except where the establishment of a straight baseline in accordance with the method set forth in article 7 has the effect of enclosing as internal waters areas which had not previously been considered as such; (b) the legal status of the waters beyond the territorial seas of States bordering straits as exclusive economic zones or high seas; or (c) the legal regime in straits in which passage is regulated in whole or in part by long-standing international conventions in force specifically relating to such straits. (2008) 47 E.H.R.R., Part 3 䉷 Sweet & Maxwell

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Article 37 This section applies to straits which are used for international navigation between one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone. Article 38—Right of transit passage 1. In straits referred to in article 37, all ships and aircraft enjoy the right of transit passage, which shall not be impeded; except that, if the strait is formed by an island of a State bordering the strait and its mainland, transit passage shall not apply if there exists seaward of the island a route through the high seas or through an exclusive economic zone of similar convenience with respect to navigational and hydrographical characteristics. 2. Transit passage means the exercise in accordance with this Part of the freedom of navigation and overflight solely for the purpose of continuous and expeditious transit of the strait between one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone. However, the requirement of continuous and expeditious transit does not preclude passage through the strait for the purpose of entering, leaving or returning from a State bordering the strait, subject to the conditions of entry to that State. 3. Any activity which is not an exercise of the right of transit passage through a strait remains subject to the other applicable provisions of this Convention. Article 39—Duties of ships and aircraft during transit passage 1. Ships and aircraft, while exercising the right of transit passage, shall: (a) proceed without delay through or over the strait; (b) refrain from any threat or use of force against the sovereignty, territorial integrity or political independence of States bordering the strait, or in any other manner in violation of the principles of international law embodied in the Charter of the United Nations; (c) refrain from any activities other than those incident to their normal modes of continuous and expeditious transit unless rendered necessary by force majeure or by distress; (d) comply with other relevant provisions of this Part. 2. Ships in transit passage shall: (a) comply with generally accepted international regulations, procedures and practices for safety at sea, including the International Regulations for Preventing Collisions at Sea; (b) comply with generally accepted international regulations, procedures and practices for the prevention, reduction and control of pollution from ships.” (2008) 47 E.H.R.R., Part 3 䉷 Sweet & Maxwell

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This provides as relevant: “Article 41 Every person who causes damage to another in an unjust manner, whether wilfully, or negligently and carelessly or imprudently is obliged to compensate that damage.”

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The civil courts are not bound by either the findings or the verdict of the criminal court.3 D. Law 6136 of July 15, 1953 (as amended by Laws 2249 and 2478 of June 12, 1979 and June 23, 1981 respectively)

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Article 12 makes it an offence to smuggle, to attempt to smuggle or to assist in smuggling firearms or bullets into the country. E. Article 36 of the now defunct Turkish Criminal Code

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Article 36 of the Turkish Criminal Code, which was in force at the relevant time prescribed, the seizure and confiscation of objects which were used for commission or preparation of a crime. F. Article 90(5) of the Turkish Constitution

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Relevant parts of Art.90(5) provide: “International agreements duly put into effect bear the force of law . . . In case of a conflict between international agreements in the area of fundamental freedoms and rights duly put into effect and the domestic laws due to differences in provisions on the same matter, the provisions of international agreements shall prevail.” JUDGMENT I. Alleged violation of Article 1 of Protocol No.1 to the Convention

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The applicant complained that the seizure by the Turkish authorities of the vessel and its cargo had constituted an unjustified control of use of property within the meaning of Art.1 of Protocol No.1, which reads as follows: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. 3

Code of Conduct Art.53.

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The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” A. Admissibility 1. The Government’s submissions 67

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The Government alleged that the applicant company did not have locus standi and that it therefore was not entitled to lodge an application under Art.34 of the Convention. They contended, in the alternative, that the applicant had failed to comply with the six month rule in respect of these complaints. The Government submitted that the applicant company was a state-owned corporation which could not be considered to be, de jure or de facto, distinct from the Government of the Islamic Republic of Iran. At the time this application was lodged, the total shares of the applicant company had been owned by the State. However, in January 2000, 51 per cent of the company’s shares had been transferred to the Social Security Organisation and the State Pension Fund, which were public-sector organisations under the control of the State. According to Arts 9, 10 and 13 of the Memorandum of Association of the applicant company, 3/5ths of the members of the board of directors were appointed by the State, which owned class A shares. Any class A share conferred the right of vote, which was equal to two votes of class B shares (owned by the Social Security Institution and the State Pension Fund) in the extraordinary general assembly held for the modification of the Memorandum of Association. Furthermore, Art.18 of the Memorandum provided that all decisions of the board should be taken by a majority of the attending members. Thus, bearing in mind that three members of the board were representatives of the State, it was impossible to pass an adverse resolution against the instructions of the State. Accordingly, the present application was lodged by a state which is not a party to the Convention. Furthermore, the established case law of the Convention institutions indicate that public corporations were not entitled to bring an application under Art.34 of the Convention.4 The Government finally asserted that the applicant did not file these complaints within six months of the deposition of the final decision with the registry of the Istanbul. Court of Commerce. Referring to the Court’s decision in the case of Tahsin Ipek v Turkey,5 they claimed that six months had started to run from June 12, 1997, the date on which the Court of Cassation’s final decision was deposited with the registry of the Beyog˘lu Commercial Court, and that these complaints had been introduced on December 18, 1997, which was more than six months later. In sum, given that the applicant company lacked locus standi as a government corporation, the application should be declared inadmissible as being incompatible 4 See, Radio France v France (2005) 40 E.H.R.R. 29; App. No.15090/89, Ayuntamiento de M v Spain, January 7, 1991; and App. Nos 5767/72, 5922/72, 5929–5931/72, 5953–5957/72, 5984–5988/73 and 6011/73, 16 Austrian Communes and some of their .Councillors v Austria. 5 App. No.39706/98, Tahsin Ipek v Turkey, November 7, 2000.

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ratione personae. Alternatively, it should be declared inadmissible for failure to comply with the six month rule. 2. The applicant’s arguments 73

74

75

76

77

The applicant disputed the Government’s submissions. It claimed that it was a company limited by shares, with a salaried board of directors and articles of association. It was at all material times registered as an independent entity under the applicable Iranian trade law. It was run as a commercial business and operated in a sector that was open to competition. In no sense did it have a monopoly or a special position in that sector. Thus, just as in the Radio France case,6 the applicant was essentially subject to the legislation on incorporated companies, exercised no powers which were not subject to the ordinary law in the exercise of its activities and was subject to the ordinary courts. It is therefore in law and in fact a separate legal entity distinct from the Government of Iran as provided by Art.3 of the Memorandum of Association. Since January 2000, 51 per cent of the shares in the applicant had been owned by private shareholders. Furthermore, the fact that the applicant was incorporated in Iran, a state which was not a party to the Convention, was of no relevance. There was no requirement that an applicant should be a citizen of the respondent State or indeed of any Council of Europe Member State. As regards the Government’s reliance on cases concerning the standing of communes and municipalities, the applicant pointed out that it was in no sense such an organ of local or central government. Rather, it was a separate corporate body at the time of the unlawful and unjustified arrest of the vessel. In view of the above, the applicant claimed that it was not, at the time of the arrest of the vessel or subsequent court proceedings, a “governmental organisation” in the relevant sense. It has accordingly locus standi to bring an application under Art.34 of the Convention. Finally, the applicant submitted that the Court of Cassation’s final decision had been served on its lawyer on June 22, 1997 and that the application was lodged on December 18, 1997. Therefore, these complaints had been introduced within six months’ time-limit. 3. The Court’s considerations

78

As regards the first limb of the Government’s objections, the Court observes that a legal entity: “[C]laiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention and the Protocols thereto”,

79

may submit an application to it,7 provided that it is a “non-governmental organisation” within the meaning of Art.34 of the Convention.8 The term “governmental organisations”, as opposed to “non-governmental organisations” within the meaning of Art.34, includes legal entities which 6

Radio France (2005) 40 E.H.R.R. 29. See, for example, Agrotexim v Greece (1996) 21 E.H.R.R. 250, and App. No.38788/97, Société Faugyr Finance SA v Luxembourg, March 23, 2000. 8 See App. No.35216/97, RENFE v Spain, September 8, 1997. 7

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participate in the exercise of governmental powers or run a public service under government control. In order to determine whether any given legal person other than a territorial authority falls within that category, account must be taken of its legal status and, where appropriate, the rights that status gives it, the nature of the activity it carries out and the context in which it is carried out, and the degree of its independence from the political authorities.9 In the light of the above principles, the Court notes that the applicant is a corporate body which carries out commercial activities subject to the ordinary law of the Republic of Iran. It neither participates in the exercise of governmental powers nor has a public-service role or a monopoly in a competitive sector.10 Although at the time of the events giving rise to the present application, the applicant company was wholly owned by the State and currently an important part of its shares still belong to the State and a majority of the members of the board of directors are appointed by the State, it is legally and financially independent of the State as transpires from Art.3 of the Memorandum of Association. In this respect the Court recalls that in the Radio France case, which was relied on by the Government, it found that the national company Radio France was a “nongovernmental organisation” within the meaning of Art.34 of the Convention despite the facts that the State held all of the capital in Radio France; its memorandum and articles of association were approved by decree; its resources were to a large extent public; it performed “public-service missions in the general interest”; and it was obliged to comply with terms of reference and to enter into a contract with the State setting out its objectives and means. Therefore, it follows that public-law entities can have the status of “non-governmental organisation” in so far as they do not exercise “governmental powers”, were not established “for public-administration purposes” and are completely independent of the state.11 That being so, it is true that governmental bodies or public corporations under the strict control of a state are not entitled to bring an application under Art.34 of the Convention.12 However, the idea behind this principle is to prevent a contracting party acting both as an applicant and respondent party before the Court. The circumstances of the present case are therefore different from those cited by the Government and the fact that the applicant was incorporated in a state which is not party to the Convention makes no difference in this respect. Furthermore, the Court finds that the applicant company is governed essentially by company law, does not enjoy any powers beyond those conferred by ordinary law in the exercise of its activities and is subject to the jurisdiction of the ordinary rather than the administrative courts. Having regard to the foregoing, the Court considers that the applicant company is run as a commercial business and that therefore there is nothing to suggest that the present application was effectively brought by the State of the Islamic Republic of Iran which is not a party to the Convention. 9

See Radio France (2005) 40 E.H.R.R. 29. See, in this respect, Holy Monasteries v Greece (1995) 20 E.H.R.R. 1 at [49]; and more recently, App. No. 35841/02, Österreichischer Rundfunk v Austria, December 7, 2006 at [48]–[54]. 11 See Holy Monasteries v Greece (1995) 20 E.H.R.R. 1 at [49]. 12 See Radio France (2005) 40 E.H.R.R. 29; App. No.15090/89, Ayuntamiento de M, January 7, 1991; App. Nos 5767/72, 5922/72, 5929–5931/72, 5953–5957/72, 5984–5988/73 and 6011/73, 16 Austrian Communes; App. No.35216/97, RENFE, September 8, 1997. 10

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83

84

ISLAMIC REPUBLIC OF IRAN SHIPPING LINES V TURKEY

It follows that the applicant is entitled to bring an application under Art.34 of the Convention and that therefore the first part of the Government’s objections should be dismissed. As regards the second limb of the Government’s objection, namely the alleged failure of the applicant to comply with the six month . rule, the Court notes that the Government relied on its decision in the Tahsin Ipek case which concerned the failure of the applicant to procure the judgment of the Court of Cassation for more than six months after it had been deposited with the registry of the assize court. In . this connection, it recalls that its findings in the Tahsin Ipek case applied solely to criminal proceedings since, according to the established practice of the Court of Cassation, the latter’s decisions in criminal cases are not served on the defendants. In civil law cases, however, the Court of Cassation’s decisions are served on the parties upon payment of the postage fee having been made in advance. Given that the proceedings in the instant case are of a civil nature and that the applicant lodged its application within six months of the service of the Court of Cassation’s final decision, it must be considered to have complied with the six month rule laid down in Art.35(1) of the Convention. Accordingly, the Government’s objection concerning the alleged failure to observe the six month rule must also be dismissed. The Cour finds furthermore that this part of the application is not manifestly ill-founded within the meaning of Art.35(3) of the Convention, and that it is not inadmissible on any other grounds. This complaint must therefore be declared admissible. B. Merits

85

The Court notes that the parties did not contest that the matters complained of constituted an interference with the peaceful enjoyment of the applicant’s possessions. Accordingly, it must next determine the applicable rule in the instant case. 1. The applicable rule

86

87

The Court reiterates that Art.1 of Protocol No.1 comprises three distinct rules. The first rule, which is set out in the first sentence of the first paragraph, is of a general nature and enunciates the principle of the peaceful enjoyment of property. The second rule, contained in the second sentence of the first paragraph, covers deprivation of possessions and subjects it to certain conditions. The third rule, stated in the second paragraph, recognises that the contracting states are entitled, amongst other things, to control the use of property in accordance with the general interest, by enforcing such laws as they deem necessary for the purpose. However, the rules are not “distinct” in the sense of being unconnected. The second and third rules are concerned with particular instances of interference with the right to peaceful enjoyment of property and should therefore be construed in the light of the general principle enunciated in the first rule.13 The Court notes that the parties did not comment on the rule applicable to the case. It considers that in this case there was neither a confiscation nor a forfeiture, 13

See AGOSI v United Kingdom (1987) 9 E.H.R.R. 1 at [48].

