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for damages following a death: persons deprived of financial support as the result of a death must receive compensation for loss of income. 4. Social Security Act 24. Section 23(b) and (c) of the Social Security Act (Law no. 506) lists the persons eligible for a survivor's pension on the death of a spouse (where a civil marriage has taken place). 25. Sections 32 to 34 of the General Health and Social Security Act (Law no. 5510) set out the circumstances in which the persons entitled under the deceased (where there was a civil marriage) may claim a survivor's pension, and the method used to calculate the amount. 5. Law no. 5251 of 27 October 2004 on the organisation and functions of the Directorate-General for the Status of Women 26. The aim of this Law is to safeguard women's social, economic, cultural and political rights and to combat all forms of discrimination against women and improve their level of educational attainment. 6. Law no. 3716 of 8 May 1991 on the correct recording of the parentage of children born within or outside marriage and those born of a relationship not based on a marriage certificate 27. As its title indicates, this Law (repealed on 16 May 1996) dealt with the recording in the civil status register under the father or mother's name of children born within or outside civil marriage and with the regularisation of the situation of children whose parents had not contracted a civil marriage. The new Civil Code, which entered into force on 8 December 2001, no longer distinguishes between children born within and outside marriage. B. Case-law 1. Court of Cassation 28. In a judgment of 28 May 2007 (E. 2007/289, K. 2007/8718), the Twenty-First Division of the Court of Cassation quashed a first-instance judgment on the ground that a woman married in accordance with religious rites should be paid compensation under Articles 43 and 44 of the Code of Obligations following the death of her partner in a work-related accident. 29. In a judgment of 11 September 1990 (E. 1990/4010, K. 1990/6972), the Tenth Division of the Court of Cassation set aside a first-instance judgment awarding compensation to a woman living in a religious marriage following the death of her partner in a work-related accident. After reiterating that marriage was a legal institution, that a religious union between two persons of opposite sex could not be recognised as a marriage and that section 23(c) and (b) of the Social Security Act (Law no. 506) guaranteed compensation only to the children born of a marriage or a union other than marriage, the Court of Cassation ruled that the children were entitled to social security cover following the death of their father, but that the father's partner was not. The court held that in the absence of legislation on the subject, the social security agency could require the woman in question to repay the sums wrongly paid to her after her partner's death. 30. By a judgment of 11 December 2003 (E. 2003/14484, K. 2003/14212), on the basis of Article 176 § 3 of the Civil Code, the Third Division of the Court of Cassation set aside a judgment of the lower court on the ground that a former husband was no longer required to pay maintenance to his ex-wife since the latter was living in a de facto marital relationship with another man, albeit without a marriage certificate, and the couple had a child together. 31. In a judgment of 6 June 2000 (E. 2000/3127, K. 2000/4891) the Fourth Division of the Court of Cassation overturned a criminal court ruling acquitting an imam who had performed a religious marriage ceremony without first checking the document proving that a civil marriage had taken place in accordance with the law. 2. Supreme Administrative Court 32. In a judgment of 17 October 1997 (E. 1995/79, K. 1997/479) the General Assembly of the plenary Supreme Administrative Court (Danıştay Dava Daireleri Genel Kurulu) upheld a first-instance judgment, thereby overturning the judgment of the Tenth Division of the Supreme Administrative Court, on the ground that the children and surviving partner from a religious marriage should be awarded compensation after their father and partner was accidentally killed (by police bullets fired on the fringes of a demonstration). The General Assembly observed that the action had been brought by the surviving partner on her own behalf and that of her children, that four children had been born of the relationship, resulting from a religious marriage, and that following the man's death, the children and their mother had been deprived of his financial support (destekten yoksun kalma tazminatı). It pointed out that, while domestic law did not afford protection to or validate such a union, the couple had

had children together whose births had been recorded under the parents' names in the civil status register and the deceased had supported the family financially. Accordingly, it awarded compensation to the children and their mother on account of the man's death. 3. Observations on the domestic law and case-law 33. As cohabitation on the basis of religious marriage is a social reality, the courts apply two principles of civil liability in awarding compensation to women whose partner in a religious marriage has died: (a) compensation for pecuniary and non-pecuniary damage (maddi ve manevi tazminat) on the basis of Articles 43 and 44 of the Code of Obligations; (b) compensation for loss of financial support (destekten yoksun kalma tazminatı) following a death, on the basis of Article 45 of the Code of Obligations. 34. In the specific context of Article 176 § 3 of the Civil Code, the legislation refers to couples living together as de facto man and wife without having contracted a civil marriage. In practice, this means religious marriage, and there is no requirement to continue paying maintenance to the other party in the situations contemplated (see paragraph 21 above). However, the Court of Cassation does not award the two types of compensation referred to in the previous paragraph in the case of same-sex or adulterous relationships, which are deemed to run counter to morals (see, for example, the judgment of the Twenty-First Division of the Court of Cassation of 11 October 2001 (E. 2001/6819, K. 2001/6640)). 35. The legislature does not recognise any form of opposite-sex or same‑sex cohabitation or union other than civil marriage. The domestic courts interpret the law very strictly. The fact that the general principles articulated in the Civil Code and the Code of Obligations are applied cannot be viewed as tacit or de facto recognition of religious marriage. Although the domestic courts award surviving partners compensation on the basis of general principles of civil liability – which cannot be equated with the principles governing social security or civil marriage – they never grant them survivor's pensions or social security benefits based on the deceased partner's entitlement. C. Background to the case 1. History 36. Under Islamic law, a religious marriage requires the presence of two male witnesses (or one man and two women). The marriage is solemnised simply by the couple exchanging vows in the presence of the witnesses, without the need for a cleric (imam or equivalent) to be present or for an official document to be drawn up. Under the Ottoman empire, following a decision taken by the supreme Sunni religious authority, the Sheikh-ul-Islam, the presence of an imam or a kadı (judge) became compulsory for all marriage ceremonies, on pain of penalties. This practice became widely established, and nowadays the presence of an imam is required. Muslim marriages also include a pecuniary element in the form of a dowry (mahr). 37. Islamic law, save in some specific circumstances (for instance, the death of the husband), recognises repudiation (talâk) as the sole means of dissolving a marriage. This is a unilateral act on the part of the husband, who dismisses his wife and thereby severs the marital bond. It entails the husband explicitly repudiating his wife by saying the required form of words three times to her (for example: “I repudiate you” or “You are repudiated”). 2. The Republic 38. The Turkish Republic was founded on a secular basis. Before and after the proclamation of the Republic on 29 October 1923, the public and religious spheres were separated through a series of revolutionary reforms: the abolition of the caliphate on 3 March 1923; the repeal of the constitutional provision declaring Islam the religion of the State on 10 April 1928; and, lastly, on 5 February 1937, an amendment to the Constitution according constitutional status to the principle of secularism (see Article 2 of the 1924 Constitution and Article 2 of the Constitutions of 1961 and 1982). The principle of secularism was inspired by developments in Ottoman society in the period between the nineteenth century and the proclamation of the Republic (see Leyla Şahin v. Turkey [GC], no. 44774/98, §§ 30-32, ECHR 2005‑XI). 39. One of the major achievements of the Civil Code was the institution of compulsory monogamous civil marriage between men and women, requiring religious marriages to be preceded by a civil ceremony. The new Civil Code, which entered into force on 8 December 2001, does not cover any forms of cohabitation other than marriage. The national parliament chose not to enact legislation in this sphere. 3. The Religious Affairs Directorate 40. According to the Religious Affairs Directorate (Diyanet

İşleri Başkanlığı), imams, who are appointed by the Directorate, are expressly required to verify that the future husband and wife have been married by a civil status registrar. The “religious” ceremony before an imam appointed by the Directorate is a mere formality which entails little solemnity. The civil marriage takes precedence over the religious marriage. III. COMPARATIVE LAW 41. Of the thirty-six countries surveyed in a comparative-law study, fourteen (Cyprus, the Czech Republic, Denmark, Finland, Greece, Ireland, Italy, Latvia, Lithuania, Malta, Poland, Portugal, Spain and the United Kingdom) recognise varying forms of religious marriage. Exclusively religious marriages are not recognised and are treated on the same footing as cohabitation in the following countries: Albania, Armenia, Austria, Azerbaijan, Belgium, Bosnia and Herzegovina, Bulgaria, Estonia, France, Georgia, Germany, Hungary, Luxembourg, Moldova, Monaco, the Netherlands, Romania, Serbia, Slovenia, Switzerland, “the former Yugoslav Republic of Macedonia” and Ukraine. 42. Of the thirty-six countries surveyed, four (France, Greece, Portugal and Serbia) expressly recognise cohabitation. In other countries, although such arrangements are not expressly recognised, they produce legal effects to one degree or another. This is the case in Austria, Belgium, the Czech Republic, Denmark, Hungary, Italy, the Netherlands, Slovenia and Switzerland. However, the majority of States do not recognise cohabitation at all (Albania, Armenia, Azerbaijan, Bosnia and Herzegovina, Bulgaria, Cyprus, Estonia, Finland, Georgia, Germany, Ireland, Latvia, Lithuania, Luxembourg, Malta, Moldova, Monaco, Poland, Romania, “the former Yugoslav Republic of Macedonia”, Ukraine and the United Kingdom). 43. In twenty-four countries (Armenia, Austria, Azerbaijan, Belgium, Bosnia and Herzegovina, Cyprus, the Czech Republic, France, Germany, Greece, Hungary, Ireland, Luxembourg, Moldova, Monaco, the Netherlands, Poland, Romania, Serbia, Slovenia, Spain, Switzerland, “the former Yugoslav Republic of Macedonia” and Ukraine), the national legislation allows the surviving spouse, subject to certain conditions, to claim benefits based on the deceased's social security entitlements. Of these countries, only six (Austria, Belgium, France, Hungary, the Netherlands and Spain) extend this right to cohabitants. In most of the member States of the Council of Europe, only married couples who have contracted a civil marriage qualify for health insurance cover on the death of one of the partners; hence, cohabitants are not eligible. 44. In Denmark, Hungary, the Netherlands, Portugal, Slovenia and Spain a survivor's pension may be awarded to a surviving cohabitant in certain circumstances. In the vast majority of countries which have a survivor's pension, cohabitants are not eligible to receive it. THE LAW I. THE GOVERNMENT'S PRELIMINARY OBJECTION A. The Chamber judgment 45. Before the Chamber, the Government raised an objection of failure to exhaust domestic remedies. They pointed out that the applicant had brought proceedings before the İslahiye District Court seeking recognition of her religious marriage to her deceased partner. The action had been dismissed by the court and the applicant had not appealed against that decision to the Court of Cassation. 46. In its judgment, the Chamber dismissed the Government's preliminary objection, reasoning as follows: “19. The Court observes that the applicant complained that her application concerning her deceased partner's retirement pension and health insurance rights had been rejected by the Hatay Labour Court on 21 January 2004. That judgment was upheld by the Court of Cassation judgment of 3 June 2004, served on the applicant on 28 June 2004. The applicant lodged her application with the Court on 6 December 2004, that is to say, within the six-month time-limit laid down by Article 35 § 1 of the Convention. Accordingly, the Government's objection must be dismissed.” B. The parties' submissions 47. The Government reiterated the same preliminary objection before the Grand Chamber. 48. The applicant maintained that she had exhausted domestic remedies, pointing out that she had applied unsuccessfully to the domestic courts for a survivor's pension and social security benefits based on her partner's entitlement. C. The Court's assessment 49. The Court observes that after the death of her partner the applicant first lodged an action with the İslahiye District Court seeking rectification of the entry concerning her in the civil status register, with a view to having her religious marriage recognised and having her daughter registered as her partner's daughter. She subsequently lodged another action, this time with the Hatay Labour Court, seeking to obtain a survivor's pension and social security benefits based on

her late partner's entitlement. Hence, by complaining in substance of her inability to obtain those benefits the applicant made use, without success, of an appropriate and available remedy before the Hatay Labour Court, whose judgment was upheld by the Court of Cassation. 50. Accordingly, the Grand Chamber agrees with the Chamber's conclusion. It reiterates in that regard that an applicant must have made normal use of domestic remedies which are likely to be effective and sufficient and that, when a remedy has been pursued, use of another remedy which has essentially the same objective is not required (see Kozacıoğlu v. Turkey [GC], no. 2334/03, § 40, ECHR 2009‑..., and Micallef v. Malta [GC], no. 17056/06, § 58, ECHR 2009‑...). It follows that the Government's objection as to non-exhaustion of domestic remedies must be dismissed. II. THE NATURE OF THE APPLICANT'S COMPLAINT 51. The Grand Chamber observes that the Chamber examined the applicant's complaint from the standpoint of Article 8 of the Convention only. However, it should be reiterated that the scope of the Grand Chamber's jurisdiction in cases submitted to it is limited only by the Chamber's decision on admissibility (see Perna v. Italy [GC], no. 48898/99, § 23, ECHR 2003‑V, and Azinas v. Cyprus [GC], no. 56679/00, § 32, ECHR 2004‑III). Within the compass thus delimited, the Grand Chamber may deal with any issue of fact or law that arises during the proceedings before it (see Powell and Rayner v. the United Kingdom, 21 February 1990, § 29, Series A no. 172; Philis v. Greece (no. 1), 27 August 1991, § 56, Series A no. 209; Guerra and Others v. Italy, 19 February 1998, § 44 in fine, Reports of Judgments and Decisions 1998‑I; and Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 48, ECHR 2009‑...). 52. Furthermore, since the Court is master of the characterisation to be given in law to the facts of the case, it is not bound by the characterisation given by the applicant or the Government. By virtue of the jura novit curia principle, it has, for example, considered of its own motion complaints under Articles or paragraphs not relied on by the parties and even under a provision in respect of which the Court had declared the complaint to be inadmissible while declaring it admissible under a different one. A complaint is characterised by the facts alleged in it and not merely by the legal grounds or arguments relied on (see Scoppola, cited above, § 54; Powell and Rayner, cited above, § 29; and Guerra and Others, cited above, § 44). By virtue of Article 43 of the Convention, it is the whole case, embracing all aspects of the application previously examined by the Chamber, which is referred to the Grand Chamber to be decided afresh by means of a new judgment (see, among other authorities, Göç v. Turkey [GC], no. 36590/97, § 36, ECHR 2002‑V). The Grand Chamber may proceed in the same manner in the present case. 53. For that reason the Grand Chamber invited the parties, in their observations and pleadings before it, to also address the issue of compliance in the instant case with Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1. In the light of their submissions, it considers it necessary to first examine the applicant's complaint from the standpoint of those provisions. III. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 1 OF PROTOCOL No. 1 54. In connection with the invitation referred to in the preceding paragraph the applicant submitted that the refusal of the domestic courts to award her a survivor's pension and social security benefits based on her deceased partner's entitlement had been in breach of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1. Article 14 of the Convention provides: “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.” Article 1 of Protocol No. 1 provides: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions... 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. Applicability of Article 14 taken in conjunction with Article 1 of Protocol No. 1 55. Article 14 of the Convention has no independent existence, since it has effect solely in relation to the rights and freedoms safeguarded by the other substantive provisions of the Convention and its Protocols. Its application does not presuppose a breach of one or more of such provisions and to this extent it is autonomous. For Article 14 to become applicable it suffices that the facts of a case fall within the ambit of another substantive provision of the Convention or its Protocols (see Thlimmenos v. Greece [GC], no. 34369/97, § 40, ECHR 2000‑IV, and Koua Poirrez v. France, no. 40892/98, § 36, ECHR 2003‑X; see also Fretté v. France, no. 36515/97, § 31, ECHR 2002‑I and the case-law cited therein). 56. As regards the applicability of Article 1 of Protocol No. 1, the Court ruled in Stec and Others v. the United Kingdom ((dec.) [GC], nos. 65731/01 and 65900/01, §§ 42-56, ECHR 2005‑X) that this provision did not oblige States to put in place a social security or pension scheme; however, if a Contracting State had in force legislation providing for the payment as of right of a welfare benefit – whether conditional or not on the prior payment of contributions – that legislation had to be regarded as generating a proprietary interest falling within the ambit of Article 1 of Protocol No. 1 for persons satisfying its requirements. 57. In the instant case the applicant complained that she had been deprived of a survivor's pension and social security benefits based on her deceased partner's entitlement on discriminatory grounds covered, in her view, by Article 14, namely her status as a woman married in accordance with religious rites. 58. The Court notes that, under the national social security legislation, only persons married in accordance with the Civil Code inherit their late spouse's social security entitlements. It further observes that, according to the settled case-law of the domestic courts, based on the ordinary law on civil liability as defined in the relevant provisions of the Civil Code and the Code of Obligations, a retirement pension and social security benefits cannot be awarded to a surviving partner where there has been no civil marriage. However, the Court points to its own case-law to the effect that, although Article 1 of Protocol No. 1 does not include the right to receive a social security payment of any kind, if a State does decide to create a benefits scheme, it must do so in a manner which is compatible with Article 14 (see Stec and Others, cited above, § 55). In the instant case the applicant complained that she had not been awarded a retirement pension and social security benefits based on her late partner's entitlement on discriminatory grounds for the purposes of Article 14 of the Convention. 59. Consequently, Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1 is applicable in the present case. B. Compliance with Article 14 taken in conjunction with Article 1 of Protocol No. 1 1. The parties' submissions (a) The Government 60. The Government began by pointing out that the regulation of marriage, which was compatible with Article 12 of the Convention, fell within the State's margin of appreciation. Civil marriage was clearly defined by the provisions of the Civil Code. Only persons who had contracted a civil marriage could enjoy the corresponding rights. That was why the applicant's application to the Hatay Labour Court seeking to benefit from her deceased partner's social security entitlements had been rejected on account of the absence of a civil marriage. Entitlement to a survivor's pension and social security benefits was not governed by the rules on inheritance laid down by the Civil Code. Under the domestic social security legislation, the lawful surviving partner of a civil marriage and his or her children could inherit such entitlement. 61. Next, the Government stressed the importance of the principle of secularism, which was enshrined in the Constitution. It was not possible to attach legal consequences to the application of religious rules. The legislature's aim was to prevent religious marriages and protect the most important building-block of society, namely the family. As a secular State, Turkey did not recognise religious marriages. In a similar situation where the woman rather than the man was in employment, the latter would not be awarded a survivor's pension or social security benefits on her death. Religious marriage placed women at a disadvantage compared to men. In order to prevent discrimination and grant the same rights to women and men, the law required religious marriages to be preceded by a civil ceremony. The law governing civil marriage did not impose any particular restrictions on the right to marry, neither could the legislature oblig

e persons who were living together to marry in accordance with the Civil Code. 62. In the Government's submission, the domestic authorities had not subjected the applicant to discriminatory treatment compared to other persons in a similar situation. There was no provision of domestic law which entitled a “surviving life companion” or “surviving partner” to receive a survivor's pension or social security benefits as the deceased's successor. The main difference between religious and civil marriage was that the former was not recognised by the law. Religious marriages were not registered. Persons wishing to enter into such a union were free to do so, but only after they had contracted a civil marriage. Article 230 of the Criminal Code made it a punishable offence to solemnise a religious marriage before the civil ceremony. The object of that provision was to protect women against polygamy. If religious marriages were to be considered lawful all the attendant religious consequences would have to be recognised, for instance the fact that a man could marry four women. The only means of preventing that was to promote civil marriage and not to attach rights to religious marriage. A further legal argument militated against religious marriage, namely the principle of presumption of paternity, which was based on the existence of a civil marriage. Furthermore, the recognition of a child by his or her father did not entail regularisation of the latter's religious marriage. The applicant had had the opportunity to contract a civil marriage in order to secure entitlement to a survivor's pension and social security benefits in the event of her partner's death. 63. Lastly, the Government submitted that a distinction needed to be made between a claim for damages under private law and an application for a survivor's pension and other social security benefits under the rules of public law. Under the latter, entitlement to such benefits required the existence of a legal relationship. As religious marriage was not recognised the applicant could not legally claim a survivor's pension or social security benefits based on her late partner's entitlement. Granting such rights to persons living in religious marriages would be tantamount to encouraging religious marriage. Under domestic law, the introduction of a claim for damages did not depend on the persons concerned being related. Admittedly, the courts accepted that a fiancée or close friend who had cared for the deceased or a person who had suffered a loss of income as a result of the death could be awarded damages; however, in such situations Turkish law provided for compensation irrespective of the existence of a religious or civil marriage. (b) The applicant 64. During the hearing, without making an explicit complaint in that regard, the applicant stated that, as she herself had been born of a religious marriage, her name had not been entered in the civil status register until 15 October 2002. The delay in being registered was the reason why she had been unable to contract a civil marriage with Ö.K. As a woman married in accordance with custom and practice, she submitted that the domestic courts had rejected her claim for social security benefits on the death of her partner because she had not contracted a civil marriage. 65. The applicant did not regard her application as tending towards the recognition of religious marriage or polygamy. The Civil Code recognised religious marriages provided that they were solemnised after a civil ceremony had been performed. While she was aware of the relevant provision of the Criminal Code, she had doubts as to its effectiveness (see paragraph 22 above). In her view, religious marriage was a social reality throughout Turkey. Furthermore, her situation could have been regularised on the basis of the amnesty laws which were enacted regularly with a view to ensuring that children born outside marriage could be entered in the civil status register. 66. During the hearing the applicant stated that she had always paid her own medical expenses rather than being covered by her partner, as she had never had entitlement through him. 2. The Court's assessment (a) Relevant general principles 67. According to the Court's settled case-law, discrimination means treating differently, without an objective and reasonable justification, persons in relevantly similar situations (see D.H. and Others v. the Czech Republic [GC], no. 57325/00, § 175, ECHR 2007‑XII). A difference in treatment has no objective and reasonable justification if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised (see Larkos v. Cyprus [GC], no. 29515/95, § 29, ECHR 1999‑I). The provisions of the Convention do not prevent, in principle, Contracting States from introducing general policy schemes by way of legislative measures whereby a certain category or group of individuals is treated differently from others, provided that the difference in treatment which results for the statutory category or group as a whole can be justified under the Convention and its Protocols (see, mutatis mutandis, Ždanoka v. Latvia [GC], no. 58278/00, § 112, ECHR 2006‑IV

). 68. In other words, Article 14 does not prohibit distinctions in treatment which are founded on an objective assessment of essentially different factual circumstances and which, being based on the public interest, strike a fair balance between the protection of the interests of the community and respect for the rights and freedoms safeguarded by the Convention (see Ünal Tekeli v. Turkey, no. 29865/96, § 51, ECHR 2004‑X). 69. The right not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is also violated when States without an objective and reasonable justification fail to treat differently persons whose situations are significantly different (see Thlimmenos, cited above, § 44). 70. The Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment in law (see Marckx v. Belgium, 13 June 1979, § 33, Series A no. 31; Abdulaziz, Cabales and Balkandali v. the United Kingdom, 28 May 1985, § 72, Series A no. 94; and Stubbings and Others v. the United Kingdom, 22 October 1996, § 72, Reports 1996‑IV). That margin is wider when it comes to the adoption by the State of general fiscal, economic or social measures, which are closely linked to the State's financial resources (see Burden v. the United Kingdom [GC], no. 13378/05, § 60, ECHR 2008‑..., and Petrov v. Bulgaria, no. 15197/02, § 55, 22 May 2008). However, it is ultimately for the Court to decide, in the light of the circumstances of the case in question, whether such measures are compatible with the State's obligations under the Convention and its Protocols (see James and Others v. the United Kingdom, 21 February 1986, § 46, Series A no. 98, and National & Provincial Building Society, Leeds Permanent Building Society and Yorkshire Building Society v. the United Kingdom, 23 October 1997, § 80, Reports 1997‑VII). 71. As to the burden of proof in this sphere, the Court has established that once the applicant has shown a difference in treatment, it is for the Government to show that it was justified (see D.H. and Others, cited above, § 177; Timishev v. Russia, nos. 55762/00 and 55974/00, § 57, ECHR 2005‑XII; and Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, §§ 91-92, ECHR 1999‑III). 72. With regard to Article 12 of the Convention, the Court has already ruled that marriage is widely accepted as conferring a particular status and particular rights on those who enter it (see Burden, cited above, § 63, and Shackell v. the United Kingdom (dec.), no. 45851/99, 27 April 2000). The protection of marriage constitutes, in principle, an important and legitimate reason which may justify a difference in treatment between married and unmarried couples (see Quintana Zapata v. Spain, Commission decision of 4 March 1998, Decisions and Reports (DR) 92, p. 139). Marriage is characterised by a corpus of rights and obligations that differentiate it markedly from the situation of a man and woman who cohabit (see Nylund v. Finland (dec.), no. 27110/95, ECHR 1999‑VI, and Lindsay v. the United Kingdom (dec.), no. 11089/84, 11 November 1986). Thus, States have a certain margin of appreciation to treat differently married and unmarried couples, particularly in matters falling within the realm of social and fiscal policy such as taxation, pensions and social security (see, mutatis mutandis, Burden, cited above, § 65). (b) Application of the above principles to the present case (i) Whether the civil or religious nature of a marriage can be a source of discrimination prohibited by Article 14 73. It is not disputed in the instant case that the applicant, although not lawfully married, lived in a monogamous relationship with her partner for twenty-six years until his death, and that she had six children with him. According to the judgment of the Hatay Labour Court (see paragraph 15 above), the applicant's claim for a survivor's pension and social security benefits based on her late partner's entitlement was rejected because she had not contracted a civil marriage. The fact that the applicant, who was born of a religious marriage, had not been registered at birth does nothing to alter this. 74. The applicant considered herself to be in a situation comparable to that of a widow in a civil marriage. She fulfilled all the legal requirements for claiming the benefits in question apart from the fact that her marriage had been religious rather than civil in nature

. 75. While contending that the national courts had not subjected the applicant to discriminatory treatment in relation to other persons in a similar situation, the Government took the view in particular that her situation, as a person married according to religious rites, could not be likened to that of a wife married in accordance with the Civil Code. The refusal of the domestic courts to award the benefits in issue to the applicant had been based on the law, the justification for which was twofold: the protection of women, particularly through efforts to combat polygamy, and the principle of secularism. 76. Accordingly, the Court must now examine whether the nature of a marriage – that is, whether it is civil or religious – can be a source of discrimination prohibited by Article 14. 77. In that regard the Court points out that Article 14 prohibits, within the ambit of the rights and freedoms guaranteed, discriminatory treatment having as its basis or reason a personal characteristic (“status”) by which persons or groups of persons are distinguishable from each other (see Kjeldsen, Busk Madsen and Pedersen v. Denmark, 7 December 1976, § 56, Series A no. 23). The characteristics in question are enumerated in Article 14. 78. However, the list set out in that provision is illustrative and not exhaustive, as is shown by the words “any ground such as” (in French “notamment”) (see Engel and Others v. the Netherlands, 8 June 1976, § 72, Series A no. 22; James and Others, cited above, § 74; and Luczak v. Poland, no. 77782/01, § 46, ECHR 2007‑XIII). Furthermore, discrimination prohibited by Article 14 may also be on the ground of “other status” (“toute autre situation” in French). As the nature of a marriage – that is, whether it is civil or religious – does not feature as such in the list of possible grounds of discrimination contemplated by Article 14, the Court must examine whether it might come under the heading of “other status”. 79. In that regard the Court has ruled in previous cases that children born outside marriage were discriminated against compared to those born within a civil marriage, as the difference in treatment was based solely on the former's “status” as children born out of wedlock (see, among many other authorities, Marckx, cited above; Mazurek v. France, no. 34406/97, ECHR 2000‑II; and Inze v. Austria, 28 October 1987, Series A no. 126). The Court has adopted similar reasoning in finding that a refusal to grant access rights in respect of a child on the sole ground that the child was born out of wedlock was discriminatory (see, for example, Sahin v. Germany [GC], no. 30943/96, § 87, ECHR 2003‑VIII). Likewise, the Court considers that the absence of a marriage tie between two parents is one of the aspects of personal “status” which may be a source of discrimination prohibited by Article 14. 80. These considerations apply, mutatis mutandis, to the instant case, given that it has not been disputed that the difference in treatment to which the applicant was subjected with regard to the benefits in question was based solely on the non-civil nature of her marriage to her partner. (ii) Whether there was an objective and reasonable justification for the difference in treatment (α) Legitimate aim 81. The Court must now ascertain whether the difference in treatment in question pursued a legitimate aim. In that connection, taking into account the importance of the principle of secularism in Turkey, the Court notes that in adopting the Civil Code in 1926, which instituted monogamous civil marriage as a prerequisite for any religious marriage, Turkey aimed to put an end to a marriage tradition which places women at a clear disadvantage, not to say in a situation of dependence and inferiority, compared to men. For the same reason it introduced the principle of gender equality in the enjoyment of civic rights, particularly in relation to divorce and inheritance, and prohibited polygamy. Marriage in accordance with the Civil Code is specifically aimed at protecting women, for instance by laying down a minimum age for marriage and establishing a set of rights and obligations for women (in particular in the event of the dissolution of the marriage or the death of the husband). 82. In the light of the foregoing, the Court accepts that the difference in treatment in question primarily pursued the legitimate aims of protecting public order and protecting the rights and freedoms of others. (β) Reasonable relationship of proportionality between the means employed and the aim sought to be realised 83. As to whether there was a reasonable relationship of proportionality, it should be noted that the fact that the applicant had not contracted a civil marriage and had not regularised her

situation had adverse legal consequences for her. Hence, she did not have the status of heir which would have entitled her to claim a survivor's pension and social security benefits on her partner's death. At the hearing the applicant pointed out that she had paid her own medical expenses while her partner was alive and that the latter had paid contributions into the “Bağ-Kur” retirement pension fund. 84. The Court notes, however, that the applicant was aware of her situation and knew that she needed to regularise her relationship in accordance with the Civil Code in order to be entitled to benefits on her partner's death. The Civil Code requires a binding legal document to be issued in order for a civil marriage to be valid and to produce effects vis‑à‑vis third parties and the State. Thus, at the close of the official marriage ceremony, a family record book is handed over to the married couple. The Civil Code states clearly that no religious marriage may be solemnised in the absence of the family record book (see paragraph 20 above). In order to ensure that the pre‑eminence of civil marriage is observed the respondent State also provides for criminal sanctions against any person who solemnises a religious marriage without first ascertaining that a civil ceremony has taken place (see paragraph 22 above). For its part, the Religious Affairs Directorate – the authority recognised by the legislature in this sphere – expressly requires its imams to verify that the couple intending to marry have already contracted a civil marriage before a civil status registrar. 85. The present case is therefore clearly distinguishable from that of Muñoz Díaz v. Spain (no. 49151/07, 8 December 2009), in which the Court observed that the Spanish authorities had recognised the applicant – a member of the Roma community who had married in accordance with Roma rites – as her partner's “spouse”. The woman in question and her family had been issued with a family record book and been granted large‑family status; the mother, as a spouse, and her six children had also been in receipt of health-care assistance. The Court therefore took the view that the applicant's good faith as to the validity of her marriage, confirmed by the authorities' official recognition of her situation, had given her a legitimate expectation of being entitled to a survivor's pension. Finally, when the applicant had got married according to Roma rites and traditions, it had not been possible in Spain, except by making a prior declaration of apostasy or of affiliation to a different faith, to be married otherwise than in accordance with the rites of the Catholic Church. 86. Unlike the situation in Muñoz Díaz, the applicant in the present case could not argue that she had a legitimate expectation of obtaining a survivor's pension and social security benefits on the basis of her partner's entitlement (see paragraph 58 above). Furthermore, the rules laying down the substantive and formal conditions governing civil marriage are clear and accessible and the arrangements for contracting a civil marriage are straightforward and do not place an excessive burden on the persons concerned (see paragraph 18 above). The applicant has never maintained otherwise. What is more, she had a sufficiently long time – twenty-six years – in which to contract a civil marriage. There is therefore no justification for her assertion that the efforts she allegedly undertook to regularise her situation had been hampered by the cumbersome nature or slowness of the administrative procedures. As to whether the civil status registrar could or should have regularised her situation of his or her own accord on the basis of the amnesty laws enacted in relation to children born outside marriage (see paragraph 27 above), the Court notes that, while the State may regulate civil marriage in accordance with Article 12 of the Convention, this does not mean that it can require persons within its jurisdiction to contract a civil marriage. The Court further notes, as did the Government, that the amnesty laws in question are not aimed at regularising religious marriages but at improving the situation of children born out of relationships which are not legally recognised, or outside the bonds of marriage. 87. In the light of these considerations, the Court concludes that there was a reasonable relationship of proportionality between the impugned difference in treatment and the legitimate aim pursued. There was therefore an objective and reasonable justification for the difference in question. 88. There has accordingly been no violation of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1. IV. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 89. On the basis of the same complaint as the one under Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1, the applicant further alleged a breach of her right to respect for her family life within the meaning of Article 8 of the Convention, the relevant parts of which provide: “1. Everyone has the right to respect for his... family 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... 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 Chamber judgment 90. The Chamber noted the existence in the present case of “family life” within the meaning of Article 8 (see paragraph 27 of the Chamber judgment). It held that there had been no violation of that provision because the difference complained of had pursued a legitimate aim and been based on objective and reasonable grounds, namely the protection of the traditional family based on the bonds of marriage (see paragraph 30 of the judgment). B. The parties' submissions 91. The Government agreed with the Chamber's conclusion, taking the view that Article 8 did not impose an obligation on the Contracting States to adopt a special regime for couples living together without having contracted a civil marriage. 92. The applicant reiterated her allegations. C. The Court's assessment 1. Whether there was “family life” 93. By guaranteeing the right to respect for family life, Article 8 presupposes the existence of a family. The existence or non-existence of “family life” is essentially a question of fact depending upon the real existence in practice of close personal ties (see K. and T. v. Finland [GC], no. 25702/94, § 150, ECHR 2001‑VII). 94. Article 8 applies to the “family life” of the “illegitimate” family as it does to that of the “legitimate” family (see Marckx, cited above, § 31, and Johnston and Others v. Ireland, 18 December 1986, § 55, Series A no. 112). The notion of the “family” is not confined solely to marriage-based relationships and may encompass other de facto “family” ties where the parties are living together outside of marriage (see Keegan v. Ireland, 26 May 1994, § 44, Series A no. 290, and Al-Nashif v. Bulgaria, no. 50963/99, § 112, 20 June 2002). A child born out of such a relationship is ipso jure part of that “family” unit from the moment and by the very fact of his birth. Thus there exists between the child and his parents a bond amounting to family life (see Elsholz v. Germany [GC], no. 25735/94, § 43, ECHR 2000‑VIII). 95. Furthermore, questions of inheritance and voluntary dispositions between near relatives appear to be intimately connected with family life. Family life does not include only social, moral or cultural relations, for example in the sphere of children's education; it also comprises interests of a material kind, as is shown by, amongst other things, the obligations in respect of maintenance and the position occupied in the domestic legal systems of the majority of the Contracting States by the institution of the reserved portion of an estate. Whilst inheritance rights are not normally exercised until the estate-owner's death, that is at a time when family life undergoes a change or even comes to an end, this does not mean that no issue concerning such rights may arise before the death: the distribution of the estate may be settled, and in practice fairly often is settled, by the making of a will or of a gift on account of a future inheritance; it therefore represents a feature of family life that cannot be disregarded (see Marckx, cited above, § 52, and Merger and Cros v. France, no. 68864/01, § 46, 22 December 2004). 96. In addition, when deciding whether a relationship can be said to amount to “family life”, a number of factors may be relevant, including whether the couple live together, the length of their relationship and whether they have children together (see X, Y and Z v. the United Kingdom, 22 April 1997, § 36, Reports 1997‑II, and Kroon and Others v. the Netherlands, 27 October 1994, § 30, Series A no. 297‑C). 97. In its judgment in the present case, the Chamber held that Article 8 of the Convention was applicable, for the following reasons: “27. In the instant case the Court observes that the applicant entered into a religious marriage (imam nikâhı) in 1976 with Ö.K. The couple had six children, the first five of whom were entered in the civil register under the father's name, while the last child was entered under the applicant's name. It is not contested by the parties that the applicant and her children lived with Ö.K. until his death in 2002. The Court considers that it does not have jurisdiction to