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as the applicant company regained the possession of the cargo following a temporary detention of the vessel. It therefore amounted to control of the use of property. Accordingly, the second paragraph of Art.1 is applicable in the present case.14 2. Compliance with the conditions in the second paragraph 88

It remains to be decided whether the interference with the applicant’s property rights was in conformity with the state’s right under the second paragraph of Art.1 of Protocol No.1 “to enforce such laws as it deems necessary to control the use of property in accordance with the general interest”. (a) Lawfulness and object of the interference (i) The Government’s arguments

89

The Government submitted that the authorities had searched the vessel on suspicion of organised arms smuggling into Turkey. The arms cargo had thus been seized in accordance with Art.12 of Law 6136 and Art.36 of the now defunct Turkish Criminal Code as well as Arts 2 and 25 of the Montreux Convention and Arts 19(2) and 39 of the United Nations Convention on the Law of the Sea of December 10, 1982 (UNCLOS). The aforementioned provisions of the Montreux Convention and UNCLOS empowered the Government to limit the transit passage of the commercial vessels through the Straits if the vessels posed a threat to the sovereignty, territorial integrity or political independence of the state or in any other manner violated the principles of international law embodied in the Charter of the United Nations. In this connection, arms smuggling was a threat to international peace and order and in violation of the principles of international law and customs. Thus, the provisional seizure of the arms cargo was necessary for prevention of crime and protection of public safety in accordance with the general interest. (ii) The applicant’s arguments

90

91

The applicant contended that the arrest and detention of the vessel and its cargo were unjustified since there was no evidence indicating that an offence had been committed or would be committed. The impugned measures were also not in accordance with the principles of international law within the meaning of Art.1 of Protocol No.1. The Montreux Convention, which was lex specialis in the instant case, conferred in its Arts 1 to 3 complete freedom of transit and navigation on merchant vessels in the Straits. In particular, Art.3 made it clear that merchant vessels should not be required to make any stop during their passage through the Straits, with the exception of sanitary control which might be imposed by Turkish law within the framework of international sanitary regulations. As regards the Government’s reliance on the UNCLOS, the applicant pointed out that Turkey was not a party to it and that, in any event, it could not have any application to the Bosphorus or the Dardanelles, passage through which was 14

See Air Canada v United Kingdom (1995) 20 E.H.R.R. 150 at [34].

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regulated by the Montreux Convention. The latter convention was incorporated into the domestic law of Turkey. In view of the Court of Cassation’s ruling that there was no evidence to the effect that the arms were to be introduced into Turkey and unloaded there and that the Turkish authorities’ reliance on Arts 5 and 6 of the Montreux Convention was wholly erroneous, the seizure of the vessel and its cargo was contrary to the domestic law of Turkey. (iii) The Court’s considerations 92

93

The Court notes that the parties admitted that there was some legal basis for the interference with the control of use of the applicant’s property; they however disagreed on the exact meaning and scope of the applicable law. It further notes that during various stages of the national proceedings also the views differed on the scope of applicability of the Montreux Convention, rules of customary international law governing the transit passage through straits and provisions of national law prohibiting arms smuggling. Although at the early stages of the proceedings the national courts relied on Art.5 of the Montreux Convention in justifying Turkey’s right to seize the arms cargo because of the continuing state of war with Cyprus, in its observations before the Court, the Government’s arguments hinged upon the application of the legislation prohibiting arms smuggling, which undermines international peace. The Court accepts that the Montreux Convention is lex specialis as concerns the transit regime through the Bosphorus. In this connection, it notes the points of conflicting interpretation of the Convention raised by the parties. The Court considers however that it is not its role in the circumstances of this case to pronounce on the interpretation and application of the Montreux regime by Turkey, since in the view of the Court, there was an arbitrary interference with the applicant’s property rights for the following reasons. (b) Proportionality of the interference

94

95

The Court reiterates that an interference, particularly one falling to be considered under the second paragraph of Art.1 of Protocol No.1, must strike a “fair balance” between the demands of the general interest and the requirements of the protection of the individual’s fundamental rights. The concern to achieve this balance is reflected in the structure of Art.1 as a whole, and therefore also in its second paragraph. There must be a reasonable relationship of proportionality between the means employed and the aim pursued. In determining whether this requirement is met, the Court recognises that the state enjoys a wide margin of appreciation with regard both to choosing the means of enforcement and to ascertaining whether the consequences of enforcement are justified in the general interest for the purpose of achieving the object of the law in question.15 The Court notes that neither the applicant nor the Government commented on the proportionality of the interference. They limited themselves to comments on the lawfulness and purpose of the interference. 15

See Air Canada (1995) 20 E.H.R.R. 150 at [48].

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97

98

99

100

597

Be that as it may, in order to assess the proportionality of the interference, the Court has to examine the degree of protection from arbitrariness that is afforded by the proceedings in this case and whether a total lack of compensation can be considered justifiable under Art.1 of Protocol No.1. In the present case, the vessel carrying the cargo belonging to the applicant was arrested on October 22, 1991 and detained until December 8, 1992, i.e. the date on which the vessel left Turkey by the order of the Istanbul State Security Court. As noted above, the authorities’ suspicion that the vessel was involved in international arms smuggling provided the justification for the arrest of the vessel. However, that suspicion was dispelled by the Minister of Foreign Affairs’ letter of November 12, 1991, which informed the Istanbul State Security Court via the Ministry of Justice that the arms cargo belonged to the Islamic Republic of Iran.16 The prosecuting authorities however also attached fundamental importance to the fact that there was an ongoing state of war between Turkey and Cyprus and that therefore the vessel was not entitled to free passage through the Straits within the meaning of Art.5 of the Montreux Convention.17 Yet this assertion was also refuted by the Ministry of Foreign Affairs, which responded to the Istanbul State Security Court’s questions in letters dated December 13 and 26, 1991, and the then Prime Minister’s certificate dated February 11, 1992.18 Despite this information, the Istanbul State Security Court instead relied on an old, and isolated precedent, the Vassoula case which had been decided in 1978 and which concerned very different circumstances, in concluding that there was a state of war between Turkey and Cyprus and that, therefore, the detention of the vessel and arms cargo should be continued.19 It gave no reasons for rejecting the statements and certification from the relevant State officials and representatives on the non-existence of a state of war. In view of the above, the Court considers that the vessel and its cargo should have been released, at the latest, on March 12, 1992, when the State Security Court issued its decision, and that their detention from the aforementioned date onwards was arbitrary since there was no basis for suspecting an offence of smuggling of arms or any general power to seize the ship due to a state of war between Turkey and Cyprus. Furthermore, the Court observes that the compensation proceedings are also material to the assessment whether the contested interference in this case respected the requisite fair balance and, notably, whether it imposed a disproportionate burden on the applicant. In this connection, the arbitrary control of use of a property for a prolonged period of time without justification will normally constitute a disproportionate interference and a total lack of compensation can be considered unjustifiable under Art.1 of Protocol No.1.20 In that regard, the Court notes that the applicant’s claim for compensation of the damage it had sustained was dismissed by the Beyog˘lu Court of Commerce, which held that the vessel was not a merchant vessel since it was carrying, in part, a cargo 16

See [22] and [23] above. See [20] above. See [28] and [32] above. 19 See [33]–[35] above. 20 See, mutatis mutandis, Holy Monasteries (1995) 20 E.H.R.R. 1 at [70]–[71]; and Papachelas v Greece (2000) 30 E.H.R.R. 923 at [48]. 17 18

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101

102

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of arms and that its passage was therefore not innocent within the meaning of the Montreux Convention.21 The Court recalls that the Court of Cassation had already found that there was no offence of arms smuggling and that Art.6(1) of the Montreux Convention did not apply.22 Accordingly, even though the civil courts were not bound by the findings of the criminal courts,23 the reasons given by the Beyog˘lu Court of Commerce were not capable of justifying its decision to deprive the applicant of its claims for compensation for damage suffered as from March 12, 1992.24 The foregoing considerations are sufficient to enable the Court to conclude that the authorities’ interference with the applicant’s rights is disproportionate and unable to strike a fair balance between the interests at stake. There has accordingly been a violation of Art.1 of Protocol No.1 to the Convention. II. Alleged violation of Article 6(1) of the Convention

104

105

106

107

108

109

The applicant also complained that the initial seizure and subsequent detention of the vessel “Cape Maleas” and the exercise of criminal jurisdiction over the officers and the vessel had constituted an infringement of public international law, the Montreux Convention and Turkish law. It relied on Art.6(1) of the Convention which provides, “[i]n the determination of . . . any criminal charge against him, everyone is entitled to a fair . . . hearing . . . by [a] . . . tribunal”. The Government contended that these complaints had been introduced out of six months since the criminal proceedings had become final by the Istanbul State Security Court’s judgment of November 13, 1992 and the application had been introduced on December 18, 1997. The applicant contested the Government’s submissions. It argued that the harm suffered by the applicant as a result of the initial seizure and detention of the vessel was potentially compensatable in damages. Accordingly, the applicant brought compensation proceedings before the Turkish courts and the application had been lodged only after the conclusion of those proceedings. The Court notes that it is not required to determine whether the applicant complied with the six month rule since this part of the application is inadmissible for the following reasons. It reiterates that, according to Art.34 of the Convention, it may receive applications from any person claiming to be the victim of a violation by one of the high contracting parties of the rights set forth in the Convention or the Protocols thereto. This provision requires that an individual applicant should claim to have been directly and actually affected by the violation he alleges.25 The Court notes that in the circumstances of the present case, the criminal proceedings were brought against only the crew of the vessel. The applicant has not demonstrated that any criminal proceedings were brought against it. Furthermore, the applicant has successfully appealed to the Court of Cassation and 21 22 23 24 25

See [49] and [58] above. See [37] above. See [60] above. See [99] above. See, Ireland v United Kingdom (1979–80) 2 E.H.R.R. 25 at [239]–[240].

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secured the release of the cargo, which belonged to it. Accordingly, the applicant cannot claim to be a victim, within the meaning of Art.34 of the Convention, of a violation of the Convention provision it invokes. This part of the application is therefore incompatible ratione personae with the provisions of the Convention and must be rejected pursuant to Art.35(3) of the Convention. III. Application of Article 41 of the Convention

111

Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage

112

The applicant claimed US $1,195,429.17 (approximately c879,270) in respect of pecuniary damage. This amount consisted of the following: ● US $1,043,900 (c766,885) for the hire paid to the owners of the vessel during the period of detention between October 22, 1991 and March 12, 1992; ● US $76,862.50 (c56,470) for the cost of gas oil used by the vessel while in detention; and ● US $74,666.67 (c54,860) paid to the owners of the vessel, following London arbitration, in respect of the agency fees incurred by them for the period between October 22, 1991 and March 12, 1992 (US $12,166.67) and in respect of the reimbursement of Turkish legal fees incurred by the owners (US $62,500).

113

114 115

The Government submitted that no award should be made under this heading since the alleged damage in question had been caused by the applicant, which had given untrue information about the nature of the cargo. It further claimed that the amounts claimed were unsubstantiated. The Court reiterates that there must be a clear causal link between the damage claimed by the applicant and the violation of the Convention.26 In this context, the Court accepts that the applicant company suffered damages as a result of disproportionate interference by the authorities with its rights under Art.1 of Protocol No.1. However, it notes that the applicant has already recovered the losses it sustained in respect of the period after March 12, 1992 in the London arbitration proceedings.27 The applicant’s claim for damages thus relates only to the period between the date of the vessel’s arrest and March 12, 1992. In this connection, the Court recalls its finding that the vessel and its cargo should have been released, at the latest, on March 12, 1992 and that their detention from that date onwards was arbitrary.28 It considers therefore that no award should be made 26 27 28

Amongst other authorities, Barberà v Spain (1987) 9 E.H.R.R. CD101 at [16]–[20]. See [53] above. See [98] above.

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under this heading for the period before March 12, 1992. It follows that the applicant’s claims for pecuniary damage must be dismissed. B. Costs and expenses 116

117 118

The applicant also claimed £31,060 (approximately c45,870) for the costs and expenses incurred for preparation and presentation of its case before the Court. This sum included fees for work done by its representatives in the proceedings before the Court. The Government contended that the amount claimed was excessive and unjustified. According to the Court’s case law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, the Court is not satisfied that all the costs and expenses were necessarily and actually incurred. It considers that part of the amounts claimed by the legal representatives for consultations between themselves are exaggerated. The Court also considers excessive the total number of hours of legal work and the hourly rate claimed in respect of the applicant’s lawyers. It therefore finds that it has not been proved that all those legal costs were necessarily and reasonably incurred. Having regard to the details of the claims and vouchers submitted by the applicant, the Court considers it reasonable to award the sum of c35,000 for costs and expenses before the Court. C. Default interest

119

The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added 3 percentage points. For these reasons, THE COURT unanimously: 1. Declares the complaint under Art.1 of Protocol No.1 to the Convention admissible and the remainder of the application inadmissible. 2. Holds that there has been a violation of Art.1 of Protocol No.1 to the Convention. 3. Holds: (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Art.44(2) of the Convention, c35,000 (thirty-five thousand euros) for costs and expenses, plus any tax that may be chargeable; (b) that from the expiry of the abovementioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus 3 percentage points. 4. Dismisses the remainder of the applicant’s claim for just satisfaction. (2008) 47 E.H.R.R., Part 3 䉷 Sweet & Maxwell

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MUSAYEVA v RUSSIA BEFORE THE EUROPEAN COURT OF HUMAN RIGHTS APPLICATION NO.74239/01 (The President, Judge Rozakis; Judges Vajic, Kovler, Steiner, Hajiyev, Spielmann and Jebens) (2008) 47 E.H.R.R. 25

July 26, 2007 Duty to undertake effective investigation; Inhuman or degrading treatment or punishment; Right to effective remedy; Right to liberty and security; Right to life; Russia H1

H2

H3

H4

This case concerns the events of August 8, 2000 when, after a Russian armoured personnel carrier was blown up near the village of Gekhi in Chechnya, a military operation was carried out during which two brothers, Ali and Umar Musayev, were detained. The first two applicants were their mother and father and the third applicant was Ali Musayev’s wife. For two days federal troops sealed off the village. When the restrictions were lifted, the first applicant notified the head of the district administration of her sons’ detention. She then went to the district military commander’s office where she noticed her elder son’s car, in which he had been taken away, in the courtyard. When she enquired about her sons and the car, the commander told her that he had no information and advised her to come back in two days. On returning she was again told that there was no information about her sons’ whereabouts. Despite repeated enquiries to different authorities at various levels, Mrs Musayeva was unable to obtain any information about what had happened to her sons. On September 13, 2000 her husband exhumed four bodies from a grave in the presence of a police officer and local officials. He identified two of the bodies as his sons. All four showed signs of a violent death Although criminal proceedings were instituted in connection with the brothers’ deaths, they were suspended on several occasions on the basis that it was impossible to identify the alleged perpetrators. In August 2002 their mother was granted the status of victim of a crime and civil claimant, but shortly afterwards the investigation was again suspended. The proceedings remained adjourned until October 2004 when, after the family’s application to the European Court had been communicated to the Government, Mrs Musayeva was informed that they had been resumed. There followed further suspensions and resumptions. Meanwhile, the first two applicants issued separate sets of civil proceedings against the Ministry of Finance, seeking compensation in connection with their (2008) 47 E.H.R.R., Part 3 䉷 Sweet & Maxwell

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H5

H6

H7

H8

MUSAYEVA V RUSSIA

sons’ unlawful detention. However, the district court concluded that their claims had no basis in domestic law and Moscow City Court rejected their appeal Relying upon Arts 2, 3, 5 and 13 of the Convention, the applicants complained, in particular, of the torture and death of their relatives following unlawful detention, of the absence of an adequate investigation into these events, and the lack of effective remedies in respect of those violations. They claimed just satisfaction under Art.41. Held unanimously: (1) that the preliminary objection of non-exhaustion be dismissed; (2) that there had been a violation of Art.2 as regards the killing of Ali and Umar Musayev; (3) that there had been a violation of Art.2 on account of the failure to carry out an adequate and effective investigation into the circumstances surrounding the killing of Ali and Umar Musayev; (4) that there had been a violation of Art.3 on account of the treatment suffered by Umar Musayev; (5) that no separate finding was necessary under Art.3 in respect of the alleged deficiencies in the investigation into the treatment suffered by Umar Musayev; (6) that there had been no violation of Art.3 in respect of Ali Musayev; (7) that there had been a violation of Art.5 in respect of Ali and Umar Musayev; (8) that there had been a violation of Art.13 in respect of the alleged violations of Art.2 and the alleged violation of Art.3 in respect of Umar Musayev; (9) that no separate issue arose under Art.13 in respect of the alleged violation of Art.5; (10) that there had been a failure to comply with Art.38(1)(a) in that the Government had refused to submit the documents requested by the Court; (11) that the respondent State was to pay c45,000 to each of the first and second applicants and c40,000 to the third applicant in respect of non-pecuniary damage, and c285 for costs and expenses, plus any tax chargeable on those amounts. 1. Preliminary objection: exhaustion of domestic remedies; effective (Article 35) (a) The exhaustion rule required applicants to use first the remedies which were available and sufficient in the domestic legal system to enable them to obtain redress for the alleged breaches. The existence of the remedies had to be sufficiently certain in theory and practice. Complaints intended to be brought before the Court had to be made to the appropriate domestic body, at least in substance and in compliance with the formal requirements and time-limits in domestic law, and any procedural means that might prevent a breach of the Convention had to be used. There was no obligation to use remedies which were inadequate or ineffective. [67] (b) The Government had to indicate clearly the remedies which the applicants had not used and to satisfy the Court that those remedies would have been effective and had been available in theory and in practice at the relevant time. [68]

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(2008) 47 E.H.R.R. 25 H9

H10

H11 H12

H13

H14

H15

H16

H17

603

(c) It had not been established with sufficient certainty that the remedy advanced by the Government would have been effective. Accordingly, that limb of the preliminary objection was dismissed. [71] (d) As regards the argument that the applicants had not complained to a court about the actions or omissions of the investigating or other law-enforcement authorities, that limb of the preliminary objection raised issues which would be addressed when examining the substance of the complaints under Art.2. [72] 2. Right to life: deprivation of life; burden of proof; presumptions of fact; state responsibility; effective investigation (Article 2) (a) The circumstances in which deprivation of life could be justified had to be strictly construed. [76] (b) Deprivations of life had to be subjected to the most careful scrutiny, taking into consideration not only the actions of state agents but also all the surrounding circumstances. Detained persons were vulnerable and the authorities had a duty to protect them. Where an individual had been taken into police custody in good health and was found to be injured on release, the state had to explain how those injuries had been caused. The obligation to account for the treatment of a detainee was particularly stringent where that individual had subsequently died or disappeared. [77] (c) Where events lay wholly or largely within the authorities’ exclusive knowledge, as in the case of persons within their control in detention, strong presumptions of fact arose arise in respect of injuries and death occurring during that detention. The authorities had to provide a satisfactory and convincing explanation. [78] (d) The applicants’ relatives had been taken into custody in apparent good health and their bodies showed signs of a violent death. It was established that they had died whilst detained by the federal forces. In the absence of a plausible explanation by the Government as to the circumstances of the brothers’ deaths, the State’s responsibility for those deaths was engaged. Accordingly, there had been a violation of Art.2 in that respect. [79]–[80] (e) The obligation to protect the right to life under Art.2, read in conjunction with Art.1, required that there should be some form of effective official investigation when individuals had been killed as a result of the use of force. The essential purpose was to secure the effective implementation of domestic laws protecting the right to life and, in cases involving state agents or bodies, to ensure their accountability for deaths occurring under their responsibility. [85] (f) The investigation had to be capable of leading to the identification and punishment of those responsible. The authorities had to take the reasonable steps available to them to secure the evidence concerning the incident. Any deficiency in the investigation which undermined its ability to establish the cause of death or the person responsible would risk falling below that standard. There was also a requirement of promptness and reasonable expedition. [86]–[87] (g) The Court’s knowledge of the criminal proceedings was limited to the materials from the investigation file selected by the Government. Drawing inferences from the Government’s behaviour when evidence was being obtained, (2008) 47 E.H.R.R., Part 3 䉷 Sweet & Maxwell

604

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it would assess the merits of the complaint on the basis of the available information in the light of those inferences. [88] (h) Despite the first applicant’s numerous complaints, the authorities had made no attempts to investigate the circumstances of the detention and disappearance of Ali and Umar Musayev while they remained missing. Following the discovery of four bodies which showed signs of a violent death, the authorities had refused to institute criminal proceedings. The official investigation had not started until more than two months after the detention of the applicants’ relatives and over a month after the discovery of their remains. There had been no reasonable explanation for such long delays when prompt action had been vital. [89]–[90] (i) Once opened, the investigation had been plagued with inexplicable shortcomings in taking the most essential steps. In particular, no forensic examination or autopsy of the bodies had been carried out. [91] (j) The investigation had been dysfunctional when it came to establishing the military and security personnel’s involvement in the brothers’ deaths. Although it had been acknowledged that they had been apprehended by military officers, there did not appear to have been any meaningful efforts to investigate their possible involvement in the murders. In breach of a prosecutor’s order, the authorities had failed to question a military commander, despite his apparently important role in the brothers’ detention. No reasonable explanation had been submitted as to why the investigators had failed to comply with the order for a year. [92]–[93] (k) There had been a substantial delay in granting the first applicant victim status, affording her minimum guarantees in the criminal proceedings. Moreover, information concerning the investigation’s progress had been provided to her only occasionally and fragmentarily. [94] (l) Between October 2000 and August 2006 the investigation had been adjourned and reopened at least seven times. On several occasions the prosecutors had ordered certain steps to be taken but there was no evidence that those instructions had been complied with. [95] (m) The authorities had failed to carry out a thorough and effective investigation into the circumstances surrounding the deaths of Ali and Umar Musayev. The preliminary objection was dismissed. There had been a violation of Art.2. [96] 3. Prohibition of ill-treatment: treatment of detainees; torture; state responsibility (Article 3) (a) The authorities were required to protect the physical integrity of persons in detention. Where an individual was in good health when taken into police custody, but found to be injured at the time of release, the state had to provide a plausible explanation as to how those injuries had been caused. Otherwise an issue could arise under Art.3. [99] (b) The applicants’ relatives had been taken into custody in good health, without any injuries. Umar Musayev’s death certificate had confirmed the presence of various injuries on his body. The Government had provided no plausible explanation as to the origin of those injuries, which therefore had to be considered attributable to ill-treatment for which the authorities were responsible. [100] (c) In determining whether ill-treatment constituted torture, consideration had be given to the distinction between that notion and that of inhuman or degrading (2008) 47 E.H.R.R., Part 3 䉷 Sweet & Maxwell

(2008) 47 E.H.R.R. 25

H27

H28

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H34

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treatment. The Convention attached special stigma to deliberate inhuman treatment causing very serious and cruel suffering. [101] (d) The treatment inflicted on Umar Musayev had involved very serious and cruel suffering that could be characterised as torture. Accordingly, there had been a breach of Art.3 in that regard. [103] (e) The Court was unable to establish, to the necessary degree of proof, that Ali Musayev had been ill-treated. [105]–[106] 4. Right to liberty and security: unacknowledged detention (Article 5) (a) Any deprivation of liberty had to be effected in conformity with domestic law and be consistent with the purpose of Art.5, which was to protect the individual from arbitrary detention. Unacknowledged detention disclosed a most grave violation of Art.5. [110] (b) Ali and Umar Musayev had been victims of unacknowledged detention in complete disregard of the safeguards enshrined in Art.5. This constituted a particularly grave violation of their right to liberty and security. [111] 5. Right to an effective remedy: arguable complaint; effective (Article 13) (a) Article 13 required the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief. The remedy had to be “effective” in practice as well as in law. In particular, its exercise was not be unjustifiably hindered by the authorities. [115] (b) Given the fundamental importance of the right to life, Art.13 required, in addition to the payment of compensation where appropriate, a thorough and effective investigation capable of leading to the identification and punishment of those responsible for the deprivation of life and infliction of treatment contrary to Art.3. The requirements of Art.13 were broader than those under Art.2 to conduct an effective investigation. [116] (c) In view of the findings with regard to Arts 2 and 3, in so far as the treatment of Umar Musayev was concerned, those complaints were clearly “arguable” for the purposes of Art.13. The applicants should therefore have been able to avail themselves of effective and practical remedies capable of leading to the identification and punishment of those responsible and to an award of compensation. [117] (d) In circumstances where the criminal investigation into the death was ineffective and the effectiveness of any other remedy that might have existed was consequently undermined, the State had failed in its obligation under Art.13. [118] (e) There had been a violation of Art.13 in connection with Arts 2 and 3, in so far as the latter had been breached as a result of the treatment inflicted on Umar Musayev. [119] (f) No separate issue arose in respect of Art.13 read in conjunction with Art.5. [120] 6. Examination of the case: duty to furnish all necessary facilities (Article 38(1)) (a) It was vital for the effective operation of the system of individual petition under Art.34 that states should furnish all necessary facilities to make possible a (2008) 47 E.H.R.R., Part 3 䉷 Sweet & Maxwell