rule on the place or role of religious marriage in Turkish law and its social consequences. It simply notes that the applicant, Ö.K. and their children lived together in such a way that they constituted a 'family' within the meaning of Article 8 of the Convention.” 98. The Grand Chamber fully agrees with this finding. 2. The applicant's right to respect for her “family life” 99. The Court must therefore determine whether, in the particular circumstances of the present case, the choice by the State to confer a particular status on civil marriage as distinct from religious marriage resulted in interference with the applicant's “family life” within the meaning of Article 8 of the Convention. It will do so in the light of the reasoning it adopted in relation to Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1 (see paragraphs 81 to 88 above). 100. It should be reiterated in this regard that the essential object of Article 8 is to protect the individual against arbitrary interference by the public authorities. There may in addition be positive obligations inherent in effective “respect” for family life. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and the community as a whole, and in both contexts the State is recognised as enjoying a certain margin of appreciation (see Hokkanen v. Finland, 23 September 1994, § 55, Series A no. 299‑A). Furthermore, in the sphere of the State's planned economic, fiscal or social policy, on which opinions within a democratic society may reasonably differ widely, that margin is necessarily wider (see, mutatis mutandis, James and Others, cited above, § 46). This applies also in the present case (see paragraph 82 above). 101. As to the applicant, she chose, together with her partner, to live in a religious marriage and found a family. She and Ö.K. were able to live peacefully as a family, free from any interference with their family life by the domestic authorities. Thus, the fact that they opted for the religious form of marriage and did not contract a civil marriage did not entail any penalties – either administrative or criminal – such as to prevent the applicant from leading an effective family life for the purposes of Article 8. The Court therefore finds no appearance of interference by the State with the applicant's family life. 102. Accordingly, the Court is of the view that Article 8 cannot be interpreted as imposing an obligation on the State to recognise religious marriage. In that regard it is important to point out, as the Chamber did (see paragraph 29 of its judgment), that Article 8 does not require the State to establish a special regime for a particular category of unmarried couples (see Johnston and Others, cited above, § 68). For that reason the fact that the applicant does not have the status of heir, in accordance with the provisions of the Civil Code governing inheritance and with the domestic social security legislation, does not imply that there has been a breach of her rights under Article 8. 103. In conclusion, there has been no violation of Article 8 of the Convention. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Dismisses the Government's preliminary objection; 2. Holds that there has been no violation of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1; 3. Holds that there has been no violation of Article 8 of the Convention. Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 2 November 2010. Vincent BergerJean-Paul CostaJurisconsultPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinions of Judges Rozakis and Kovler are annexed to this judgment. J.-P.C.V.B. CONCURRING OPINION OF JUDGE ROZAKIS Together with the majority of the Grand Chamber, I voted in this case in favour of non-violation on both counts (Article 14 taken in conjunction with Article 1 of Protocol No. 1, and Article 8 of the Convention). However, I would like to express, through this concurring opinion, certain points of disagreement regarding the reasoning that the majority followed in reaching the conclusion that there had been no violation. In dealing with the question of alleged discrimination under Article 14 taken in conjunction with Article 1 of Protocol No. 1, the Court was apparently influenced by the applicant's argument that the issue to be examined in the circumstances of the case was that she had been denied a survivor's pension and social security benefits because of her status as a woman married in accordance with religious rites, and that the authorities' conduct in that regard had discriminated against her since the Turkish State recognised civil marriage as the sole basis for legal entitlement to social security

benefits. On the basis of this approach the Turkish Government maintained, in response to her arguments, that the difference in treatment between couples married only in accordance with religious rites and couples married in accordance with the requirements of domestic civil law was justified given the importance of the principle of secularism, and pursued the legislature's aim of “de-legitimising” religious marriage which, inter alia, placed women at a disadvantage compared to men and allowed polygamy. As a consequence, the line followed by the Court in its judgment was that the elements to be compared (the comparators) in the exercise of establishing whether in the circumstances there had been discrimination in breach of Article 14 of the Convention were religious marriage on the one hand and civil marriage on the other. This was the core distinction which led the Court to find that the difference in treatment had a legal basis and a legitimate aim and was proportionate to the aim pursued. And this is where I differ in my consideration of the case. I believe that the issue in this case, in Convention terms, is not religious marriage and its differences vis-à-vis civil marriage. Religious marriage is the backdrop, la toile de fond, which allowed the couple made up of the deceased man and his partner, the applicant, to live together monogamously for twenty-six years and have six children. The real comparators to be taken into account in our assessment should have been a long-standing and stable family relationship outside marriage on the one hand, and marriage, as understood by the domestic legal system, on the other. In other words, the elements to be compared are long-standing cohabitation and marriage, rather than religious marriage and civil marriage. If these two elements are the comparators, then we should examine whether the distinction which the Turkish State makes between persons married only in a religious ceremony (who are to be considered, under Turkish law, as “unmarried”), and couples married in a civil ceremony, justifies the different treatment afforded by the State's legislation to the latter. And here I accept that the Convention case-law confers a particular status and particular rights on those who enter into a marital relationship. As it was correctly stated in paragraph 72 of the judgment, “[t]he protection of marriage constitutes, in principle, an important and legitimate reason which may justify a difference in treatment between married and unmarried couples.... Marriage is characterised by a corpus of rights and obligations that differentiate it markedly from the situation of a man and a woman who cohabit.... Thus, States have a certain margin of appreciation to treat differently married and unmarried couples, particularly in matters falling within the realm of social and fiscal policy such as taxation, pensions and social security.” For the above reasons, and considering that the comparators in the present case are stable cohabitation outside marriage and marriage itself, I accept that compliance with the Convention case-law must lead us to the conclusion that in the circumstances of the case the absence of social security benefits to the detriment of our applicant's interests is not contrary either to Article 14 (read in conjunction with Article 1 of Protocol No. 1) or to Article 8 of the Convention. Nevertheless, in view of the new social realities which are gradually emerging in today's Europe, manifested in a gradual increase in the number of stable relationships outside marriage, which are replacing the traditional institution of marriage without necessarily undermining the fabric of family life, I wonder whether this Court should not begin to reconsider its stance as to the justifiable distinction that it accepts, in certain matters, between marriage on the one hand and other forms of family life on the other, even when it comes to social security and related benefits. CONCURRING OPINION OF JUDGE KOVLER (Translation) I accepted – not without some hesitation – the Grand Chamber's argument to the effect that States have a certain margin of appreciation to treat differently couples who have contracted a civil marriage and those who have not, particularly in matters falling within the realm of social policy, including pensions and social security. As the applicant's complaints focus on her right to claim a survivor's pension and social security benefits based on the entitlement of her late “partner” (within the meaning of the domestic legislation) rather than the right to claim an “ordinary” (old‑age) pension, the domestic courts' refusal to award her the benefits in question was based on well-defined domestic-law provisions and her situation was therefore foreseeable. Accordingly, there was an objective and reasonable justification for the impugned difference in treatment and the latter did not amount to a violation of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1. Of course it is regrettable that the respondent State, to judge by the information supplied by the two parties, did not allow the applicant to claim an ordinary pension. Viewed objectively, this lack of any social welfare provision for widows who contracted a religious marriage is an infringement of the freedom of choice

as to the form taken by “family life”, since, as the Court has stressed on numerous occasions, the notion of the “family” is not confined solely to marriage-based relationships and may encompass other de facto “family” ties where the parties are living together outside of marriage (see paragraph 94 of the judgment, with further references). But the applicant's complaints do not relate to this aspect of Article 8 of the Convention. What I cannot agree with in the text of the judgment are the Court's pronouncements on marriage under Islamic law. I think it would have been wiser to refrain from making any assessment of the complexity of the rules of Islamic marriage, rather than portraying it in a reductive and highly subjective manner in the short section entitled “History” (see paragraphs 36-37), where what is left unsaid speaks louder than what is actually said. Hence, to state that “Islamic law... recognises repudiation (talâk) as the sole means of dissolving a marriage”, such repudiation being “a unilateral act on the part of the husband”, and not to mention that the woman can also seek a divorce, for instance if her husband is unable to maintain the family, is to present only half the picture. Had the Court really been interested in the financial position of the applicant, whose complaints it reclassified, it could have analysed in greater detail in its judgment the financial relationship between married couples under Islamic law. The husband has to pay a dowry, which belongs to the wife unless she agrees otherwise (Koran, 4:4); after divorce, the man cannot claim back the dowry unless the woman agrees to it (Koran, 2:229); the woman can obtain a divorce by buying back her freedom (Koran, 2:229); finally, men and women are each entitled to a share of the inheritance (Koran, 4:7, 4:11 and 4:32). This analysis would have enabled the Court to give a more qualified interpretation of the “legitimate aim” of the 1926 Turkish Civil Code, instead of denouncing “a marriage tradition which places women at a clear disadvantage, not to say in a situation of dependence and inferiority, compared to men” (see paragraph 81). The language of politicians and NGOs is not always appropriate to the texts adopted by an international judicial body. Unfortunately, in another case (Refah Partisi (the Welfare Party) and Others v. Turkey [GC], nos. 41340/98, 41342/98, 41343/98 and 41344/98, ECHR 2003‑II), the Court had already, in my view, committed a serious error by passing judgment on the Islamic system of values (see my concurring opinion in that case), when it could easily have refrained from such a demonstration of ideological activism. The European Convention on Human Rights is not the only instrument of its kind. The Universal Islamic Declaration of Human Rights (21 Dhul Qaidah 1401 – 19 September 1981) also contains certain provisions (in particular Article XX on the rights of married women) which, had the Court taken them into account, would have prevented it from reaching hasty conclusions which I regret being obliged to adopt together with the rest of the text of the judgment. I would like to see the European Court of Human Rights take a more anthropological approach in the positions it adopts, by “not just exploring difference, but exploring it differently” (“non seulement penser l'autre, mais le penser autrement”) (see, in particular, C. Eberhard, Le droit au miroir des cultures – Pour une autre mondialisation, Paris, 2010). Otherwise, the Court is in danger of becoming entrenched in “eurocentric” attitudes.

FIFTH SECTION CASE OF DELECOLLE v. FRANCE (Application no. 37646/13) JUDGMENT STRASBOURG 25 October 2018 FINAL 25/01/2019 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Delecolle v. France, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Angelika Nußberger, President,André Potocki,Síofra O’Leary,Mārtiņš Mits,Gabriele Kucsko-Stadlmayer,Lәtif Hüseynov,Lado Chanturia, judges,and Milan Blaško, Section Registrar, Having deliberated in private on 25 October 2018, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 37646/13) against the French Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a French national, Mr Roger Delecolle (“the applicant”), on 5 June 2013. 2. The applicant was represented by Mr P. Spinosi, a lawyer practising in Paris. The French Government (“the Government”) were represented by their Agent, Mr F. Alabrune, Director of Legal Affairs at the Ministry for Europe and Foreign Affairs. 3. The applicant alleged a violation of Article 12 of the Convention. He complained that he had been denied the right to marry on the grounds that his marriage had been subject to the authorisation of his supervisor or the guardianship judge. 4. On 18 September 2015 notice of the application was given to the Government. 1. By letter of 15 February 2016, counsel for the applicant informed the Court of his client’s death on 4 February 2016. He requested that the Court extend his deadline for replying to the Government’s observations so that he could ascertain whether any rightful claimants wished to continue the proceedings. 2. On 6 September 2016 the Court was informed that M.S., the applicant’s partner, intended to pursue the application. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 3. The applicant, who is now deceased, was born in 1937 and lived in Paris. 4. On 23 June 2009 the guardianship judge of the District Court of the 15th Administrative District of Paris placed the applicant, who was then seventy-two years of age, under enhanced protective supervision (curatelle renforcée) for five years, on an initial request from his adoptive daughter. In order to reach her decision, the judge first of all requested the opinions of Dr M.F. and Dr J‑P.B., two specialists, who each drew up a medical certificate, on 25 November 2008 and 14 March 2009 respectively. She appointed M.-C.M as supervisor (see paragraphs 24 to 34 below for further details on the protective supervision system). 5. The applicant applied to the Paris Regional Court for the lifting of the measure, in the alternative for his placement under ordinary supervision, and in the further alternative for the reduction of the period of supervision to twenty-four months. On 18 December 2009 the Paris Regional Court dismissed those requests. It noted that the report drawn up by Dr R., a neuropsychiatrist whom the applicant had consulted, had ruled out any form of dementia but had confirmed a slight cognitive impairment and some psychological fragility and vulnerability, rendering a protective measure necessary in view of the extent of the applicant’s personal assets. The court agreed with Dr B. that the applicant had previously considered the management of his real property as a hobby, that he no longer had the physical and mental capacities for performing that task, that it was important that he be relieved of the said task of managing his business interests and tax returns, and that, similarly, he should no longer be allowed to dispose of his property. However, the court considered that the measure could be adjusted on the basis of the cognitive impairment noted, allowing him to hold a bank account and a cash withdrawal card. 6. The applicant requested his supervisor’s authorisation to marry M.S., a friend whom he had known since 1996 and who had become his partner in 2008. The supervisor interviewed M.S. and the applicant, at first separately and then together. They informed her

of the importance which they attached to the religious dimension of marriage. On 17 December 2009 the supervisor refused to authorise the marriage on the grounds that she had only known the applicant for a few months and that she therefore lacked the necessary background to authorise a wedding. 7. By order of 21 December 2009, the guardianship judge ordered a social inquiry, and commissioned the Département Union of Family Associations (the “UDAF”) to gather information on the applicant’s living conditions, lifestyle, social status and circle of friends. The applicant appealed to the Paris Court of Appeal against that order. 8. On 21 December 2009 the guardianship judge commissioned a medical opinion, on her own initiative, in order to consolidate her knowledge of the case file with an eye to determining the applicant’s capacity to enter into wedlock. 9. On 18 January 2010 the psychiatrist appointed by the judge drew up a detailed medical certificate concluding that the applicant suffered from intellectual disorders. While noting the applicant’s capacity to consent to marriage, the psychiatrist considered him incapable of dealing with the consequences of his consent in terms of his property and finances. In his report, quoting passages from his interview with the applicant, the psychiatrist gave his personal opinion on the facts of the case, including works carried out by the applicant on his apartment. He also considered that some of the arguments put forward by the applicant in favour of his marriage “bordered on the absurd”, including the fact that his grandmothers had also remarried at an advanced age and that he wanted help in looking after himself and carrying out everyday chores. 10. On 1 March 2010 the Paris Court of Appeal declared inadmissible the applicant’s appeal against the order of 21 December 2009. It held that it was in the interests of a vulnerable adult for the guardianship judge to take all the necessary action to ensure his protection, bearing in mind that a person under a supervision order can only get married with the authorisation of the supervisor, or failing that, of the judge, who could order a social inquiry or an inspection by a person of his or her choosing. The court noted that that was precisely the option which had been taken by the guardianship judge in issuing two separate orders for a medical examination and a social inquiry. 11. On 1 June 2010 the UDAF submitted its report. It emphasised that there was a financial stake at the heart of a major family conflict, in which the applicant’s interest and well-being did not seem to be given much consideration. It noted that the applicant’s daughter and M.S. accused each other of being primarily interested in the applicant’s fortune, and that it was unclear whether the latter was being influenced by anyone. The UDAF added that the applicant was deeply affected by the conflict and that he seemed to consider marriage as a way of ensuring that he had someone at his side to assist him and to organise his daily life, and to avoid having to end his life on his own. 12. On 24 June 2010, after hearing the applicant and his daughter, the guardianship judge dismissed the applicant’s request. While noting that no one disputed the latter’s attachment to M.S., it ruled that that was insufficient to justify authorising the planned wedding. Having pointed out that the applicant and M.S. were former alcoholics and that the applicant was apparently still drinking, the judge stated that he “was therefore only seeking greater safety in marriage in order to prevent a possible break-up and therefore the risk of ending his life alone”. Furthermore, she considered that the lack of clarity as to the financial implications of the marriage was particularly worrying as the applicant was torn between his daughter and M.S., and financial considerations had manifestly led to a serious conflict between the two, quoting the UDAF’s findings on that point. Without pronouncing on the religious dimension mentioned by the applicant, she concluded that the planned marriage as it stood was not in the applicant’s interests. The applicant appealed. 13. By judgment of 6 September 2011 the Paris Court of Appeal upheld the guardianship judge’s decision of 24 June 2010. It noted that although the applicant had on several occasions expressed the wish to marry M.S., the serious disorders from which he had been suffering for several years had severely affected his judgment, as noted in the medical certificates of 14 March 2009 and 18 January 2010. Moreover, his anosognosia had prevented him from planning his joint life with his partner, taking account of the financial and legal implications of marriage. Furthermore, while the applicant seemed emotionally attached to his partner, the court noted that since they had been living together the applicant had been managing his affairs in an increasingly unreasonable manner, and his supervisor had not always been able to protect his interests. In particular, the applicant had had work carried out in the family apartment to the tune of

250,000 euros a few months after his wife’s death, and had placed her furniture in storage under somewhat questionable conditions. The court of appeal also noted that a draft handwritten will had been prepared on 14 August 2009 in M.S.’s favour, observing that according to his lawyer’s submissions, the applicant held assets of some 6,000,000 euros and had concluded with his deceased wife a universal community of assets contract. The court of appeal further noted that the applicant’s relations with his daughter, M.D., had seriously deteriorated. The court of appeal concluded that although the inquiries ordered by the guardianship judge had mentioned the applicant’s and M.S.’s mutual affection, the psychopathological turn in his disorders and his failing perception of the realities of his finances were such that he could not give his informed consent to marriage. 14. The applicant appealed on points of law. In that appeal he also put a request for a preliminary ruling (a “QPC”) on the constitutionality of Article 460 (1) of the Civil Code. He submitted that that provision contravened, in particular, the principle of freedom of marriage by making the marriage of a supervisee subject to the supervisor’s authorisation, or failing that, to that of the guardianship judge. 15. By decision of 29 June 2012 (no. 2012-260 QPC), the Constitutional Council, noting that the right to marriage was based on Articles 2 and 4 of the 1789 Declaration of the Rights of Man and the Citizen, declared Article 460 (1) of the Civil Code to be in conformity with the Constitution, given that it did not prohibit marriage but rather permitted it with the supervisor’s authorisation, the withholding of which could be brought before a court, which was required to organise adversarial proceedings followed by a reasoned decision, against which an appeal also lay. The court also considered that, having regard to the personal and pecuniary obligations stemming from marriage, the latter was an important civil act with which the said restrictions on freedom of marriage did not interfere disproportionately. 16. On 5 December 2012 the Court of Cassation dismissed the applicant’s appeal on points of law. On the one hand, it noted that the Constitutional Council had declared Article 460 (1) of the Civil Code constitutional, and on the other, held that the Paris Court of Appeal had lawfully reasoned its decision by analysing not only the relevant medical certificates but also the other documents on file, thus enabling it to deduce that the applicant was incapable of providing informed consent to his marriage owing both to the psychopathological evolution of his disorders and to his loss of control over the realities of his financial situation. 17. On 15 February 2016 counsel for the applicant informed the Court of his client’s death on 4 February 2016. 18. On 6 September 2016 he informed the Court of M.S.’s intention to pursue the application. The Registry of the Court invited the Government to present their comments on that development. II. RELEVANT DOMESTIC LAW A. Imposition of a protective measure, and the two systems of supervision 19. French law establishes legal majority at the age of eighteen, as of which age anyone may exercise the rights available to him or her (Article 414 of the Civil Code). However, some persons of full age are protected by law. Thus persons who are unable alone to protect their own interests owing to a medically certified impairment of their mental or physical faculties are entitled to legal protection (Article 425 of the Civil Code). 20. French law provides for three categories of persons of full age lacking legal capacity. The first covers “persons of full age under judicial protection”, who only require temporary protection in the conduct of their civil affairs or representation in the performance of specific acts (Article 433 of the Civil Code). The second category concerns persons of full age under supervision orders (curatélaires) who are not unable to act alone but require constant assistance or supervision in the conduct of important civil affairs where it has been established that judicial protection cannot provide sufficient protection (Article 440 (1) and 3 of the Civil Code). Lastly, persons who require constant representation in the conduct of civil affairs may be placed under guardianship orders if it is established that neither judicial protection nor supervision will provide sufficient protection (Article 440 (3) and (4) of the Civil Code). 21. Supervision can take two different forms, namely standard and enhanced. While standard supervision is the ordinary-law mechanism commonly used, a court may at any time order enhanced supervision. The latter arrangement differs in that only the supervisor receives the supervisee’s income in an account opened in the latter’s name. The supervisee personally settles his or her expenditure vis-à-vis third persons. The supervisor is required to draw up an annual accountancy report (Article 472

of the Civil Code). 22. This protective measure can be ordered by a court only if strictly necessary and where no other legal means or less stringent measures are practicable (Article 428 of the Civil Code). The measure is structured and customised in accordance with the degree of impairment of the individual’s personal faculties (Article 428 (2) of the Civil Code). Applications for a protective measure must, on pain of inadmissibility, be accompanied by a detailed certificate prepared by a medical officer who is selected from a list drawn up by the State Prosecutor (Article 431 (1) of the Civil Code). The person concerned is heard by the judge (Article 432 of the Civil Code). 23. An application for supervision may be lodged, in particular, by a relative of the person concerned (Article 430 of the Civil Code). The guardianship judge hears the person to be supervised in private session, when he or she may be accompanied by a lawyer or, subject to the judge’s agreement, by a person of his or her choosing (Article 432 of the Civil Code). The judgment establishing the supervision must be notified to the supervisee. Unless provisional enforcement is ordered, the period for appealing and the appeal itself, lodged within fifteen days of the decision or its notification (Article 1239 of the Code of Civil Procedure), stay the execution of the decision (Article 1232 of the Code of Civil Procedure). 24. The judge establishes the length of the period of supervision, which cannot exceed five years, save in exceptional cases (Article 441 of the Civil Code). 25. An appeal lies with the regional court against decisions given by the guardianship judge (Article 1239 of the Code of Civil Procedure, version in force at the material time). B. Consequences of the supervision order 26. Persons under supervision orders are prohibited from conducting specific affairs without the supervisor’s assistance (Article 467 of the Civil Code). For the conclusion of a written act, the supervisor’s assistance is manifested by his or her signature on the document beside the protected person’s signature (Article 467 (2) of the Civil Code). Where the supervisor withholds his or her assistance, the supervisee can request the authorisation of the guardianship judge to proceed alone (Article 469 (3) of the Civil Code). 27. Article 465 of the Civil Code lays down regulations on acts conducted by adults under supervision as of the promulgation of the judgment imposing the protective measure. An act unlawfully conducted by a supervisee may be annulled. The Civil Code sets out three scenarios, depending on the nature of the act: mandatory nullity, nullity subject to proof of damage, and nullity subject to proof of injury or abuse. Nevertheless, the Civil Code explicitly lays down specific rules on specific civil acts, for example the drafting of a will (Article 470 (1) of the Civil Code), inter vivos gifts (Article 470 (2) of the Civil Code), and the conclusion of a “civil solidarity pact” (“PACS”, Article 461 of the Civil Code) or marriage (Article 460 (1) of the Civil Code). 28. A person under a supervision order is only allowed to marry with the authorisation of the supervisor, or failing that, of the judge. In cases where marriage has been contracted without a request for authorisation or where the supervisor has withheld authorisation, the latter may apply for the annulment of the marriage (see Cass. 1re civ., 17 May 1988, appeal (pourvoi) no. 86-10817, Bull. I, no. 147, and Cass. 1re civ., 5 May 1993, appeal (pourvoi) no. 91-11700). 29. Supervisees may not conclude a PACS without their supervisors’ assistance (Article 461 (1) of the Civil Code). THE LAW I. LOCUS STANDI OF M.S. A. The parties’ submissions 1. The Government 30. First of all, the Government, relying on the judgment in the case of Kurić and Others v. Slovenia, (no. 26828/06, § 276, 13 July 2010), submitted that M.S. was neither an heir to nor a relative of the applicant. Under French law “partner” status did not confer status as heir. On the other hand, M.D., the applicant’s daughter, did hold such status. If M.S. claimed to be the applicant’s universal legatee, the Court had previously ruled that such status alone did not confer the right to pursue the application (see Thévenon v. France (dec.), no. 2476/02, ECHR 2006‑III). 31. Finally, the Government argued that the applicant’s situation had

been a special case, namely that of a person under an enhanced supervision order whose interests the French State had aimed to protect pursuant to the legislation applicable to protected persons of full age. The alleged violation was therefore not an important matter of public interest liable to help clarify, protect or develop the standards set out in the Convention. 32. The Government deduced from the foregoing considerations that M.S. fulfilled none of the conditions laid down in the Kurić and Others judgment (cited above) and that consequently she could not pursue the application lodged by the applicant. They therefore requested that the Court strike the case out of its list, pursuant to Article 37 § 1 of the Convention. 2. M.S. 33. M.S. submitted that she had a legitimate interest in continuing the case in order to pursue the examination of the application lodged by the applicant, with whom she had maintained an intimate, sincere and constant relationship between 2008 and his death in 2016. Their relationship amounted to private and family life within the meaning of Article 8 of the Convention, and the applicant and M.S. had wished to officialise that relationship through marriage. The applicant added that she was primarily concerned by the refusal to authorise her planned marriage to the applicant. 34. She also affirmed that the application, which concerned access to marriage by an adult under a supervision order, raised an issue which transcended the person and interests of the applicant and his heirs in that the situation in question could affect other persons. Finally, respect for human rights as secured under the Convention and the protocols thereto warranted continuing the application, in pursuance of Article 37 §1 (b) of the Convention. B. The Court’s assessment 35. The Court notes from the outset that the issue before it concerns neither the loss of victim status because the domestic authorities have already remedied the complaint, as was the case in Kurić and Others (cited above) relied upon by the Government, nor the capacity of a third party to lodge an application with the Court on behalf of a deceased person, in which case consideration would be required of whether or not the complaints are transferable or not. In the present case, the Court must adjudicate a different hypothesis, that is to say the pursuit of the application lodged by the initial applicant in his capacity as the direct victim, after his death during the proceedings before the Court. 36. The Court reiterates that in several cases in which an applicant had died during the proceedings before it, it has had regard to a wish voiced by heirs or close relatives to continue the application (see, for example, Deweer v. Belgium, 27 February 1980, §§ 37-38, Series A no. 35; X v. the United Kingdom, 5 November 1981, § 32, Series A no. 46; Vocaturo v. Italy, 24 May 1991, § 2, Series A no. 206-C; G. v. Italy, 27 February 1992, § 2, Series A no. 228-F; Pandolfelli and Palumbo v. Italy, 27 February 1992, § 2, Series A no. 231-B; X v. France, 31 March 1992, § 26, Series A no. 234-C; and Raimondo v. Italy, 22 February 1994, § 2, Series A no. 281-A), or the existence of a legitimate interest on the part of a person wishing to have the application pursued (see Malhous v. the Czech Republic (dec.) [GC], no. 33071/96, ECHR 2000‑XII). 37. Conversely, the Court has a practice of striking cases out of its list where no heir or close relative wishes to pursue the proceedings (see, among other authorities, Scherer v. Switzerland, judgment of 25 March 1994, §§ 31-32, Series A no. 287, and Thévenon, cited above). The same applies where the request for the continuation of proceedings is submitted by a person who has provided no evidence either of his or her status as heir or close relative of the applicant, or of any legitimate interest (see Léger v. France [GC], no. 19324/02, § 50, 30 March 2009). 38. In the instant case, the person wishing to pursue the case before the Court is not an heir. In fact, M.S. was the applicant’s partner for some eight years, up until his death. Moreover, neither their relationship nor their intention to marry is in dispute. The Court reiterates that a couple such as the applicant and M.S. who have been living together for many years constitute a “family” for the purposes of Article 8 of the Convention and are entitled to its protection, notwithstanding their relationship exists outside marriage (see Johnston and Others v. Ireland, 18 December 1986, § 56, Series A no. 112; Velikova v. Bulgaria (dec.), no. 414

88/98, 18 May 1999; and Elsholz v. Germany [GC], no. 25735/94, § 43, ECHR 2000-VIII). The Court further notes that M.S. requests the continuation of an application which concerns, precisely, the fact that the applicant could not marry her owing to the domestic courts’ refusal to authorise such marriage. 39. Finally, as the Court pointed out in the above-cited Malhous decision, human rights cases before the Court generally also have a moral dimension, which must be taken into account when considering whether the examination of an application after the applicant’s death should be continued – all the more so if the main issue raised by the case transcends the person and the interests of the applicant (see also Karner v. Austria, no. 40016/98, § 25, ECHR 2003-IX). The Court considers that the subject matter of the present application, that is to say the restrictions on the right to marry of persons placed under a legal protection regime, raises an important general question which transcends the person and the interests of the applicant and his heirs in that it may affect other persons (cf., mutatis mutandis, Malhous, cited above). 40. The Court therefore considers that in the present case the conditions for striking a case out of the list as defined in Article 37 § 1 of the Convention have not been fulfilled, and that the examination of the application should continue on the basis of Article 37 § 1 in fine. It consequently rejects the Government’s request for the case to be struck out. For practical reasons, the present judgment will continue to use the word “applicant” even though that status is no longer assigned to Roger Delecolle but to his partner, M.S. (see, for example, Dalban v. Romania [GC], no. 28114/95, § 1, ECHR 1999‑VI, and Ergezen v. Turkey, no. 73359/10, § 30, 8 April 2014). II. ALLEGED VIOLATION OF ARTICLE 12 OF THE CONVENTION 41. The applicant complained that he had been unable to marry owing to the fact that his marriage was subject to the authorisation of his supervisor of the guardianship judge. He alleged a violation of Article 12 of the Convention, which provides: “Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.” A. Admissibility 42. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties’ submissions (a) The applicant 43. The applicant submitted that the right to marry was a fundamental freedom guaranteed by Article 12 of the Convention and Article 23 of the International Covenant on Civil and Political Rights. In his view, Article 460 (1) of the Civil Code, which, in respect of the marriage of a person under a supervision order, required the authorisation of the supervisor, or failing that, of the guardianship judge, was contrary to the fundamental principle of freedom to marry, a strictly personal and private act the exercise of which should be guaranteed in all cases where the personal consent of an adult supervisee was shown to be genuine. The applicant pointed out that he had explicitly manifested a private and personal wish, motivated inter alia by religious considerations, to marry M.S. 44. Relying on the judgments in the cases of Frasik v. Poland (no. 22933/02, ECHR 2010 (extracts) and Christine Goodwin v. the United Kingdom [GC] (no. 28957/95, ECHR 2002‑VI), he argued that when the Court was determining a case under Article 12, it did not apply the “necessity” and the “pressing social need” criteria used in the framework of Article 8 of the Convention. 45. He also considered that the only possibility granted to the supervisor for requesting annulment of the marriage was a measure geared to ensuring a better balance between the freedom to marry and the protection provided to the supervisee. 46. Finally, the applicant also noted the inconsistency of domestic law in allowing supervisees freely to enter into a PACS. (b) The Government 47. The Government argued that the provisions of Article 460 (1) of the Civil Code did not set forth a general ban on marriage but merely laid down an obligation to obtain the supervisee’s agreement in order to ensure the validity of his or her consent. Those requirements helped to

safeguard the protected adults’ consent to marriage and also their interests, in order to prevent the risk of their inheritance being hijacked or their being exposed to psychological influence. 48. As regards the instant case, the Government observed that several medical reports had been drawn up, both before the imposition of the supervision order and after the applicant had submitted his request for authorisation. The protective measure imposed on the applicant could not have lasted for more than five years, and that period could only be extended by a judge if his personal faculties deteriorated such as to preclude any likelihood of improvement according to the latest research relevant to his state of health. Furthermore, the guardianship judge, whose decisions were subject to appeal, could terminate the supervision order, amend it or replace it with a different measure, including less stringent options. 49. The Government also emphasised that the applicant had availed himself of all the remedies available to him and been heard by the domestic courts on numerous occasions. The decisions given were duly reasoned and based on the state of health of the applicant, who could not have provided informed consent in view of the deterioration of his perception, his mental and cognitive capacities and his judgement. The domestic courts had also had regard to the extent of his property, the management problems which had emerged since he had started living with his partner, as well as the increasing numbers of unreasonable acts and instances of overspending, or again the drawing up of a will to the advantage of M.S., against the background of a heated dispute between the latter and the applicant’s daughter. 2. The Court’s assessment 50. The Court reiterates that Article 12 guarantees the fundamental right of a man and a woman to marry and to found a family. The exercise of this right gives rise to personal, social and legal consequences. It is subject, in both procedural and substantive terms, to the national laws of the Contracting States, but the limitations thereby introduced must not restrict or reduce the right in such a way or to such an extent that the very essence of the right is impaired (see F. v. Switzerland, 18 December 1987, § 32, Series A no. 128; Christine Goodwin, cited above, § 99; and Frasik, cited above, § 88). 51. In consequence, the matter of conditions for marriage in the national laws is not left entirely to Contracting States as being within their margin of appreciation. This would be tantamount to finding that the range of options open to a Contracting State included an effective bar on any exercise of the right to marry. The margin of appreciation cannot extend so far (ibid.). 52. The Convention institutions have accepted that limitations on the right to marry laid down in the national laws may comprise formal rules, but also substantive provisions based on generally recognised considerations of public interest, in particular concerning capacity (see Frasik, cited above, § 89). 53. Moreover, in contrast to Article 8 of the Convention, which sets forth the right to respect for private and family life, and with which the right “to marry and to found a family” has a close affinity, Article 12 does not include any permissible grounds for an interference by the State that can be imposed under paragraph 2 of Article 8 “in accordance with the law” and as being “necessary in a democratic society”, for such purposes as, for instance, “the protection of health or morals” or “the protection of the rights and freedoms of others”. Accordingly, in examining a case under Article 12 the Court would not apply the tests of “necessity” or “pressing social need” which are used in the context of Article 8 but would have to determine whether, regard being had to the State’s margin of appreciation, the impugned interference was arbitrary or disproportionate (see Frasik, cited above, § 90). 54. The Court first of all observes that persons under supervision are not deprived of the right to marry. On the other hand, their right to marry is subject to prior authorisation, owing to the restriction on their legal capacity, which is one of the substantive grounds whose relevance is acknowledged by case-law. 55. The Court notes that in the present case the imposition of a supervision order on the applicant corresponds to the requirements set out in the Court’s case-law (see Lashin v. Russia, no. 33117/02, § § 80‑81, 22 January 2013). Indeed, two specialist medical reports were produced before the measure was imposed. Furthermore, while the applicant appealed to the Regional Court against his placement under supervision (which appeal was dismissed on 18 December 2009), he did not lodge an appeal on points of law (see paragraph 9 above). 56. As regards the subsequent decision denying the applicant’s right to marry, it was first of all taken by the supervisor, after hearing both the applicant and M.S.