606

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proper and effective examination of applications. They had to furnish all necessary facilities to the Court. A Government’s failure to submit such information which was in its hands, without a satisfactory explanation, could give rise to the drawing of inferences as to the well-foundedness of the allegations and reflect negatively on the state’s compliance with Art.38(1)(a). [121] (b) On several occasions the Court had asked the Government to submit a copy of the investigation file opened into the killing of the applicants’ relatives. The evidence in that file was crucial to the establishment of the facts. The Government had produced only copies of certain decisions and letters. It had refused to submit any other documents, referring to Art.161 of the Code of Criminal Procedure. It had not requested the application of r.33(2). Article 161 of the Code of Criminal Procedure did not preclude disclosure of the documents from a pending investigation file, but rather set out a procedure for and limits to such disclosure. The Government had failed to specify the nature of the documents and the grounds on which they could not be disclosed. In other cases, similar requests had been made to the Government and the documents from the investigation files had been submitted without reference to Art.161. For these reasons, the Government’s explanations were insufficient to justify withholding the key information requested. [123] (c) The Government had fallen short of its obligations under Art.38(1)(a) on account of their failure to submit copies of the documents requested in respect of the murder of Ali and Umar Musayev. [124] 7. Just satisfaction: damage; costs and expenses; default interest (Article 41) (a) Since the applicants had provided no information or documents to corroborate their claims for pecuniary damage, no award was made under that head. [128] (b) In terms of non-pecuniary damage, the Court had found violations of Arts 2, 3, 5 and 13 and of Art.38(1)(a). The applicants must have suffered anguish and distress as a result of all those circumstances. Assessment was on an equitable basis. [131] (c) For costs and expenses to be included in an award, it had to be established that had been actually and necessarily incurred and were reasonable as to quantum. [134] (d) Since the applicants had not submitted any documents to substantiate their claim for costs and expenses in respect of the domestic proceedings, no award was made in that respect. As regards the Strasbourg proceedings, they had submitted a certificate but no calculations, or a schedule of costs indicating the time actually spent by their lawyer on their case and the applicable rates, or any document confirming that they had paid the amount indicated. Furthermore, they had submitted only one set of observations which did not appear to have involved much effort by their representative or required much research. [135] (e) Default interest was based on the marginal lending rate of the European Central Bank, plus 3 percentage points. [136]

(2008) 47 E.H.R.R., Part 3 䉷 Sweet & Maxwell

(2008) 47 E.H.R.R. 25 H45

607

The following cases are referred to in the Court’s judgment: 1. Akdivar v Turkey (1997) 23 E.H.R.R. 143 2. Aksoy v Turkey (1997) 23 E.H.R.R. 553 3. Anguelova v Bulgaria (2004) 38 E.H.R.R. 31 4. Assenov v Bulgaria (1999) 28 E.H.R.R. 652 5. Aydin v Turkey (2006) 42 E.H.R.R. 44 6. Bati v Turkey (2006) 42 E.H.R.R. 37 7. Boyle v United Kingdom (1988) 10 E.H.R.R. 425 8. Çakici v Turkey (2001) 31 E.H.R.R. 5 9. Gül . v Turkey (2002) 34 E.H.R.R. 28 10. Ilhan v Turkey (2002) 34 E.H.R.R. 36 11. Ireland v United Kingdom (1979–80) 2 E.H.R.R. 25 12. Kaya v Turkey (1999) 28 E.H.R.R. 1 13. Khashiyev v Russia (2006) 42 E.H.R.R. 20 14. McCann v United Kingdom (1996) 21 E.H.R.R. 97 15. Ögur v Turkey (2001) 31 E.H.R.R. 40 16. Salman v Turkey (2002) 34 E.H.R.R. 17 17. Selmouni v France (2000) 29 E.H.R.R. 403 18. Tanrikulu v Turkey (2000) 30 E.H.R.R. 950 19. Timurtas¸ v Turkey (2001) 33 E.H.R.R. 6 20. Tomasi v France (1993) 15 E.H.R.R. 1 21. Yas¸a v Turkey (1999) 28 E.H.R.R. 408 22. Imakayeva v Russia (2008) 47 E.H.R.R. 4 23. Application No.20869/92, Dikme v Turkey, July 11, 2000 24. Application No.25656/94, Orhan v Turkey, June 18, 2002 25. Application No.58752/00, Magomadov v Russia, November 24, 2005 26. Application No.77617/01, Mikheyev v Russia, January 26, 2006 27. Application No.41964/98, Ayhan v Turkey, June 27, 2006 THE FACTS I. The circumstances of the case

7 8

The applicants were born in 1954, 1946 and 1977 respectively and live in the village of Gekhi, Urus-Martan District, Chechnya. The facts of the case as submitted by the parties are summarised in section A below.1 A description of documents submitted by the Government is contained in section B below.2 A. The facts

9

The first two applicants are a married couple. They have four children, two of whom—Ali Musayev, born in 1972, and Umar Musayev, born in 1977—lived together with their parents in a household comprising two houses in Gekhi. The third applicant was married to Ali Musayev. 1 2

See [9]–[55]. See [56]–[59].

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1. Detention of Ali and Umar Musayev 10

11

12

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14 15

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On August 8, 2000 a Russian armoured personnel carrier (APC) was attacked and blown up in the vicinity of Gekhi and the military responded with a “sweeping” operation in the village. During this operation an armed man, who was being pursued by soldiers, entered the applicants’ house and hid in one of the rooms. According to the Government, the man was A, a member of an illegal armed group. The servicemen strafed the house, using machine-guns and grenade-launchers. Two daughters and a grandson of the first two applicants, the second applicant, the third applicant, Ali Musayev and Umar Musayev were inside the house at the time. A two-year-old grandson of the first two applicants was in a car parked in the courtyard. A was killed when the military threw nine grenades into the house and shelled it from the APC. The servicemen then wrapped the corpse in a blanket and put it into Ali Musayev’s car, a white Zhiguli. They then searched the house. Umar Musayev, who had been feeling ill that day and was lying in bed, was blindfolded and ordered to step out of the house and lie down. Major S, an officer in command, seized the identity papers, car documents and car key belonging to Ali Musayev, who was then forced into the car. Umar Musayev was put into an APC which had no visible vehicle number. They were both taken away. The first applicant later found out that the APC number was 108 and belonged to the Main Intelligence Department of the Ministry of Defence of Russia. Following their detention, Ali and Umar Musayev were brought to a temporary operational headquarters of the military commander’s office situated near Gekhi. According to the first applicant, who referred to unnamed witness statements, Ali Musayev was beaten there by federal officers. Thereafter the Musayev brothers were brought to the Urus-Martan Temporary Office of the Interior (the VOVD) and questioned. The first applicant submitted, with reference to the witnesses’ accounts, that after the interrogation her sons and three other persons apprehended in Gekhi that day had again been brought to the temporary operational headquarters. At 17.00 the military released the other three persons, but not Ali and Umar Musayev, of whom there was no further news. 2. Search for Ali and Umar Musayev

17

18

Between August 8 and 10, 2000 federal troops sealed off the village of Gekhi. On the latter date, after restrictions were lifted, the first applicant went to Urus-Martan and notified the head of the district administration of the detention of her sons. She then went to the district military commander’s office where she noticed her elder son’s car in the courtyard. The first applicant applied to military commander G with enquiries about her sons and the car. The military commander told the first applicant that he had no information concerning Ali and Umar Musayev and advised her to come back in two days. As regards the car, Mr G stated that it was “unclean”. (2008) 47 E.H.R.R., Part 3 䉷 Sweet & Maxwell

(2008) 47 E.H.R.R. 25 19 20

21

22

609

On the same date the first applicant also applied to the Urus-Martan prosecutor’s office, claiming that her sons had been unlawfully detained. On August 11 or 12, 2000 the first applicant went to the military commander’s office again. Mr G told her that he had not participated in the “sweeping” operation on August 8, 2000 and had no information about the whereabouts of her sons. Later, the military commander stated that the Musayev brothers had been taken to the main federal military base in Khankala. As to the car, Mr G said that a database check had confirmed that it was “clean” and that the first applicant had to produce a power of attorney to recover the vehicle. The first applicant stated that she did not have this paper, as all the documents had been in the seized car, and the military commander refused to return the vehicle. In the first applicant’s submission, the car was returned only on October 4, 2000, after her son-in-law had brought a copy of the power of attorney from a vendor from Dagestan. During August and September 2000 the first applicant repeatedly applied to the military commander’s office, the VOVD and prosecutors at various levels in connection with her sons’ disappearance. She received hardly any substantive information from official bodies in reply to her enquiries. The responses were mainly formal ones stating that her requests had been forwarded to different prosecutor’s offices. In a letter of September 11, 2000 an acting prosecutor of the Urus-Martan District informed the first applicant that Ali and Umar Musayev were not detained in the VOVD, that they were not listed in the VOVD registration papers, and that no criminal proceedings had ever been brought against them. The letter further stated that information requests sent to military units had remained unanswered, and that the head of the Urus-Martan VOVD had been instructed to commence a criminal investigation into the disappearance of the Musayev brothers. 3. Discovery of the bodies of Ali and Umar Musayev

23

24

25

26

According to the applicants, on August 11, 2000 the Russian TV channel NTV showed Ali Musayev’s body as that of a rebel fighter killed during the “sweeping” operation in Gekhi on August 8, 2000. The applicants did not submit a copy of that recording. In early September a serviceman of a military unit stationed in the village of Tyangi-Chu produced a plan of a burial site near the cemetery of Gekhi, where, he claimed, Ali and Umar Musayev had been buried. According to the applicants, they had to pay for the indication of the site. On September 13, 2000 the applicants notified the head of the administration of Gekhi, the Urus-Martan District Prosecutor’s Office, the military commander’s office and the district administration of Urus-Martan that they were going to excavate the grave. On the same date the second applicant exhumed the grave in the presence of a police officer and officials from the local administration and found four corpses, all of which showed signs of having met a violent death. He identified his sons’ bodies by fragments of the remaining teeth. The other two bodies were identified as that of the man killed in the applicants’ house on August 8, 2000 and that of a resident of (2008) 47 E.H.R.R., Part 3 䉷 Sweet & Maxwell

610

27

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Gekhi, who had been detained along with the Musayev brothers. It appears that the remains were examined by officials of the administration of Gekhi, who issued a certificate in this respect. The police officer undertook no investigative actions at the excavation site. According to the Government, the applicants refused to submit the bodies for an autopsy on account of their national and religious traditions. The applicants buried the remains shortly afterwards, without taking photographs or inviting a medical doctor to attend before the burial. On September 7, 2001 the Urus-Martan Town Court certified the death of Ali Musayev, upon the first applicant’s request. The court heard evidence from two witnesses, who confirmed the first applicant’s submissions about the detention of her son on August 8, 2000, the discovery of his body and his burial on September 13, 2000 at the Gekhi village cemetery. The court certified that Ali Musayev’s death had occurred on September 13, 2000 in the village of Gekhi. It does not appear that a court certification of death was made in respect of Umar Musayev. On September 18 and October 9, 2001 respectively the registry office of the Urus-Martan District issued death certificates for Ali Alamatovich Musayev, born in 1972, and Umar Alamatovich Musayev, born in 1977. The date and the place of death were recorded as September 12, 2000, Gekhi. On October 8, 2001 a medical certificate of death was issued for Umar Musayev. Referring to the certificate of the administration of Gekhi and a certificate of the Urus-Martan prosecutor’s office, the medical certificate stated that Umar Musayev’s death had been caused by multiple stab wounds and severe injuries. The date and the place of death were recorded as September 12, 2000, Gekhi. 4. Official investigation