(see paragraph 11 above). The guardianship judge then adjudicated, after, first of all, a social inquiry, which highlighted a financial stake at the heart of a major family dispute that had apparently involved little consideration of the applicant’s interests and well-being, and secondly, a psychiatric examination (see paragraphs 12 to 17 above). The psychiatrist appointed by the judge found that the applicant suffered from intellectual disorders, and, while concluding that the applicant had capacity to consent to marriage, he considered him incapable of dealing with the consequences of his consent in terms of his property and finances. 57. The Court notes that, drawing on those two reports and the hearing of the applicant, the guardianship judge refused the applicant the right to marry, on the grounds that such a step was not in his interest. It further notes that the decision given on 24 June 2010 is fully reasoned and that the applicant was able to appeal against it. The judgment of the Paris Court of Appeal, which was also reasoned, was delivered following a hearing during which the applicant, who was present and accompanied by his lawyer, was able to make submissions. 58. The Court observes that the applicant subsequently appealed on points of law, availing himself of the option of putting a “QPC” concerning the alleged infringement of the principle of freedom to marry owing to the requirement for an adult under a supervision order to seek the authorisation of the supervisor, or failing that, of the guardianship judge. In its decision of 29 June 2012, the Constitutional Council noted that Article 460 (1) of the Civil Code did not prohibit marriage but rather permitted it with the supervisor’s authorisation, the withholding of which could be brought before a court, which then had to organise adversarial proceedings. The court found that, having regard to the personal and pecuniary obligations stemming from marriage, the latter was an important civil act with which the said restrictions on freedom of marriage did not disproportionately interfere (see paragraph 20 above). The Court of Cassation, for its part, had dismissed the applicant’s appeal on points of law, firstly by citing the Constitutional Council’s decision and secondly by ruling that the Paris Court of Appeal had lawfully reasoned its decision by analysing not only the relevant medical certificates but also the other documents on file, thus enabling it to deduce that the applicant was incapable of consenting in an informed manner to his own marriage (see paragraph 21 above). 59. Most of the violations of Article 12 of the Convention previously found by the Court concerned individuals with full legal capacity (see, in particular, F., cited above; B. and L. v. the United Kingdom, no. 36536/02, 13 September 2005; and O’Donoghue and Others v. the United Kingdom, no. 34848/07, ECHR 2010). In the Court’s view, the fact that the applicant’s right to marry had been restricted by the national authorities meant that his situation was different, and that the present case thus concerns a different hypothesis, that is, a restriction imposed on a person who lacks full legal capacity. 60. The Court considers that both the impugned legal provisions and the refusal, in the instant case, to authorise the applicant’s marriage, fall within the margin of appreciation afforded to the respondent Government. Unlike in situations where individuals are deprived of the right to marry under any circumstances (see, for example, Christine Goodwin, cited above, § 103), the obligation placed on the applicant to request prior authorisation for his marriage had been based on the fact that he was under a legal protection order, that is to say an enhanced supervision order. Accordingly, the authorities had a margin of appreciation, enabling them to provide him with effective protection depending on the circumstances, and thus to anticipate consequences liable to be detrimental to his interests. As regards Article 460 (1) of the Civil Code, the Court notes that that provision in fact preserves the right to marry, as confirmed by the Constitutional Council. It is true that some restrictions are laid down. However, the Court observes that those restrictions are properly regulated, with remedies under which restrictions on the right to marry can be subjected to judicial review, in the framework of adversarial proceedings. That was the situation for the applicant in the present case, since he availed himself of the remedies provided in domestic law and was able to make submissions in adversarial proceedings in order to contest the impugned decision (see paragraphs 62 and 63 above). Moreover, as stated by the Constitutional Council, the supervision system is aimed at protecting the interests of the supervisee and promotes the latter’s autonomy as far as possible (decision no. 2012-260 QPC, cited above, § 5). 61. Finally, in connection with the applicant’s argument that a person under a supervision order is free to conclude a PACS (and not marriage) (see paragraph 50 above), the Court notes, on the one hand

, that the matter of concluding a PACS, which is regulated differently from marriage, is extraneous to the facts of the present case, and on the other, that at any event domestic law makes the conclusion of such a pact conditional upon the assistance of the supervisor (see paragraph 33 above). 62. Having regard to the foregoing considerations, and in the light of the circumstances of the case and of the margin of appreciation available to the domestic authorities, the Court holds that the restrictions on the applicant’s right to marry did not limit or reduce that right in an arbitrary or disproportionate manner. There was therefore no violation of Article 12 of the Convention. FOR THESE REASONS, THE COURT 1. Holds that M.S. has standing to replace the applicant in the present case, and rejects, unanimously, the Government’s request to strike the case out of its list of cases; 2. Declares, unanimously, the application admissible; 3. Holds, by six votes to one, that there has been no violation of Article 12 of the Convention. Done in English, and notified in writing on 25 October 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Milan BlaškoAngelika NußbergerRegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge A. Nußberger is annexed to this judgment. A.N.M.B. SEPARATE OPINION OF JUDGE NUSSBERGER A. The central issue of the case This case raises a “typical” human rights issue. Just how far can the State restrict individuals’ autonomy for the purposes of protecting them against their own will? This is a thorny and important question, especially in the case of a right – such as the right to marry – which is considered as so essential that it is the subject of a separate Convention article. The majority of the Chamber wish such an interference only to be subject to procedural supervision – affording the respondent Government a wide margin of appreciation – whereas in my view what has to be assessed is the proportionality of the restrictive measure. B. Systemic interpretation of Article 12 in the light of Article 8 of the Convention It is true that the wording of Article 12 of the Convention (right to marry) is different from that of Article 8 of the Convention (right to respect for private and family life). Article 12 does not define the limits of possible interferences or make them subject to supervision of what is “necessary in a democratic society” to attain the “legitimate aim” pursued; it confines itself to stating that the right must be safeguarded “according to the national laws governing the exercise of this right” (see Jaremowicz v. Poland, no. 24023/03, § 50, 5 January 2010). What conclusion should be drawn from this? Can it be deduced from the literal text of the Convention that the right to marry is less deserving of protection than the right to respect for private and family life? The Commission seemed to gainsay such an approach when it spoke of an “absolute right in the sense that no restrictions similar to those in para. (2) of Art. 8 of the Convention are expressly provided for” (see X v. the United Kingdom (dec.), no. 6564/74, 21 May 1975), whereas the case-law of the Court would seem to suggest that Article 12 provides a lower level of protection than Article 8. Thus the Court verifies whether the limitations introduced by domestic law restrict or reduce the right in such a way or to such an extent that the very essence of the right is impaired (see L. v. the United Kingdom, no. 36536/02, § 34, 13 September 2005, and F. v. Switzerland, 18 December 1987, § 32, Series A no. 128). Or else, as in Frasik, it determines whether, “regard being had to the State’s margin of appreciation, the impugned interference [is] arbitrary or disproportionate” (see Frasik v. Poland, no. 22933/02, § 90, ECHR 2010), but without venturing to conduct a full review of proportionality. That is also the approach adopted by the majority of the Chamber (see paragraph 57 of the judgment). Yet should we not go even further and consider the proportionality of restrictions on the right to marry, as we do under Article 8? That raises a question of interpretative methodology, which is especially important in view of the structural imbalance in the interpretation of these two Convention articles. Whereas in hundreds of judgments the Court has widened the guarantees of Article 8, transforming them into a kind of “umbrella protection”, it has treated the interpretation of Article

12 as a “poor relation”. However, if the right to marry were not governed by a separate provision it could just as easily fall within the ambit of Article 8, as evidenced by the case-law on the rights of same-sex couples. Thus in its Schalk and Kopf judgment the Court interpreted the “to marry” concept set out in Article 12 in its historical context and only applied it to heterosexual marriage (see Schalk and Kopf v. Austria, no. 30141/04, § 55, 24 June 2010), while analysing under Article 8 the authorities’ rejection of a same-sex couple’s application to marry (see Schalk and Kopf, cited above, § 94). Does not such case-law, which applies a different yardstick to same-sex couples and different-sex couples, lead to differing levels of protection? I would take the view that it contradicts the systemic interpretation method under which 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” (see Hirsi Jamaa and Others v. Italy [GC], no. 27765/09, § 171, ECHR 2012). Furthermore, such an interpretation is incompatible with the Court’s jurisprudential premise that same-sex couples are just as capable as different-sex couples of entering into stable, committed relationships, and that they are in a relevantly similar situation to a different-sex couple as regards their need for legal recognition and protection of their relationship (see Oliari and Others v. Italy, nos. 18766/11 and 36030/11, § 165, 21 July 2015; Schalk and Kopf, cited above, § 99; and Vallianatos and Others v. Greece [GC], nos. 29381/09 and 32684/09, §§ 78 and 81, ECHR 2013). For all these reasons I consider that, in the sphere of restrictions on the right to marry, we must not confine ourselves to superficially checking whether the interference was arbitrary and leaving the respondent Government a wide margin of appreciation. On the contrary, an analysis is required, as in the case of Article 8, of whether, in the individual case, the prohibition of marriage was “necessary in a democratic society” and met “a pressing social need”. C. Proportionality of the prohibition of marriage in the present case In the present case, the starting point for the analysis must be the applicant’s clearly expressed wish to marry a long-standing female friend. At the time he had taken that decision the applicant had known her for fifteen years (see paragraph 10 of the judgment). His attachment to her was undisputed (see paragraph 16 of the judgment). His capacity to consent to marriage was confirmed by the authorities (see paragraph 13 of the judgment). Moreover, the decision was based on religious grounds, family traditions and the wish to have “someone at his side to assist him and to organise his daily life, and so that he would not end his life on his own” (paragraph 15 of the judgment). Despite all those considerations, the applicant was prohibited from marrying M.S. It is true, as emphasised by the Government, that it was not a “general ban on marriage” but merely “an obligation to obtain the supervisee’s agreement” (see paragraph 51 of the judgment). However, since the applicant had been denied that agreement, his prohibition of marriage was absolute and final. He contested the prohibition at all the judicial levels up to the Court of Cassation, even putting a priority question as to constitutionality to the Constitutional Council. Having lost his case at the age of seventy-five, he could not reasonably have expected any change in the situation before his death (even though, theoretically, that possibility could not have been ruled out because the enhanced supervision had only been imposed for five years). Indeed, it was an effective legal bar within the meaning of the Court’s case-law (see Jaremowicz, cited above, § 60). Is such a serious interference with the exercise of one of the most personal rights of an individual compatible with the Convention? The legitimate aim of such a restriction was obviously to protect the applicant, as a vulnerable person, from actual dangers of which he himself was unaware. The danger here was purely financial, in view of the extent of the applicant’s personal fortune. The authorities based their decision on the fact that the applicant could not have controlled the consequences of his consent to marriage in terms of his property and finances. He was alleged to have considered the management of his real estate as “a hobby” (see paragraph 9 of the judgment), his expenditure on refurbishment work in his apartment was considered unreasonable (see paragraph 17 of the judgment), he had reportedly not stopped drinking (see paragraph 16 of the judgment),

but he was allowed to have a bank account and a cash withdrawal card (see paragraph 9 of the judgment). It is clear that if he had been poor no one would have objected to his planned marriage. Marriage indisputably has not only legal but also social and personal consequences. Nevertheless, the French authorities did not take seriously, and even ridiculed, the arguments put forward by the applicant for wishing to get married. The psychiatrist appointed by the guardianship judge considered the applicant’s wish not to be abandoned as “bordering on the absurd” (see paragraph 13 of the judgment), which approach starkly contrasts with the stance adopted by the Court, which has on many occasions accepted that needs in terms of mutual support and assistance are reasons justifying the right to marry (see Vallianatos, cited above, § 81). Furthermore, the guardianship judge did not pronounce on the religious aspects mentioned by the applicant (see paragraph 16 of the judgment). At the same time, the financial threats from which the applicant allegedly needed protection were not clearly defined. A clear distinction must be drawn between the applicant’s interests and those of his potential heirs. It was not necessarily in the applicant’s interest to preserve his assets for his future heirs, but rather to continue to live until his death without financial worries and in a manner of his own choosing. In the present case, unlike in many other cases, the Court is not called upon to balance the different rights secured under the Convention. The interests of persons other than the applicant – those of his adopted daughter and those of his future wife, both of whom are potential heirs – do not amount to legitimate expectations liable to be protected under Article 1 of Protocol No. 1. As regards the danger of exploitation and abuse, it should be remembered that even after the marriage the applicant would have remained under an enhanced supervision order. Consequently, all the major financial transactions such as the drawing up of a will or inter vivos gifts would have continued to be overseen by the supervisor (Article 470 (1) and (2) of the Civil Code). It is true that M.S., as the applicant’s wife, would have had joint control over the spending of his money. There again, however, her access could have been limited by restrictive measures at the financial level (restrictions on credit cards, limits on withdrawals from the applicant’s account, etc.). Moreover, the real estate – apparently accounting for most of his assets – would have remained protected. Further, the expenditure which had been considered “unreasonable” (see paragraph 17 of the judgment) would have been effected whether or not the applicant had been married. Accordingly, it is difficult to see how marriage could have worsened the applicant’s situation vis-à-vis such expenses. Furthermore, the example of the PACS system shows that there are less radical protective measures which are nonetheless effective, such as assistance (see paragraph 24 of the judgment). I do not agree with the Chamber majority that a single-sex couple cannot be compared with a different-sex couple in this context (see paragraph 65 of the judgment). The financial stakes are the same. And according to the Court’s case-law, the State has a duty to grant to both single-sex and different-sex couples “a specific legal framework providing for the recognition and protection of their... unions” (see Oliari and Others, cited above, § 185). It is true that the risk of a person with a “slight cognitive disorder”, “psychological fragilities” and “some degree of vulnerability” (see paragraph 9 of the judgment) being exploited by third persons should not be under-estimated, particularly where such person is a large property holder. However, a restrictive measure adopted against the will of the person concerned should not, in my opinion, go beyond what is strictly necessary. Although the content of Article 460 (1) of the Civil Code is unobjectionable as such, its application in the circumstances of the present case, which resulted in a ban on marriage, is disproportionate. The measure in question is more paternalistic than protective, which is incompatible with Article 12 read in the light of Article 8. D. Subsidiarity of the Court’s case-law The subsidiarity principle is essential to the interpretation of the Convention. That is particularly true in cases concerning the right to marry, the field of matrimony being so closely bound up with the cultural and historical traditions of each member country (see F. v. Switzerland, cited above, § 33). There is no reason to criticise the law as such, which was in fact declared compatible with the Constitution by the Constitutional Council (see paragraph 19 of the judgment). Moreover, the Court has always acknowledged – and this takes on particular importance in a case such as the present one – that by reason of their direct and continuous contact with the vital forces of their countries, the

domestic authorities are, in principle, in a better position than the international judge to give an opinion on the necessity of a restriction (see, among other authorities, A, B and C v. Ireland [GC], no. 25579/05, § 232, ECHR 2010). The Court must – at all costs – avoid hearing and determining such a case as a fourth instance. It was because of the principle of subsidiarity that the Chamber majority confined itself to examining the procedural safeguards on the exercise of the right in question. It is true that the applicant’s case was examined at all the French judicial levels (the guardianship judge of the District Court of the 15th Administrative District of Paris, the Paris Regional Court, the Paris Court of Appeal and the Court of Cassation). It is also true that the courts provided reasons for their decisions, referring to expert reports drawn up by medical specialists (see paragraphs 9 and 13 of the judgment). The applicant, for his part, was able to give his opinion throughout the proceedings, with the assistance of counsel. However, even if he was heard, he was not listened to. The Court’s task is to provide effective protection for the rights secured under the Convention, including the important right to marry. In my view, the right to marry, in the presented case, was unduly reduced to a purely financial decision and was consequently disproportionately restricted, affecting its very essence. The authorities completely disregarded the social and personal aspects of marriage. The fact is that those aspects were what counted for the applicant. Without in any way claiming to be in a better position to judge the case, I consider that the French authorities failed convincingly to justify their decision to the effect that the restrictions on the applicant’s right to marry had been necessary in a democratic society and had met a pressing social need. That was why I voted for a finding of a violation of Article 12 of the Convention.

THIRD SECTION CASE OF BARKOV AND OTHERS v. RUSSIA (Applications nos. 38054/05, 38092/05, 2178/07, 21770/07, 4708/09, 46303/10, 70688/10, 30537/11 and 43594/11) JUDGMENT This version was rectified on 5 September 2016 under Rule 81 of the Rules of Court. STRASBOURG 19 July 2016 This judgment is final. It may be subject to editorial revision. In the case of Barkov and Others v. Russia, The European Court of Human Rights (Third Section), sitting as a Committee composed of: Helena Jäderblom, President,Dmitry Dedov,Branko Lubarda, judges,and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 28 June 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in nine applications (nos. 38054/05, 38092/05, 2178/07, 21770/07, 4708/09, 46303/10, 70688/10, 30537/11 and 43594/11) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by nine Russian nationals (“the applicants”), whose names and the dates on which they introduced their applications are set out in Appendix I. 2. Some of the applicants were represented by lawyers, whose names are listed in Appendix II. The applicant Mr Fedchenko had been granted legal aid. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights. 3. The applicants complained, in particular, that they had been denied an opportunity to appear in person before the appeal courts in the civil proceedings to which they were parties. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. At the material time all the applicants were detained in Russian penal facilities. 5. While in detention, the applicants Mr Baban, Mr Barkov and Mr Bogatyrev sought compensation for inadequate conditions of their detention and substandard medical care; the applicants Mr Davydov, Mr Pflyaum and Mr Yakovlev were involved in contract disputes; Mr Fedchenko was the respondent in a divorce claim; Mr Starodubtsev challenged the decision by which he had lost the status of a disabled person; and Mr Shavayev was the defendant in an action for damages brought by the Federal Customs Service. 6. None of the applicants, apart from Mr Yakovlev, were able to attend the hearings before the courts of first instance. The domestic courts refused the applicants leave to be present at the hearings, on the ground that there was no domestic legal provision for bringing detainees to courts. In some of the cases they quoted Article 77.1 of the Code on the Execution of Sentences (see paragraph 10 below) and the relevant provisions of the Code of Civil Procedure. In the other cases the issue of the applicants’ presence was left unaddressed. In the first-instance proceedings Mr Shavayev and Mr Starodubtsev were represented by their relatives. Mr Barkov and Mr Davydov were interviewed at courts located near the places of their detention. 7. The applicants appealed, raising the question of their appearance in court in their appeal statements. Some submitted separate requests seeking leave to appear before the appeal court. The appeal courts either dismissed their arguments and endorsed the findings of the first-instance courts or concluded that their absence from court was in line with the legislation and did not contravene the principle of fairness. None of the applicants were present or represented at the appellate hearings. 8. The dates of the final judgments are set out in Appendix I. II. RELEVANT DOMESTIC LAW AND PRACTICE 9. The relevant provisions of the Code of Civil Procedure (as in force at the material time) read as follows: Article 347: Scope of review in the cassation court “1. The cassation court reviews the lawfulness and reasonableness of the first‑instance court’s judgment on the basis of the arguments contained in the statements of appeal. It assesses the evidence in the case file, but also additional evidence if it determines that such evidence could not have been produced before the first-

instance court, and... may establish new facts and circumstances. 2. In the interests of justice the cassation court may carry out a full review of the first-instance court’s judgment.” 10. Article 77.1 of the Code on the Execution of Sentences provides that a convicted person may be transferred from a correctional colony to a temporary detention facility if his or her participation is required as a witness, a victim or a suspect in connection with some types of investigative measure in a criminal case. It does not mention the possibility for a convicted person to take part in civil proceedings, whether as a claimant or a defendant. THE LAW I. JOINDER OF THE APPLICATIONS 11. The Court notes that all the applicants complained that they had been unable to attend the appellate hearings in the civil proceedings to which they were parties. Having regard to the similarity of the applicants’ grievances, the Court is of the view that in the interests of the proper administration of justice the applications should be joined in accordance with Rule 42 § 1 of the Rules of Court. II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 12. The applicants complained that their right to a fair hearing under Article 6 § 1 of the Convention had been breached on account of the appeal courts’ refusal of their requests to appear. Article 6 § 1 reads in the relevant part as follows: “In the determination of his civil rights and obligations... everyone is entitled to a fair... hearing... by [a]... tribunal...” A. Admissibility 13. The Government submitted that Mr Bogatyrev’s complaint was belated, because it had been introduced on 10 March 2009, that is more than six months after the final domestic decisions in his case (3 September 2008, 2 and 9 June 2009). 14. The Court notes that the applicant had set out this complaint in his first letter to the Court, dispatched on 15 October 2008, and had elaborated on it in the main application form, sent on 10 March 2009. It follows that the date of introduction of Mr Bogatyrev’s application lies within six months of the final decisions in his cases. The Government’s objection should therefore be dismissed. 15. The Court further notes that this part of the application is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 16. The Government submitted that all the applicants had been duly notified of the hearing dates and that the nature of the legal disputes did not call for their personal attendance. As there is no absolute right to be present at a hearing, the applicants’ right to effective participation in the proceedings had not been breached. The Government also indicated that as some of the applicants participated in the proceedings before the courts of first instance (see paragraph 6 above), their presence before the appeal courts was unnecessary. 17. The applicants maintained that their exclusion from the appellate proceedings had placed them at a disadvantage vis-à-vis their opponents. 18. The Court notes that although some of the applicants were provided with an opportunity to take part in the first-instance proceedings by way of representation or giving evidence on commission, all the applicants expressed the wish to attend appellate hearings in person. The Court notes in this regard that the Russian Code of Civil Procedure, as worded at the material time, extended the scope of review by appellate courts to both matters of law and factual issues. The appellate courts were empowered to carry out a full review of the case and to consider additional evidence and arguments which had not been examined in the first-instance proceedings (see paragraph 9 above). Given the broad scope of review of the appeal court, the fair trial guarantees enshrined in Article 6 of the Convention, including in particular the right to have knowledge of and comment on the observations made or evidence adduced by the other party, were as important in the appellate proceedings as they were in the first-instance courts. 19. The Court notes that, as in many similar cases against Russia, the applicants were denied leave to appear by reference to the absence of any legal norm making their presence mandatory (see Bortkevich v. Russia, no. 27359/05, §§ 63-69, 2 October 2012; Karpenko v. Russia, no. 5605/04, §§ 89-94, 13 March 2012; Roman Karasev v. Russia, no. 30251/03, § 68, 25 November 2010; Artyomov v. Russia, no. 14146/02, §§ 204-08, 27 May 2010; and Shilbergs v. Russia, no. 20075/03, § 107, 17 December 2009). The Court has rejected this approach as being excessively

formalistic, because the absence of legislation on prisoners’ attendance at hearings cannot be interpreted as sufficient grounds for depriving them of the right to appear (see Gryaznov v. Russia, no. 19673/03, § 50, 12 June 2012). Contrary to the Government’s claim that the applicants could have effectively presented their cases to the courts because they had all been duly informed of the hearings, merely informing the applicants of the appeal hearing dates was clearly insufficient in a situation where the current state of the domestic law in reality prevented them from attending. 20. The Government also submitted that the nature of the legal disputes did not require the applicants’ personal presence at the appellate hearings, and invited the Court to examine whether or not the applicant’s presence was necessary in each case. However, the Court cannot substitute its own assessment for the decisions of the domestic courts, which have the advantage of possessing direct knowledge of the situation and are better placed to determine the nature of each claim and the underlying legal interests (see Lagardère v. France, no. 18851/07, § 42, 12 April 2012). In the present cases the appeal courts did not verify whether the nature of the civil disputes required the applicants’ personal testimony and whether their attendance was essential to ensure the overall fairness of the proceedings. As it happened, the appeal courts denied the applicants the opportunity to attend the hearings, irrespective of the subject matter of the proceedings, and did not apprise them of that decision sufficiently in advance (see Gryaznov, cited above, § 48, and Khuzhin and Others v. Russia, no. 13470/02, § 107, 23 October 2008). 21. The Court lastly observes that the applicants’ effective participation in the appeal hearings could have been ensured by making procedural arrangements such as, for example, using video link facilities or conducting an off-site hearing (see Shilbergs, cited above, § 107, and Sokur v. Russia, no. 23243/03, § 36, 15 October 2009). The appeal courts did not consider those options at all, and embarked on hearing the cases on the merits without informing the applicants about possible ways to make up for their absence from the courtroom. As a result, the applicants were unable to decide on further courses of action for the defence of their rights and were deprived of an opportunity to present their cases effectively before the appeal courts, in breach of Article 6 of the Convention. 22. Having regard to its previous case-law and the circumstances of the present case, the Court finds that by denying the applicants the opportunity to be present at the appeal hearings in civil proceedings to which they were parties on the sole grounds of deficiencies in the domestic law, and by failing to consider appropriate procedural arrangements enabling the applicants to be heard, the domestic courts failed to meet their obligation to ensure respect for the principle of a fair trial enshrined in Article 6 of the Convention. 23. There has accordingly been a violation of Article 6 § 1 of the Convention. III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 24. The Court has also examined the other complaints submitted by the applicants. However, having regard to all the material in its possession and in so far as those complaints fall within the Court’s competence, it finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that these parts of the applications must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 25. 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 26. The applicants claimed various amounts in respect of pecuniary and non-pecuniary damage. The Government considered their claims to be excessive. 27. The Court does not discern any causal link between the violation found under Article 6 of the Convention and the pecuniary damage alleged by some of the applicants; it therefore rejects these claims. On the other hand, it awards 1,500 euros (EUR) in respect of non-pecuniary damage, plus any tax that may be chargeable, to each of the applicants. 28. The Court holds that when an applicant has suffered an infringement of his right to a fair hearing guaranteed by Article 6 of the Convention, he should, as far as possible, be put in the position in which he would have been had the requirements of that provision not been disregarded. The most appropriate form of redress would, in principle, be the possibility for the applicant to

request reopening of the proceedings. In the recent case of Bochan v. Ukraine (no. 2) (no. 22251/08, ECHR 2015), the Grand Chamber laid down the principles applicable to the reopening of terminated civil proceedings on the basis of the Court’s judgment (further case references, in brackets, omitted): “57. ... the Court would reiterate that it is for the Contracting States to decide how best to implement the Court’s judgments without unduly upsetting the principles of res iudicata or legal certainty in civil litigation, in particular where such litigation concerns third parties with their own legitimate interests to be protected. Furthermore, even where a Contracting State provides for the possibility of requesting a reopening of terminated judicial proceedings on the basis of a judgment of the Court, it is for the domestic authorities to provide for a procedure to deal with such requests and to set out criteria for determining whether the requested reopening is called for in a particular case. There is no uniform approach among the Contracting States as to the possibility of seeking reopening of terminated civil proceedings following a finding of a violation by this Court or as to the modalities of implementation of existing reopening mechanisms... 58. However, the foregoing considerations should not detract from the importance, for the effectiveness of the Convention system, of ensuring that domestic procedures are in place which allow a case to be revisited in the light of a finding that Article 6’s safeguards of a fair trial have been violated. On the contrary, such procedures may be regarded as an important aspect of the execution of its judgments as governed by Article 46 of the Convention and their availability demonstrates a Contracting State’s commitment to the Convention and to the Court’s case-law (...). The Court recalls in this connection Recommendation No. R (2000) 2 adopted by the Committee of Ministers, in which the States Parties to the Convention are called upon to ensure that there are adequate possibilities of reopening proceedings at domestic level where the Court has found a violation of the Convention (...). It reaffirms its view that such measures may represent the most efficient, if not the only, means of achieving restitutio in integrum (...).” 29. In this connection, the Court reiterates that in Russia a finding by the Court of a violation of the Convention or its Protocols is a ground for reopening civil proceedings under Article 392 §§ 2(2) and 4(4) of the Code of Civil Procedure and for reviewing the domestic judgments in the light of the Convention principles established by the Court (see Davydov v. Russia, no. 18967/07, §§ 10-15, 30 October 2014). B. Costs and expenses 30. Mr Davydov claimed approximately EUR 760 in legal costs but did not submit any supporting documents. Mr Bogatyrev sought reimbursement of EUR 2,250, representing legal fees and postal expenses. Mr Pflyaum and Mr Starodubtsev claimed EUR 2,200 each for the work of their representative. Mr Shavayev’s claim in respect of legal fees and postal expenses amounted to EUR 3,413. The applicants Mr Barkov, Mr Fedchenko, Mr Baban and Mr Yakovlev did not make a claim for costs or expenses. 31. The Government contested the claims as excessive and unsubstantiated. 32. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. Furthermore, costs and expenses are only recoverable in so far as they relate to the violation found (see, among many other authorities, Andrejeva v. Latvia [GC], no. 55707/00, § 115, ECHR 2009). In the present cases, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sums set out in Annex II, plus any tax that may be chargeable to the applicants, payable into the bank accounts of the applicants’ representatives.[1] C. Default interest 33. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Decides to join the applications; 2. Declares the complaint concerning the unfairness of the civil proceedings admissible and the remainder of the applications inadmissible; 3. Holds that there has been a violation of Article 6 of the Convention; 4. Holds (a) that the respondent State is to pay the applicants, within three months, the amounts listed in Appendix II, plus any tax that may be charge

able, to be converted into the currency of the respondent State at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement, simple interest shall be payable on such amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period, plus three percentage points; 4. Dismisses the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 19 July 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Fatoş AracıHelena JäderblomDeputy RegistrarPresident Appendix I. Facts Application number and applicant’s name Date of intro-duction Name of the court and date of the final decision in the civil proceedings concerned 38054/05 Aleksandr Gennadyevich Barkov 23/09/2005 Krasnodar Regional Court, 31 March 2005 38092/05 Oleg Vladimirovich Fedchenko 01/08/2005 Kstovo Town Court, 27 June 2005 2178/07 Vladimir Vitalyevich Davydov 01/11/2006 Perm Regional Court, 4 May 2006 21770/07 Danila Aleksandrovich Baban 28/02/2007 Chelyabinsk Regional Court, 23 January 2007 4708/09 Vasily Arkadyevich Bogatyrev 15/10/2008 Krasnoyarsk Regional Court, 1) 3 September 2008; 2) 2 June 2008; 3) 9 June 2008 46303/10 Nikolay Nikolayevich Pflyaum 09/07/2010 Supreme Court of the Khakassiya Republic, 17 June 2010 70688/10 Murat Ismailovich Shavayev 11/05/2010 Moscow Regional Court, 11 February 2010 30537/11 Vyacheslav Nikolayevich Starodubtsev 14/04/2011 Kaliningrad Regional Court, 2 February 2011 43594/11 Andrey Nikolayevich Yakovlev 18/04/2011 Sverdlovskiy Regional Court, 20 January 2011 Appendix II. Awards made by the Court under Article 41 of the Convention Application number and applicant’s name Represented by Award in respect of non-pecuniary damage Award in respect of costs and expenses[2] payable into the representatives’ accounts 38054/05 Aleksandr Gennadyevich Barkov EUR 1,500 38092/05 Oleg Vladimirovich Fedchenko O. Druzhkova EUR 1,500 2178/07 Vladimir Vitalyevich Davydov EUR 1,500 21770/07 Danila Aleksandrovich Baban EUR 1,500 4708/09 Vasily Arkadyevich Bogatyrev E. Markov EUR 1,500 EUR 850 46303/10 Nikolay Nikolayevich Pflyaum E. Markov EUR 1,500 EUR 850 70688/10 Murat Ismailovich Shavayev F. Tishayev EUR 1,500 EUR 850 30537/11 Vyacheslav Nikolayevich Starodubtsev E. Markov EUR 1,500 EUR 850 43594/11 Andrey Nikolayevich Yakovlev EUR 1,500 [1]1. Rectified on 5 September 2016: the text “payable into the bank accounts of the applicants’ representatives” added. [2]1. Rectified on 5 September 2016: the text “payable into the representatives’ accounts” added.