31

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On September 18, 2000 the Urus-Martan VOVD refused to institute criminal proceedings in connection with the discovery of four bodies on September 13, 2000, referring to the absence of essential elements of a crime. On October 18, 2000 the Urus-Martan prosecutor’s office set aside the above decision and instituted criminal proceedings under Art.105(2-a) of the Russian Criminal Code (murder of two or more persons). The case file was assigned No.24047. In a letter of November 1, 2000 the military prosecutor of military unit No.20102 informed the first applicant that a suspect in the blowing-up of the APC had been found in their house, and that her sons had been detained for an identity check in this connection. The letter confirmed that after being apprehended Ali and Umar Musayev had been brought to the Urus-Martan VOVD but stated that no further information about them was available, since they were not listed among the detained persons. The letter went on to say that on September 13, 2000 a burial site had been excavated by police officers who had found four male bodies there. Two of the bodies had been identified as those of the first applicant’s sons. The letter also stated that Major S, the officer in charge of the operation, had left for his permanent location in Penza, and that efforts were being made to obtain information from him about the detention of Ali and Umar Musayev. (2008) 47 E.H.R.R., Part 3 䉷 Sweet & Maxwell

(2008) 47 E.H.R.R. 25 34

611

On November 27, 2000 the Urus-Martan prosecutor’s office received a letter from a district prosecutor of the Penza Region informing him that on November 15, 2000 Major S had been questioned about the operation of August 8, 2000. The transcript of this interview was enclosed. Major S stated the following: “From 18 June until 22 September 2000 I was seconded to the town of Urus-Martan, the Chechen Republic. . . . In addition to the Urus-Martan VOVD, military personnel of the troops of the interior and of the army and the military commander’s company also took part in the operation [on 8 August 2000]. I cannot say which particular person was in command of the operation. From our department there was the head of the Urus-Martan VOVD, Lieutenant-Colonel Sh. There were also three generals, whose names I do not know, and military commander G. in the vicinity of the village of Gekhi. Acting on the instructions of the superiors of the alignment, I and a group of 30–35 men arrived by bus and APC in Gekhi at around 11 a.m. . . . About 20 men in the group were police officers, the rest were army servicemen. I was in charge of the police officers, and the [army] servicemen were under the command of an officer with the rank of captain, whose name I do not know. I do not know in which particular military units those servicemen served and at whose disposal the APC with the vehicle number 108 was. During the ‘sweeping’ operation we went to the courtyard of one of the houses. It was subsequently established that the house belonged to the Musayev family. . . . I approached one of the windows and looked inside. I saw a man wearing an ammunition jacket and holding a pistol. Having seen me, the man fired . . . at me. . . . In response to the shots from the house, our personnel opened fire. . . . [During the fight another] man came over to me and said that he lived in Moscow and was a relative of this family. . . . One of the soldiers threw 6 grenades into the house, but the shots from the house did not stop. Then [we] started shooting at the criminal from the APC, and only then did the fire from the house cease, but the house caught fire . . . Only one man seemed to have been shooting from the house, and only one body was found inside. The soldiers put this corpse into a white car and the relative from Moscow also got into this vehicle. Then I went out and saw two cars near the house. The servicemen said that they had seized those cars. I cannot tell who ordered them to seize the cars. I did not give such an order. Besides, on the APC I noticed another detained man in a white shirt. I do not know who ordered that man to be detained. We escorted the detained men and two cars to the outskirts of Gekhi, where the command centre of the alignment was located. . . . On the instructions of the superiors, the detained persons and the cars were left at the command centre. Upon my return from Gekhi, somebody told me that the detainees and the red car had been released. The detainees were not brought to the Urus-Martan VOVD, as upon my return there in the evening I saw neither the white car nor the persons apprehended during the fight at the Musayevs’ house. I do not know whether they were (2008) 47 E.H.R.R., Part 3 䉷 Sweet & Maxwell

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MUSAYEVA V RUSSIA brought to the military commander’s office and who escorted them. . . . Following the instruction of the superiors, we left these detainees at the command centre, and I have no further information about them, or about the white car.”

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42 43 44

Having regard to the transcript, the prosecutor of the Urus-Martan District ordered the military commander G to be questioned. According to the first applicant, that order was never complied with. In a letter of January 4, 2001 the military prosecutor of military unit No.20102 informed the Urus-Martan prosecutor’s office and the first applicant that an inquiry had been carried out into the first applicant’s allegations, and that no involvement of the military personnel of the Ministry of Defence or of the interior troops of the Ministry of the Interior in the detention of the Musayev brothers had been established, and therefore no criminal proceedings would be brought against the aforementioned personnel. On December 18, 2000 the Urus-Martan prosecutor’s office suspended the criminal proceedings in case No.24047 for failure to establish the identity of the alleged perpetrators. The first applicant was notified of that decision in a letter of January 18, 2001. On August 7, 2001 the Urus-Martan prosecutor’s office quashed the decision of December 18, 2000, stating that the investigation had been incomplete and that, in particular, no forensic medical examination of the bodies had been carried out and the witnesses who had identified the corpses had not been questioned. The prosecutor’s office thus ordered that the investigation be resumed. On an unspecified date the first applicant received a letter from the Urus-Martan prosecutor’s office dated August 24, 2001. The letter contained a restatement of the facts of the detention of Ali and Umar Musayev and the discovery of their bodies and informed the first applicant that a criminal investigation had been commenced and that the case file had been assigned the No.24047. The letter also stated that the first applicant would be informed of any further developments in the case. On September 8, 2001 the criminal proceedings in case No.24047 were adjourned as it was impossible to establish the identity of the alleged perpetrators. The proceedings were then resumed pursuant to a decision of the Urus-Martan prosecutor’s office dated April 1, 2002 and suspended a month later. On July 22, 2002 the prosecutor’s office of the Chechen Republic (the republican prosecutor’s office) set aside the decision of May 1, 2002 and resumed the investigation, ordering the investigators “to study thoroughly the circumstances of the Musayev brothers’ disappearance and to establish the identity of those responsible”. On August 22, 2002 the Urus-Martan prosecutor’s office granted the first applicant the status of victim of a crime and civil claimant. On August 26, 2002 the Urus-Martan prosecutor’s office suspended the investigation into the death of the Musayev brothers. In a letter of August 27, 2002 the Prosecutor General’s Office informed the first applicant that the investigation into her sons’ death had been resumed on July 19, 2002 and was being supervised by them. (2008) 47 E.H.R.R., Part 3 䉷 Sweet & Maxwell

(2008) 47 E.H.R.R. 25 45 46

47

48

49

50

51

613

Between August 26, 2002 and October 14, 2004 the proceedings remained suspended and there were no developments in the case. In September 2004 the present application was communicated to the Russian Government. On October 14, 2004 the Urus-Martan prosecutor’s office resumed the investigation, referring to the fact that a number of essential steps had not previously been taken and giving detailed instructions to the investigators as to what measures should be taken. In a letter of October 14, 2004 the Urus-Martan prosecutor’s office informed the first applicant that the proceedings in criminal case No.24047 had been recommenced on that date. On November 14, 2004 the Urus-Martan prosecutor’s office notified the first applicant of the suspension on the same date of the preliminary investigation into her sons’ murder in the absence of those responsible. It appears that at some point the investigation was resumed, then suspended on April 21, 2005 and recommenced on the same date. It was then suspended on May 21 and October 31, 2005 and resumed on September 30, 2005 and August 18, 2006 respectively. Referring to the information provided by the Prosecutor General’s Office, the Government submitted that the investigation into the murder of Ali and Umar Musayev had commenced on October 18, 2000 and had then been suspended and resumed on several occasions, but had so far failed to identify those responsible. According to the Government, the applicants were duly informed about all decisions taken during the investigation. It further submitted that the first applicant had been questioned on October 20 and December 12, 2000, April 4, 2002, October 19 and 23, 2004 and April 1, 2005 and had been granted the status of victim and been declared a civil claimant on October 20, 2000 and August 22, 2002 respectively. The second applicant had been questioned as a witness on October 23, 2000, April 5, 20 and October 23, 2002 and April 12, 2005. Apart from the first two applicants, the investigating authorities had also questioned at least 18 witnesses, including the applicants’ relatives and acquaintances, residents of Gekhi, the head of the local administration and a number of servicemen of law-enforcement agencies who had been working in the Chechen Republic at the material time. The Government referred in particular to the statement of Mr M, an investigator of the Urus-Martan prosecutor’s office, to the effect that military commander G had told him that the Musayev brothers had been detained and then released. The Government did not specify on which date this statement had been made. It also submitted that military commander G had not been questioned during the investigation, as he had been killed on November 29, 2001 in a terrorist attack. The Government did not indicate any other names of the servicemen who had allegedly been questioned by the investigators. According to the Government, it was impossible to identify other witnesses in the case, but the search for them was currently under way. The Government further stated that the applicants had refused to disclose the place of burial of Ali and Umar Musayev and allow the investigating authorities to exhume the bodies so as to enable forensic experts to examine them. Finally, the Government stated that the investigating authorities had sent a number of queries to various state bodies on December 16, 2000, October 20 and 26, 2002, October 20, November 1 and 14, (2008) 47 E.H.R.R., Part 3 䉷 Sweet & Maxwell

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2004, January 28, 30, 31, February 3, March 23 and 25 and May 5, 2005 and undertaken other investigative actions, but did not specify what those actions had been. 5. Civil proceedings 52

53

On unspecified dates the first two applicants issued separate sets of civil proceedings against the Ministry of Finance in the Basmanny District Court of Moscow (the District Court), seeking compensation for non-pecuniary damage in connection with the unlawful detention of their sons. On December 23, 2003 and May 21, 2004 the District Court delivered two similar judgments. It established that on August 8, 2000 in the house of the Musayev family in the village of Gekhi, Urus-Martan District, a member of an illegal armed group had been found and killed, as he had shown armed resistance. The applicants’ sons, Ali Musayev and Umar Musayev, were detained and escorted to the Temporary Office of the Interior of the Urus-Martan District so as to establish the circumstances of the abovementioned incident. On September 13, 2000 their corpses were found at the outskirts of Gekhi, and criminal proceedings were instituted in this connection but later suspended, as no culprits could be identified. The Court further stated that under Art.1069 of the Civil Code of Russia the state was liable only for damages for its agents’ actions that were unlawful. It then noted that the military operation in Chechnya had been launched by virtue of Presidential Decree 2166 of November 30, 1994, and Governmental Decree 1360 of December 9, 1994 which had been found constitutional by the Constitutional Court of Russia on July 31, 1995, except for two provisions of the governmental decree. In the latter respect the Court noted that the said two provisions had never been applied to the applicants and that: “[I]t did not follow from the evidence submitted that there was a causal link between the loss by [the first two applicants] of their sons and any unlawful actions on the part of the State bodies.”

54 55

The court concluded that the applicants’ claims were not based on domestic law and dismissed them accordingly. On July 8, 2004 the Moscow City Court rejected an appeal by the first applicant and upheld the judgment of December 23, 2003. It is unclear whether the second applicant appealed against the judgment of May 21, 2004, and, if so, what the outcome of the appeal was. B. Documents submitted by the Government 1. The Court’s requests for the investigation file

56

In September 2004, at the communication stage, the Government was invited to produce a copy of the investigation file in criminal case No.24047 opened into the killing of Ali and Umar Musayev. Relying on the information obtained from the Prosecutor General’s Office, the Government replied that the investigation was in progress and that disclosure of the documents would be in violation of Art.161 of the Code of Criminal Procedure, since the file contained information of a military (2008) 47 E.H.R.R., Part 3 䉷 Sweet & Maxwell

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nature and personal data concerning the witnesses. In March 2005 the Court reiterated its request and suggested that r.33(3) be applied. In reply, the Government stated that the submission of the case file would breach the relevant national legislation, given that it contained classified information of a military nature and personal data concerning witnesses. At the same time, the Government suggested that a Court delegation could have access to the file at the place of the preliminary investigation with the exception of: “[T]he documents [disclosing military information and personal data concerning the witnesses], and without the right to make copies of the case file and transmit it to others.” 57

On June 1, 2006 the application was declared partly admissible. At that stage the Court again invited the Government to submit the investigation file and to submit information concerning the progress in the investigation. In September 2006 the Government informed the Court of the latest dates on which the investigation had been suspended and reopened and produced 39 documents running to 47 pages from the case file, which, as could be ascertained from the page numbering, comprised at least 423 pages. The documents included: (a) a procedural decision of October 18, 2000 instituting criminal proceedings in connection with the discovery of four bodies on September 13, 2000; (b) numerous procedural decisions suspending and reopening criminal proceedings in connection with the killing of the applicants’ relatives; (c) a number of investigators’ decisions taking up case No.24047; (d) letters informing the first applicant of the suspension and reopening of the criminal proceedings in case No.24047.

58

The Government did not furnish the Court with any other documents from the case file. 2. Letters from the Russian courts

59

The Government enclosed a number of letters from various higher courts in Russia, stating that the applicants had never lodged any such complaints about the allegedly unlawful detention of their relatives or challenged in court any actions or omissions of the investigating or other law-enforcing authorities. II. Relevant domestic law

60

61

Until July 1, 2002 criminal-law matters were governed by the 1960 Code of Criminal Procedure of the RSFSR. On July 1, 2002 the old Code was replaced by the Code of Criminal Procedure of the Russian Federation. Article 161 of the new CCP enshrines the rule that data from the preliminary investigation may not be disclosed. Part 3 of the same Article provides that information from the investigation file may be divulged with the permission of a prosecutor or investigator but only in so far as it does not infringe the rights and (2008) 47 E.H.R.R., Part 3 䉷 Sweet & Maxwell

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lawful interests of the participants in the criminal proceedings and does not prejudice the investigation. It is prohibited to divulge information about the private life of the participants in criminal proceedings without their permission. The Law on Complaints to Courts against Actions and Decisions Violating the Rights and Freedoms of Citizens3 provides that any citizen has the right to lodge a complaint with a court when he or she considers that his or her rights have been infringed by an unlawful action or decision of a state agency, local selfgovernment body or an institution, enterprise or association, non-governmental organisation or official or state employee. Complaints may be lodged either directly with a court or with a higher state agency, which must review the complaint within one month. If the complaint is rejected by the latter or there has been no response on its part, the person concerned has the right to bring the matter before a court. Under s.5 of the Law on Operational Search Activities, an individual who considers that his rights and freedoms have been violated by the bodies carrying out the operational search activities can complain of those actions to a higher body carrying out the operational search activities, a prosecutor or a court. JUDGMENT I. The Government’s preliminary objection A. Submissions of the parties

64

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The Government requested the Court to declare the case inadmissible as the applicants had failed to exhaust domestic remedies. They claimed that the applicants could have complained to a court under Art.46 of the Russian Constitution, s.5 of the Law on Operational Search Activities and the Law on Complaints to Courts against Actions and Decisions Violating the Rights and Freedoms of Citizens about the unlawful detention of their relatives or about the unlawful actions of personnel of law-enforcement agencies, but had failed to do so. In support of their argument, the Government referred to the letters from the Russian courts which they had submitted to the Court.4 The applicants contested the Government’s objection. They pointed out that immediately after their relatives’ detention and thereafter they had repeatedly applied to law-enforcement bodies, including various prosecutors. This avenue had proved futile, however, given that the criminal investigation had now been pending for several years but had failed to find and identify those responsible. The applicants also stated that there was no specific requirement in national law to have recourse to any other remedy once criminal proceedings were instituted and an investigation was under way. The applicants contended that, in any event, in the absence of an effective investigation any other remedy, including a civil claim, would also be rendered ineffective by the fact that court decisions would be based 3

Law on Complaints to Courts against Actions and Decisions Violating the Rights and Freedoms of Citizens as revised by the Federal Law of December 14, 1995. See [59].

4

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on the findings made within the context of the criminal investigation, which had so far failed to establish whether state agents had been involved in the murder of the Musayev brothers. In this latter respect the applicants referred to the judgments of Basmanny District Court of December 23, 2003 and May 21, 2004 which had dismissed their claims for compensation for non-pecuniary damage in connection with the unlawful detention on the ground that it had not been established that the applicants had lost their relatives as a result of state agents’ unlawful actions. B. The Court’s assessment 66

67

68

69

The Court notes that, in its decision of June 1, 2006, it considered that the question of exhaustion of domestic remedies was closely linked to the substance of the applicants’ complaints and that it should be joined to the merits. It will now proceed to assess the parties’ arguments in the light of the Convention provisions and its relevant practice. The Court reiterates that the rule of exhaustion of domestic remedies under Art.35(1) of the Convention obliges applicants to use first the remedies which are available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. The existence of the remedies must be sufficiently certain both in theory and in practice, failing which they will lack the requisite accessibility and effectiveness. Article 35(1) also requires that complaints intended to be brought subsequently before the Court should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements and time limits laid down in domestic law and, further, that any procedural means that might prevent a breach of the Convention should have been used. However, there is no obligation to have recourse to remedies which are inadequate or ineffective.5 It is incumbent on the respondent Government claiming non-exhaustion to indicate to the Court with sufficient clarity the remedies to which the applicants have not had recourse and to satisfy the Court that the remedies were effective and available in theory and in practice at the relevant time, that is to say that they were accessible, were capable of providing redress in respect of the applicants’ complaints and offered reasonable prospects of success.6 In the present case, in so far as the Government argued that the applicants had not lodged a complaint in court about the detention of Ali and Umar Musayev, the Court observes that in the period between August 8 and September 13, 2000, when their relatives remained missing, the applicants actively attempted to establish their whereabouts and applied to various official bodies,7 whereas the authorities denied that they had ever detained the Musayev brothers.8 In such circumstances, and in particular in the absence of any proof to confirm the very fact of the detention, even assuming that the remedy referred to by the Government was accessible to the applicants, it is more than questionable whether a court complaint 5

See Aksoy v Turkey (1997) 23 E.H.R.R. 553 at [51]–[52]; Akdivar v Turkey (1997) 23 E.H.R.R. 143 at [65]–[67]; and, most recently, App. No.41964/98, Ayhan v Turkey, June 27, 2006 at [64]. See Akdivar Turkey (1997) 23 E.H.R.R. 143 at [68], or App. No.41964/98, Ayhan v Turkey, June 27, 2006 at [65]. 7 See [17]–[21] above. 8 See [22] above. 6

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about the unacknowledged detention of the applicants’ relatives by the authorities would have had any prospects of success. Moreover, the Government has not demonstrated that the remedy indicated by it would have been capable of providing redress in the applicants’ situation, namely that the applicants’ recourse to this remedy would have led to the release of the Musayev brothers and the identification and punishment of those responsible. As regards the period after September 13, 2000, the date on which the corpses of the Musayev brothers were found, a court complaint about their detention would clearly have been an inadequate remedy. In the light of the foregoing, the Court considers that it has not been established with sufficient certainty that the remedy advanced by the Government would have been effective within the meaning of the Convention. The Court finds that the applicants were not obliged to pursue that remedy, and that this limb of the Government’s preliminary objection should therefore be dismissed. To the extent the Government argued that the applicants had not complained to a court about the actions or omissions of the investigating or other law-enforcing authorities, the Court considers that this limb of the Government’s preliminary objection raises issues which are closely linked to the question of the effectiveness of the investigation, and therefore it would be appropriate to address the matter in the examination of the substance of the applicants’ complaints under Art.2 of the Convention. II. Alleged violation of Article 2 of the Convention

73

The applicants complained of the killing of their relatives and the failure of the domestic authorities to carry out an effective investigation in this respect. They relied on Art.2 of the Convention, which provides: “1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. 2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection.” A. Alleged failure to protect the right to life 1. Arguments of the parties

74

The applicants first pointed out that it was undisputed that on August 8, 2000 Ali and Umar Musayev had been taken away from their home by federal servicemen (2008) 47 E.H.R.R., Part 3 䉷 Sweet & Maxwell

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under the command of Major S and delivered to the Urus-Martan Temporary Office of the Interior. They referred further to Major S’s statement to the effect that “on the instructions of the superiors, the detained persons and the cars had been left at the command centre”, to the fact that they had purchased from a federal officer a plan of a burial site where the bodies of Ali and Umar Musayev had been found, and to the fact that Ali Musayev’s body had been shown on NTV as that of a killed rebel fighter. The applicants argued that, in such circumstances, there was no doubt that federal servicemen had intentionally killed the Musayev brothers. They also pointed out that no evidence had been submitted that the deprivation of their relatives’ lives had been justified under Art.2(2) of the Convention. The Government conceded that the applicants’ relatives had been apprehended by the federal officers and then found dead, but contended that there were no grounds to claim that the right to life of the applicants’ relatives had been breached by the State. It referred to a reply of the Prosecutor General’s Office stating that the investigation had not established that the killing of the Musayev brothers had been committed by representatives of the federal power structures. The Government specifically referred to the statement of Mr M, an investigator of the Urus-Martan prosecutor’s office, to the effect that military commander G had allegedly told him that the Musayev brothers had been detained and then released. 2. The Court’s assessment (a) General considerations

76

77

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Article 2, which safeguards the right to life and sets out the circumstances when deprivation of life may be justified, ranks as one of the most fundamental provisions in the Convention, from which no derogation is permitted. Together with Art.3, it also enshrines one of the basic values of the democratic societies making up the Council of Europe. The circumstances in which deprivation of life may be justified must therefore be strictly construed. The object and purpose of the Convention as an instrument for the protection of individual human beings also requires that Art.2 be interpreted and applied so as to make its safeguards practical and effective.9 In the light of the importance of the protection afforded by Art.2, the Court must subject deprivations of life to the most careful scrutiny, taking into consideration not only the actions of state agents but also all the surrounding circumstances. Detained persons are in a vulnerable position and the authorities are under a duty to protect them. Consequently, where an individual is taken into police custody in good health and is found to be injured on release, it is incumbent on the state to provide a plausible explanation of how those injuries were caused. The obligation on the authorities to account for the treatment of a detained individual is particularly stringent where that individual dies or disappears thereafter.10 Where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in 9

See McCann v United Kingdom (1996) 21 E.H.R.R. 97 at [146]–[147]. See, amongst other authorities, App. No.25656/94, Orhan v Turkey, June 18, 2002 at [326] and the authorities cited therein.

10

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detention, strong presumptions of fact will arise in respect of injuries and death occurring during that detention. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation.11 (b) Application in the present case 79

80

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The Court observes that although the Government denied the State’s responsibility for the killing of the applicants’ two relatives, it acknowledged the specific facts underlying the applicants’ version of the Musayev brothers’ detention and deaths. In particular, it is common ground between the parties that on August 8, 2000 Ali and Umar Musayev were apprehended by federal servicemen in the course of a special operation and delivered to the temporary headquarters of the federal forces near the village of Gekhi. It was not alleged by the Government that the applicants’ relatives had had any pre-existing injuries or active illnesses. The Court further notes the Government’s reference to the statement of Mr M, an investigator of the Urus-Martan prosecutor’s office, to the effect that military commander G had allegedly told him that the Musayev brothers had been detained and then released. It notes that this statement has not been corroborated by any other witness statements, such as, in particular, that of military commander G, who was never questioned, or any other evidence. The Government did not produce a transcript of Mr M’s interview to which it referred, any formal records attesting the date of the Musayev brothers’ arrest or release or any others documents. The Court therefore regards the statement referred to by the Government as unreliable and untenable on the facts and finds it established that Ali and Umar Musayev were apprehended in good health and placed in custody under the control of the State. The parties further agreed that four dead bodies were found in a burial site on the outskirts of Gekhi on September 13, 2000. Two of the bodies were identified as those of the Musayev brothers, whilst the two other corpses were that of Mr A, a man killed in the applicant’s house on August 8, 2000, and that of a resident of Gekhi detained on the same date, along with the applicants’ relatives. The identity of the deceased and the violent nature of their deaths were acknowledged by the domestic authorities, who had instituted criminal proceedings into the murder, and were never disputed by the Government. The Court also notes that the formal date of the Musayev brothers’ death, September 12, 2000, remained undisputed by the Government. On the facts of the case, it is therefore clear that the applicants’ relatives were taken into custody in apparent good health and their bodies later found showing signs of having met a violent death. The Court considers it established that the applicants’ relatives died whilst detained by the federal forces. In the absence of any plausible explanation on the part of the Government as to the circumstances of the Musayev brothers’ deaths, it further finds that the Government have not accounted for the deaths of Ali and Umar Musayev during their detention and that the respondent State’s responsibility for these deaths is therefore engaged. Accordingly, there has been a violation of Art.2 of the Convention in this respect. 11

See Salman v Turkey (2002) 34 E.H.R.R. 17 at [100], and Çakici v Turkey (2001) 31 E.H.R.R. 5 at [85].