FIFTH SECTION CASE OF SHULGA v. UKRAINE (Application no. 16652/04) JUDGMENT STRASBOURG 2 December 2010 This judgment is final but it may be subject to editorial revision. In the case of Shulga v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: Mark Villiger, President,Isabelle Berro-Lefèvre,Ganna Yudkivska, judges,and Stephen Phillips, Deputy Section Registrar, Having deliberated in private on 9 November 2010, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 16652/04) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Ms Anna Ivanovna Shulga (“the applicant”), on 7 April 2004. 2. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev. 3. On 2 March 2009 the President of the Fifth Section decided to give notice of the application to the Government. In accordance with Protocol no. 14, the application was allocated to a Committee of three Judges. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1942 and lives in the village of Volodarske, Donetsk Region, Ukraine. A. First set of proceedings 5. On 24 February 1998 the Novogrod Court ordered the State mine, “Rossiya”, to pay the applicant’s husband 2,000 Ukrainian hryvnias (UAH, about USD 1,000) in compensation for non-pecuniary damage caused to him as a result of a work-related accident. On 12 March 1998 the court sent the enforcement writ in respect of that judgment to the State Bailiffs’ Service. Later, the applicant and her husband appealed against that judgment under the extraordinary procedure. However, their efforts were unsuccessful. 6. The applicant’s husband died on 14 January 2003. According to the applicant’s submissions, her daughter received the award under the judgment on an unspecified date in 2003 and then transferred the money to the applicant. In 2006 the applicant lodged several requests with the Bailiffs’ Service and the Novogorod Court requesting information about the enforcement proceedings. However, her efforts were unsuccessful. In their observations, the Government provided no information about the date of the enforcement of the judgment in question either. B. Second set of proceedings 7. In November 2003 the applicant instituted proceedings against the Novogrod Department of the State Pension Fund in the Novogrod Court, seeking recalculation of her pension. On 29 March 2004 the court found against the applicant. On 10 June 2004 the Donetsk Regional Court of Appeal upheld this judgment. In July 2004 the applicant lodged an appeal in cassation. On 19 October 2006 the Higher Administrative Court upheld the decisions of the lower courts. C. Third set of proceedings 8. On 10 November 2003 the applicant instituted proceedings against the State Insurance Fund for Work-Related Accidents and Diseases in the Novogrod Court, alleging that her husband had died as a result of a work-related disease. She claimed compensation for the damage caused to her as a result of her husband’s death. On 27 October 2004 the court found against the applicant. On 24 January 2005 the Donetsk Regional Court of Appeal upheld this judgment. The applicant lodged an appeal in cassation on 23 February 2005. On 4 May 2007 the Supreme Court sent the applicant’s appeal in cassation to the Kyiv City Court of Appeal for consideration. On 30 October 2007 the latter, acting in its cassation jurisdiction, upheld the decisions of the lower courts. II. RELEVANT DOMESTIC LAW 9. The relevant domestic law concerning the enforcement of the judgments is summarised in the judgment of Romashov v. Ukraine (no. 67534/01, §§ 16-19, 27 July 2004). 10. On 22 February 2007 the Law on Amendments to the Judicial System of Ukraine was enacted. The amendments provided, inter alia, that cassation appeals in civil cases pending before the Supreme Court on 1 January 2007, were to be transferred for consideration to the panel of judges of the respective courts of appeal. THE LAW I. ALLEGED

VIOLATION OF ARTICLE 1 OF PROTOCOL No.1 11. The applicant complained about the non-enforcement of the judgment given in her husband’s favour. She relied on Article 1 of Protocol No. 1 to the Convention, which provides as follows: Article 1 of Protocol No. 1 “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest...” A. Admissibility 12. The Government submitted that the applicant’s complaint under Article 1 of Protocol No. 1 should be declared inadmissible since no complaint about non-enforcement had been raised under Article 6 § 1 of the Convention. They also maintained that neither the applicant nor her husband had submitted the enforcement writ to the State Bailiffs’ Service. 13. The applicant disagreed. 14. Referring to its case-law, the Court notes that the impossibility for an applicant to obtain the execution of a judgment in his or her favour constitutes an interference with the right to the peaceful enjoyment of possessions, as set out in the first sentence of the first paragraph of Article 1 of Protocol No. 1 (see, among other authorities, Burdov v. Russia, no. 59498/00, § 40, ECHR 2002-III, and Jasiÿnienÿ v. Lithuania, no. 41510/98, § 45, 6 March 2003). As regards the Government’s objection that the applicant had failed to resubmit the enforcement writ, the Court notes that in the instant case the applicant’s husband had obtained a final and enforceable judgment against the State mine. The Court further reiterates that it is inappropriate to require an individual who has obtained a judgment against the State at the end of legal proceedings to then bring enforcement proceedings to obtain satisfaction (see Lizanets v. Ukraine, no. 6725/03, § 43, 31 May 2007 and the case-law referred to therein). Therefore, the Court dismisses the Government’s objections. 15. The Court notes that the applicant’s complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 16. The Government made no observations on the merits of the complaint. 17. The applicant maintained her complaint. 18. The Court observes that, according to the applicant’s statement, the judgment of 24 February 1998 was enforced only in 2003. 19. The Court has frequently found violations of Article 1 of Protocol No. 1 to the Convention in cases raising similar issues to the ones in the present case (see Lopatyuk and Others v. Ukraine, nos. 903/05 and foll., § 22, 17 January 2008). 20. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or convincing argument capable of persuading it to reach a different conclusion in the present case. 21. There has accordingly been a violation of Article 1 of Protocol No. 1 to the Convention. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 22. The applicant complained that the length of the third set of the proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which reads as follows: “In the determination of his civil rights and obligations..., everyone is entitled to a... hearing within a reasonable time by [a]... tribunal...” A. Admissibility 23. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 24. The Government contested the applicant’s complaint. In particular, they maintained that the lengthy consideration of the applicant’s cassation appeal was caused as a result of the Supreme Court being overloaded. They further submitted that the Law of 22 February 2007 had been enacted in order to resolve that problem. 25. The applicant disagreed. 26. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and

the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII). 27. The period to be taken into consideration in the present case began on 10 November 2003 and ended on 30 October 2007. The proceedings thus lasted almost four years at three levels of jurisdiction. 28. The Court notes that the major delay in the proceedings at issue was caused as a result of the applicant’s appeal in cassation not being considered in good time. The Court reiterates that it is the role of the domestic courts to manage their proceedings so that they are expeditious and effective. However, in the Court’s opinion the national courts did not act with due diligence. 29. The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see, mutatis mutandis, Doğru Avşar v. Turkey, no. 14310/05, § 8, 12 January 2010 and Frydlender, § 46, cited above). 30. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement. There has accordingly been a breach of Article 6 § 1. III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 31. The applicant complained under Article 6 § 1 of the Convention of the unfairness and length of the proceedings. In particular, she alleged that the judges sitting in her and her husband’s cases lacked impartiality and had not been independent. She further complained under Article 6 § 1 of the lengthy non-execution of the judgment given in her husband’s favour. Relying on Article 1 of Protocol No. 1, she complained about the outcome of the proceedings in her and her husband’s cases. Lastly, she invoked Articles 13 and 14 of the Convention referring to the facts of the case. 32. The Court has examined the remainder of the applicant’s complaints and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, they did do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. Accordingly, the Court rejects them as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION A. Damage 33. The applicant claimed 7,196 euros (EUR) in compensation for pecuniary damage and EUR 4,000 in respect of non-pecuniary damage sustained by her. 34. The Government contested these claims. 35. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. 36. The Court further takes the view that the applicant has suffered non-pecuniary damage. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards her EUR 2,000 in that respect. B. Costs and expenses 37. The applicant claimed EUR 80 for costs and expenses. However, she produced postal receipts for mailing correspondence to the Court amounting to UAH 223 (about EUR 23). 38. The Government left the matter to the Court’s discretion. 39. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 23 under this head. C. Default interest 40. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaint under Article 6 § 1 of the Convention concerning the excessive length of the third set of proceedings and the complaint under Article 1 of Protocol No. 1 of the lengthy non-enforcement of the judgment admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention on account of the length of the third set of proceedings;

3. Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention; 4. Holds (a) that the respondent State is to pay the applicant, within three months of the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 2,000 (two thousand euros) in respect of non-pecuniary damage, as well as EUR 23 (twenty-three euros) in respect of costs and expenses, plus any tax that may be chargeable to the applicant, to be converted into the national currency of the respondent State at the rate applicable on the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 2 December 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stephen PhillipsMark VilligerDeputy RegistrarPresident

FOURTH SECTION CASE OF CROWTHER v. THE UNITED KINGDOM (Application no. 53741/00) JUDGMENT STRASBOURG 1 February 2005 FINAL 06/07/2005 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Crowther v. the United Kingdom, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: MrJ. Casadevall, President,SirNicolas Bratza,MrM. Pellonpää,MrR. Maruste,MrS. Pavlovschi,MrJ. Borrego Borrego,MrJ. Šikuta, judges,and Mr M. O'Boyle, Section Registrar, Having deliberated in private on 11 January 2005, Delivers the following judgment, which was adopted on the above‑mentioned date: PROCEDURE 1. The case originated in an application (no. 53741/00) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a United Kingdom national, Mr Stephen Alexander Crowther (“the applicant”), on 9 February 1999. 2. The applicant was represented by Mr P.A. Kealey, a lawyer practising in Londonderry. The United Kingdom Government (“the Government”) were represented by their Agent, Ms E. Willmott, Foreign and Commonwealth Office. 3. The applicant alleged, in particular, that the criminal proceedings against him had not been determined within a reasonable time. 4. The application was allocated to the Fourth Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1. 5. By a decision of 8 July 2003, the Court declared the application partly admissible. The Chamber decided, after consulting the parties, that no hearing on the merits was required (Rule 59 § 3 in fine). 6. On 1 November 2004 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed Fourth Section (Rule 52 § 1). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 7. The applicant was born in 1946 and lives in East Sussex. 8. On 17 May 1990 the applicant was arrested, questioned at a police station in connection with an alleged importation of drugs, then refused bail and remanded in custody. On 18 December 1990, after a week-long jury trial, he was convicted of conspiracy to import a controlled drug and on 21 March 1991 he was sentenced to six years' imprisonment. On the same date, a confiscation order in the sum of GBP 22,000 was imposed, with a term of 18 months' imprisonment to be served consecutively to his main sentence if he failed to make the payment by 21 March 1992. 9. At the time of the applicant's conviction Her Majesty's Customs and Excise (henceforth, “Customs”) were in possession of a Rolex watch and GBP 2,600 belonging to the applicant. According to the Government, the applicant was informed by a letter dated 16 May 1991 that the order had been registered with Chichester Magistrates' Court, but the applicant denies ever having received such a letter. 10. On 30 September 1991 Customs wrote to the solicitors who had acted for the applicant at trial and asked how and when he intended to pay the sum ordered. According to the applicant, the solicitors, who had ceased to act for him in May 1991, never informed him of this letter. They wrote to Customs on 7 November 1991 that they had no instructions from the applicant. 11. On 20 March 1992 the Magistrates' Court wrote to Customs to enquire whether action would be taken to enforce the order in default of payment. Customs replied on 23 March 1992 that the sum ordered had not been paid and that they were considering applying for a distress warrant to be issued in respect of the watch and a receiver to be appointed to deal with the applicant's property. 12. By a letter dated 8 April 1992, the Magistrates' Court informed Customs that a distress warrant could not be issued. In another letter, dated 12 August 1992, the magistrates sought information from Customs about the appointing of a

receiver. Customs replied on 22 October 1992 that the sum ordered had not been paid, but that they had not applied to the High Court to appoint a receiver in the attempt to identify any realisable assets held by the applicant and that they were awaiting further instructions from their Asset Forfeiture Unit. 13. The applicant was released from prison in May 1994. He had not paid the money due under the confiscation order, but the order had not been enforced. 14. By a letter dated 24 October 1995 Customs contacted the Magistrates' Court to discover whether payment had been made. The court replied on 27 October 1995 that it had not. On 23 January 1996 Customs contacted the applicant's former solicitors to inform them that they intended to enforce payment of the order. 15. On 29 February 1996 Customs asked the court to issue a distress warrant in respect of the watch. This was issued in March 1996 and an executed copy of the warrant was sent to Customs in May 1996. 16. On 25 June 1996 a warrant was issued for the applicant's arrest to bring him to court for a means inquiry to take place in respect of the sum of GBP 17,670 outstanding on the order. The inquiry took place on 10 July 1996. The applicant attended but was not represented. The proceedings were adjourned at the applicant's request to allow him to seek legal aid and a Certificate of Inadequacy (which would dispense him from the obligation to pay the order). According to the Government, the proceedings were adjourned a further twelve times over the following seventeen months at the applicant's request. The applicant denies requesting so many adjournments. 17. On 18 November 1997 the High Court dismissed the applicant's application for a Certificate of Inadequacy. On 10 December 1997 the Magistrates' Court ordered that proceedings to enforce the confiscation order should take place. The proceedings were subsequently adjourned several more times, but the reason for the adjournments is not clear. 18. On 13 May 1998 the case was listed for 3 June 1998, and on the latter date the applicant was committed to prison for 15 months for non-payment of the sum outstanding. 19. On 7 August 1998 the applicant was granted leave by the High Court to apply for judicial review of the magistrates' decision. On 14 October 1998 the High Court refused his application for judicial review, holding that there was no reason to construe the word “consecutive” in the confiscation order in such a strict manner as to mean “in unbroken succession to the time served under the original order”. Lord Justice Brooke in the High Court described the delay on the part of the enforcement authorities between October 1992 and January 1996 in enforcing the order as “wholly unexplained”, and Mr Justice Sedley observed that the “Customs and Excise's inertia between March 1992 and January 1996 was both inexcusable and, given that somebody's liberty was involved, unconscionable”. However, the High Court held that, as a matter of English law, once the confiscation order had been made the onus was on the applicant to pay, and “any continuing lapse of time is then in the eye of the law a product of the failure to pay, not of the failure to enforce”. On 19 October 1998 the High Court refused leave to appeal to the House of Lords. II. RELEVANT DOMESTIC LAW 20. In Leonard Lloyd v. Bow Street Magistrates' Court [2003] EWHC 2294, the High Court considered, subsequent to the incorporation of the Convention into domestic law, whether a defendant's right under Article 6 § 1 to have a criminal charge determined within a reasonable time was capable of being violated where delay occurred in the institution or prosecution of proceedings to commit a defendant to prison in default of payment of a sum due under a confiscation order. The court held that Article 6 § 1 applied not only to the confiscation proceedings up to the making of the confiscation order, but also to any subsequent proceedings to enforce the order by the issue of a warrant of commitment to prison; such proceedings were part and parcel of the confiscation proceedings, which in turn were part and parcel of the original criminal proceedings. It rejected the argument that, because the defendant was under a continuing duty to satisfy the confiscation order, he or she had no right to have the enforcement proceedings completed within a reasonable time, and held that the reasonable time guarantee, together with all the other Article 6 § 1 rights, applied to all aspects of confiscation proceedings. As a remedy, the High Court stayed the proceedings as an abuse of process. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 21. The applicant complained that the confiscation procedure took an unreasonably long time, contrary to Article 6 § 1, which states: “In the determination of... any criminal charge against him

, everyone is entitled to a... hearing within a reasonable time by [a]... tribunal...” 22. The Government submitted that there had been no violation of Article 6 § 1. The criminal proceedings in question had commenced, at the earliest, in October 1995, when the Magistrates' Court informed Customs that the confiscation order had not been satisfied, because it could not be said that the applicant was “charged with a criminal offence” until steps had been taken to enforce the order. The relevant period came to an end on 3 June 1998 when the applicant was committed to prison for non-payment of the order. The delay between June 1996 and June 1998 was caused by the applicant's attempts to seek a Certificate of Inadequacy and his requests for adjournment of the enforcement proceedings. In the alternative, the Government argued that, even if the Court were to find that the reasonable time requirement began to run from the time that enforcement proceedings could have been brought, namely 22 March 1992, the delay still did not violate Article 6 § 1, because throughout the relevant period the applicant was under an obligation to pay the amount ordered by the Crown Court. 23. The applicant contended that he was “charged with a criminal offence” from 21 March 1991, when he received the confiscation order, or, if not then, certainly from March 1992 when he defaulted on payment and became liable to be imprisoned. He denied that the delay was his fault. The amount of the confiscation order was wrongly calculated and he was never able to pay it, a fact of which Customs were aware, as evidenced by their failure ever to apply to have a receiver appointed. Throughout the enforcement proceedings he remained at a fixed address known to the authorities and attended court whenever required. He did not request frivolous adjournments or attempt to prolong the proceedings unnecessarily. 24. The Court recalls that Article 6 § 1 applies throughout the entirety of proceedings for “the determination of... any criminal charge”, including proceedings whereby a sentence is fixed (see, for example, Findlay v. the United Kingdom, judgment of 25 February 1997, Reports of Judgments and Decisions 1997-I, p. 279, § 69 and Phillips v. the United Kingdom, judgment of 5 July 2001, Reports 2000-VII, § 39). 25. It has held that confiscation proceedings of the type brought against the applicant are analogous to the determination by a court of the amount of a fine or the length of a period of imprisonment to be imposed on a properly convicted offender (see Phillips, § 34, and Welch v. the United Kingdom, judgment of 9 February 1995, Series A no. 307-A, p. 13, §§ 27-28). In common with such sentencing procedures, the setting and enforcement of a confiscation order does not involve the bringing of any new criminal charge against the convicted person (Phillips, §§ 34-35). 26. The criminal proceedings in question in the present case commenced, therefore, on 17 May 1990, when the applicant was first arrested and questioned in connection with the drugs charge (see paragraph 8 above). They were not determined until 19 October 1998, when he was denied leave to appeal to the House of Lords against the refusal to grant his application for judicial review of the magistrates' decision to commit him to prison for non-payment of the confiscation order. The proceedings lasted, in total, eight years and five months. 27. The reasonableness of the length of proceedings, in criminal as in civil cases, must be assessed in the light of the circumstances of the case and having regard to the criteria laid down in the Court's case-law, in particular the complexity of the case, the conduct of the applicant and of the relevant authorities, and the importance of what was at stake for the applicant in the litigation (see, amongst many authorities, Price and Lowe v. the United Kingdom, nos. 43185/98 and 43186/98, § 20, 29 July 2003). 28. The applicant makes no complaint about the initial pre-trial and trial period, which culminated in the fixing of his sentence and the imposition of the confiscation order on 21 March 1991, and the Court finds no grounds for criticism of the pace of the proceedings until 21 March 1992, when the period allowed to the applicant for the payment of the confiscation order expired. Thereafter, however, a period of four years, three months of almost total inactivity elapsed until Customs took any effective steps to enforce the order, by requesting a warrant for the applicant to be questioned about his financial circumstances. The Court agrees with the assessment of Mr Justice Sedley, that Customs' inertia during this time “was both inexcusable and, given that somebody's liberty was involved, unconscionable” (see paragraph 19 above). 29. The fact that throughout this period the applicant was under a duty to pay the sum owing under the confiscation order did not absolve the authorities

from ensuring that the proceedings were completed within a reasonable time. Even in respect of civil proceedings, where domestic law or practice requires the parties to take the initiative with regard to the progress of the proceedings, the State is obliged to ensure compliance with the reasonable time guarantee under Article 6 § 1 (see, mutatis mutandis, Price and Lowe, § 23). This principle must apply a fortiori where the State is itself a party to the proceedings and responsible for their prosecution. 30. In conclusion, the Court finds a violation of Article 6 § 1. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 31. 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.” 32. The applicant did not submit any claim for just satisfaction, and the Court does not, therefore, make any award in this respect (see Rule 60 §§ 1 and 2 of the Rules of Court). FOR THESE REASONS, THE COURT UNANIMOUSLY Holds that there has been a violation of Article 6 § 1 of the Convention. Done in English, and notified in writing on 1 February 2005, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Michael O'BoyleJosep CasadevallRegistrarPresident

FOURTH SECTION CASE OF McCAUGHEY AND OTHERS v. THE UNITED KINGDOM (Application no. 43098/09) JUDGMENT STRASBOURG 16 July 2013 FINAL 16/10/2013 This judgment has become final under Article 44 § 2 of the Convention. In the case of McCaughey and Others v. the United Kingdom, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: Ineta Ziemele, President,Davíd Thór Björgvinsson,Päivi Hirvelä,George Nicolaou,Zdravka Kalaydjieva,Vincent A. De Gaetano,Paul Mahoney, judges,and Françoise Elens-Passos, Section Registrar, Having deliberated in private on 25 June 2013, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 43098/09) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by three Irish nationals, Mrs Brigid McCaughey, Mr Pat Grew and Ms Letitia Quinn (“the first, second and third applicants”), on 29 July 2009. 2. The applicants were represented by Mr F. Shiels, of Madden & Finucane Solicitors, Belfast. The United Kingdom Government (“the Government”) were represented by their Agents, Mr M. Kuzmicki and, latterly, by Ms J. Neenan, of the Foreign and Commonwealth Office. 3. The applicants mainly complained under Article 2 regarding the shooting of their relatives by the security forces and, notably, that there had been an unreasonable use of lethal force and a failure to properly investigate the relevant operation. 4. On 1 February 2011 the application was communicated to the Government. The Court also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1 of the Convention). 5. On 2 June 2011 the Government requested the Court to strike out the application in the light of a recent judgment (In the matter of an application by Brigid McCaughey and another for Judicial Review (Northern Ireland) [2011] UKSC 20). The applicants submitted observations on this request. On 6 September 2011 the Court rejected the Government’s request and the parties’ observations on the admissibility and merits were then requested and submitted. In July 2012 the Court received another round of observations from each party. 6. On 13 April 2011 the Irish Government declined to exercise their right to intervene (Article 36 § 1 of the Convention and Rule 44 § 1 of the Rules of Court). Further to leave accorded by the President (Article 36 § 2 of the Convention and Rule 44 § 3), third-party comments were received from the Committee on the Administration of Justice, the Equality and Human Rights Commission and the Northern Ireland Human Rights Commission. THE FACTS THE CIRCUMSTANCES OF THE CASE 7. The first applicant, Mrs Brigid McCaughey, is the mother of Mr Martin McCaughey. She was born in 1934. The second and third applicants are the father and daughter of Mr Desmond Grew. They were born in 1923 and 1990, respectively. All the applicants live in County Tyrone. The case concerns the shooting of Martin McCaughey and Desmond Grew by security forces in 1990 in Northern Ireland. A. The circumstances of the case 1. The shootings 8. On 9 October 1990 Martin McCaughey and Desmond Grew were shot and killed outside a shed on a farm near Loughgall by soldiers from a specialist unit of the British Army. The autopsy of Martin McCaughey described the cause of death as “laceration of the brain due to bullet wounds to the head”, noting that he had been struck by approximately ten high-velocity bullets in all. The autopsy of Desmond Grew described the cause of death as “multiple injuries due to multiple high-velocity bullet wounds of trunk and limbs”, noting that there were approximately forty-eight wounds made by bullets entering and exiting his body. No shots were fired by the deceased. These shootings were two of several which took place around that time and which gave rise to allegations of a shoot-to-kill policy by the security forces, including by that specialist unit, in Northern Ireland. 9. The shed had been under surveillance as a suspected

arms dump of the Irish Republican Army (IRA). The applicants maintained that the Royal Ulster Constabulary (RUC) had intelligence to the effect that the deceased would collect arms at the shed. The RUC Tasking and Coordination group (“the TCG”) assigned the specialist military unit to the mission given that unit’s specific training and firepower. 10. On 11 October 1990 the IRA stated publicly that the deceased were IRA volunteers on active service at the time of their deaths. 11. The first applicant claimed that her family learned about Mr McCaughey’s death from the media and that a RUC officer rang the deceased’s family home, identified himself and taunted the deceased’s brother. The RUC formally advised the Grew family of Desmond Grew’s death. 2. The investigation by the RUC 12. The RUC conducted an investigation into the deaths, beginning with interviews with the soldiers involved in the operation. 13. The statements of Soldiers A-H, later disclosed to the applicants by the Police Service Northern Ireland (the PSNI replaced the RUC in 2001), stated as follows. Soldier H, the Captain with responsibility for the military unit, received information and briefed Soldiers A, B, C, D, E and F to observe the shed for any terrorist activity and to arrest any persons found to be so engaged. Soldier A was the team leader of the unit with command of the soldiers on the ground. Soldier H was in radio contact with the soldiers on the ground and, on receiving a report of the shooting, he dispatched Soldiers G and I to the scene. The scene was handed over at approximately 12.30 to the RUC and Soldiers A-I returned to base. Later that day (10 October 1990), members of the RUC questioned the soldiers, who were accompanied by Soldier L, from Army Legal Services. Soldier A was the first to fire a shot and he fired twenty rounds. Soldier B fired seventeen rounds, Soldier C fired nineteen rounds and Soldier D fired sixteen rounds, the last two of which were directed at Mr Grew while he was on the ground as the soldier believed Mr Grew had attempted to grab his gun. Soldiers E and F had been close by and did not discharge their weapons. Soldiers A-F believed that they had been under fire, although no shots had been fired at them. Soldier J (involved in pre-deployment training for such specialist military units) and Soldier K (the officer commanding of the unit) were involved in the planning and control of the operation. 3. The Director of Public Prosecutions (“the DPP”) 14. In February 1991 the DPP received the investigation file. Between April 1991 and September 1992 the DPP issued eight directions for, inter alia, further investigative steps. On 2 April 1993 the DPP issued a direction of no prosecution (nolle prosequi) in respect of the soldiers involved in the shooting. The decision was not notified directly to the families. 4. Pre-inquest proceedings including judicial review 15. In 1994 and 1995 the RUC provided certain papers to the coroner which did not include the statements of Soldiers A-I. On 23 December 1997 the coroner advised the applicants that he had received a file from the DPP. This was the first formal contact by the authorities with the applicants. 16. On 23 April 2002 the coroner wrote to the PSNI requesting statements from the soldiers involved in the shooting. The PSNI provided the statements but refused to provide the report of the RUC Investigating Office, the DPP’s decision or relevant un-redacted intelligence reports. 17. On 11 June 2002 the applicants wrote to the coroner asking when the inquest would be listed and requesting pre-inquest disclosure. On the same date, they wrote to the PSNI seeking disclosure of all documentation relating to the deaths pursuant to Article 2 of the Convention and section 8 of the Coroner’s Act (Northern Ireland) 1959 (“the 1959 Act”). 18. On 3 December 2002 the coroner disclosed to the applicants the depositions relating to the inquest. Since statements and documents supplied by the PSNI remained the property of the PSNI, such material could not be disclosed by the coroner to the applicants. (a) First judicial review proceedings 19. Following lengthy correspondence between the applicants, the coroner and the PSNI about pre-inquest disclosure, in October 2002 the first applicant’s husband (now deceased) and the second applicant issued judicial review proceedings against the coroner and the PSNI, challenging the latter’s retention of relevant documentation. 20. On 14 February 2003 leave to apply for judicial review was granted. 21. On 21 February 2003 the PSNI provided the applicants with the documents supplied by it to the coroner (see paragraph 16 above). This included the soldiers

’ statements and two lists of material items of evidence, which lists indicated that certain items could not be located/had deteriorated – there was a reference to a stench on opening the main bag of materials. 22. On 20 January 2004 the High Court (McCaughey and Another, Re Application for Judicial Review [2004] NIQB 2) found that the PSNI was under a duty by virtue of section 8 of the 1959 Act and Article 2 of the Convention to provide the coroner with some of the withheld documents and that the inquest had been unduly delayed in breach of Article 2 of the Convention. On 14 January 2005 the Court of Appeal (Police Service of Northern Ireland v. McCaughey and Grew [2005] NICA 1, [2005] NI 344) allowed the appeal of the PSNI. Section 8 of the 1959 Act obliged the PSNI to provide the coroner with the information retained when it notified the coroner of the death but the PSNI had no such duty under Article 2 since the Human Rights Act 1998 (“the HRA”) did not apply to a death occurring before its entry into force in 2000 (In re McKerr [2004] UKHL 12, the appellant was the applicant in McKerr v. the United Kingdom, no. 28883/95, ECHR 2001‑III). 23. The first applicant’s husband appealed. On 28 March 2007 the House of Lords delivered its judgment (Jordan v. Lord Chancellor and Another and McCaughey v. Chief Constable of the Police Service Northern Ireland [2007] UKHL 14): this judgment addressed the similar appeal of Hugh Jordan (the applicant in Hugh Jordan v. the United Kingdom, no. 24746/94, 4 May 2001). It found that the HRA did not apply to a pre-HRA death nor, therefore, to the investigation of any such death. However, section 8 of the 1959 Act plainly required the PSNI to disclose to the coroner such information about the deaths as the PSNI was then or thereafter able to obtain, subject to any relevant privilege or immunity. (b) Subsequent pre-inquest procedures 24. In the meantime, the coronial system had been restructured so that a new coroner was to be appointed. 25. In December 2007 the applicants wrote to the senior coroner asking that the inquest be progressed. On 12 February 2008 the coroner’s service responded that the inquest had not yet been allocated to a coroner given workload commitments. However, the senior coroner had written to the PSNI requesting disclosure under section 8 of the 1959 Act. 26. In July 2008 the applicants again wrote to the senior coroner enquiring about the inquest and pre-inquest disclosure. No response was received. Their further letter of 17 December 2008 to the senior coroner was acknowledged by the coroner’s service. There was no response to their letter of 16 January 2009 to the coroner’s service: they were informally told in February 2009 that a coroner had been appointed. 27. On 25 June 2009 the applicants sent a letter before action to the coroner’s service about the failure to hold the inquest. On 30 June 2009 the coroner’s service responded stating that the coroner was still awaiting full disclosure from the PSNI which was expected shortly and that the coroner intended to convene a preliminary hearing in September 2009 at which he hoped to be able to set a provisional date for the inquest. 28. In 2009 the Historical Enquiries Team (“the HET”) advised the coroner that they anticipated commencing an investigation into the shootings of the deceased in January 2010. By a letter of 26 August 2009, the coroner advised the applicants accordingly and asked whether they would wish the inquest to proceed in advance of the HET investigation. 29. On 4 September 2009 a preliminary inquest hearing was held. The coroner advised that he had received full disclosure from the PSNI. Counsel for the PSNI and the Ministry of Defence (MOD) vouched that this disclosure amounted to full compliance with section 8 of the 1959 Act and that the MOD had no further documentation relating to the incident. Counsel for the PSNI was unable to advise the coroner what steps, if any, had been taken to locate certain missing exhibits. The coroner adjourned the hearing to consider the material and a further preliminary hearing was scheduled for 12 October 2009. The coroner asked for written submissions as to whether the inquest should be adjourned pending the HET investigation: the applicants opposed this orally. Finally, while the coroner noted the potential impact of the judgment of this Court in Šilih v. Slovenia ([GC], no. 71463/01, 9 April 2009) on coronial law and on the inquest, he was bound by current domestic case-law (including In re McKerr, cited above). Despite this, he considered that it was feasible to conduct a vigorous, thorough and transparent inquest. 30. On 15 September 2009 the applicants requested

the HET to expedite its review and the HET responded that it would conduct an initial assessment and report at the coroner’s hearing of 12 October 2009. 31. At that hearing on 12 October 2009, the applicants argued that it would be premature to adjourn the inquest pending the HET investigation. They proposed proceeding on certain preliminary inquest issues (disclosure, remit/scope of the inquest and anonymity/public interest immunity matters): the HET issue could be reviewed when the inquest was listed for hearing. The parties and the coroner agreed. The HET agreed to bring forward the start of their investigation. 32. On 1 December 2009 a further preliminary hearing was held. The coroner directed that the applicants be provided with redacted volumes of the documents which had been provided by the PSNI to the coroner. He scheduled hearings on certain questions (anonymity and screening for some witnesses) for January 2010. 33. By letter dated 8 December 2009 the coroner proposed a “preliminary definition” of the scope of the inquest as covering the four basic factual questions – the identity of the deceased, the place of death, the time of death and how the deceased came by their deaths. In relation to how, the coroner stated that he would examine evidence concerning the circumstances in which the deceased came to be at the locus of death, the surveillance operation that culminated in the deaths, with reference, in particular, to the purpose and planning of the operation, the actions and state of knowledge of those involved in the operation, as well as the nature and degree of force used. He invited submissions thereon. 34. In December 2009 files of documents were provided to the applicants. A brief preliminary hearing took place on 22 January 2010. On 2 February 2010 the coroner heard oral submissions on the scope of the inquest and reserved his decision. While the applicants were satisfied with the coroner’s preliminary definition of scope noted above, the PSNI argued for a conventional pre-HRA inquest so that the verdict on “how” the deceased met their deaths should be limited to the question of “by what means” rather than including “what broad circumstances”. 35. A further preliminary hearing was fixed for September 2010, but did not take place. By letter dated 4 November 2010 the applicants invited the coroner to hold a further preliminary hearing on the questions of disclosure, scope, expert witnesses and site inspection. (c) Second judicial review proceedings 36. Following the delivery of the above-cited Šilih judgment, the first and third applicants began judicial review proceedings arguing that their inquest had, consequently, to be Article 2 compliant. 37. On 23 September 2009 the High Court handed down its decision (McCaughey and Quinn’s Application [2009] NIQB 77). Leave to apply for judicial review was granted as regards the delay in holding the inquest but it adjourned that question pending any decision at the coroner’s hearing due on 12 October 2009. Leave was, however, refused as regards the applicants’ submission that the House of Lords’ judgment in McKerr was no longer good law following the above-cited Šilih judgment of this Court. 38. By a judgment of 26 March 2010, the Court of Appeal (Re McCaughey and Quinn’s Application [2010] NICA 13) granted the applicants leave to apply for judicial review on the two Article 2 grounds not permitted by the High Court but refused those applications on their merits. However, it had a duty under section 3 of the HRA to give effect so far as possible to any relevant legislation compatibly with Convention rights, it was arguable that the Supreme Court could choose to extend Šilih (cited above) to domestic law and therefore leave to appeal to the Supreme Court was granted. 39. In November 2010 the applicants requested the continuation of the preliminary inquest hearings on certain matters including disclosure, remit, site inspection and expert reports. While not excluding the possibility, the coroner responded that those matters were preferably examined after the Supreme Court judgment. 40. By a judgment of 18 May 2011, the Supreme Court held by a majority (Lord Rodger of Earlsferry dissenting) that the coroner holding the inquest had to comply with the procedural obligations under Article 2 of the Convention (In the matter of an application by Brigid McCaughey and another for Judicial Review (Northern Ireland) [2011] UKSC 20). In Šilih (cited above), this Court departed from its earlier case-law finding that, in certain circumstances, Article 2 imposed a “detachable” investigative obligation even when the death had occurred before ratification. Those circumstances included instances where a significant proportion of the procedural steps had taken place after the Convention had come into force. Accordingly, the Supreme Court found that, as a matter of international obligation, the present inquest had to comply with Article 2 as far as this was possible

under domestic law. Parliament was presumed to have intended that there would be a domestic-law requirement to mirror the international requirement and the HRA which came into effect on 2 October 2000 was to be interpreted by reference to this presumed intention. Any future inquest into a pre-HRA death had to comply with Article 2. 41. In a concurring judgment, Lord Brown relied on statistical information submitted by the coroner’s service in April 2011 about deaths occurring prior to October 2000: there were sixteen outstanding “legacy inquests” involving twenty-six deaths, an additional six incidents involving eight pre‑2000 deaths (which had been referred by the Attorney General to the coroner); and six inquests had not been held into six deaths which took place between 1994 and 2000 (an inquest into a death in 1995 had just closed in February 2011). Most cases concerned the use of lethal force by the security forces and some concerned killings attributed to paramilitary forces. (d) Subsequent pre-inquest procedures 42. In response to judgments of this Court (including the above-cited McKerr and Hugh Jordan cases), decisions not to prosecute became amenable to challenge by way of judicial review. The applicants requested reasons for the decision not to prosecute in April 1993. On 25 July 2011 the Acting Deputy DPP provided the following reasons for the 1993 decision not to prosecute: “Having carefully considered all the evidence and information it was concluded that the Test for Prosecution was not met in respect of any soldier for any offence relating to the deaths of Desmond Grew and Martin McCaughey. All soldiers had raised the defence of self-defence in opening fire. As you will be aware, where the defence of self-defence is raised the burden of negativing the defence rests on the prosecution and it is for the prosecution to prove to the very high standard required in a criminal trial that the person was not acting in self-defence. It was concluded that the available evidence was not sufficient to do so.” 43. He could not confirm whether the next-of-kin had been informed of the DPP’s earlier decision not to prosecute but, at the time, the practice was that the police would inform relevant persons of a DPP decision. He confirmed that his office had directed that a further report be submitted by the coroner on any relevant matters which might arise at the inquest. 44. At a preliminary hearing on 17 October 2011, the coroner determined that the inquest would take place in March 2012. He issued directions for the service of the parties’ evidence including ordering the MOD to serve its evidence by 23 December 2011. The coroner selected the jury asking each to notify him if they had any reason to believe they would not be able to consider the evidence impartially. 5. Civil proceedings for damages 45. On 11 January 2012 the applicants issued civil proceedings for damages as regards the shootings. That action was timed to begin within three years of the disclosure to the applicants of ballistic and forensic evidence which they considered as supportive of their allegation that the use of lethal force had not been absolutely necessary and that the operation had not been planned so as to minimise recourse to lethal force. 6. Judicial review involving the HET 46. On 6 March 2012 the first applicant began judicial review proceedings about the failure by the HET to disclose relevant documents to the coroner disputing, inter alia, the HET’s independence from the military. The HET then issued a preliminary review of the investigation. It found that the deceased were about to embark on a planned provisional IRA operation, it approved the scene examination and the later interviewing of the soldiers and it found the latter to be consistent with the former. Soldier A had been interviewed but he essentially endorsed his earlier statement. On 19 July 2012 the HET indicated that the final report was pending. 7. The inquest and intervening judicial review actions 47. The inquest opened on 12 March 2012 when the applicants were informed that the HET had deferred its investigation pending the inquest. The inquest lasted twenty-seven days, ending on 2 May 2012. The hearing was public and the applicants were legally represented by counsel and a solicitor. 48. Oral evidence was heard from twenty-three witnesses including certain RUC and military witnesses involved in matters of training, planning, command, control and supervision relevant to the mission and from RUC officers concerning the post-mission investigation. Three of the four soldiers (A, C and D) who had opened fire gave evidence. Soldier B refused to travel from the Middle East: his statement prepared in 1990 for the police investigation was read to the jury. Expert evidence was heard as to the post-incident investigation. Witnesses were cross-examined thoroughly by the applicants. (a) Inquest: the soldiers’ involvement in other lethal-force incidents 49. In October 2011 the applicants had requested the coroner to obtain information about the involvement of Soldiers

A-H in other lethal-force incidents in Northern Ireland. 50. At the preliminary hearing of 17 October 2011, it appears the MOD agreed to ask Soldiers A-H about their involvement in other such incidents. 51. Further statements from Soldiers A, C, D, E and G-L were served on the applicants from 2 February to 5 March 2012. Since most of those statements mentioned involvement in other lethal-force incidents, on 16 February 2012 the applicants requested this information from the coroner. The coroner obtained the parties’ written and oral observations and, on 1 March 2012, he obtained the soldiers’ personnel files as well as MOD information about their participation in other lethal-force incidents. On 8 March 2012 he ruled against the applicants, except in the case of one incident involving Soldier A. A statement from Soldier A as regards that incident was provided on 8 March 2012 as was, on application, further information about that other shooting. On 12 March 2012 the High Court (Weatherup J) refused leave to apply for judicial review of the coroner’s ruling of 8 March. It also indicated that, since the inquest had begun after years of waiting, only exceptional circumstances could justify interrupting it and there was nothing exceptional about the application warranting leave at that point. Further to a question to Soldier J about his involvement in other lethal incidents, on 15 March 2012 the coroner ruled out any further questions about the soldiers’ involvement in other lethal-force incidents and he directed the removal of references to such incidents from their statements. 52. On 23 March 2012 the coroner excluded reference to the material about Soldier A’s involvement in two other lethal-force incidents and the first applicant applied for leave to bring judicial review proceedings in respect of that exclusion. In the meantime, Soldier A gave evidence at the inquest excluding any reference to his involvement in other lethal-force incidents: the coroner undertook (and the MOD agreed) that Soldier A could be recalled should the result of the pending judicial review action be in the applicants’ favour. On finishing his evidence, the coroner reminded Soldier A that he might be recalled and the latter confirmed that he would be available. On 28 March 2012 the High Court found in favour of the applicants as regards one of the other lethal-force incidents concerning Soldier A. He remained available and could be questioned at the inquest the following day so that any disruption of the inquest would be justified, the issue being so “fundamental” to the character of the inquest as to amount to an exceptional case where judicial review could intervene prior to the conclusion of the inquest. 53. On 29 March 2012 the applicants raised Soldier A’s recall with the coroner: the MOD said he would be available, after his holiday, for the week commencing 9 April 2012. On 2 April 2012 the MOD advised the coroner that Soldier A was out of the jurisdiction and, apart from a holiday in the near future, no difficulty was raised as to his attendance. Soldier A’s attendance was revisited at length by the coroner on 4 April 2012: Soldier A would have separate legal representation and the future inquest hearing dates were fixed around juror commitment and Soldier A’s holiday plans (by then announced). On 6 April 2012 the coroner directed that Soldier A make himself available to the inquest on 11 April 2012. 54. On 11 April 2012 Soldier A did not appear: his solicitors sent an e‑mail to the effect that he was, in fact, beginning three weeks’ holiday that day, that he would attend thereafter but that he wished to take legal advice beforehand. On 12 April 2012 submissions were heard on this issue. In the meantime and subject to his later attending, documents concerning Soldier A’s involvement in other lethal incidents were read to the jury. On 13 April 2012 the coroner asked the MOD to address conflicting information about Soldier A’s availability. On 16 and 18 April 2012 the applicants requested the coroner to obtain a subpoena. Soldier A’s solicitors said they had no instructions but were forwarding correspondence to him. Having invited, received and considered further submissions from the applicants as regards the subpoena request, on 23 April 2012 the coroner ruled that he would conclude the inquest without Soldier A’s attendance since there was more value in completing the inquest than in speculatively trying to seek his attendance on the basis of “some open-ended review of his availability”. He directed the jury as regards Soldier A’s absence. (b) Inquest: question from the jury 55. During their deliberations, the jury sent a question to the coroner asking if a shot fired into a corpse could legally be defined as excessive force. This concerned the additional two shots directed at Mr Grew while he was on the ground: the pathologists had not agreed on whether he was already dead when those shots were fired. The coroner indicated that, strictly speaking, the interest of the inquest evaporated once the person was dead. The applicants unsuccessfully challenged this direction

as too narrow since, notably, this incident was pertinent to the individual soldier’s conduct and as to “how” the deceased died. (c) Inquest: discharge of a juror 56. Between 20 March and 26 April 2012 a number of applications were made to the coroner about a juror who had allegedly fallen asleep on certain occasions and acted in a manner hostile to the next-of-kin. The coroner rejected the applicants’ requests to discharge the juror, indicating that he would keep the juror under scrutiny and the matter under review. Further to the same juror allegedly spitting in the street near family members of one of the deceased, the coroner refused a further application to discharge the juror on 27 April 2012 but he warned the jury twice about their joint responsibility for the integrity of the process, indicating on the second occasion that he should be informed if any juror had any concern about bias on the part of a fellow juror. No complaint was made. Throughout the inquest, the coroner emphasised the need for the jury to rely only on the evidence and to consider it impartially. In the final days and in response to the applicants’ request, he again emphasised that any concern of a juror about the jury or another juror should be brought to his attention. No jury comment was received. 57. On 27 April 2012 the High Court (Stephens J) refused leave to apply for judicial review of this last decision of the coroner. There was no need to review the coroner’s factual assessments. Even if the High Court was wrong in that analysis, exceptional circumstances would be required to postpone the inquest after years of waiting and the removal of one juror at that point would present more difficulties than could be justified (especially as the jury had begun to deliberate). In any event, there would be a remedy available to the applicants if the jury decision went against their interests. (d) Inquest: the jury verdict 58. At the conclusion of the evidence, the coroner obtained the parties’ written and oral submissions and then fixed the questions for the jury to answer with its verdict. The applicants, the PSNI and the MOD made closing submissions to the jury on those questions, the applicants notably suggesting that the questions did not reflect the correct absolute-necessity test and did not allow the jury to reach a verdict capable of determining whether the force used was justified. The coroner summed up to the jury for approximately four hours. 59. On 2 May 2012 the jury rendered its verdict to the effect that the deceased died of multiple injuries and multiple high-velocity bullet wounds. 60. The jury considered that the purpose of the operation was to continue surveillance, to arrest anyone involved in terrorist activity and to place a camera in the area of the shed. The soldiers opened fire and shot the deceased in the belief that their position was compromised and that their lives were in danger as, possibly alerted to the soldiers’ radio “tones”, the deceased were approaching the soldiers with their guns at the ready. The soldiers continued firing believing that their own rounds were incoming fire. Soldier A opened fire (believing that their position had been compromised and their lives were in danger) and Soldiers B, C and D followed and continued firing until they believed the threat was neutralised, in which circumstances the jury believed the soldiers had used reasonable force. Soldier D fired two bullets at close quarters into Mr Grew on the ground as he perceived Mr Grew as a threat and Soldier D’s reaction was reasonable. As to whether the jury considered there was another reasonable course of action, the jury was not “unanimous on the balance of probabilities” as to whether there was an opportunity to arrest prior to the soldiers feeling compromised. In answer, therefore, to the question about whether the operation was conducted in such a way as to minimise to the greatest extent possible any recourse to lethal force, the jury was not “unanimous in regard to the possibility of an arrest option”. 61. As to whether any aspect of the training of, or planning by, any soldier could account for the deaths, the jury found that the soldiers fired, in accordance with their training, at the “central mass” and continued to do so until the threat was neutralised but that, otherwise, there was “insufficient evidence of planning and intelligence available to give further findings”. Other than noting that Desmond Grew received two bullets on the ground near the shed, it was “not possible to reach any further conclusions concerning the force used against Mr Grew”. 62. As to whether the operation was planned, controlled and supervised by the RUC and the military so as to minimise to the greatest extent possible any recourse to lethal force, the jury responded as follows: “Planning – In planning the operation, TCG tasked a specialist military unit as the most appropriate unit to minimise danger to

RUC members and soldiers involved in the surveillance operation and the placing of a camera. – The placing of the camera was in itself planned to minimise the risk to those on surveillance. – Given the level of risk involved in the surveillance operation, the specialist military unit were commissioned due to their particular training and firepower which was superior to that of the RUCs. – There was no definitive information or intelligence available to minimise any recourse to lethal force. Control - Each individual involved had specific roles and there was no ambiguity — clear lines of command. - Clear roles for everyone involved and TCG were the only ones who could call off the operation. Supervision - Soldier H had overall control of the operation but Soldier A was the team leader who was in command of the soldiers on the ground and therefore in the best position to make decisions and minimise to the greatest extent possible any recourse to lethal force.” 63. The jury highlighted, as important contributing factors, the history of incidents directed towards security forces in the area, the nature of terrorism in Northern Ireland at the time, as well as the heightened state of the minds of the soldiers involved in the operation. 8. Judicial review proceedings after the inquest 64. On 29 June 2012 the first applicant requested leave to apply for judicial review of the inquest requesting, inter alia, the quashing of the verdict and a new inquest on the basis that the inquest was not compliant with the procedural requirements of Article 2 of the Convention. 65. She contested the coroner’s decisions not to admit probative material concerning the involvement of the soldiers in other lethal-force incidents in Northern Ireland including his refusal to disclose relevant material, his decision not to allow the next-of-kin to question military witnesses about such incidents and his ruling that references to such incidents be edited from the soldiers’ statements. These decisions deprived the applicants of effective and full participation in the inquest; meant that there was insufficient public scrutiny of the inquest; and deprived the jury of probative evidence in relation to whether the specialist military unit was involved in a shoot-to-kill policy, whether that unit was therefore more likely to have recourse to unjustified lethal or excessive force and whether the individual soldier’s use of lethal force was justified in the circumstances. 66. She also argued that the coroner failed to take adequate steps to ensure Soldier A’s attendance despite the prior High Court judgment and that this deficiency had had the same negative consequences for the applicants’ participation in the inquest, public scrutiny of the inquest and the availability of probative material for the jury. She maintained that the questions put by the coroner to the jury failed to ensure that the jury could properly address “how” and “in what circumstances” the deceased came by their deaths. She also argued that the coroner misdirected the jury on the soldiers’ “state of belief” when they opened fire and continued to fire, that he failed to direct them to consider the “absolute necessity” of the use of the force used and that he failed to direct the jury properly in response to its question about shooting at a corpse. She claimed that the coroner failed to correct errors in the parties’ closing submissions to the jury. Finally, she challenged the coroner’s refusal to discharge the juror hostile to the next-of-kin so that the jury was neither fair, impartial nor independent. 67. Those proceedings have not yet been heard by the High Court. B. Relevant domestic law and practice 1. Inquests – Legislation 68. Coronial law in Northern Ireland was consolidated in the Coroners Act (Northern Ireland) 1959 (“the 1959 Act”) and supplemented by the Coroners (Practice and Procedure) Rules (Northern Ireland) 1963 (“the 1963 Rules”). 69. Section 7 of this Act imposes a duty on certain persons, who have reason to believe that the deceased person died from unnatural causes, to notify the relevant coroner immediately. 70. Section 8 imposes the following duty on the police: “Whenever a dead body is found, or an unexpected or unexplained death, or a death attended by suspicious circumstances, occurs, the district inspector within whose district the body is found, or the death occurs, shall give or cause to be given immediate notice in writing thereof to the coroner within whose district the body is found or the death occurs, together with such information also in writing as he is able to obtain concerning the finding of the body or concerning the death.” 71. Section 31(1) of the 1959 Act provides: “Where all members of the jury at an inquest are agreed they shall give, in the form prescribed by rules..., their verdict setting forth... who the deceased person was and how, when and where he came to his death.” 72. Rule 15 of the 1963 Rules

provides that the proceedings and evidence at an inquest shall be directed solely to ascertaining who the deceased was; how, when and where the deceased came by his death; and the particulars for the time being required by the laws concerning births and deaths registration. However, Rule 16 provides that: “Neither the coroner nor the jury shall express any opinion on questions of criminal or civil liability or on any matters other than those referred to in [Rule 15].” 73. Rule 22(1) provides: “After hearing the evidence the coroner, or, where the inquest is held by a coroner with a jury, the jury, after hearing the summing up of the coroner shall give a verdict in writing, which verdict shall, so far as such particulars have been proved, be confined to a statement of who the deceased was, and how, when and where he died.” 74. Rule 23(1) provides: “Any verdict given in pursuance of Rule 22 shall be recorded in the form set out in the Third Schedule.” 75. The Third Schedule to the 1963 Rules provided a standard form of verdict. The cause of death was to be stated and was defined as “the immediate cause of death and the morbid conditions (if any) giving rise to the immediate cause of death”. The form stated that one of the following forms of words should be used to express the verdict of the jury or the conclusion of the coroner as to the death: “died from natural causes; died as the result of an accident/misadventure; died by his own act...; open verdict (to be used where none of the above forms of verdict is applicable)”. Since 1980 a form is provided for inclusion of the verdict of the inquest jury or the conclusions of the coroner under the title “Findings”. 76. Section 35(3) of the Justice (Northern Ireland) Act 2002 (replacing section 6(2) of the Prosecution of Offences (Northern Ireland) Order 1972) provides: “Where the circumstances of any death which has been, or is being, investigated by a coroner appear to the coroner to disclose that an offence may have been committed against the law of Northern Ireland or the law of any other country or territory, the coroner must as soon as practicable send to the Director [of Public Prosecutions] a written report of the circumstances.” 2. Inquests – relevant case-law 77. In R v. Coroner for North Humberside and Scunthorpe, ex parte Jamieson ([1995] QB 1, concerning England and Wales), the Court of Appeal ruled that “how” meant “by what means”, a question directed to how the deceased came by his death. While a verdict could properly incorporate a brief and neutral statement, the verdict was to be factual, expressing no judgment or opinion and it was not the jury’s function to prepare detailed factual statements. 78. In the case of R v. Secretary of State for the Home Department ex parte Amin ([2003] UKHL 51), the House of Lords ruled on the requirements of an Article 2 compliant investigation. In R (Middleton) ν. West Somerset Coroner ([2004] 2 AC 182), the House of Lords reviewed the scope of the “Jamieson” inquest and found that, since a Jamieson inquest could not examine whether the conduct of State agents might reasonably have prevented death, it was incompatible with Article 2. To comply with that Article, the inquest had to consider “by what means” and “in what circumstances” the deceased came by his death, so that the inquest verdict would be broader in scope 79. On 11 March 2004 the House of Lords found that there was no obligation to conduct an inquiry compatible with Article 2 when the death had occurred before the HRA came into force (In re McKerr ([2004] 1 WLR 807). 80. On 28 March 2007 the House of Lords delivered its judgment in Jordan v. Lord Chancellor and Another and McCaughey v. Chief Constable of the Police Service Northern Ireland [2007] UKHL 14. It relied on the McKerr judgment to the effect that the HRA did not apply to a pre-HRA death or, therefore, to the investigation of any such death. However, section 8 of the 1959 Act plainly required the police to disclose to the coroner such information about the deaths as the police were then or thereafter able to obtain, subject to any relevant privilege or immunity. 81. In a later judicial review action, Hugh Jordan successfully contested a PSNI refusal to disclose to him all documents disclosed by it to the coroner, except those to which valid professional privilege or immunity attached (In re Jordan’s Application [2008] NIQB 148). The High Court’s decision was informed by:

“... the confusion that has been created by the fragmented production of documents over the years. There has been duplication of some documents and a failure to produce certain documents on some occasions and then their production on other occasions. It has been acknowledged that the level of redactions have on occasions been excessive.” Accordingly, the High Court (under section 8 of the 1959 Act) ordered the PSNI, inter alia, to make a full and indexed disclosure to Hugh Jordan. 82. In 2008 alone there were six judicial review applications as regards Pearse Jordan’s inquest. In 2009 the Court of Appeal made the following comment about the delay in holding the inquest into Pearse Jordan’s death (Hugh Jordan v. the Senior Coroner [2009] NICA 64): “(3) ... This inquest has taken an extremely long time to reach this point and has been dogged by procedural wrangling, frequent judicial review applications and hearings in the House of Lords and Strasbourg all of which have contributed to the length and complexity of the inquest. (4) The current state of coronial law is extremely unsatisfactory. It is developing by means of piecemeal incremental case law. It is marked by an absence of clearly drafted and easily enforceable procedural rules. Its complexity, confusion and inadequacies make the function of a coroner extremely difficult and is called on to apply case law which does not always speak with one voice or consistently. One must sympathise with any coroner called on to deal with a contentious inquest of this nature which has become by its nature and background extremely adversarial. The problems are compounded by the fact that the [PSNI] which would normally be expected to assist a coroner in non contentious cases is itself a party which stands accused of wrong doing. It is not apparent that entirely satisfactory arrangements exist to enable the PSNI to dispassionately perform its functions of assisting the coroner when it has its own interests to further and protect. If nothing else, it is clear from this matter that Northern Ireland coronial law and practice requires a focused and clear review to ensure the avoidance of the procedural difficulties that have arisen in this inquest. What is also clear is that the proliferation of satellite litigation is extremely unsatisfactory and diverts attention from the main issues to be decided and contributes to delay.” 83. Following this Court’s judgment in Šilih, cited above, the Supreme Court reversed the House of Lords’ judgment in McKerr and accepted that an inquest should be compliant with Article 2 even for a pre-HRA death (In the matter of an application by Brigid McCaughey and another for Judicial Review [2011] UKSC 20, see paragraph 40 above). 3. Legal Aid for inquests 84. In July 2000 the Lord Chancellor announced the establishment of an extra-statutory ex gratia scheme of public funding for representation in proceedings before coroners in exceptional inquests in Northern Ireland. In March 2001 he published for consultation the criteria to be used in deciding whether applications for representation at inquests should receive public funding. These included, inter alia, consideration of financial eligibility, whether an effective investigation by the State was needed and whether the inquest was the only way to conduct it, whether the applicant required representation to be able to participate effectively in the inquest and whether the applicant had a sufficiently close relationship with the deceased. 4. The Historical Enquiries Team (“the HET”) 85. The HET is a special investigative unit of the PSNI set up in 2005 to review the investigations conducted into deaths in Northern Ireland between 1968 and 1998. It is answerable to the Chief Constable of the PSNI. It has approximately 3,000 cases to examine. The HET has two primary objectives: to ensure that each case is comprehensively examined to current professional standards to the extent that it can be satisfied that all the evidential possibilities have been explored, and to work closely with families including giving to each family a report on the death of a deceased family member. 5. Relevant Committee of Ministers Resolutions 86. Between 2001 and 2003 the Court adopted six similar judgments concerning the investigation of killings by security forces in Northern Ireland between 1968 and 1998 (see Hugh Jordan and McKerr, both cited above; Shanaghan v. the United Kingdom, no. 37715/97, 4 May 2001; Kelly and Others v. the United Kingdom, no. 30054/96, 4 May 2001; McShane v. the United Kingdom, no. 43290/98, 28 May 2002; and Finucane v. the United Kingdom, no. 29178/95, ECHR 2003‑VIII). 87. In interim Resolution CM/ResDH(2007)73 on these cases, the Committee of Ministers urged the Government to take “without further delay all necessary investigative steps... to achieve concrete and visible progress”. In March 2008 and having evaluated the measures taken by

the authorities, the Committee of Ministers decided “to close the examination of the issues related to the fact that the inquest proceedings did not commence promptly and were not pursued with reasonable expedition”. However, the Committee’s examination of individual and of other general measures would continue. 88. The Information Document (prepared by the Department for the Execution of Judgments, CM/Inf/DH(2008)2 revised) of 19 November 2008 reviewed progress in implementing these judgments. As regards individual measures and the Hugh Jordan case, the document indicated that it was “concerned that the inquest in this case has still not commenced although it was announced previously that it would begin in April 2008”. Information was therefore “awaited on the measures taken or envisaged in order to ensure that the inquest in this case runs without any further delay”. As regards Kelly and Others, McKerr and Shanaghan, the Department awaited information on the outcome of, inter alia, the ongoing investigations. 89. By interim Resolution CM/ResDH(2009)44 of March 2009, the Committee closed its examination of two general measures (concerning the HET and the State’s obligations under Article 34 of the Convention) and of individual measures in McShane and Finucane for the specific reasons given. However, it continued its examination of individual measures in Hugh Jordan, Kelly and Others, McKerr and Shanaghan. In this latter respect, the Committee noted “with concern that progress with regard to the individual measures in these cases has been limited, in particular in the case of Hugh Jordan where the inquest will not start before June 2009 although it was announced previously that it would begin in April 2008” and it strongly urged the authorities to “take all necessary measures with a view to bringing to an end, without further delay, the ongoing investigations while bearing in mind the findings of the Court in these cases”. THE LAW 90. The applicants made a number of complaints under the substantive and procedural aspects of Article 2 of the Convention regarding the deaths of Martin McCaughey and Desmond Grew and, under Article 13, concerning the lack of an effective domestic remedy in those respects. 91. Article 2 reads as follows: “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.” 92. Article 13 reads as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” I. ALLEGED VIOLATIONS OF ARTICLE 2 OF THE CONVENTION, TAKEN ALONE AND IN CONJUNCTION WITH ARTICLE 13 A. The parties’ submissions 1. The Government 93. The Government maintained that the applicants had failed to exhaust domestic remedies as regards the substantive complaint because their civil action was pending. While the Government noted that there appeared to be two lines of jurisprudence, they considered that the governing authority lay with the line of case-law in Caraher v. the United Kingdom ((dec.), no. 24520/94, ECHR 2000-I); the six judgments concerning Northern Ireland cited at paragraph 86 above; and Bailey v. the United Kingdom ((dec.), no. 39953/07, 19 January 2010). The cases which the applicants regarded as showing a contrary line on victim status were distinguishable. 94. In any event, there had been no violation of the substantive or the procedural aspects of Article 2 of the Convention and the Government relied mainly on the scope, procedure and result of the inquest which, pursuant to the judgment of the Supreme Court in May 2011 (see paragraph 40 above), was conducted in an Article 2 compliant manner. 95. As to the substantive complaint about the planning and conduct of the operation, the inquest provided a full and public investigation into the facts surrounding those deaths. The inquest jury found that the soldiers had used reasonable force, that there had been no flaws in the planning or control of the operation and that no further steps could have been taken to minimise the risk of lethal force being used. 96. The Article 2 compliant inquest also meant that there had been compliance with the procedural guarantees of Article 2. The inquest

was transparent and rigorous. It took place in public. There was significant document disclosure: while a certain number of documents were no longer available due to the passage of time, the evidence gathered by the inquest was such that the unavailability of some documentary evidence did not diminish the ability of the inquest to resolve the issues required for it to comply with Article 2. Legal aid was granted and the applicants were represented by a solicitor and two counsel. They were permitted to participate fully in the inquest. 97. While there had been significant delay in holding that inquest, there was no evidence that this delay had prejudiced the integrity of the inquest process. The Government noted that the High Court had found a violation of Article 2 of the Convention in January 2004 and in May 2011 it was accepted that the inquest had to comply with Article 2. 98. The scope of the inquest allowed the jury to explore and rule on the relevant matters. As to the command and control of the operation, the inquest heard Officer Y (a senior officer in the RUC TCG who had, with others, tasked the specialist unit for the present operation); Soldier K (the officer commanding of the specialist military component that provided capability to the RUC in Northern Ireland); Solider H (the captain with responsibility for the military unit involved in the operation); Soldiers A, C, D, E, F, G and I; and Soldier J (who gave evidence as to the training of the relevant SAS unit). All those soldiers (apart from Soldier J) also gave evidence as to the planning of the operation, including its objective, as well as on the briefings prior to the operation and on what was known about the deceased. Those military witnesses, in particular Soldiers A, C, D and H, gave evidence on steps taken to reduce the risk of lethal force being used and Soldiers A, C and D gave evidence as regards the justification for the use of lethal force in the particular circumstances. 99. The conclusions of the earlier investigation were the same as those reached by the inquest jury, a fact which supported the submission that the RUC investigation was sufficiently robust and independent as to ascertain all the facts and reach correct conclusions on the basis of the information available. The RUC officers who carried out the original investigation denied in evidence that they had not carried out a sufficiently independent or probing investigation into the incident. 100. Reasons for not prosecuting had been provided by the DPP and the DPP would have to reconsider that decision should a reference be made under section 35(3) of the 2002 Act, which decision would, in turn, be amenable to judicial review. 101. Finally, the Government argued that there had been no violation of Article 13 of the Convention. The pending civil action for damages indicated that the applicants accepted the existence of an effective civil remedy. In any event, the inquest provided a thorough and effective investigation, and judicial review otherwise provided a remedy allowing the applicants to challenge decisions of the coroner and, were it to be relevant in the future, any decision by the DPP not to prosecute. 2. The applicants 102. The applicants complained of a violation of the substantive aspect of Article 2 arguing that the use of lethal force was not absolutely necessary in that the operation had not been planned and controlled so as to minimise the risk to life and, indeed, that there had been a deliberate decision to kill the deceased. Given the inquest’s failure to comply with the procedural requirements of Article 2, the inquest verdict could not be relied upon. 103. As to the victim exception on which the Government relied as regards the pending civil proceedings, the applicants relied on the line of jurisprudence represented by Nikolova and Velichkova v. Bulgaria, no. 7888/03, §§ 55-56, 20 December 2007; Beganović v. Croatia, no. 46423/06, § 56, 25 June 2009; Fadime and Turan Karabulut v. Turkey, no. 23872/04, §§ 31-48, 27 May 2010; Kopylov v. Russia, no. 3933/04, § 121, 29 July 2010; Gäfgen v. Germany [GC], no. 22978/05, § 119, ECHR 2010; and Darraj v. France, no. 34588/07, §§ 22-53, 4 November 2010. Ineffective investigative, inquest and prosecution processes undermined the civil action so, even if that action was pending, that did not deprive them of their victim status or suggest that they had not yet exhausted domestic remedies. 104. The applicants also complained of a breach of the procedural obligation to carry out an independent and effective investigation. 105. They argued that the RUC post-operation investigation lacked independence and was ineffective. There was no hierarchical independence between those involved in the operation (RUC officers and soldiers) and those investigating it (RUC officers). The RUC investigation also lacked practical independence: the