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B. Alleged inadequacy of the investigation 1. Submissions of the parties 83

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As regards the procedural aspect of Art.2 of the Convention, the applicants claimed that the authorities had defaulted in their obligation to carry out an effective investigation into the circumstances of the deaths of Ali and Umar Musayev. They argued that the investigation had fallen short of the Convention standards. In particular, it does not appear that the authorities adequately investigated the possible involvement of the military personnel in the killing of Ali and Umar Musayev. Furthermore, the identity of the generals in charge of the “sweeping” operation that had been conducted in the village of Gekhi on August 8, 2000 were never established. Moreover, the investigating authorities never attempted to eliminate substantial discrepancies between the accounts of the events of August 8, 2000 made by the first applicant and Major S by confronting them. The Government claimed that the investigation into the death of the applicants’ relatives met the Convention requirement of effectiveness, as all measures envisaged in national law were being taken to identify the perpetrators. 2. The Court’s assessment (a) General considerations

85

86

The obligation to protect the right to life under Art.2 of the Convention, read in conjunction with the state’s general duty under Art.1 of the Convention to “secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”, also requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force.12 The essential purpose of such investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving state agents or bodies, to ensure their accountability for deaths occurring under their responsibility. The authorities must act of their own motion once the matter has come to their attention. They cannot leave it to the initiative of the next of kin either to lodge a formal complaint or to take responsibility for the conduct of any investigatory procedures.13 The investigation must be effective in the sense that it is capable of leading to the identification and punishment of those responsible.14 The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony, forensic evidence and, where appropriate, an autopsy which provides a complete and accurate record of injury and an objective analysis of clinical findings, including the cause of death.15 Any 12

See McCann (1996) 21 E.H.R.R. 97 at [161], and Kaya v Turkey (1999) 28 E.H.R.R. 1 at [105]. . See Ilhan v Turkey (2002) 34 E.H.R.R. 36 at [63]. See Ögur v Turkey (2001) 31 E.H.R.R. 40 at [88]. 15 With regard to autopsies, see, inter alia, Salman (2002) 34 E.H.R.R. 17 at [106]; concerning witnesses, inter alia, Tanrikulu v Turkey (2000) 30 E.H.R.R. 950 at [109]; concerning forensic evidence, inter alia, Gül v Turkey (2002) 34 E.H.R.R. 28 at [89]. 13 14

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deficiency in the investigation which undermines its ability to establish the cause of death or the person responsible will risk falling below this standard. In this context, there must also be an implicit requirement of promptness and reasonable expedition.16 It must be accepted that there may be obstacles or difficulties which prevent progress in an investigation in a particular situation. However, a prompt response by the authorities in investigating the use of lethal force may generally be regarded as essential in maintaining public confidence in maintenance of the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts. (b) Application in the present case

88

89

90

91

The Court observes that some degree of investigation was carried out into the killing of the applicants’ relatives. It must assess whether that investigation met the requirements of Art.2 of the Convention. The Court notes in this respect that its knowledge of the criminal proceedings at issue is limited to the materials from the investigation file selected by the respondent Government.17 Drawing inferences from the respondent Government’s behaviour when evidence is being obtained,18 the Court will assess the merits of this complaint on the basis of the available information in the light of these inferences. The Court notes that the authorities were immediately made aware of the detention of the Musayev brothers, as the first applicant personally visited the local administration, the district military commander’s office and the district prosecutor’s office in the days following August 8, 2000, this fact having not been disputed by the Government. However, despite the first applicant’s numerous complaints, the authorities made no attempts to investigate the circumstances of the detention and disappearance of Ali and Umar Musayev during the period when they remained missing. Moreover, the authorities were instantly aware of the deaths of the applicants’ relatives, as the burial site in which the dead bodies were found was excavated in the presence of the police. The Court is struck by the fact that following the discovery on September 13, 2000 of four bodies which showed signs of having met a violent death, the authorities refused to institute criminal proceedings in this respect with reference to “the absence of the constituent elements of a crime”. It further notes that the official investigation was not commenced until October 18, 2000, which was more than two months after the detention of the applicants’ relatives and more than a month after the discovery of their remains. The Court sees no reasonable explanation for such long delays where prompt action was vital. The Court further notes that once the investigation was opened it was plagued with inexplicable shortcomings in taking the most essential steps. In particular, it is clear that no forensic examination or autopsy of the bodies was ever carried out. The Government alleged that after the applicants had buried their relatives, they had refused to disclose the location of the grave to the authorities and to allow a 16 17 18

See Yas¸a v Turkey (1999) 28 E.H.R.R. 408 at [102]–[104]; and Kaya (1999) 28 E.H.R.R. 1 at [106]–[107]. See [57]–[58] above. Ireland v United Kingdom (1979–80) 2 E.H.R.R. 25 at [161].

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forensic examination. The Court observes in this respect that on September 13, 2000 the second applicant notified the local authorities and the police of his intention to excavate the burial site, according to a plan which he had obtained from a serviceman, and that the exhumation took place in the presence of a number of officials, including a police officer. The police could at least have ensured that proper forensic photographs be taken on the spot, but even this most basic action was not taken. Moreover, it does not appear that the scene of the incident at the applicants’ house or the site where the remains of the Musayev brothers and two other men had been found was ever inspected by the investigating authorities in the context of the criminal proceedings. The Court also finds that the investigation can only be described as dysfunctional when it came to establishing the extent of the military and security personnel’s involvement in the deaths of the applicants’ relatives. Indeed, although it was acknowledged by the domestic authorities that Ali and Umar Musayev had been apprehended by federal military officers in the course of a “sweeping” operation, delivered to the headquarters and left there,19 it does not appear that any meaningful efforts were made to investigate the possible involvement of the aforementioned personnel in the murder. The Court is sceptical about the Government’s submission that the investigating authorities had questioned a number of servicemen and officials of law-enforcement agencies who had worked in Chechnya at the material time, as the Government did not produce any documents relating to the interviews, such as transcripts of questioning, nor did it indicate the names of any of those officials or servicemen. The only document containing witness statements, namely a transcript of Major S’s interview, was submitted to the Court by the applicants. The Court specifically notes that, in breach of a prosecutor’s order,20 the authorities failed to question military commander G, despite his apparently important role in the Musayev brothers’ detention. The Court cannot accept the Government’s argument that it had been impossible to question Mr G, as he had died in a terrorist attack. It notes in this respect that the investigation was opened on October 18, 2000 and, upon receipt of the witness statements of Major S on November 27, 2000, the prosecutor of the Urus-Martan District ordered Mr G to be questioned, whilst, according to the Government, Mr G was killed on November 29, 2001. No reasonable explanation was submitted to the Court as to why the investigators failed to comply with the prosecutor’s order for a whole year. Furthermore, there was a substantial delay in granting the status of victim to the first applicant. Whilst the investigation commenced on October 18, 2000, it was not until August 2002 that the first applicant was declared a victim in the case, which afforded her minimum guarantees in the criminal proceedings. The Court finds the Government’s statement that the first applicant had been granted the status of victim on October 20, 200021 unreliable, as they did not produce any documentary evidence in support of this affirmation, whilst the applicants, for their part, submitted a copy of the decision of August 22, 2002 declaring the first 19 20 21

See [33]–[34] above. See [35] above. See [50] above.

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applicant a victim in criminal case No.24047. Moreover, it appears that before—and even after—the said decision was taken, the information concerning the progress in the investigation was provided to the first applicant only occasionally and fragmentarily. Finally, the Court observes that the investigation remained pending from October 2000 to August 2002, when it was suspended for over two years and not resumed until October 2004. After that it remained pending at least until August 2006. Between October 2000 and August 2006 the investigation was adjourned and reopened at least seven times. The prosecutors on several occasions ordered certain steps to be taken,22 but there is no evidence that those instructions were ever complied with. In the light of the foregoing, and with regard to the inferences drawn from the respondent Government’s submission of evidence, the Court is bound to conclude that the authorities failed to carry out a thorough and effective investigation into the circumstances surrounding the deaths of Ali and Umar Musayev. It accordingly dismisses the Government’s preliminary objection as regards the applicants’ failure to exhaust domestic remedies within the context of the criminal proceedings, and holds that there has been a violation of Art.2 of the Convention on that account. III. Alleged violation of Article 3 of the Convention A. Submissions of the parties

97

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The applicants next alleged that their relatives had been ill-treated after having been detained, which constituted a violation of Art.3 of the Convention. They referred to the medical certificate of death issued on October 8, 2001 in respect of Umar Musayev, confirming that there had been multiple stab wounds and bruises on the latter’s head and chest. They further submitted that the authorities had failed to conduct an effective investigation in this respect, in violation of their procedural obligation under Art.3 of the Convention. The Government made no comments as regards the document referred to by the applicants. It relied on a reply of the Prosecutor General’s Office stating that the investigation had not established that the Musayev brothers had been subjected to inhuman or degrading treatment prohibited by Art.3 of the Convention. B. The Court’s assessment 1. Alleged ill-treatment of Umar Musayev

99

The Court reiterates that the authorities have an obligation to protect the physical integrity of persons in detention. Where an individual, when taken into police custody, is in good health, but is found to be injured at the time of release, it is incumbent on the State to provide a plausible explanation of how those injuries were caused. Otherwise, torture or ill-treatment may be presumed in favour of the claimant and an issue may arise under Art.3 of the Convention.23 22 23

See [35] and [46] above. See Tomasi v France (1993) 15 E.H.R.R. 1 at [108]–[111], and Selmouni v France (2000) 29 E.H.R.R. 403 at [87].

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101

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The Court has established above that the applicants’ relatives were taken into custody in good health, without any injuries.24 It further notes that the medical certificate of death (No.51) issued on October 8, 2001 in respect of Umar Musayev confirmed the presence of various injuries on his body. The Government provided no plausible explanation as to the origin of those injuries, which must therefore be considered attributable to a form of ill-treatment for which the authorities were responsible. In determining whether a particular form of ill-treatment should be qualified as torture, consideration must be given to the distinction, embodied in Art.3, between this notion and that of inhuman or degrading treatment. It appears that it was the intention that the Convention should, by means of this distinction, attach a special stigma to deliberate inhuman treatment causing very serious and cruel suffering.25 The Court has previously had before it cases in which it has found that there has been treatment which could only be described as torture.26 Having regard to the document submitted by the applicants, which certified the presence of multiple injuries and stab wounds on Umar Musayev’s body, the Court finds that the treatment inflicted on him involved very serious and cruel suffering that may be characterised as torture within the meaning of Art.3 of the Convention. Accordingly, there has been a breach of Art.3 of the Convention in this regard. It does not deem it necessary to make a separate finding under Art.3 of the Convention in respect of the alleged deficiencies in the investigation.27 2. Alleged ill-treatment of Ali Musayev

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The Court observes that the applicants did not submit any documentary evidence, such as medical certificates, confirming the presence of injuries on Ali Musayev’s body. It is therefore unable to establish, to the necessary degree of proof, that Ali Musayev had been ill-treated, and finds that this complaint has not been substantiated. Against this background, the Court finds no violation of Art.3 of the Convention in respect of Ali Musayev. IV. Alleged violation of Article 5 of the Convention

107

The applicants complained that Ali and Umar Musayev had been detained in breach of the guarantees of Art.5 of the Convention, the relevant parts of which provide: “1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: . . . (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably 24

See [79] above. See Salman (2002) 34 E.H.R.R. 17 at [114]. See Aksoy (1997) 23 E.H.R.R. 553 at [64]; Selmouni (2000) 29 E.H.R.R. 403 at [105]; App. No.20869/92, Dikme v Turkey, July 11, 2000 at [94]–[96]; and, among recent authorities, Bati v Turkey (2006) 42 E.H.R.R. 37 at [116]. 27 See Salman (2002) 34 E.H.R.R. 17 at [117]. 25 26

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MUSAYEVA V RUSSIA considered necessary to prevent his committing an offence or fleeing after having done so; ... 2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him. 3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial. 4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. 5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”

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The applicants stated that there had been no grounds for their relatives’ arrest or detention, and in particular, no reason to believe that they had committed any criminal offence. At the time of their apprehension, the Musayev brothers had been at home with other family members, had identity papers, had no firearms, and had not attempted to assist A, the man who had run into their house, or to resist the federal servicemen. They voluntarily reported to the district office of the Interior for questioning. Furthermore, the officers who had taken the Musayev brothers away had not given any reason for their detention. The applicants thus argued that their relatives had been detained in breach of the guarantees of Art.5 of the Convention. The Government conceded that the applicants’ two relatives had been detained by the federal servicemen and escorted to the temporary headquarters for questioning. However, they argued that after the Musayev brothers had been delivered to the headquarters “their whereabouts had been unknown” and that the investigation “had obtained no evidence that they had been detained in violation of Article 5”. The Court has frequently emphasised the fundamental importance of the guarantees contained in Art.5 for securing the rights of individuals in a democracy to be free from arbitrary detention at the hands of the authorities. In that context, it has repeatedly stressed that any deprivation of liberty must not only have been effected in conformity with the substantive and procedural rules of national law but must equally be in keeping with the very purpose of Art.5, namely to protect the individual from arbitrary detention. To minimise the risks of arbitrary detention, Art.5 provides a corpus of substantive rights intended to ensure that the act of deprivation of liberty is amenable to independent judicial scrutiny and secures the accountability of the authorities for that measure. The unacknowledged detention

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of an individual is a complete negation of these guarantees and discloses a most grave violation of Art.5.28 It has been established above that the applicants’ relatives were apprehended on August 8, 2000 by federal servicemen and were not seen until September 13, 2000, when their corpses were found in a mass grave. The Government produced no formal acknowledgement of or justification for the detention of the applicants’ relatives during the period in question. The Court thus concludes that Ali and Umar Musayev were victims of unacknowledged detention in complete disregard of the safeguards enshrined in Art.5, and that this constitutes a particularly grave violation of their right to liberty and security enshrined in Art.5 of the Convention. V. Alleged violation of Article 13 of the Convention

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The applicants complained about the absence of effective remedies in respect of the violations alleged under Arts 2, 3 and 5, contrary to Art.13 of the Convention. This Article provides: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

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The applicants contended that the investigation into the murder of Ali and Umar Musayev had been pending with no tangible results for several years, and that their attempt to obtain compensation for non-pecuniary damage for the unlawful detention of their relatives had proved unsuccessful, and that they therefore had no effective remedies against the aforementioned violations, contrary to Art.13 of the Convention. The Government argued that the applicants had had effective remedies at their disposal enshrined in Art.13 of the Convention and that the authorities had not prevented them from using those remedies. In particular, the first applicant was declared a victim and a civil claimant in the criminal case opened in connection with the killing of her sons and she had received reasoned replies to all her complaints. Besides, the applicants had had an opportunity to complain of the actions or omissions of the investigating authorities in court. The Court reiterates that Art.13 of the Convention guarantees the availability at the national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. The effect of Art.13 is thus to require the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief, although contracting states are afforded some discretion as to the manner in which they comply with their Convention obligations under this provision. The scope of the obligation under Art.13 varies depending on the nature of the applicant’s complaint under the Convention. Nevertheless, the remedy required by Art.13 must be “effective” in practice as well as in law, in particular in

28

See, among other authorities, Çakici (2001) 31 E.H.R.R. 5 at [104].

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the sense that its exercise must not be unjustifiably hindered by acts or omissions by the authorities of the respondent State.29 Given the fundamental importance of the right to protection of life, Art.13 requires, in addition to the payment of compensation where appropriate, a thorough and effective investigation capable of leading to the identification and punishment of those responsible for the deprivation of life and infliction of treatment contrary to Art.3, including effective access for the complainant to the investigation procedure leading to the identification and punishment of those responsible.30 The Court further reiterates that the requirements of Art.13 are broader than a contracting state’s obligation under Art.2 to conduct an effective investigation.31 In view of the Court’s findings above with regard to Art.2 and Art.3, in so far as the treatment inflicted on Umar Musayev was concerned, these complaints were clearly “arguable” for the purposes of Art.13.32 The applicants should accordingly have been able to avail themselves of effective and practical remedies capable of leading to the identification and punishment of those responsible and to an award of compensation for the purposes of Art.13. It follows that in circumstances where, as in the present case, the criminal investigation into the death was ineffective33 and the effectiveness of any other remedy that may have existed, including the civil remedies, was consequently undermined, the state has failed in its obligation under Art.13 of the Convention. Consequently, there has been a violation of Art.13 of the Convention in connection with Arts 2 and 3 of the Convention, in so far as this latter provision was breached as a result of the treatment inflicted on Umar Musayev. As regards the applicants’ reference to Art.5 of the Convention, the Court refers to its findings of a violation of this provision set out above. It considers that no separate issues arise in respect of Art.13 read in conjunction with Art.5 of the Convention, which itself contains a number of procedural guarantees related to the lawfulness of detention. VI. Compliance with Article 38(1)(a) of the Convention

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The Court reiterates that it is of the utmost importance for the effective operation of the system of individual petition instituted under Art.34 of the Convention that states should furnish all necessary facilities to make possible a proper and effective examination of applications.34 This obligation requires the contracting states to furnish all necessary facilities to the Court, whether it is conducting a fact-finding investigation or performing its general duties as regards the examination of applications. Failure on a government’s part to submit such information which is in their hands, without a satisfactory explanation, may not only give rise to the drawing of inferences as to the well-foundedness of the applicant’s allegations, but may also reflect negatively on the level of compliance by a respondent state with its 29

See Aksoy (1997) 23 E.H.R.R. 553 at [95]. See Anguelova v Bulgaria (2004) 38 E.H.R.R. 31 at [161]–[162]; Assenov v Bulgaria (1999) 28 E.H.R.R. 652 at [117]; and Aydin v Turkey (2006) 42 E.H.R.R. 44 at [208]. 31 See App. No.25656/94, Orhan, June 18, 2002 at [384]. 32 See Boyle v United Kingdom (1988) 10 E.H.R.R. 425 at [52]. 33 See [96] above. 34 See Tanrikulu (2000) 30 E.H.R.R. 950 at [70]. 30

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obligations under Art.38(1)(a) of the Convention.35 In a case where the application raises issues of the effectiveness of the investigation, the documents of the criminal investigation are fundamental to the establishment of facts and their absence may prejudice the Court’s proper examination of the complaint both at the admissibility stage and at the merits stage.36 The Court observes that it has on several occasions requested the Government to submit a copy of the investigation file opened into the killing of the applicants’ relatives. The evidence contained in that file was regarded by the Court as crucial to the establishment of the facts in the present case. In reply, the Government produced only copies of procedural decisions instituting, suspending and reopening criminal proceedings, those of investigators’ decisions taking up the criminal case and letters informing the first applicant of the suspension and reopening of the criminal proceedings in the case. It refused to submit any other documents, such as transcripts of witness interviews, reports on investigative actions and others, with reference to Art.161 of the Russian Code of Criminal Procedure. The Court notes in this connection that the Government did not request the application of r.33(2) of the Rules of Court, which permits a restriction on the principle of the public character of the documents deposited with the Court for legitimate purposes, such as the protection of national security and the private life of the parties, and the interests of justice. The Court further notes that the provisions of Art.161 of the Code of Criminal Procedure, to which the Government referred, do not preclude disclosure of the documents from a pending investigation file, but rather set out a procedure for and limits to such disclosure. The Government failed to specify the nature of the documents and the grounds on which they could not be disclosed.37 The Court also notes that in a number of comparable cases that have been reviewed by or are pending before the Court, similar requests have been made to the Russian Government and the documents from the investigation files submitted without reference to Art.161.38 For these reasons, the Court considers the Government’s explanations concerning the disclosure of the case file insufficient to justify withholding the key information requested by the Court. Having regard to the importance of co-operation by the respondent Government in Convention proceedings and the difficulties associated with the establishment of the facts in cases such as the present one, the Court finds that the Russian Government fell short of its obligations under Art.38(1)(a) of the Convention on account of its failure to submit copies of the documents requested in respect of the murder of Ali and Umar Musayev. VII. Application of Article 41 of the Convention

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Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the 35

See Timurtas¸ v Turkey (2001) 33 E.H.R.R. 6 at [66]. See Tanrikulu (2000) 30 E.H.R.R. 950 at [70]. See, for similar conclusions, App. No.77617/01, Mikheyev v Russia, January 26, 2006 at [104]. 38 See, for example, Khashiyev v Russia (2006) 42 E.H.R.R. 20 at [46], and App. No.58752/00, Magomadov v Russia, November 24, 2005. 36 37

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MUSAYEVA V RUSSIA Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage

1. Pecuniary damage 126

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The applicants claimed compensation for lost earnings of their breadwinners, Ali and Umar Musayev, in the amount of c100,000 for each of them and for each of the three minor children of the third applicant and Ali Musayev. The applicants did not substantiate the amount sought; nor did they indicate whether their two relatives had been gainfully employed at the time of their arrest, and, if so, what occupation they had had and what wages they had received. The Government argued that the applicants’ claims under this head were speculative, excessive and unfounded. They also pointed out that the children of the third applicant and Ali Musayev were not listed among the applicants, and therefore their claims should not be taken into account. The Court observes that it has awarded compensation in respect of lost earnings in cases where a violation of Art.2 in its substantive aspect has been found.39 However, in those cases the applicants had produced detailed and reliable calculations in support of their claims,40 whereas in the present case the applicants, while claiming a considerable amount, provided no information or documents to corroborate their claims. In the absence of any relevant information which would enable the Court to assess the amount of the pecuniary damage allegedly sustained by the applicants, it makes no award under this head. 2. Non-pecuniary damage

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The applicants claimed c50,000 each in respect of non-pecuniary damage for the moral suffering which they had endured as a result of the loss of their close relatives. The Government considered the applicants’ claims to be excessive and submitted that should the Court find a violation of the applicants’ rights, a token amount would suffice. The Court observes that it has found a violation of Arts 2, 3, 5 and 13 of the Convention on account of the unacknowledged detention and death of the applicants’ relatives, the treatment endured by one of the applicant’s relatives before he had died and the absence of effective remedies to secure domestic redress for the aforementioned violations. The Court has also found a violation of Art.38(1)(a) of the Convention on account of the Government’s failure to submit the materials requested by the Court. The applicants must have suffered anguish and distress as a result of all these circumstances. Having regard to these 39 See, among other authorities, Salman (2002) 34 E.H.R.R. 17 at [137], or Imakayeva v Russia (2008) 47 E.H.R.R. 4 at [213]. 40 See Salman (2002) 34 E.H.R.R. 17 at [135], or Imakayeva (2008) 47 E.H.R.R. 4 at [210]–[211].

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considerations, the Court awards, on an equitable basis, c45,000 to each of the first and second applicants and c40,000 to the third applicant for non-pecuniary damage, plus any tax that may be chargeable on these amounts. B. Costs and expenses 132

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The applicants claimed c10,330 for the costs and expenses incurred by them at the domestic level, which included the expenses for the medical treatment of the second applicant, the amount paid for the plan of the burial site, and transport and postal expenses. They did not submit any documents in support of this claim. The applicants also claimed c12,413 in respect of costs and expenses relating to their legal representation in the proceedings before the Court. They submitted a certificate issued by the Director of the Moscow Bar Association confirming that under the contract between the applicants and their representative the lawyer’s fee was equal to the aforementioned amount. The Government contested the applicants’ claim for c10,330, stating that it had not been corroborated by any documentary evidence. Itfurther argued that the amount of the lawyer’s fee could not be considered as reasonable and necessary and that it was much higher than the usual level of fees payable in Russia for legal services. The Court reiterates that in order for costs and expenses to be included in an award under Art.41, it must be established that they were actually and necessarily incurred and were reasonable as to quantum.41 The Court notes firstly that the applicants have not submitted any documents to substantiate their claim for the amount of c10,330. It therefore accepts the Government’s argument and makes no award in this respect. As regards the applicants’ claim for costs relating to their legal representation before the Court, the applicants submitted a certificate in support of this claim. However, they did not submit any calculations, or a schedule of costs which would indicate the time actually spent by the applicants’ lawyer on dealing with their case and the applicable rates, or any document confirming that they had actually paid the amount indicated. Furthermore, they submitted only one set of observations during the proceedings before the Court and it does not appear those observations involved much effort on the part of the applicants’ representative or required much research. In such circumstances, having regard to the above criteria and the complexity of the case, the Court awards the applicants c1,000 for costs and expenses, less c715 received by way of legal aid from the Council of Europe, plus any tax, including VAT, that may be chargeable. C. Default interest

136

The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added 3 percentage points. 41

See, for example, McCann (1996) 21 E.H.R.R. 97 at [220].

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For these reasons, THE COURT unanimously: 1. Dismisses the Government’s preliminary objection of non-exhaustion. 2. Holds that there has been a violation of Art.2 of the Convention as regards the killing of Ali and Umar Musayev. 3. Holds that there has been a violation of Art.2 of the Convention on account of the authorities’ failure to carry out an adequate and effective investigation into the circumstances surrounding the killing of Ali and Umar Musayev. 4. Holds that there has been a violation of Art.3 of the Convention on account of the treatment suffered by Umar Musayev. 5. Holds that no separate finding is necessary under Art.3 of the Convention in respect of the alleged deficiencies in the investigation into the treatment suffered by Umar Musayev. 6. Holds that there has been no violation of Art.3 of the Convention in respect of Ali Musayev. 7. Holds that there has been a violation of Art.5 of the Convention in respect of Ali and Umar Musayev. 8. Holds that there has been a violation of Art.13 in respect of the alleged violations of Art.2 and the alleged violation of Art.3 of the Convention in respect of Umar Musayev. 9. Holds that no separate issue arises under Art.13 in respect of the alleged violation of Art.5 of the Convention. 10. Holds that there has been a failure to comply with Art.38(1)(a) of the Convention in that the Government refused to submit the documents requested by the Court. 11. Holds: (a) that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final in accordance with Art.44(2) of the Convention, the following amounts, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement: (i) c45,000 (forty-five thousand euros) to each of the first and second applicants and c40,000 (forty thousand euros) to the third applicant in respect of non-pecuniary damage; (ii) c285 (two hundred and eighty-five euros) in respect of costs and expenses; (iii) any tax, including VAT, that may be chargeable on the above amounts; (b) that from the expiry of the abovementioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus 3 percentage points. 12. Dismisses the remainder of the applicants’ claim for just satisfaction.

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