RUC regarded themselves as liaising with, as opposed to investigating, the soldiers so that, for example, the shooters were not separated before making their statements and the statements were perfunctory. The investigation was inadequate in that it focused disproportionately on whether civilians in the vicinity were responsible for the weapons and this was supported by the evidence of Soldier L at the inquest. While the briefing notes of soldiers before and after the shooting as well as radio logs of communications between the shooting soldiers and headquarters had existed and were under RUC control, the RUC officers investigating the incident were not provided with those notes and logs and, as confirmed by witnesses at the inquest, a significant body of documents (including these notes and logs) had since disappeared. There had also been inadequate public scrutiny of the investigation and the inquest did not resolve that. 106. They also argued that the DPP had failed to inform the applicants of the decision not to prosecute and the reasons eventually given in July 2011 were inadequate. In addition, the criminal-justice system, as it applied to the prosecution of killings by State agents, was not Convention compatible. The applicants challenged the standard evidential test for prosecution and the breadth of the law on self-defence. 107. They further maintained that the involvement of the next-of-kin was inadequate to safeguard their interests. The first applicant was not formally advised of her son’s death and, indeed, the RUC had taunted her family about his death. The first formal contact by the authorities was in 1997 when the coroner advised that he had received papers in the case and they were not kept informed by the DPP (see the preceding paragraph). Later, certain decisions during the inquest by the coroner prevented them from effectively participating in the inquest (see paragraph 110 below). 108. They also argued that the inquest, which took place after the introduction of the application, had not fulfilled the procedural obligations. 109. In the first place, they considered the inquest ineffective. The exclusion of documentary and oral evidence about other incidents of lethal force excessively limited the scope of the inquest because it precluded scrutiny of the role of specialist military units in lethal-force incidents when the allegations were of a “shoot-to-kill” policy and, at the least, of such units being more likely to use lethal and/or excessive force unnecessarily. In addition, the coroner’s questions to the jury undermined the jury’s ability to scrutinise effectively the planning and control of the operation so as to minimise any recourse to lethal force as well as the acts of each soldier in using lethal force. Moreover, the coroner’s response to the jury question about shooting at a corpse was a significant misdirection: it unduly narrowed the scope of the investigation towards the limited “cause of death” and away from the “circumstances whereby the deceased came by his death”. The coroner’s direction was also incorrect on the issue of excessive force: it concerned the shooting of someone who could not pose a threat and it was also illustrative of the conduct of the soldiers individually and collectively. 110. Secondly, as a result of the deficient rulings as regards other lethal-force incidents, the next-of-kin were prevented from participating in the inquest to the extent necessary to protect their legitimate interests and there was insufficient public scrutiny of the proceedings to secure accountability. 111. Thirdly, the continued involvement of the juror who was demonstrably hostile towards the next-of-kin meant that the jury could be considered neither fair nor impartial nor, therefore, independent. The applicants emphasised the unique and particularly sensitive role of inquest juries in Northern Ireland. 112. Finally, they argued that the delay of over twenty-one years before an Article 2 compliant inquest was opened was excessive and unexplained and that such delays were demonstrably endemic. Their primary argument was that this delay amounted, of itself, to a breach of the obligation to provide an investigation that began promptly and proceeded expeditiously. Further, they contended that the delay had actually compromised the effectiveness of the inquest process in different ways. In this latter respect, they claimed that the delay had led to the loss and/or destruction of a significant body of contemporaneous documentation. The delay had also prejudiced the attendance of witnesses: certain witnesses could not be compelled because they no longer resided in the jurisdiction (Soldier B did not attend at all and Soldier A did not re-attend) and others had died or were ill (only one RUC officer involved in planning and control could attend and his recollection was limited). The applicants specifically highlighted the delay in granting them legal aid for the inquest and pointed out that the onus had been placed entirely on them to ensure the inquest progressed. 113. The HET investigation could not, in the applicants’ view, remedy these deficiencies. It was not an investigation but a paper review: only Soldier A was interviewed and he essentially confirmed his prior statement; it did

not identify any soldier; it had an undisclosed agreement with the MOD on security issues; it failed to review ballistics or forensic evidence and to conduct expert studies; and it failed to investigate the involvement of military witnesses in other lethal-force incidents. The HET review was ineffective, lacked independence, failed to involve the next-of-kin and had no adequate element of public scrutiny. 114. Finally, the applicants complained under Article 13, taken in conjunction with Article 2, that they had no effective domestic remedy since the HRA did not apply to deaths occurring before it came into force. The judgment of the Supreme Court of May 2011 meant that they could rely on their Convention rights to secure an Article 2 compliant inquest thereafter but not to complain about past investigative failings. Thus it could not be said that they could enforce the substance of their Convention rights in the domestic legal system. 3. The Committee on the Administration of Justice (“the CAJ”) 115. The CAJ is a non-governmental organisation affiliated with the International Federation of Human Rights. The CAJ considered the delay in holding the present inquest to be illustrative of a wider problem concerning controversial inquests in Northern Ireland. 116. The CAJ referred to the delay in executing the six judgments of this Court concerning Northern Ireland, especially as regards the expediting inquests. There was an unacceptable and endemic pattern of State delay punctuated by proceedings by the next-of-kin attempting to move the process forward. The CAJ submitted a list from the coroner’s service dated July 2011 (updating the list submitted to the Supreme Court in April 2011) which listed thirty-eight cases in which inquests were either outstanding or had just finished: five of the deaths had taken place in 1971 and 1972 and only one inquest had taken place (in June 2011); eight deaths had occurred in the 1980s and while provisional dates had been set, no inquests had been held; and eighteen concerned deaths in the 1990s in respect of which only one inquest had been held. Most of the cases concerned the use of lethal force by the security forces and some concerned killings attributed to paramilitary forces. Delay since the above‑mentioned six judgments of this Court was, according to the CAJ, an aggravating factor and it referred to numerous public declarations of various bodies concerning reform of the Convention system which emphasised the need to execute judgments effectively and speedily. Indeed, the Government itself recognised that inquest delay had violated Article 2 (Command Paper 7524, “Responding to Human Rights Judgments: Government Response to the Joint Committee on Human Rights’ Thirty-First Report of Session 2007-08” (January 2009). 117. The CAJ proposed a number of alternative ways in which the Court’s judgment could address this endemic issue. Damages could be increased to reflect additional non-pecuniary damage given the delay since the lead judgments. A timetable could be imposed for future proceedings and/or a graduated schedule of compensation could be laid down to cover any subsequent period of delay. The Court could find a violation on the delay aspect and adjourn the remainder of the case pending the State’s response. The Court might consider making the case a pilot judgment and giving operative directions about delay under Article 46 of the Convention. 4. The Equality and Human Rights Commission (EHRC) and the Northern Ireland Human Rights Commission (“the NIHRC”) 118. The EHRC is an independent statutory non-departmental public body tasked with monitoring equality and human rights. The NIHRC is a statutory body created pursuant to the Belfast Agreement of April 1998 and it promotes human rights standards in Northern Ireland. Both have intervened in cases before this Court, the latter in the above-cited cases of McKerr, Hugh Jordan, Kelly and Others and Shanaghan. They also appeared before the Supreme Court in the applicants’ recent judicial review action. 119. The EHRC and NIHRC raised an issue not addressed by either party. They endorsed and repeated the submissions of the EHRC in another pending case before this Court (Armani da Silva v. the United Kingdom, no. 5878/08). They contended that the standard evidential test for prosecution failed adequately to comply with the State’s positive obligation to prosecute. The need for a lower evidential test was enhanced by the fact that the law of self-defence in English law was drawn very widely, was partially subjective in its formulation and was inconsistent with the requirements of Article 2 § 2. The standard evidential test, combined with the law of self‑defence, meant that prosecutions of State officials for causing death were exceedingly rare. Moreover, the scope for review by the domestic courts of the application of the evidential test was also limited and failed to meet the strict procedural requirements of Article 2. 120. They provided statistics on deaths caused by the use of lethal force by State agents and argued that the comparatively low number of

prosecutions raised concerns about the impunity of such agents. Various authorities (the coroner’s service, the Office of the Police Ombudsman and the HET) were overwhelmed with requests for reinvestigations. All of this had, in turn, caused enduring damage to the rule of law in Northern Ireland. B. Admissibility 121. Save in relation to the complaint about investigative delay, the Court is not in a position to consider the merits of the complaints under the substantive and other procedural aspects of Article 2 because the applicants’ civil action is pending (see for example, Caraher, cited above; Hay v. the United Kingdom (dec.), no. 41894/98 ECHR 2000-XI; McKerr, cited above, §§ 19-23; and Bailey, cited above) and because, given the pending judicial review proceedings, the initiation of further relevant investigative procedures, including of a criminal and/or disciplinary nature, remains possible (see for example, Nikolova and Velichkova, cited above, §§ 55-56; Gäfgen, cited above, § 119; and Darraj, cited above, §§ 22-53). 122. The applicants’ civil action, issued in 2012, is pending. The Court does not accept that there is any demonstrated factor which can be considered to have deprived the civil courts of their ability to establish the facts and determine the lawfulness or otherwise of the deaths and within any applicable limitation period, although the present and any future inquest verdict as well as any future criminal or disciplinary proceedings (see immediately below) could clearly inform the civil action. While the lapse of time would make it difficult for the civil court to piece together the evidence, any such attempt should in principle take place in a domestic, not in an international, forum (see McKerr, cited above, § 118; and Hugh Jordan, cited above, §§ 111-12). 123. As to further relevant investigative procedures, it is true that the inquest has now taken place, ending in May 2012. However, the Court considers, for the reasons detailed below, that that inquest was an unusual fact‑finding exercise, key aspects of which have been challenged in some detail for their compliance with Article 2 in pending judicial review proceedings. 124. The present inquest procedure was a relatively novel one, which evolved significantly by dint of several judicial review actions initiated by the applicants, each of which was important in terms of coronial law and practice in Northern Ireland and many of which ended in their favour. 125. Their first action ended in March 2007 with a House of Lords judgment clarifying, in the applicants’ favour, a fundamental issue concerning the disclosure obligations of the PSNI (see paragraph 23 above). The second action ended, also in the applicants’ favour, with a judgment of the Supreme Court of May 2011 of some significance, as it overturned the prior judgment of the House of Lords in McKerr and provided that inquests into pre-HRA deaths had to be compliant with Article 2 of the Convention (see paragraph 40 above). This broadened the scope of the inquest (covering, notably, “in what circumstances” the deceased came by their deaths, see paragraph 78 above) and provided the applicants with a range of additional procedural rights. 126. This judgment of the Supreme Court of May 2011 then had to be interpreted and applied by the coroner to the peculiarities of the present legacy case including its historical context (for example, the related shoot‑to-kill allegations) and the delay since the deaths (for example, the intervening disclosure obligations, the loss of material evidence and the unavailability of witnesses). Consistently, the applicant launched three judicial review actions during the inquest hearing. However, at that point the delay was such (over twenty-one years) that the High Court felt obliged to raise the threshold for leave to apply for judicial review to “exceptional” circumstances warranting the adjournment of the inquest, the High Court on one occasion noting that there was, in any event, a post-inquest remedy. Two judicial review applications were rejected on this basis. Not unsurprisingly therefore the first applicant began another judicial review action in June 2012 after the inquest, repeating two arguments rejected by the High Court as not “exceptional” and raising several new procedural issues (see paragraphs 64-66 above). The High Court has yet to hear the pending judicial review action. The applicants have requested the High Court to quash the inquest verdict and to order a fresh inquest, in which case the coroner’s decision to refer or not to the DPP and the DPP’s decision to prosecute or not would both be open to judicial review. 127. The applicants also argued that certain past deficiencies as well as the delay to date had already prejudiced the investigation and inquest processes. It is also true that this Court identified certain procedural deficiencies before the inquest had even taken place in the above-cited Hugh Jordan

case. However, in contrast to the domestic law in issue in that case, the Supreme Court judgment of May 2011 meant that domestic law required the present inquest to comply with the procedural requirements of Article 2. This the coroner set out to do and the pending judicial review action will review key aspects of the inquest against the procedural guarantees of Article 2. Pending the outstanding domestic proceedings, the Court considers that it cannot examine whether the inquest has been deprived, by prior investigative shortcomings or delay, of its ability to establish the facts and determine the lawfulness or otherwise of the deaths in question (see McKerr, § 117; Hugh Jordan, § 111; and McShane, § 103, all cited above). 128. In all of the above circumstances, the complaints under Article 2, other than the complaint about investigative delay itself, are inadmissible as being premature and/or on the ground that domestic remedies have not yet been exhausted within the meaning of Article 35 § 1. The associated complaint under Article 13 must also therefore be rejected in accordance with Article 35 §§ 3 (a) and 4. The Court notes that, should the applicants be dissatisfied in the future with the progress or outcome of those domestic procedures, it would be open to them to reintroduce these complaints under the substantive and procedural aspects of Article 2 of the Convention. 129. However, the consequence of the pending judicial review proceedings is that the investigative process into the shootings of the applicants’ relatives, including the inquest, has still not finished twenty-three years later. As to the admissibility of this remaining complaint about the investigative delay itself, the Government did not explain how the High and Supreme Court judgments to which they referred provided effective redress for such delay. The Court considers that this complaint under Article 2 about investigative delay is not manifestly ill-founded within the meaning of Article 35 § 3 (a) or inadmissible on any other ground. It must therefore be declared admissible, along with the related complaint under Article 13. C. Merits 130. Turning to the merits of the admissible complaint, it is established that Article 2 requires investigations to begin promptly and to proceed with reasonable expedition (see the six judgments concerning Northern Ireland, at paragraph 86 above), and this is required quite apart from any question of whether the delay actually impacted on the effectiveness of the investigation. While there may be obstacles or difficulties which prevent progress in an investigation in a particular situation, a prompt response by the authorities in investigating a use of lethal force may generally be regarded as essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts (see Hugh Jordan, cited above, §§ 108 and 136-40). 131. The Court considers it striking that the present deaths occurred in 1990 and that the inquest hearing proper did not begin until March 2012, more than twenty-one years after those deaths. It has noted the following periods of delay which the Government have not attempted to justify. 132. The decision of the DPP not to prosecute was not taken until two and a half years after the deaths. While it is not clear when the applicants found out about the decision (the DPP was not obliged by domestic law at the time to notify the next-of-kin directly), it was clearly some time thereafter. 133. The RUC did not forward material to the coroner until four years after the deaths; a further disclosure followed a year later in late 1995. Thereafter over two years went by before the coroner made his first contact with the applicants and this was only to inform them of the disclosure made years earlier by the RUC. An additional four and a half years passed before the coroner requested the relevant soldiers’ statements from the PSNI, which statements appear to have been furnished to the coroner in mid-2002 when other documents were refused. At this point, the deaths had taken place almost twelve years previously. 134. There followed lengthy correspondence between the applicants, the coroner and the PSNI about disclosure. It was only after the applicants took judicial review proceedings in October 2002 that the PSNI provided the applicants, in February 2003, with the documents already forwarded to the coroner. While it is true that three instances examined the action for judicial review, the proceedings took in total four and a half years and the result in March 2007 was favourable to the applicants. 135. Disclosure continued to be disputed thereafter: over two years after the above-noted House of Lords’ judgment, disclosure of certain material from the PSNI to the coroner was still outstanding (July 2009). Despite the applicants’ numerous follow-up letters, the first preliminary inquest hearing did not take place until September 2009 and redacted PSNI material was furnished to the applicants in December 2009. Further pre-inquest exchanges with the coroner, initiated by the applicants, appear to have concerned the scope of the inquest. Issues of disclosure, expert evidence and site inspection remained open until they were resolved in the applicants’

favour by the Supreme Court judgment of May 2011. Although the three instances examined this second action quickly, resolving it in the applicants’ favour, this action nevertheless added another two years to the delay in starting the inquest. It took a further nine to ten months for more soldiers’ statements to be furnished to the applicants (in February and March 2012), just prior to the opening of the inquest in March 2012. Thereafter the inquest proceeded quickly, ending in May 2012 with a detailed verdict. 136. This period of over twenty-two years can be broadly divided into three phases, which are illustrative of the nature of the delay the present applicants encountered. 137. The first, from 1990 to 2002, was marked by inordinately long periods of inactivity during which some disclosure was made by the RUC and the PSNI, which disclosure was later shown to have been inadequate. 138. The second, from 2002 to March 2012 when the inquest began, is characterised by the applicants’ and others’ legal actions and initiatives which were demonstrably necessary to drive forward their inquests and to ensure the clarification of certain important aspects of coronial law and practice including, notably, those pertaining to the rights of next-of-kin. In particular, the principles flowing from the judgments of this Court of 4 May 2001 were applied in domestic law, not through legislation, but through a series of complex and overlapping domestic judicial review applications. The entry into force of the HRA in 2000 brought with it further questions of relevance to coronial law and, notably, its application to investigations into pre-HRA deaths, a key issue not finally resolved until the judgment by the Supreme Court in the applicants’ case of May 2011 which, indeed, overturned an earlier judgment of the House of Lords in McKerr (see paragraph 40 above). The present applicants were centrally involved in these important legal developments. Their inquest was postponed, effectively from 2002 to 2012, pending their main two judicial review actions, the legal issues clarified in those two actions were, as noted above, crucial for coronial law and practice and the findings were in their favour. However, this manner of proceeding inevitably delayed the investigations and inquests into security force killings in Northern Ireland significantly and this was aptly described by the Court of Appeal in one of Hugh Jordan’s numerous judicial review actions about the death of his son, Pearse Jordan (see paragraph 82 above). The fact that it was necessary to postpone the applicants’ inquest so frequently and for such long periods pending clarifying judicial review actions demonstrates to the Court that the inquest process itself was not structurally capable at the relevant time of providing the applicants with access to an effective investigation which would commence promptly and be conducted with due expedition (see Hugh Jordan, § 138, and McKerr, § 155, both cited above). 139. By the time the third and last phase began with the inquest hearing, the delay at that point was such that the High Court considered itself obliged to raise the threshold of leave to apply for judicial review to “exceptional circumstances”, which made the clarification of the procedural rights of the applicants exceedingly difficult and which therefore rendered rather inescapable another post-inquest judicial review action. That action remains pending before the High Court. 140. These delays cannot be regarded as compatible with the State’s obligation under Article 2 to ensure the effectiveness of investigations into suspicious deaths, in the sense that the investigative process, however it is organised under national law, must be commenced promptly and carried out with reasonable expedition. To this extent, the foregoing finding of excessive investigative delay of itself entails the conclusion that the investigation was ineffective for the purposes of Article 2. There has, accordingly, been a violation of Article 2 of the Convention under its procedural aspect by reason of excessive investigative delay. The Court also concludes that no separate issue arises under Article 13 in that respect (see Hugh Jordan, cited above, §§163-65). II. APPLICATION OF ARTICLE 46 OF THE CONVENTION 141. Article 46 of the Convention provides: “1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties. 2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution. ...” 142. The Court reiterates that, by virtue of Article 46 of the Convention, the Contracting Parties have undertaken to abide by the final judgments of the Court in any case to which they are parties, with execution being supervised by the Committee of Ministers of the Council of Europe. It follows, inter alia, that a judgment in which the Court finds a breach imposes on the respondent State a legal obligation, whether or not the applicant has requested just satisfaction, to select, subject to supervision by the Committee of Ministers, the general and/or, if appropriate, individual measures to be adopted in its domestic legal order to put an end to

the violation found by the Court and to redress so far as possible the effects. Subject to monitoring by the Committee of Ministers, the respondent State remains free to choose the means by which it will discharge its legal obligation under Article 46, provided that such means are compatible with the conclusions set out in the Court’s judgment (see Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 249, ECHR 2000-VIII; Broniowski v. Poland [GC], no. 31443/96, § 192, ECHR 2004-V; Lukenda v. Slovenia, no. 23032/02, §§ 89-98, ECHR 2005‑X; Apostol v. Georgia, no. 40765/02, §§ 70-71, ECHR 2006‑XIV; and Abuyeva and Others v. Russia, no. 27065/05, §§ 235-43, 2 December 2010). 143. The applicants and the CAJ suggested that delay in carrying out inquests, in cases of killings by the security forces in Northern Ireland, is an endemic problem and the CAJ proposed, inter alia, that the Court make a ruling under Article 46 of the Convention. 144. The Court has found that the investigative delay in the present case was such that it was incompatible with the procedural guarantees of Article 2. In so doing, it considered that throughout the relevant period of time the inquest process itself was not structurally capable of providing the applicants with access to an investigation which would commence promptly and be conducted with due expedition (see paragraphs 136-40 above). Information furnished by the coroner’s service of Northern Ireland in April 2011 to the Supreme Court and in July 2011 to the CAJ (see paragraphs 41 and 116 above) is noted. The Court considers that the carrying out of investigations, including the holding of inquests into killings by the security forces in Northern Ireland, has been marked by major delays. It further considers that such delays remain a serious and pervasive problem in Northern Ireland. While the contents of the Committee of Ministers Resolution of 2008 are noted, the Committee more recently expressed its concern about investigative delay (Resolution of March 2009) as regards four of the above-cited six judgments concerning Northern Ireland (see paragraphs 86-89 above). These four judgments reflected a pattern of delay very similar to that which took place in the present case (see, in particular, McKerr and Hugh Jordan). Almost twelve years after those four judgments were delivered, the Committee of Ministers continues to supervise individual measures of execution concerning investigative delay. 145. The Court recalls that it falls to the Committee of Ministers, acting under Article 46 of the Convention, to address the issue of what – in practical terms – may be required of the respondent Government by way of compliance (see Abuyeva and Others, cited above, § 243). However, the Court considers that, whatever the specific modalities chosen, this must involve the State taking, as a matter of some priority, all necessary and appropriate measures to ensure, in the present case and in similar cases concerning killings by the security forces in Northern Ireland where inquests are pending, that the procedural requirements of Article 2 are complied with expeditiously. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 146. 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. Damages 147. The applicants did not submit a claim for pecuniary or non‑pecuniary damages. Accordingly, the Court considers that there is no call to award them any sums on that account. B. Costs and expenses 148. The applicants claimed 42,811.27 pounds sterling in legal costs and expenses before the Court, submitting relevant vouchers and bills. The Government considered this amount to be excessive (notably, the hours billed for the solicitor since the application and observations had been drafted by leading Counsel). 149. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession, the above criteria, the two sets of observations required of the applicants and the total hours of work claimed, the Court considers it reasonable to award the sum of 14,000 euros, plus any tax that may be chargeable to the applicants on this sum, in respect of costs and expenses, to be converted into pounds sterling at the rate applicable at the date of settlement. C. Default interest 150. The Court considers it appropriate that the

default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT 1. Declares, by a majority, the complaints under Articles 2 and 13 of the Convention concerning investigative delay admissible and the remainder of the application inadmissible; 2. Holds, unanimously, that there has been a violation of the procedural requirements of Article 2 of the Convention by reason of excessive investigative delay; 3. Holds, by six votes to one, that no separate issue arises, under Article 13 of the Convention taken in conjunction with Article 2, as regards that investigative delay; 4. Holds, unanimously, (a) that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 14,000 (fourteen thousand euros), plus any tax that may be chargeable to the applicants on this sum, in respect of costs and expenses of the application, to be converted into pounds sterling at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; (c) that the Government must take, as a matter of some priority, all necessary and appropriate measures to ensure, in the present case and in similar cases concerning killings by the security forces in Northern Ireland where inquests are pending, that the procedural requirements of Article 2 of the Convention are complied with expeditiously. 5. Dismisses, unanimously, the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 16 July 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Françoise Elens-PassosIneta ZiemeleRegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment: (a) concurring opinion of Judge Kalaydjieva; (b) concurring opinion of Judge Mahoney. I.Z.F.E.P. CONCURRING OPINION OF JUDGE KALAYDJIEVA[1] It would be difficult not to agree with the majority that the applicants’ complaints that, in violation of the requirements of Article 2 of the Convention, “the investigative process... has still not finished twenty-three years later” in the case of the present judgment (see paragraph 129) and fifteen years later in the case of the Hemsworth judgment (see paragraph 68 of that judgment) are not manifestly ill-founded. The fact that the Government failed to investigate “expeditiously” appears flagrant. This cannot in itself justify a downgrade of the usual analysis performed by the Court in cases under Article 2 to one appropriate for cases concerning the “unreasonable length of proceedings”. The wrong premise of this analysis is that the requirement of Article 2 for investigations “to begin promptly and to proceed with reasonable expedition” is “quite apart from any question of whether the delay actually impacted on [its] effectiveness”. This premise seems to have little support in the Court’s position in hundreds of other cases, where the Court held that “any deficiency in the investigation which undermines its capability of establishing the circumstances of the case or the person responsible is liable to fall foul of the required standard of effectiveness” (see, among many other authorities, Kelly and Others v. the United Kingdom, no. 30054/96, §§ 96-97, 4 May 2001; Anguelova v. Bulgaria, no. 38361/97, § 139, ECHR 2002-IV; and Mojsiejew v. Poland, no. 11818/02, 24 March 2009). Moreover, the case-law is clear in indicating that in certain cases a criminal investigation is required regardless of whether or not civil proceedings were or were not instituted seeking compensation for the damage allegedly sustained. In this regard the present two cases must be distinguished from the case of Hugh Jordan v. the United Kingdom (no. 24746/94, 4 May 2001), where the applicant had not availed himself of the opportunity of civil proceedings, as well as from the case of Caraher v. the United Kingdom ((dec.), no. 24520/94, ECHR 2000-I), where the applicant had in fact come to an agreement on compensation. In any event this Court has never defined civil compensation proceedings as the sole appropriate forum for the determination of the issue

whether or not there has been a violation of Articles 2 or 3 of the Convention. The analysis followed by the majority then continues along the line of the delays “attributable to” the fact of the “exceptional” complexity of the traditional scope and competence of the coroner’s inquest and/or the time necessary for the domestic judiciary to overcome them at the request of the applicants (see paragraph 126 in the present judgment and paragraphs 69‑70 in Hemsworth). The Convention does not prescribe any specific form in which the required prompt investigation should take place. The procedure, in which the establishment of the facts takes place is irrelevant in so far as they were made known to those affected as a result of the authorities’ prompt and reasonable steps to this end (see, among many other authorities, Stoyanovi v. Bulgaria, no. 42980/04, §§ 64-69, 9 November 2010). In these circumstances I am far from convinced that it was open to the Government to rely on the deficiency or “complexity” of the existing domestic procedure, which seem to have been known to the authorities for some years after the first judgments of this Court in similar cases against the United Kingdom, or that they may rely on the time necessary to overcome the difficulties in the process of interpreting whether or not the domestic law “required [this] inquest to comply with the procedural requirements of Article 2” of the Convention (see paragraph 127 in this judgment and paragraph 70 in the Hemsworth judgment). The fact remains that the Government failed to demonstrate that they had, of their own motion, taken any, still less “all reasonable steps” to investigate with a view to establishing the facts. The rationale of the analysis appears further to rely on the delays “attributable” to the applicants’ own “understandable” conduct. The fact that the applicants in the two cases in question were required to make long and painful efforts in order to trigger a proper and effective investigation into the deaths of their next-of-kin and have the scope of the coroner’s inquest expanded, thus bringing it into conformity with the requirements of Article 2 of the Convention, cannot be held to reverse the positive ex officio obligation of States Parties into a remedy which affected parties are expected to exhaust. While it is true that States Parties to the Convention are required to provide effective access to the investigation for the next-of-kin, this neither changes the burden of the ex officio duty of the authorities nor limits it to “providing the applicants with ‘access’ to an... investigation which would commence promptly and be conducted with due expedition” (see paragraph 138 of this judgment, and paragraph 73 of the Hemsworth judgment). That the applicants “understandably” availed themselves of whatever procedure was open and available to them cannot be held against them. This approach inevitably led the majority to the limited conclusion that the “unusual fact-finding exercise” of the coroner’s inquest itself was “not structurally capable... of providing the applicants with access to an investigation which would commence promptly and be conducted with due expedition”. I fully agree with this conclusion. However, I question its usefulness at a time when more than ten years have elapsed since the adoption of the first judgments in similar cases concerning the United Kingdom (see paragraph 85 in this judgment and paragraph 14 in the Hemsworth judgment). The principles concerning the duty to investigate were indicated already in Hugh Jordan (cited above, §§ 72-74) and were followed with regard to all other States Parties to the Convention. The circumstances of the two cases in question concern the first and primary purpose of the investigation prescribed by Article 2 – the establishment and disclosure of the facts and circumstances known only to the authorities. The determination of appropriate effective redress, including administrative, disciplinary, criminal or pecuniary responsibility, is only possible as a result of such disclosure (see, for example, Iliya Petrov v. Bulgaria, no. 19202/03, 24 April 2012, or Nencheva and Others v. Bulgaria, no. 48609/06, 18 June 2013). An investigation appears to be unnecessary where the facts giving rise to the arguable complaints were known to the affected parties ab initio (see Nencheva and Others, cited above). There is nothing to explain, still less to justify, the failure of the domestic authorities to meet their obligations through more appropriate and expeditious means of their own choice, including by introducing appropriate legislative changes in choosing “as a matter of some priority” any other “specific modalities”. The question remains, however, whether in the face of a clearly ineffective domestic investigation which may be seen as amounting to a refusal to investigate, the Court may find itself in a situation where it may be prevented from subjecting such grave complaints to any scrutiny or must declare the domestic authorities “finally free

” to discharge their obligations as they deem appropriate. Looking at what appear to be ample, but missed, opportunities to do so for more than fifteen or even twenty years, I am not convinced that “the respondent State remains free to choose the means by which it will discharge its legal obligations” under Article 2 of the Convention. Such a conclusion falls short of those reached more than ten years ago in similar cases against the United Kingdom, where the Court indicated that “a prompt response by the authorities may generally be regarded as essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts” (see Hugh Jordan, cited above, §§ 108 and 136-40). The conclusions in that case were premised on the assumption that there were no reasons to believe that the applicant would be unable to assert his rights at the national level. This assumption remains valid only where the affected party was not already continuously confronted with obstacles to learning and establishing the facts – as in the two cases in question. The majority in these two cases failed to scrutinise whether in the last two decades the authorities genuinely pursued – and the extent to which they finally achieved – this primary purpose of disclosure and establishment of facts, which would in its turn make possible any further steps required for the determination of disciplinary, criminal or pecuniary responsibility as appropriate. In this regard the majority merely noted the missing documents and witnesses and observed that “criminal and disciplinary proceedings, of central relevance to the investigative obligation under Article 2, can now be initiated” and that “future criminal or disciplinary proceedings... could clearly inform the civil action” instituted in 2001 (see paragraphs 63 and 61 respectively of the Hemsworth judgment). In its earlier practice this Court declared that a finding of delay on the part of the domestic authorities (see paragraph 92 of the present judgment) was insufficient to deprive the injured party of victim status in the absence of a remedy in this regard (see Scordino v. Italy (no. 1) [GC], no. 36813/97, §§ 178 et seq. and 193, ECHR 2006-V). It should not be overlooked that the Court developed its views on the positive obligations to investigate precisely in cases where the national authorities had failed to act promptly and effectively in establishing the circumstances and disclosing them to the public and to the injured parties. Where this is not done, the Court shall always be faced with the necessity of dealing with the facts submitted by the parties as a first-instance court. In addition to their failure to investigate promptly and officially, the Government did not find it necessary to inform the Court of its views as to whether or not the circumstances known to them disclosed a violation of Article 2. After decades of being faced with demonstrated reluctance and what would appear to be an attempted obstruction of justice (see paragraph 23 in the Hemsworth judgment), the applicants in that case were advised that the matter of the appropriateness of any potential criminal responsibility for the use of force against a person who was not even suspected of terrorist activities was now the subject of “active consideration” by the DPP (ibid., § 31), while in the present judgment there was allegedly still a possibility that the DPP would have to reconsider his decision. Any subsequent decision would, “in turn, be amenable to judicial review” (see paragraph 100 of this judgment). Having declared that “save in relation to the complaint about investigative delay, the Court [unlike in cases against other countries] is not in a position to consider the merits of the complaints under the substantive and other procedural aspects of Article 2” (see paragraph 121 of this judgment), the majority in fact reverted the applicants to further indefinitely long proceedings, advising them that “should [they] be dissatisfied in the future with the progress or outcome of those [forthcoming] procedures, it would be open to them to reintroduce their complaints [before the Court] (see paragraph 67 in the Hemsworth judgment). In these circumstances I remain unconvinced that the domestic investigation was intended to “lead to the identification and punishment of those responsible” (see Assenov and Others v. Bulgaria, 28 October 1998, § 102, Reports of Judgments and Decisions 1998-VIII, with further reference to McCann and Others v. the United Kingdom, 27 September 1995, § 161, Series A no. 324; Kaya v. Turkey, 19 February 1998, § 86, Reports 1998-I; and Yaşa v. Turkey, 2 September 1998, § 98, Reports 1998‑VI). The absence of any plausible explanation for the failure to collect key evidence at the time when this was possible, and for attempts even to obstruct this process, should be treated with particular vigilance. In fact the period of demonstrated, if not deliberate, systematic refusals and failures to undertake timely and adequate investigation and to take all necessary steps to investigate arguable allegations under Articles 2 and 3 seem

as a matter of principle to make it possible for at least some agents of the State to benefit from virtual impunity as a result of the passage of time. I refer to my separate opinion in the case of Oleksiy Mykhaylovych Zakharkin v. Ukraine (no. 1727/04, 24 June 2010). “In such circumstances the victims of alleged [violations] will be further humiliated by the fact that the open denial of an investigation successfully prevented the Court’s scrutiny and limited its role to witnessing acts which appear to be better qualified as ‘collusion in or tolerance of unlawful acts’”. I would prefer not to comment on the amount of the applicants’ compensation, which seems inappropriate even for “delays only”, and/or the risk of creating an impression of cynicism. My concern is that the overall effect of this judgment not only multiplies the ineffectiveness already observed, but also renders this Court’s subsidiary role clearly redundant. This role would have been unnecessary had the domestic authorities fulfilled their primary role in time. CONCURRING OPINION OF JUDGE MAHONEY This opinion is not intended to detract in any way from the reasoning of the Chamber’s judgment, with which I fully agree, but merely to add some observations on a point that is addressed in the judgment but not gone into in much detail, namely the relationship between two contrasting lines of authority concerning the interplay between the substantive and procedural requirements of the right-to-life clause under the Convention (Article 2). Two lines of authority The Government relied on a line of British cases exemplified by Caraher v. the United Kingdom ((dec.), no. 24520/94, ECHR 2000-I – see paragraphs 86 and 93 of this judgment). This line of authority is usually summarised as entailing that where a breach of Article 2 – or Article 3, the clause prohibiting torture and inhuman or degrading treatment or punishment – has been acknowledged and adequate compensation paid in civil proceedings brought at national level, or where civil proceedings are pending or available, the Strasbourg Court should confine itself, in the international proceedings brought before it, to an examination of any plausible complaints made under the procedural aspect of Article 2 (or 3), it being accepted that payment of damages at national level cannot discharge the State from its duty under the Convention to secure the accountability of States’ agents for acts or omissions amounting to a breach of Article 2 (or 3). The applicants, on the other hand, relied on a line of authority originating in Nikolova and Velichkova v. Bulgaria (no. 7888/03, §§ 55-56, 20 December 2007 – see paragraph 103 of this judgment), which suggests that the examination of a substantive complaint under Article 2 (or 3) should be tied to the Court’s assessment of all the procedural protections available, including investigative processes and not being limited to any civil action brought or available. On one reading of this case-law, it requires that, for the Court to refrain from considering the substantive complaint in the international proceedings brought before it, there must be a domestic procedure capable of leading to the identification and punishment of the perpetrator, not that that procedure must in fact have done so (see, for example, the language used in Fadime and Turan Karabulut v. Turkey, no. 23872/04, § 39, 27 May 2010, and Ablyazov v. Russia, no. 22867/05, § 54, 30 October 2012). Reconciling the two lines of authority My approach is that these two lines of authority can well be read as being reconcilable and not divergent. What is said in the Nikolova and Velichkova judgment goes to the content of the obligation imposed on the Contracting States by Article 2 and to the implications for the kind of strict scrutiny that should be carried out by this Court when examining Article 2 claims: in cases of wilful ill-treatment by State agents resulting in death, the breach of Article 2 cannot be dealt with by the State concerned exclusively through an award of compensation to the relatives of the victim. This judgment cites (at paragraph 55) the risk, failing proper prosecution and punishment of those responsible, of “buying off” the violation, of purchasing immunity for the perpetrators. As it was similarly put in Fadime and Turan Karabulut (cited above): “39. ... Confining the authorities’ reaction to incidents of deprivations of life to the mere payment of compensation would... make it possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity... 44. ... Article 2 imposes a duty on the State to secure the right to life by putting in place effective criminal-law provisions to deter the commission of offences against the person, backed up by law-enforcement machinery

for the prevention, suppression and punishment of breaches of such provisions... Compliance with the State’s positive obligations under Article 2 requires the domestic legal system to demonstrate its capacity to enforce the criminal law against those who have unlawfully taken the life of another... 45. While there is no absolute obligation for all prosecutions to result in conviction, or in a particular sentence, the national courts should not under any circumstances be prepared to allow life-endangering offences to go unpunished. This is essential for maintaining public confidence, ensuring adherence to the rule of law and for preventing any appearance of tolerance of or collusion in unlawful acts...” The point was also succinctly made in Berganović v. Croatia (no. 46423/06, § 56, 25 June 2009) as regards complaints under Article 3: “... The civil remedies relied on by the Government cannot be regarded as sufficient for the fulfilment of a Contracting State’s obligations under Article 3 of the Convention in cases such as the present one, as they are aimed at awarding damages rather than identifying and punishing those responsible...” Thus, the claim under Article 2 in relation to the procedural protection to be afforded in the national legal system in cases of killings by State agents will remain extant even if either sufficient compensation for conduct acknowledged as amounting to a substantive violation has already been awarded at national level or an effective domestic remedy capable of providing such acknowledgment and compensation is available. The possibility for the victim’s relatives to seek and receive compensation represents only one part of the measures required of the national legal system under Article 2 in relation to deaths resulting from action taken by State agents and, in particular, where the action was deliberate ill-treatment. In sum, ensuring proper investigation, followed, where appropriate, by prosecution of the perpetrators is a procedural obligation incumbent on States under Article 2 that continues to call for strict scrutiny on the part of this Court even where a substantive violation has been acknowledged at national level and sufficient compensation awarded or an effective domestic remedy capable of providing such acknowledgment and compensation is available. Put another way, the extancy of this obligation means that on the international level an application alleging a procedural violation must be examined on its merits by this Court even where the substantive violation, for its part, has been, or is susceptible of being, acknowledged and compensated for at national level. But these related conclusions do not in themselves and of themselves carry the consequence that an applicant is dispensed from the obligation incumbent on him or her under Article 35 § 1 to exhaust an appropriate domestic remedy, for example by bringing a civil action to obtain compensation for the substantive violation, if such a remedy is available and has not had its effectiveness undermined by the absence of adequate investigations. The differing obligations under Articles 2 (or 3) and 35 § 1 of the Convention, one incumbent on the State and the other on potential applicants to the Court, should not be confused and run into one. This was brought out in the Court’s Grand Chamber judgment in Akdivar and Others v. Turkey (16 September 1996, Reports 1996-IV), one of the first cases to establish the State’s duty to investigate under the Convention (for “Turkish” judgments employing similar reasoning, see Aksoy v. Turkey, 18 December 1996, Reports 1996‑IV, and Menteş and Others v. Turkey, 28 November 1997, Reports 1997-VIII; the “Turkish” case-law in this regard was then developed by the Court, through reading a duty to investigate directly into Article 2, in Kaya v. Turkey, 19 February 1998, §§ 86-87, Reports 1998-I, relying on the earlier British “Death on the Rock” case of McCann and Others v. the United Kingdom, 27 September 1995, §§ 161‑63 Series A no. 324). By virtue of the operation of the burden of proof, as the Court explained in the Akdivar and Others judgment, a complaint should not be rejected by reason of the mere existence of a theoretically adequate civil remedy if the applicant could demonstrate that the remedy was for some reason inadequate and ineffective in the particular circumstances or that there existed special circumstances absolving him or her from the requirement of exhaustion. One such reason may be constituted by the failure of the domestic authorities to undertake investigations in the face of serious allegations of misconduct or infliction of harm by State agents (§ 68). The Court recognised that in the particular circumstances obtaining in south-east Turkey at that time, “... the difficulties in securing probative evidence for the purposes of domestic legal proceedings, inherent in such a troubled situation, may make the pursuit of judicial remedies futile and the administrative enquiries on which such remedies depend may be prevented from taking place”. (§ 70) The Court’s conclusion on the facts was as follows: “... Against such a background [of severe civil strife, coupled with the applicants’ position of insecurity and vulnerability following the destruction of their homes], the

prospects of success of civil proceedings based on allegations against the security forces must be considered to be negligible in the absence of any official inquiry into their allegations, even assuming that they would have been able to secure the services of lawyers willing to press their claims before the courts....” (§ 73) Not only would it sit ill with the Court’s aversion to blanket rules, but it would also fly in the face of the Akdivar and Others case-law to deduce from the Nikolova and Velichkova line of authority any blanket rule to the effect that the failure to carry out an effective investigation and prosecution, as required by Article 2 (or 3), will always and automatically make it necessary for this Court to examine on its merits a substantive complaint made under the Article. As the Court was careful to state in Akdivar and Others: “The Court would emphasise that its ruling is confined to the particular circumstances of the present case. It is not to be interpreted as a general statement that applicants are absolved from the obligation... to have normal recourse to the system of remedies which are available and functioning. It can only be in exceptional circumstances such as those which have been shown to exist in the present case that it could accept that applicants address themselves to the Strasbourg institutions for a remedy in respect of their grievances without having made any attempt to seek redress before the local courts.” (§ 77) On the other hand, it does of course follow from Nikolova and Velichkova, as it does from Akdivar and Others, that the possible rejection of the substantive complaint on the ground of non-exhaustion of domestic remedies should be tied to an assessment of all the procedural protections available, notably the existence or not of an adequate investigation; and this in order to see if an effective remedy to complain about the alleged substantive violation could indeed be said to be available to the applicant in practice. It can readily be acknowledged that in many cases the Nikolova and Velichkova approach will indeed require the Court to go into the merits of the substantive complaint. In terms of the Court’s procedure, the result may well either be that, as in Akdivar and Others, the inadequacies of the investigation are so evident that the ineffectiveness in practice of the remedy relied on by the Government can be found at the outset; or, where a plausible procedural complaint of inadequate investigation is made, that the question of exhaustion or not of domestic remedies has to be joined to the merits. But it cannot and should not be excluded that, in some cases, it is clear on the evidence that the effectiveness of the available domestic remedy to look at the substantive allegations of unjustified killing by State agents has not been so adversely affected as to render the remedy ineffective. In such circumstances, it is difficult to see any reason (i) why the applicant should be dispensed from his or her normal obligation under Article 35 § 1 to exhaust an available and effective remedy in relation to that particular, namely substantive, complaint and (ii) why the national system should not be allowed by this Court to do its subsidiary task. A distinction should be drawn between two aspects of the Convention’s operation. On the one hand, there is the strict scrutiny that this Court should always carry out in relation to Article 2 claims, notably as regards the procedural safeguards of proper investigation and prosecution, both in their own right as a ground for finding a violation of Article 2 and as a preliminary factor capable of affecting the effectiveness of legal and other remedies available to relatives of the victims. On the other hand, there is the “subsidiarity” obligation incumbent on applicants under Article 35 § 1 to exhaust available domestic remedies, even if those remedies relate to one branch only of their claim under Article 2, namely the substantive branch. There is overlap and linkage between these two aspects of the Convention’s operation, but the two are not 100% coextensive. As was intimated in Akdivar and Others, a finding of inadequate investigation and prosecution does not automatically, in a blanket fashion, render nugatory the applicant’s obligation to exhaust an available and effective domestic civil remedy to recover compensation for the substantive breach of Article 2 or Article 3, as the case may be. The inadequacy of the investigation and prosecution undertaken, if any, may well be a factor, a powerful factor, pointing to ineffectiveness of the civil remedy for compensation in the circumstances, but it is not decisive in itself or in all circumstances. In conclusion on this point of general principle, it would, in my view, be simplistic, and mistaken, to take the Nikolova and Velichkova jurisprudence as entailing an automatic obligation for this Court to examine on its full merits, substantive as well as procedural, a right-to-life case whenever there has been no adequate investigation and prosecution. The position regarding civil remedies in Northern Ireland The courts in Northern Ireland have at their disposal various procedural tools

to establish the facts and, notably, to oblige witness attendance, to order disclosure and discovery of documents, and to manage evidence that is sensitive in terms of national security so as to find a fair balance between genuine security needs and a plaintiff’s legitimate interest in establishing the facts. The standard of proof required to establish liability is the civil one of proof on the balance of probabilities, not the stricter criminal or Convention standard of proof beyond reasonable doubt. As I understand it, the underlying logic in previous Northern Ireland cases, such as Hugh Jordan v. the United Kingdom, no. 24746/94, 4 May 2001, is that the system of civil remedies in Northern Ireland (and indeed in the United Kingdom in general) is sufficiently well armed and strong to constitute, in principle, an effective means of establishing facts and liability and of obtaining adequate compensation, as appropriate, in relation to killings or serious ill-treatment allegedly committed by State agents. As a consequence – and this is in accord with the reasoning developed in Akdivar and Others – as regards a substantive complaint of unlawful killing under Article 2, the civil claim is in principle to be exhausted. It would have to be demonstrated, in a particular case before this Court, that the deficiencies in the process of investigation and of prosecution of perpetrators were so serious that the civil remedy was compromised to the point where it would be unreasonable to expect the applicant to exhaust it. Arguably such a situation could arise where, for example, as a result of delay key evidence had been lost or destroyed, key witnesses had died or become untraceable, and so on. A similar logic can be seen to have been applied in cases concerning other countries, but with a different result: in these cases, the system of civil remedies was considered to be such that, in the absence of an effective investigation, it did not offer any real chance of establishing either the facts relating to the death or liability on the part of State agents. The particular circumstances of the present case The Chamber found (at paragraph 122 of its judgment) that in the present case “[no] demonstrated factor... can be considered to have deprived the civil courts of their ability to establish the facts and determine the lawfulness or otherwise of the deaths...”. The case file shows that the applicants are already well informed as regards the identity both of the authorities responsible for the planning of the operation and of the individual soldiers and police officers involved in the operation and then in the investigations. There is a wealth of information disclosed and available in relation to the circumstances impugned by the applicants. It cannot be said at this point that the bringing of the civil action by the applicants has been rendered ineffective in practice by reason of the alleged lack of adequate investigation and proper prosecution. As the Chamber’s judgment points out, “[w]hile the lapse of time would make it difficult for the civil court to piece together the evidence, any such attempt should in principle take place in a domestic court, not in an international forum”. The domestic civil action brought by the applicants is capable of enabling them to obtain the same kind of finding that they are seeking in the proceedings before this Court, namely a finding of unjustified killing by the public authorities whom they hold responsible, as well as the same kind of redress, namely an award of financial compensation. As a matter of general principle, subject, where applicable, to the specificities of the procedural protection afforded by virtue of Article 2 of the Convention, this is precisely the kind of situation that the rule of exhaustion of domestic remedies provided for under Article 35 § 1 is meant to cover. In Nikolova and Velichkova, as in a number of other similar cases, an already exhausted civil remedy granting compensation was held to be incapable of providing adequate redress for wilful ill-treatment by State agents resulting in death because of serious deficiencies in the completed investigation and criminal and/or disciplinary prosecution of the perpetrators. The most notable flaw being that the criminal and/or disciplinary proceedings brought against the perpetrators had ended with a result involving “a manifest disproportion between the gravity of the offence [found to have been committed] and the punishment imposed” (see, for example, Nikolova and Velichkova, cited above, §§ 62-63; and Fadime and Turan Karabulut, cited above, § 47; see also Gäfgen v. Germany [GC], no. 22978/05, §§ 123-25, ECHR 2010, in relation to conduct contrary to Article 3). Far from bringing the requisite procedural protection under Article 2, the outcome of the terminated investigative and prosecution process was judged to foster a sense of impunity on the part of the State agents responsible for the killing (see, for example, Nikolova and Velichkova, cited above, § 63 in fine). In that respect the present applicants’ Convention claim, unlike that in the above-mentioned cases, is premature “because, given the pending judicial review proceedings, the initiation of

further relevant investigative procedures, including of a criminal and/or disciplinary nature, remains possible” (see paragraph 121 of this judgment), with the complaints made by the applicants before this Court, notably their outstanding procedural complaints, capable of being addressed and, if upheld, remedied at national level in that on-going process (see paragraphs 123-27). In particular, since “the pending judicial review action will review key aspects of the inquest against the procedural guarantees of Article 2 of the Convention”, “the Court... [before knowing the results of that action,] cannot examine whether the inquest has been deprived, by prior investigative shortcomings or delay, of its ability to establish the facts and determine the lawfulness or otherwise of the deaths in question” (see paragraph 127 in fine). As the judgment points out (at paragraph 128 in fine), should the present applicants be dissatisfied with the progress or outcome of the various, as yet uncompleted, domestic procedures, it would be open to them to reintroduce before this Court both their substantive complaints and their outstanding procedural complaints under Article 2. Concluding remark It may doubtless appear somewhat anomalous that, twenty-three years after the deaths of the applicants’ relatives, the applicants’ substantive complaints and most of their procedural complaints under the Convention’s right-to-life clause can be legally characterised as “premature”. However, the position is so precisely because the innumerable and excessive delays in the inquest proceedings prevented the investigative process from beginning promptly and from being carried out with reasonable expedition. For this reason, even before the completion of the applicants’ civil action and their latest judicial review proceedings, the Court could not but find a procedural violation of Article 2 on the basis that the United Kingdom had, in relation to this requirement of promptness and reasonable expedition, failed in its obligation to the applicants to ensure, through the legal system in Northern Ireland, the effectiveness of the investigative process concerning the deaths of their relatives at the hands of the security forces. [1]. This is an opinion common to the present judgment and the judgment in Collette and Michael Hemsworth v. the United Kingdom, no. 58559/09, 16 July 2013 (hereinafter “the Hemsworth judgment”), both delivered on the same date.

FIRST SECTION CASE OF LELIK v. RUSSIA (Application no. 20441/02) JUDGMENT STRASBOURG 3 June 2010 FINAL 03/09/2010 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Lelik v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Christos Rozakis, President,Nina Vajić,Anatoly Kovler,Elisabeth Steiner,Khanlar Hajiyev,Giorgio Malinverni,George Nicolaou, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 11 May 2010, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 20441/02) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Ms Nina Andreyevna Lelik (“the applicant”), on 10 April 2002. 2. The applicant was represented by Mr V.N. Voblikov, a lawyer practising in Bilibino, the Chukotka Region. The Russian Government (“the Government”) were initially represented by Ms V. Milinchuk, representative of the Russian Federation before the European Court of Human Rights and then by their representative Mr G. Matyushkin. 3. On 9 March 2007 the Court decided to communicate the application. Applying Article 29 § 3 of the Convention, it decided to rule on the admissibility and merits of the application at the same time. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1942 and lives in Ryazan. 5. On 17 February 2000 the applicant filed with the Bilibinskiy District Court of the Chukotka Autonomous Region (“the District Court”) an action against the regional pension authorities and the district social security authority (Отделение Пенсионного фонда РФ по Чукотскому Автономному Округу и Отдел социальной защиты населения Администрации Билибинского района) for recovery of arrears of her old-age pension. She also requested to index-link the arrears. 6. As the District Court consistently failed to schedule a hearing, the applicant filed a complaint about its lack of action to the Supreme Court of Russia. On 19 October 2000 the Supreme Court in the final instance refused to consider the complaint on its merits as out of the court's competence. 7. The first hearing in the case was scheduled for 13 November 2000. 8. On 13 November 2000 the judge failed to appear, and the hearing was fixed for 19 January 2001. 9. On 9 January 2001 the District Court decided not to consider the applicant's complaints about the judge's inaction ruling that such a complaint could be entertained only by the Judicial Qualifications Board (Квалификационная коллегия судей). 10. On 19 January 2001 the hearing was adjourned until 22 March 2001 on account of the applicant's failure to appear. The applicant's counsel attended the hearing. 11. The Government submitted that on 16 February 2001 the applicant applied for supervisory review seeking to quash the above decision to adjourn the hearing on account of certain procedural flaws. The applicant submitted an application for supervisory review with the date shown as 2 February 2001. 12. On 22 March 2001 the District Court partly granted the applicant's claims. In the same hearing the applicant's counsel informed the court of her actual place of residence which differed from the one indicated in the original statement of claim. 13. On an unspecified date the applicant filed

an appeal. She submitted that in her appeal she had complained, among other things, about the first-instance court's decisions to adjourn the hearings. 14. The applicant's appeal was first fixed to be considered by the Chukotka Regional Court (“the Regional Court”) on 17 May 2001 but was re-scheduled for 19 July 2001. 15. On 19 July 2001 the Regional Court overturned the judgment on appeal and remitted the case for fresh examination to the District Court. The applicant's complaint about the adjournment decisions was not addressed. 16. On 23 July 2001 the case was transferred to the Presidium of the Regional Court for consideration pursuant to the applicant's application for supervisory review of 16 February 2001. 17. On 1 August 2001 the application for supervisory review was rejected, and the case was returned to the District Court. 18. On 17 August 2001 the District Court fixed the first hearing for 5 December 2001. The court invited the applicant's counsel to provide the applicant's actual address. 19. On 28 August 2001 the applicant's counsel informed the District Court that the applicant resided at the address indicated in the statement of claim. 20. On 5 December 2001 the hearing was adjourned till 21 January 2002 on account of the applicant's failure to appear. The applicant's counsel attended the hearing. 21. On 18 January 2002 the applicant applied for supervisory review of the above decision to adjourn the hearing. 22. On 21 January 2002 the hearing had been adjourned till 26 February 2002 on account of the applicant's failure to appear. Her counsel attended the hearing, amended the claims and informed the court that the applicant resided in Ryazan. He was invited to provide the applicant's full address. 23. On 4 February 2002 the applicant applied for supervisory review of the above decision to adjourn the hearing. On 12 February 2002 the Presidium of the Regional Court called up the case. 24. On 9 October 2002 the application for supervisory review was rejected, and the case was returned to the District Court. 25. The applicant submitted that in December 2002 she had requested the District Court to inform her of the date of the next hearing but received no precise answer. 26. On 14 May 2003 the applicant filed an amendment to the original statement of claim indicating a new group of respondents. 27. On 8 July 2003 the District Court held a hearing in presence of the applicant's counsel, in which it accepted the amended claims and adjourned. 28. On 28 November 2003 the applicant's counsel informed the court that the applicant wished to have the case heard in her absence. The hearing was adjourned till 25 December 2003 on account of the applicant's failure to identify the new respondents. 29. On 7 December 2003 the applicant notified the District Court that she had already determined the new respondents in her amendment to the statement of claim of 14 May 2003. 30. On 25 December 2003 the District Court granted the applicant's claims in part. 31. On 18 March 2004 the Regional Court heard the case on appeal and amended the judgment, awarding to the applicant a total amount of 40,879 roubles and 73 kopecks. II. RELEVANT DOMESTIC LAW 32. Until 14 November 2002 the civil-law matters were governed by the Code of Civil Procedure of the Russian Soviet Federative Socialist Republic of 1964 (“the old CCivP”). 33. Under Article 99 of the old CCivP, an action must be prepared for trial seven days after the action is lodged. An action brought against a State body must be examined ten days after it is lodged. 34. Under Article 284-1 of the old CCivP, an appeal court must examine an appeal ten days after it is filed. 35. On 14 November 2002 the old CCivP was replaced by the Code of Civil Procedure of the Russian Federation (“the new CCivP”). 36. Under Article 154-1 of the new CCivP an action must be examined two months after it is lodged. 37. Under Article 348-1 of the new CCivP, an appeal court must examine an appeal one month after it is filed. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 38. The applicant complained under Article 6 § 1 of the Convention of unreasonable length of proceedings. As far as relevant, this provision reads as follows: “In the determination of his civil rights and obligations... everyone is entitled to a... hearing within a reasonable time by [a]... tribunal...” 39. The Court is satisfied that the first round of proceedings began on 17 February 2000 and ended on 19 July 2001. No proceedings were pending between 23 July and 1 August 2001 when the case was

being examined at the supervisory instance (see paras. 13-14 above). The second round of proceedings began on 1 August 2001, was interrupted from 12 February to 9 October 2002 due to examination of the case on application for supervisory review (see paras. 20-21 above), and ended on 18 March 2004. 40. The proceedings thus lasted 3 years and 5 months, where the case was considered twice at two levels of jurisdiction. A. Admissibility 41. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties' submissions (a) The Government 41. The Government observed that the delays in the proceedings which had occurred between 17 February 2000 and 19 January 2001, 17 May and 19 July 2001 had been caused by the courts' insufficient staff numbers, the judges' other commitments and a significant case load. They also argued that the length of the proceedings could still be regarded as reasonable because the most significant delays had been caused by the applicant. In particular, the applicant repeatedly challenged the first-instance decisions both in appeal and supervisory review proceedings, did not appear in the hearings and had provided a false actual address, as well as changed her claims twice and delayed in indentifying of the respondent after amendment of her claims. They also contended that the case had been complex as it had required an accurate calculation of the awarded sum amounts. (b) The applicant 42. The applicant disagreed. She claimed that having retained a legal counsel, she had not been obligated by law to appear in the hearings to have her claims examined, that the case was not complex by nature and that she had been entitled to exercise her procedural rights by challenging the decisions she had disagreed with. She also stated that contrary to the Government's arguments, she had timely determined the respondent. 2. The Court's assessment 43. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII). In addition, only delays attributable to the State may justify a finding of a failure to comply with the "reasonable time" requirement (see, among other authorities, Zimmermann and Steiner v. Switzerland, 13 July 1983, p. 11, § 24, Series A no. 66; see also Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999-II). (a) Complexity of the case 44. The Court finds that the case, which concerned recovery of old-age pension arrears with index-linking was not particularly complex. Consequently, the Court takes the view that an overall period of 3 years and 5 months could not, for this reason, be deemed to satisfy the “reasonable time” requirement in Article 6 § 1 of the Convention. (b) Conduct of the applicant 45. Insofar as the behaviour of the applicant is concerned, the Court recalls that on three occasions a court hearing was adjourned due to the applicant's failure to appear in hearings or to explain her absence, the aggregate length of the delay being 4 months and 2 weeks. Only a year into the proceedings did the applicant's counsel mention that her actual address differed from the one indicated in the statement of claim. He did not manage to provide the correct address until well into the second round of proceedings. As the domestic courts are procedurally required to verify reception of summonses prior to the hearing, they cannot be blamed for adjournment of hearings due to the applicant's failure to supply correct information. 46. As to the Government's argument that the applicant delayed the proceedings by amending her claims, the Court observes that this fact in itself does not appear to have led to a stay of the proceedings. It is also satisfied that the applicant identified the new respondents in a timely manner in her amendment to the statement of claim. 47. The Court is not convinced by the Government's contention that the applicant contributed to the length of the proceedings by challenging the first-instance court's decisions in the appeal and supervisory instances. It has been the Court's constant approach that an applicant cannot be blamed for taking full advantage of the resources afforded by the national law in the defence of his interests (see, mutatis mutandis, Yağcı and Sargın v. Turkey, 8 June 1995, § 66, Series A no. 319-A).

48. The Court thus finds that the applicant can be held responsible for 4 months and 2 weeks of delay in the proceedings. (c) Conduct of the authorities 49. As regards the conduct of the judicial authorities, the Court recalls that the domestic courts failed to fix a hearing for 9 months after the applicant lodged her claim, adjourned the first hearing and an appeal hearing for 2 months each due to the judge's other commitments and failed to schedule a hearing in the second round of proceedings for 8 months. The aggregate length of the delay thus constitutes 21 months. 50. The Court reiterates that it is the States' duty to organise their judicial systems in such a way that their courts can meet the requirements of Article 6 § 1 (see Muti v. Italy, 23 March 1994, § 15, Series A no. 281-C). The manner in which a State provides for mechanisms to comply with this requirement – whether by way of increasing the numbers of judges, or by automatic time-limits and directions, or by some other method – is for the State to decide. If a State lets proceedings continue beyond the “reasonable time” prescribed by Article 6 of the Convention without doing anything to advance them, it will be responsible for the resultant delay (see Price and Lowe v. the United Kingdom, nos. 43185/98 and 43186/98, § 23, 29 July 2003). 51. In view of the above, the Court considers that the cited difficulties do not excuse the State from ensuring that the proceedings were dealt with within a reasonable time (see Kormacheva v. Russia, no. 53084/99, § 55, 29 January 2004). It finds that the State is thus responsible for 21 months of delay in the proceedings. (d) Stake for the applicant 52. The Court reiterates that certain types of cases, for example those concerning civil status and capacity or employment disputes, generally require particular diligence on the part of the domestic courts (see Bock v. Germany, 29 March 1989, p. 23, § 49, Series A no. 150, and Ruotolo v. Italy, 27 February 1992, p. 39, § 17, Series A no. 230-D). The Court finds this principle to be equally applicable to the present dispute as it concerned the payment of arrears of an old-age pension, which constituted the principal source of income for the applicant (see Tusashvili v. Russia, no. 20496/04, § 25, 15 December 2005). (e) Conclusion 53. Regard being had to all the circumstances of the case, the relative simplicity of the case and its importance to the applicant, the substantial and repetitive delays attributable to the authorities, the Court find that there was a violation of Article 6 § 1 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 54. The applicant complained also that in Russia there was no effective remedy against the excessive length of proceedings. She relied on Article 13 of the Convention, which reads as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 55. The Government contested that argument. They submitted that it was open to the applicant to lodge an appeal to the Judicial Qualifications Board, challenge the judge or claim compensation for non-pecuniary damage. 56. The Court reiterates that Article 13 guarantees an effective remedy before a national authority for an alleged breach of the requirement under Article 6 § 1 to hear a case within a reasonable time (see Kudła v. Poland [GC], no. 30210/96, § 156, ECHR 2000-XI). 57. The Court reiterates that according to its case-law there is no effective remedy under Russian law capable of affording redress for the unreasonable length of civil proceedings (see, among many other authorities, Kormacheva, cited above, §§ 61-62; Kuzin v. Russia, no. 22118/02, §§ 42-46, 9 June 2005; Bakiyevets v. Russia, no. 22892/03, § 53, 15 June 2006; Markova v. Russia, no. 13119/03, § 31, 8 January 2009; and Zaytsev and Others v. Russia, no. 42046/06, § 48, 25 June 2009). 58. The Court notes that in the present case the Government did not provide any new argument as to whether and how the applicant could obtain effective relief – either preventive or compensatory – by having recourse to the suggested measures. It was not suggested that these remedies could have expedited the determination of the applicant's case or provided her with adequate redress of the delays that had already occurred

(see Kormacheva, cited above, § 61). Nor did the Government supply any example from domestic practice showing that, by using the means in question, it was possible for the applicant to obtain such a relief (see Kudla, cited above, § 159). 59. The Court finally observes that in the present case the applicant attempted to rectify the situation at the domestic level by complaining of the court's inaction in her appeal as well as by bringing separate complaints, but the courts proved unable to provide her with relief. 60. Accordingly, the Court holds that in the present case there has been a violation of Article 13 of the Convention. III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 61. The applicant also complains under Article 1 of Protocol No. 1 that by failing for years to reach a decision in her case, the national authorities unlawfully interfered with her possessions. 62. The Court finds that this complaint does not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 63. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 64. The applicant claimed non-pecuniary damage in the amount of 30,000 euros (EUR). 65. The Government contested this amount as unsubstantiated and disproportionate to the damage allegedly incurred. 66. Referring to its established case-law, the Court finds that the applicant suffered some distress and frustration caused by the unreasonable length of the proceedings. Deciding on an equitable basis, the Court awards EUR 1,500. B. Costs and expenses 67. The applicant also claimed reimbursement of the costs and expenses incurred in the proceedings before the Court. In particular, she claimed EUR 1,230 as remuneration for her representative in accordance with the contract of 9 April 2002. 68. The Government made no specific comment on the amount claimed. 69. The Court notes that under the contract of 9 April 2002 the applicant agreed to pay her representative a fee amounting to EUR 1,230 for his representation before the Court, provided the representative duly performed his contractual obligations until the delivery by the Court of the final judgment concerning the present application and subject to payment by the Russian Federation of the just satisfaction award, should it be granted by the Court. The contract thus clearly stipulated that the applicant was to pay her representative EUR 1,230. The Court is satisfied that from the standpoint of the Convention these costs are real. The fact that the applicant was not required to pay the fee in advance does not affect this conclusion (see Tusashvili, cited above, § 37). 70. Further, it has to be established whether the costs and expenses incurred by the applicant for legal representation were necessary. The Court notes that this case was not particularly complex and part of the application is declared inadmissible. It therefore finds excessive the amount which the applicant claims under this head. 71. The Court awards the sum of EUR 825, together with any value-added tax that may be chargeable. C. Default interest 72. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT 1. Declares unanimously the complaint concerning unreasonable length of proceedings admissible and the remainder of the application inadmissible; 2. Holds unanimously that there has been a violation of Article 6 § 1 and Article 13 of the Convention; 3. Holds by six votes to one (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Russian roubles at the rate applicable at the date of settlement: (i) EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 825 (eight hundred and twenty five euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal

to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses unanimously the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 3 June 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenChristos RozakisRegistrarPresident

FOURTH SECTION CASE OF KADŁUCZKA v. POLAND (Application no. 31438/06) JUDGMENT STRASBOURG 2 February 2010 FINAL 02/05/2010 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Kadłuczka v. Poland, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: Nicolas Bratza, President,Lech Garlicki,Giovanni Bonello,Ljiljana Mijović,David Thór Björgvinsson,Ledi Bianku,Mihai Poalelungi, judges,and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 12 January 2010, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 31438/06) against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Polish national, Mr Jan Kadłuczka (“the applicant”), on 21 July 2006. 2. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs. 3. The applicant alleged a breach of Article 6 § 1 of the Convention in respect of the proceedings before the Polish-German Reconciliation Foundation. 4. On 24 January 2007 the President of the Fourth Section decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1931 and lives in Kraków. A. Historical background 6. The realities of the international situation following the end of the Second World War prevented the Republic of Poland from asserting any claims arising out of persecution of its citizens by Nazi Germany, including as forced labourers. 7. In the period immediately following the Second World War Poland did not conclude a specific agreement with Germany regarding the issue of reparations. It relied on the Potsdam Agreement of 1 August 1945, concluded by the Governments of the United States of America, the United Kingdom of Great Britain and Northern Ireland and the Union of Soviet Socialist Republics. 8. On 27 February 1953 the London Agreement on Germany’s External Debts (London Debt Agreement) was concluded by the United States of America, Great Britain, France and the Soviet Union. Under this Agreement, consideration of claims arising out of the Second World War by countries which were at war with or were occupied by Germany during that war, and by nationals of such countries, against the Reich or agencies of the Reich was deferred until final settlement of the issue of reparations. 9. On 23 August 1953, a day after a similar declaration by the Government of the Soviet Union, the Government of Poland declared that it renounced any claims against Germany in respect of war reparations as of 1 January 1954. In a declaration of 27 September 1969, made at the United Nations, the Government of Poland clarified that the renouncement of 1953 did not affect individual claims arising out of unlawful acts. 10. In 1972 the Federal Republic of Germany made an ex-gratia payment of DM 100 million to the Polish Government for the victims of pseudo-medical experiments. 11. It was only after the conclusion of the Treaty on the Final Settlement with respect to Germany of 12 September 1990 (the so‑called Two‑Plus‑Four Treaty) and the conclusion of two treaties between the Federal Republic of Germany and the Republic of Poland in 1990[1] and 1991[2] that the issue of persons persecuted by the Nazi regime was addressed in the bilateral Agreement of 16 October 1991 (see paragraph 30 below). 12. The issue of compensation for slave and forced labour during the Second World War was addressed in the Joint Statement of 17 July 2000 and the German Law of 2 August 2000 on the Creation of the “Remembrance, Responsibility and Future” Foundation (see relevant law below). B. The circumstances of the case 13. In June 1942 the applicant was deported from Grójec, which was then part of the Polish territories annexed by the Third Reich, to Wadów, located on

the territory of the General Government (Generalna Gubernia, an administrative entity established by the German authorities in occupied Poland). He worked as a forced labourer on a German farm in Wadów until the liberation in January 1945. 14. In August 2001 the applicant applied to the “Polish-German Reconciliation Foundation” (“the Foundation” or “the Polish Foundation”) for payment of compensation for his forced labour during the war. That request was made under the scheme for slave and forced labourers (“the second compensation scheme”). On 23 July 2004 the Foundation’s Verification Commission dismissed the applicant’s claims. It found that the applicant’s forced labour did not entitle him to receive benefits under any of the categories for eligibility. The applicant appealed on 31 August 2004. He argued that he had worked on a German farm and submitted three documents in support of his claim. The first document was a certificate issued by the Ruszcza Catholic Parish on the basis of its parish records. The certificate stated that between 1942 and 1945 there had been a farm in Wadów owned by Z.K. (married name: Hochsman) and administered by W. Hochsman, a German national. The second document was a certificate issued by the Wadów Agricultural Society. It confirmed that there had been a farm in Wadów owned and administered by a German national, W. Hoffman. The last document was issued by the Kraków Regional Agrarian Office and certified that in 1945 the farm in Wadów had been acquired by the State in the context of agrarian reform. 15. On 21 December 2004 the Foundation’s Appeal Commission upheld the refusal. It found that the applicant had been deported from Grójec in Upper Silesia to Wadów in the General Government. In the case of persons deported from one administrative entity to another, it was necessary to establish that they had been subjected to forced labour on a German farm or for a German company. According to the Appeal Commission, the applicant did not adduce documents demonstrating that the farm in Wadów had been under German administration or that its owners had belonged to the List of German Nationals (Deutsche Volksliste; niemiecka grupa narodowościowa). In particular, the Appeal Commission refused to accept a certificate issued by the Ruszcza Catholic Parish as relevant proof, since it had not been based on archival documents. Similarly, it did not consider as relevant the document issued by the Agricultural Society, as it had been based on witness statements. Other documents produced by the applicant did not confirm that the farm in Wadów had been under German administration. 16. The applicant strongly contested the Verification Commission’s findings. He turned to various authorities and institutions, seeking to challenge those findings. In 2006 he complained to the Ombudsman about the Foundation’s refusal to grant him compensation. 17. Following the Ombudsman’s inquiry, the Foundation’s Appeal Commission re-examined the applicant’s claims. However, on 29 May 2006 it again refused them. First, the Appeal Commission stated that section 11 of the German Foundation Act (“the GFA”), which set out the categories of eligible persons, was not directly applicable to the applicant. However, following the agreement made in the framework of the so-called “openness clause” (tzw. klauzula otwartości; section 9 § 8 of the GFA) the Polish Foundation with the approval of the German Foundation agreed to extend the category of eligible claimants to other groups, including relocated persons (osoby dyslokowane). That category included forced labourers who had been deported within the territory of the Polish State and crossed the border between the administrative entities established by the occupying authorities. The additional condition for relocated persons was to produce documents which attested that they had worked on a farm under German administration or for a German company. Relevant evidence to that effect should have been produced on the basis of the local archives, indicating which documents had been relied on. 18. The Appeal Commission underlined that the applicant had not established in a requisite manner that the farm in question had been under German administration. It could not take into consideration the certificate issued by the Wadów Agricultural Society as it had been based on witness statements. The applicant was informed that documents based on witness statements were not regarded as relevant evidence. Furthermore, the Appeal Commission did not consider the certificate issued by the Ruszcza Catholic Parish as sufficient proof that the farm in question had been under German administration. That certificate had been issued on the basis of the parish records but without providing further details about the latter. Similarly, the document issued by the Regional Agrarian Office was not considered relevant. II. RELEVANT DOMEST

IC LAW AND PRACTICE A. Constitutional provisions 19. Article 9 of the Constitution, which was adopted by the National Assembly on 2 April 1997 and entered into force on 17 October 1997, states: “The Republic of Poland shall respect international law binding upon it.” Article 45 § 1 of the Constitution reads: “Everyone shall have the right to a fair and public hearing of his case, without undue delay, before a competent, impartial and independent court.” Chapter VIII of the Constitution contains provisions related to the judiciary. Article 175§ 1 of the Constitution provides: “The administration of justice in the Republic of Poland shall be implemented by the Supreme Court, the ordinary courts, administrative courts and military courts.” Article 177 of the Constitution states: “The ordinary courts shall implement the administration of justice concerning all matters save for those statutorily reserved for other courts.” Article 184, in so far as relevant, provides: “The Supreme Administrative Court and other administrative courts shall exercise, to the extent specified by statute, control over the performance of public administration.” B. The Agreement of 16 October 1991 and the establishment of the Polish-German Reconciliation Foundation (first compensation scheme) 20. On 16 October 1991 the Governments of the Federal Republic of Germany and the Republic of Poland concluded an agreement on the basis of which the German Government declared that, prompted by humanitarian considerations, it was prepared to contribute DEM 500 million for the benefit of the Polish-German Reconciliation Foundation. The Foundation was to be established by the Government of Poland with a view to providing financial assistance to victims of Nazi persecution who had been particularly wronged. The Foundation was to determine the necessary criteria for the granting of payments, having regard both to serious damage to the victims’ health and to difficulties in their current financial situation. The Government of Poland declared that it would not pursue further individual claims by Polish citizens arising out of Nazi persecution. Both Governments indicated that their agreement should not amount to limitation of the rights of citizens of either country. 21. Subsequently, on 27 November 1991, the Minister–Head of the Cabinet Office (Minister – Szef Urzędu Rady Ministrów) acting as a Founder[3], made a declaration before the State Notary on the establishment of the Foundation. He declared that, acting on the initiative of the Government of the Republic of Poland and on behalf of the State Treasury, he was establishing the Polish-German Reconciliation Foundation. The Foundation’s aim was to provide assistance to the victims of Nazi persecution and to undertake other activities for the benefit of those persons. The Minister also declared that the Foundation’s capital fund consisted of DEM 500 million, contributed by the German Government to the Polish Government. The Polish-German Reconciliation Foundation was established in accordance with the Foundations Act of 6 April 1984, which regulates the activities of foundations in Poland. In principle, supervision of a foundation’s activities is exercised by the regional governor (Wojewoda) or the competent minister. 22. The statutes of the Polish-German Reconciliation Foundation were drafted and subsequently registered by the Warsaw District Court on 24 February 1992. On that date the Foundation began its activities. Under paragraph 6 of the statutes, the Foundation’s primary aim was to render direct financial assistance to those victims of Nazi persecution whose health had been seriously damaged and who were in a difficult financial situation as a result of that persecution. 23. The Foundation’s organs were the Supervisory Board (Rada Nadzorcza) and the Management Board (Zarząd). The members of those organs were appointed and dismissed by the Founder (government minister) who exercised full control in this respect. The two other organs of the Foundation were the Verification Commission (Komisja Weryfikacyjna), and the Appeal Commission (Odwoławcza Komisja Weryfikacyjna). C. Compensation scheme for slave and forced labourers (second compensation scheme) 24. From 1998 to 2000 international negotiations took place on the issue of compensation for persons subjected to slave or forced labour by Nazi Germany. The government of Poland was one of the parties to these negotiations. They were prompted by a number of lawsuits against certain German companies before the courts in the United States in which compensation was sought on account of forced labour during the Second World War. The German companies against which the lawsuits had been brought wished to bring them to an end and secure legal peace. The negotiations concluded on 17 July 2000 with the adoption of a Joint Statement which was signed by all the parties to the negotiations, including the government of Poland[4]. 25. The parties to the Joint Statement acknowledged the intention of the Government of Germany and of the German companies concerned to accept moral and historic responsibility arising from the use of slave and forced

labourers and from other injustices committed during the National Socialist era and the Second World War. They affirmed their consensus of 17 December 1999 on the establishment of the Remembrance, Responsibility and Future Foundation, which was to be a means of providing funds for victims from central and eastern Europe, most of whom had benefited little from prior German compensation and restitution programmes. The parties to the Joint Statement further agreed to base their decisions regarding the distribution of funds on the eligibility criteria set out in the German Foundation Act. 26. According to the Joint Statement, the Government of Germany and the German companies concerned undertook to contribute DEM 5 thousand million to the Remembrance, Responsibility and Future Foundation. The Joint Statement stipulated that the governments of the participating central and eastern European States, including Poland, and the government of Israel agreed to implement the necessary specific measures within the framework of their national legal systems to achieve legal peace. 27. Subsequently, on 2 August 2000 the German parliament enacted the Law on the creation of the Remembrance, Responsibility and Future Foundation (Gesetz zur Errichtung einer Stiftung “Erinnerung, Verantwortung und Zukunft”; the German Foundation Act). It came into force on 12 August 2000. However, the disbursement of payments only started on 30 May 2001, once the relevant guarantees had been secured by the German companies concerned with regard to the dismissal of the lawsuits filed against them in the United States courts. 28. The relevant parts of the Law on the creation of the Remembrance, Responsibility and Future Foundation provide: “Preamble Recognising that the National Socialist State inflicted severe injustice on slave labourers and forced labourers, through deportation, internment and exploitation, which in some cases extended to destruction through labour, and through a large number of other human-rights violations, that German companies which participated in the National Socialist injustice bear a historic responsibility and must accept it, that the companies which have come together in the Foundation Initiative of German Industry [Stiftungsinitiative der deutschen Wirtschaft] have acknowledged this responsibility, that the injustice committed and the human suffering it caused cannot be truly compensated by financial payments, that the Law comes too late for those who lost their lives as victims of the National Socialist regime or have died in the meantime, the German Bundestag acknowledges political and moral responsibility for the victims of National Socialism. The Bundestag also intends to keep alive the memory of the injustice inflicted on the victims for coming generations. (...) Section 1 – Establishment and headquarters (1) A legally recognised Foundation with the name ‘Remembrance, Responsibility and Future’ shall be established under public law. (...) Section 2 – Purpose of the Foundation (1) The purpose of the Foundation is to make financial compensation available through partner organisations to former forced labourers and to those affected by other injustices from the National Socialist period. (...) Section 9 – Use of Foundation Resources (...) (8) In concert with the Board of Trustees, the partner organizations may subdivide the category of forced labourers, within its quota, in accordance with Section 11, Paragraph 1, Sentence 1, Number 1, insofar as this involves persons interned in other places of confinement, as well as affected persons within the meaning of Section 11, Paragraph 1, Sentence 1, Number 2, into subcategories depending on the severity of their fate and may set correspondingly gradated maximum amounts. This shall also apply to the eligibility of legal successors. (...) Section 10 – Distribution of resources through partner organisations (1) The approval and disbursement of one-off payments to those persons eligible under section 11 will be carried out through partner organisations. The Foundation is neither authorised nor obligated in this regard. The board of trustees may opt for another mode of payment. (...) Section 11 – Eligible persons (1) Eligible under this Law are: 1. persons who were held in a concentration camp as defined in section 42(2) of the German Indemnification Act [Bundesentschädigungsgesetz] or in another place of confinement outside the territory of what is now the Republic of Austria or a ghetto under comparable conditions and were subjected to forced labour; 2. persons who were deported from their homelands into the territory of the German Reich within the borders of 1937 or to a German-occupied area, subjected to forced labour in a commercial enterprise or for public authorities there, and held under conditions other than those mentioned in paragraph 1, or were subjected to conditions resembling imprisonment or similar extremely harsh living conditions; (...) (2) Eligibility shall be demonstrated by the applicant by submission of documentation. The partner organisation shall take into account relevant evidence. If no relevant evidence is available, the claimant’s eligibility may be substantiated in some other way.

Section 19 – Appeals Process The partner organizations are to create appeals organs that are independent and subject to no outside instruction. The appeals process itself is to be free of charge. However, costs incurred by the applicant are not to be reimbursed.” D. Judgment of the German Federal Constitutional Court of 28 June 2004 29. The Federal Constitutional Court examined a constitutional complaint against various provisions of the GFA which had been filed, among others, by a former Italian military internee and a civilian who had been subjected to forced labour[5]. The complainants alleged, inter alia, that prior to the entry into force of the GFA they had had claims for compensation for forced labour against the Federal Republic of Germany, under German civil law in conjunction with international public law. They contended that the exclusion of judicial review of decisions by the International Organisation for Migration (one of the partner organisations) had violated their right to an effective remedy under Article 19 § 4 of the German Basic Law. Furthermore, they argued that the exclusion of former prisoners of war from the ambit of compensation under the Foundation Act was discriminatory. 30. On 28 June 2004 the Federal Constitutional Court held that the complaint was partly admissible, but unfounded. Referring to the Hague Convention on the Laws and Customs of War on Land (“The Hague Convention”) the court held that international public law had not established individual claims for compensation for forced labour. It noted, however, that it was not excluded that national law might establish such claims, but that in such a case the legislator enjoyed wide discretion. The court held further that the exclusion by section 11 § 3 of former prisoners of war from the scope of those eligible for benefits under the Foundation Act had not been discriminatory, since under the Hague Convention prisoners of war could be compelled to perform labour. In this respect the court observed that the legislator was allowed to distinguish, when awarding compensation, between victims of general hardships caused by the war and victims of particular ideological persecution by the Nazi regime, especially as the funds of the Foundation were limited. 31. In respect of the exclusion of judicial review by the Foundation Act, the Federal Constitutional Court found that Article 19 § 4 of the Basic Law required that a right did in fact exist, whose alleged violation could be examined by the courts. The court concluded that the legislator was free to decide not to establish an individual’s claims vis-à-vis a public-law foundation and to exclude judicial review in this connection. E. Implementation of the second compensation scheme by Poland 32. On 10 August 2000 the Polish government submitted to Parliament a bill on the exemption from tax and duties of payments received in connection with Nazi persecution. In the explanatory memorandum to the bill, the government stated that payment of benefits in respect of forced labour for the Nazi regime had been agreed in the course of negotiations involving the respective governments, German companies and the victims. They further stated that, as a result of the agreement with the Germans, Poland would receive more than DEM 1.8 thousand million. On 21 September 2000 the Polish parliament enacted the Law on exemption of payments received in connection with Nazi persecution from tax and duties. That Law also exempted the Polish-German Reconciliation Foundation from taxes due on funds received by the Foundation for the distribution of payments. The Law came into force on 17 November 2000. 33. On 16 February 2001 an agreement was concluded between the Remembrance, Responsibility and Future Foundation and the Polish‑German Reconciliation Foundation (“the partnership agreement”). Under its terms the Polish‑German Reconciliation Foundation was to act as a partner organisation of the German Foundation, with a view to securing prompt disbursement of compensation payments to slave and forced labourers (paragraph 1 of the agreement). Both parties agreed to implement fully the provisions of the GFA and declared that their agreement was in compliance with the Joint Statement of 17 July 2000. 34. The above agreement further stipulated that the Polish Foundation, as a partner organisation, was entrusted with determining eligibility for compensation payments in respect of all claimants who resided on the territory of Poland on 16 February 1999 (paragraph 2). The partner organisation was to verify and determine whether the relevant conditions for awarding payment had been established or substantiated in some other way (paragraph 5.1). A claimant could appeal against a decision taken by the partner organisation in respect of the grounds of the decision or the amount of payment awarded before an independent appeal body established within the partner organisation (paragraph 5.5). Under paragraph 6.3 of the agreement, decisions taken by the appeal body were final and could not be challenged before a court (paragraph 3). 35. The Agreement of 16 February 2001 was accompanied by three annexes. Annex no. 3 contained a declaration by the Polish government with regard to responsibility for the disbursement of payments. The relevant parts provide: “Since 1998 the government of the Republic of Poland has made exceptionally concerted efforts to secure payment of compensation for slave and forced labour imposed

by Nazi Germany. In the negotiations, the government has played a significant role on behalf of the representatives of the victims. Due to the government’s efforts, former slave and forced labourers will receive in total DEM 1,812 thousand million, which constitutes a very positive outcome to the negotiations. The government of the Republic of Poland will endeavour to ensure that the payments from the Remembrance, Responsibility and Future Foundation, handled by the Polish-German Reconciliation Foundation with the participation of Polish financial institutions, will be processed properly. To that end the Polish authorities will take steps with regard to the Polish-German Reconciliation Foundation within their founding and supervisory competences.” 36. The statutes of the Polish-German Reconciliation Foundation was amended on the initiative of its founder, namely the Minister of the State Treasury, with a view to implementing the provisions of the GFA and the Agreement of 16 February 2001; those amendments were subsequently registered by the Warsaw District Court on 26 June 2001. 37. The amended statutes stipulated that the Foundation was to disburse payments to the victims specified in section 11 of the GFA from the funds contributed by the German Foundation on the basis of the same Act (paragraphs 6.2 and 9.2). It further specified that the Foundation’s decisions in individual cases were to be taken on the basis of internal regulations. A decision in an individual case could be appealed against; however, a decision taken after an appeal had been considered was final and no appeal lay against it (paragraphs 6.4 and 6.5). 38. Pursuant to paragraph 20 of the amended statutes, the Verification Commission was to determine individual claims for assistance filed by victims of Nazi persecution. Members and the president of the Verification Commission were to be appointed and dismissed by the Foundation’s management board (paragraph 21.1). Detailed regulations as to the organisation of the Verification Commission and the rules and criteria on the granting of assistance were specified in the internal regulations of the Verification Commission, drafted by the management board and adopted by the supervisory board (paragraph 21.2). 39. Decisions taken by the Verification Commission could be appealed against to the Appeal Commission. Its president and members are appointed and dismissed by the Foundation’s management board, having consulted the supervisory board. The Appeal Commission operates on the basis of internal regulations drafted by the management board and adopted by the supervisory board (paragraph 23.2). The amended statutes stipulated that the decisions of the Appeal Commission were final (paragraph 23.3). 40. On 31 December 2006 the Foundation terminated the disbursement of payments under the second scheme. F. Case-law of the Polish courts 41. In 1997 the Ombudsman referred to the Supreme Court a question of law (pytanie prawne), as to whether decisions given by the organs of the Foundation could be appealed to the Supreme Administrative Court and, if not, whether they could be subjected to judicial review in civil proceedings. On 31 March 1998 the Supreme Court adopted Resolution no. III ZP 44/97, holding that, since administrative functions could only be delegated by statute, which was not the case with regard to the Polish-German Reconciliation Foundation, its decisions did not meet the requirements of an administrative decision and thus could not be appealed to the Supreme Administrative Court. However, the Supreme Court refused to give a definite answer as to whether the Foundation’s decisions could be subject to judicial review in civil proceedings. It nevertheless observed that entitlement to receive a benefit from the Foundation did not fall within the scope of civil law, and thus could not be raised before a civil court. In exceptional cases, such as where the claimant’s eligibility had been established but the benefit was not paid, a claim could arise under civil law. 42. In Resolution no. OPS 3/01 of 3 December 2001, the Supreme Administrative Court upheld the earlier case-law to the effect that it did not have jurisdiction to review the decisions of the Foundation and observed that: “The Polish-German Reconciliation Foundation, which awards benefits to the victims of Nazi persecutions using the financial resources allocated to it by foreign entities, does not perform functions in the area of public administration. Thus, the source of the entitlement to receive an award from the Foundation does not stem from actions of the public administration.” It further observed: “There is no doubt that the Agreement of 16 October 1991, concluded between the Polish and German Governments, which was not ratified, as well as subsequent acts [starting with the Joint Statement and the German Foundation Act] concerning grants of financial assistance by the Foundation on account of Nazi persecution do not fulfil the criteria which would make it possible to classify them as sources of binding Polish law. No administrative-law relation arises between a claimant and the Foundation on the basis of the aforementioned acts, and consequently the Foundation is not an organ of public administration

established by law to determine cases in the sphere of public administration.” G. The Poznań Court of Appeal’s decision of 14 January 2005, no. I ACz 3043/04 43. The Poznań Court of Appeal examined an interlocutory appeal against a first-instance judicial decision rejecting a plaintiff’s claim against the Foundation based on Article 189 of the Code of Civil Procedure. It quashed the decision under appeal and remitted the case. The Court of Appeal held that a decision determining whether the Foundation had been obliged to pay benefits to a claimant was a decision on the merits of a claim. Accordingly, it should have been determined by way of a judgment. H. The Supreme Court’s Resolution of 27 June 2007, no. III CZP 152/06 44. On 27 June 2007 the Supreme Court adopted Resolution no. III CZP 152/06 in response to a question of law put forward by the Ombudsman. It revisited its earlier case-law on the interpretation of the notion of a “civil case” laid out in Article 2 of the Code of the Civil Procedure in relation to claims against the Foundation[6]. The Supreme Court held that: “The [civil] courts have jurisdiction in the case where a claimant – due to an unfavourable decision by the “Polish-German Reconciliation” Foundation – is seeking a payment [from the Foundation] in respect of Nazi persecution.” In the reasons for its Resolution the Supreme Court found, inter alia, that: “The procedure concerning examination of claims under the first and the second German fund... may not be currently instituted. The relevant funds were allocated and the disbursement of payments has been finally concluded. (...) There is no doubt that the current state of affairs resulting from the relevant case‑law, under which those persons interested in challenging before a court the Foundation’s refusal to grant them a suitable payment are deprived of such a possibility, cannot be accepted in the light of the binding constitutional and Convention standards. Article 184 § 1 in conjunction with Article 177 of the Constitution establishes a presumption in favour of jurisdiction of the ordinary courts which indicates – at least indirectly – that a possible jurisdiction of the administrative courts should be based on a specific statutory rule. (...) The need for extensive interpretation of the individual’s access to a court, or in other words, the right to bring an action (the right to a court) follows also from Article 6 § 1 of the Convention and Article 14 § 1 of the International Covenant on Civil and Political Rights, which stipulate that everyone is entitled to a fair and public hearing by an independent and impartial tribunal established by law in the determination of his civil rights and obligations. It may be assumed from the established case-law of the European Court of Human Rights that Article 6 § 1 of the Convention guarantees to everyone the inalienable right to submit for a judicial determination any claims concerning civil rights and obligations.... Obviously, the right to a court does not denote the right to “win” a case, but it signifies that the filed claim should be examined by a court and determined on the merits (judgment of the Supreme Court of 3 January 2007, no. IV CSK 312/06, unpublished). The results of interpretation of Articles 1 and 2 of the Code of Civil Procedure thus require us to acknowledge that the [civil] court has jurisdiction where a case has the features of a civil case in the substantive sense and where no particular provision delegates its examination and determination to a different organ than an ordinary court. The [civil] court also has jurisdiction where a case has the features of a civil case only in the formal sense.” I. The Constitutional Court’s decision of 14 November 2007 in case no. SK 53/06 45. A certain S.K. filed a constitutional complaint with the Constitutional Court after the administrative court rejected his appeal against inactivity of the Foundation, stating that it did not have jurisdiction. He challenged the constitutionality of certain provisions of the Law of 25 July 2002 on the Structure of Administrative Courts and of the Law of 30 August 2002 on Procedure before Administrative Courts, which delineated the jurisdiction of the administrative courts. On 14 November 2007 the Constitutional Court discontinued the proceedings on procedural grounds. It found that the claimant had not obtained a “final decision” within the meaning of Article 79 of the Constitution, since he had mistakenly seized the administrative courts and not the civil courts to pursue his appeal against the Foundation’s decision. The Constitutional Court relied on the constitutional presumption in favour of jurisdiction of the civil courts and the Supreme Court’s Resolution of 27 June 2007. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 46. Relying on Articles 1 and 6 of the Convention, the applicant complained that he had

been deprived of a fair trial in the proceedings before the Foundation’s bodies. The Court considers that the applicant’s complaint concerns the lack of access to a court in respect of his claims raised before the Polish Foundation and falls to be examined under Article 6 § 1 of the Convention, the relevant parts of which provide: “In the determination of his civil rights and obligations..., everyone is entitled to a fair... hearing... by an independent and impartial tribunal established by law....” A. Applicability of Article 6 § 1 1. The parties’ submissions 47. The Government argued that Article 6 § 1 of the Convention was not applicable to proceedings before the Polish Foundation in respect of the second compensation scheme. They submitted that there had been no “dispute” over a “right” which had been recognised under the Polish or German law. Nevertheless, the Government claimed that the civil disputes which might have arisen between the Foundation and its beneficiaries fell within the scope of “civil rights”, since the civil courts had jurisdiction to examine such disputes. 48. The applicant did not comment. 2. The Court’s assessment (a) Principles deriving from the Court’s case-law 49. The Court reiterates that, according to the principles laid down in its case‑law, it must first ascertain whether there was a “dispute” (“contestation”) over a “right” which can be said, at least on arguable grounds, to be recognised under domestic law, irrespective of whether this “right” is also protected under the Convention (see, inter alia, Neves e Silva v. Portugal, 27 April 1989, § 37, Series A no. 153-A). The dispute must be genuine and serious; it may relate not only to the actual existence of a right but also to its scope and the manner of its exercise. The outcome of the proceedings must be directly decisive for the right in question (see, among other authorities, Athanassoglou and Others v. Switzerland [GC], no. 27644/95, § 43, ECHR 2000-IV; Mennitto v. Italy [GC], no. 33804/96, § 23, ECHR 2000-X, and Markovic and Others v. Italy [GC], no. 1398/03, § 93, ECHR 2006‑...). Lastly, the right must be a “civil” right. (b) Application of the above principles to the present case 50. The Court recalls that in the Woś judgment (see, Woś v. Poland, no. 22860/02, ECHR 2006‑VII) it examined a similar complaint in respect of the first compensation scheme, set up on the basis of the bilateral Polish‑German agreement of 16 October 1991 and found Article 6 § 1 applicable to the proceedings before the Polish-German Reconciliation Foundation. 51. In contrast, the present case concerns the second compensation scheme, which was established following multilateral negotiations with a view to providing compensation to slave and forced labourers and other victims of the National Socialist period, primarily from central and eastern Europe. The agreement reached in the negotiations, in particular in respect of the categories of persons who were eligible and the establishment of the German Foundation as a means of providing funds to victims, was subsequently incorporated in the German Foundation Act of 2 August 2000. Section 10 of the Act stipulated that partner organisations, including the Polish Foundation, were entrusted with evaluation of claims and disbursement of payment to eligible claimants. The same provision stipulated that the German Foundation was neither authorised nor obligated in respect of the approval and disbursement of payments by the partner organisations. The particular feature of the second compensation scheme was that the eligibility conditions had been specified in the GFA, while at the same time the examination of the relevant applications was to be carried out by the partner organisations, including the Polish Foundation. The Court considers that for all practical purposes, decisions to qualify applicants as coming under a particular eligibility category and to grant payments in respect of the claimants who resided in Poland were taken by the Polish Foundation (see Woś v. Poland (dec.), no. 22860/02, § 66, ECHR 2005‑IV; Jakowicz v. Poland (dec.), no. 16778/02, § 76 in fine, 13 October 2009). The Court notes that the German Foundation carried out random checks of the decisions taken by the Polish Foundation, but in its view this does not alter the conclusion that the Polish Foundation played the main role in the process. In any event, there is no evidence that the decisions in respect of the applicant’s claims were reviewed or altered by the German Foundation. 52. In the Woś judgment the Court held that the Convention imposes no general obligation on the Contracting States to

provide redress for wrongs inflicted in the past under the general cover of State authority (see also, mutatis mutandis, Kopecký v. Slovakia [GC], no. 44912/98, § 38, ECHR 2004‑IX). This principle applies to the Federal Republic of Germany in respect of wrongs or damage caused by the German Reich (see Associazione Nazionale Reduci Dalla Prigionia dall’Internamento e dalla Guerra di Liberazione (A.N.R.P.) v. Germany (dec.), no. 45563/04, 4 September 2007; and Ernewein and Others v. Germany (dec.), no. 14849/08, 2 May 2009) but it is even more relevant for third States, like Poland, who bear no responsibility in connection with wrongs inflicted by a foreign occupying force or another State (see, mutatis mutandis, Broniowski v. Poland [GC], no. 31443/96, § 124, ECHR 2004‑V; Maltzan and Others v. Germany (dec.) [GC], nos. 71916/01, 71917/01 and 10260/02, § 77, ECHR 2005‑V). 53. However, the Court recalls that if a compensation scheme were to be established, the substantive regulations which determined the eligibility conditions for any compensation would in principle fall outside the Court’s jurisdiction, unless the relevant conditions were manifestly arbitrary or blatantly inconsistent with the fundamental principles of the Convention (see Woś v. Poland, cited above, § 72). In other words, when a State decides to compensate the past wrongs for which it bore no responsibility, it enjoys a significant discretion (grand pouvoir d’appreciation) in determining the beneficiaries and the modalities of any compensation scheme and, in principle, no challenge to the eligibility conditions as such may be allowed (see Maltzan and Others, cited above, § 77; Epstein and Others v. Belgium (dec.), no. 9717/05, ECHR 2008‑... (extracts)). 54. The Court observes that the compensation scheme established under the GFA concerned claims of forced labourers and other victims of Nazi Germany (see section 2 of the GFA on the purpose of the German Foundation). As those claims date back essentially to the Second World War there could be no question of the Polish State’s responsibility for the wrongs committed during that period. It is clear that the Polish State have no obligations of any kind to redress the wrongs inflicted by another State as its citizens were victims and not perpetrators (see Woś v. Poland (dec.), cited above, § 85). 55. In the context of the present case, the Court underlines that the substantive eligibility conditions under the second scheme were defined in the GFA and had to be applied as such by the partner organisations, including the Polish Foundation. It follows that while processing the applications the Polish Foundation was bound to follow the substantive criteria as specified in the GFA and had no power either to review its reasonableness or to unilaterally modify or extend them. Thus, the Polish Foundation and, a fortiori, the Polish State cannot bear responsibility in cases where an applicant, due to the scope of the substantive eligibility conditions as such, was not included in the group of persons entitled to certain benefits. The Court emphasises that the Polish Foundation exercised only a certain measure of discretion when assessing the facts of individual cases and the evidence submitted by the claimants. Its assessment of those elements was decisive for the outcome of the proceedings before the Foundation. The Court considers that the responsibility of the Polish State may be engaged exclusively as regards those cases where the dispute concerns the application of the eligibility conditions to the facts of individual cases in the area falling within the Foundation’s margin of discretion. Accordingly, in each case it is necessary to determine whether a claimant challenges the eligibility conditions or the assessment of facts and evidence by the Polish Foundation and whether that assessment remained within the Polish Foundation’s margin of discretion. 56. Turning to the circumstances of the present case, the Court notes that the applicant belonged to the category of “relocated persons” who were eligible for benefits provided that they had worked for a German company or on a German farm. The applicant claimed before the Foundation that he had worked on the farm in Wadów which had been under German administration and run by a certain W. Hochsman. In order to substantiate his claim the applicant submitted a certificate issued by the Ruszcza Catholic Parish, a certificate issued by the Wadów Agricultural Society and the resolution concerning the nationalisation of the farm in Wadów. However, the Foundation held that those documents did not duly demonstrate that the applicant had worked on a farm under German administration. 57. The essence of the applicant’s claim is that the Polish Foundation wrongly considered that he

had not worked on a German farm and, consequently, was not eligible for benefits. In the present case the thrust of the applicant’s complaint is directed against the Polish Foundation’s erroneous assessment of the facts underlying his claim and the resultant flawed application of the eligibility conditions to his case (compare and contrast Jakowicz v. Poland (dec.), cited above, § 80). In the case of Jakowicz the Foundation dismissed the applicant’s claims, which went beyond the scope of the substantive eligibility conditions and as such were outside the Foundation’s remit. By contrast, in the present case the Foundation refused the applicant’s claims while exercising its discretion as to the assessment of relevant facts which had a direct bearing on the determination of the applicant’s eligibility status. Thus, the present case can be distinguished from the Jakowicz case on the ground that it concerned a dispute as to the assessment of relevant facts and not a challenge to the substantive eligibility conditions. Accordingly, the Court finds that the dispute arose between the applicant and the Foundation as regards the application of the eligibility conditions to his case. 58. The Court has next to determine whether the right to receive payment from the Polish Foundation on account of forced labour or other form of persecution was recognised, at least on arguable grounds, under domestic law. The Court recalls that in the case of Associazione Nazionale Reduci Dalla Prigionia dall’Internamento e dalla Guerra di Liberazione (cited above), concerning the second compensation scheme, it examined the complaints of former Italian POWs about the exclusion of judicial review in respect of decisions rendered by the International Organization for Migration (one of the partner organisations). The Court found that as the applicants (former POWs) had been clearly excluded from benefits under the German Foundation Act they could not claim to have had a right to compensation. On that ground, it distinguished the case from Woś and held that Article 6 was not applicable to the facts of that case. 59. The Court considers that the present case is, in turn, distinguishable from the Associazione Nazionale Reduci decision, in that it concerns the arguable claim of a person subjected to forced labour whose request was dismissed for failure to duly establish the existence of a farm under German administration. In contrast, the Associazione Nazionale Reduci case dealt with persons who had been expressly excluded from the ambit of the second compensation scheme on account of their undisputed POW status, and thus no question of a right to compensation could arise. 60. The Court notes that international public law does not establish individual claims for compensation for forced labour (see Associazione Nazionale Reduci decision which referred to the judgment of the Federal Constitutional Court of 28 June 2004). Such claims could be established exclusively through domestic law, and in such a case the legislator enjoys a wide margin of discretion, as noted above. In this respect the Court observes that the conditions and procedures with which a claimant had to comply before a payment could be awarded by the Polish Foundation were first agreed in the course of multilateral negotiations, then laid out in the GFA and subsequently transposed into the regulations binding on the Foundation via the Partnership Agreement of 16 February 2001 and any subsequent agreements concluded in the framework of the so-called openness clause. The Polish Foundation’s statutes were subsequently amended with a view to implementing the provisions of the GFA and the Agreement of 16 February 2001. Thus, the Foundation’s regulations stipulated the conditions which had to be fulfilled by a person seeking benefits. It is noteworthy that the Supreme Court in its Resolution of 27 June 2007 found that the basis of the rights of a person seeking payment from the Polish Foundation were the Foundation’s statutes, the rules of the Verification Commission and the relevant provisions of the GFA. The Court is mindful of the particular character of the legal regime governing the second compensation scheme which defined the categories of eligible claimants. Nevertheless, it finds that the Polish Foundation’s regulations could be considered to create a right for a claimant arguably fulfilling the relevant eligibility conditions to claim compensation from the Foundation (see, mutatis mutandis, Woś v. Poland (dec.), cited above, § 83). 61. The Court notes that the payments at issue were voluntary in the sense that the States were free to establish the scheme and to determine the scope of its beneficiaries. However, once such general scheme has been adopted and once a claimant could be reasonably considered to have complied with the eligibility conditions stipulated in the GFA and in the Foundation’s regulations, he or she had a right to be awarded payment by the Foundation (see Rolf Gustafson v. Sweden, 1 July 1997, § 40, Reports 1997‑IV and Woś v. Poland, cited above, § 75). The Court points out that in the somewhat similar area of social security and welfare benefits, many domestic legal systems provide for those benefits

to be paid - subject to the fulfilment of the conditions of eligibility - as of right (see Stec and Others v. the United Kingdom (dec.) [GC], nos. 65731/01 and 65900/01, ECHR 2005‑X, § 51). In conclusion, the Court finds that the Polish Foundation’s bodies had thus to determine a dispute concerning a right asserted by the applicant. 62. As to the “civil” character of the right asserted by the applicant, the Court reiterates that the concept of “civil rights and obligations” is not to be interpreted solely by reference to the respondent State’s domestic law. Article 6 § 1 of the Convention applies irrespective of the status of the parties, the character of the legislation which governs how the dispute is to be determined and the character of the authority which is invested with jurisdiction in the matter (see, among other authorities, Georgiadis v. Greece, 29 May 1997, § 34, Reports 1997-III). 63. The Court reiterates that in the Woś judgment, which concerned similar claims under the first compensation scheme, it held that those claims could be considered “civil” within the meaning of Article 6 § 1 (see Woś v. Poland, cited above, § 76). In reaching that conclusion, the Court had regard, inter alia, to the similarities between the compensation claims asserted before the Foundation and disputes over entitlement to social security and welfare benefits, which generally fall within the scope of Article 6 (see Mennitto v. Italy [GC], no. 33804/96, § 28, ECHR 2000‑X; Tsfayo v. the United Kingdom, no. 60860/00, § 39, 14 November 2006). 64. Further, the Court notes that the Supreme Court in its resolution of 27 June 2007, referring extensively to the Woś judgment, found that a claim against the Foundation was to be considered a “civil” claim in a formal sense for the purposes of establishing court jurisdiction. The Court consequently finds that the applicant’s right to claim compensation from the Foundation on account of his forced labour could be considered “civil” for the purposes of Article 6 § 1 of the Convention. For the above reasons the Court finds that the right to compensation asserted by the applicant under the second compensation scheme is a civil right within the meaning of Article 6 § 1 of the Convention and that this provision is applicable to the proceedings before the Foundation in the applicant’s case. B. Exhaustion of remedies 1. The parties’ submissions 65. The Government argued that the applicant had failed to exhaust relevant domestic remedies as he had never challenged the Foundation’s decisions in a domestic court. The applicant could have requested to have his claims determined in civil proceedings relying on Article 189 of the Code of Civil Procedure, having regard to the fact that his claims were related to property rights and that the Polish Foundation operated under private law. The Government invoked the decision of the Poznań Court of Appeal of 14 January 2005, no. I ACz 3043/04 in order to refute the applicant’s assertion that judicial review of the Foundation’s decisions had been excluded. The Court of Appeal held that a decision determining whether the Foundation had been obligated to pay benefits to a claimant was a decision on the merits of a claim and should be examined by the court as such. Accordingly, in the Government’s view, the Court of Appeal’s decision confirmed that the determination of the right to receive payment from the Foundation could have been pursued under Article 189 of the Code of Civil Procedure. 66. The Government further underlined that the Supreme Court’s Resolution of 27 June 2007 confirmed their earlier submission that judicial review of the Foundation’s decisions had been available to claimants. Accordingly, all persons seeking benefits from the Foundation could have contested its decisions before the civil courts. The applicant should have resorted to that remedy before he filed his case in Strasbourg. In the Government’s view, the said Resolution confirmed that the right to appeal against the Foundation’s decisions stemmed directly from the Constitution and the Code of Civil Procedure. 67. Secondly, even assuming that his civil suit had been rejected, the applicant could have availed himself of a constitutional complaint. In his constitutional complaint the applicant, who maintained that the right to receive payment from the Foundation was of a civil character, could have raised the question of compatibility of Articles 1 and 2 of the Code of Civil Procedure with Article 45 of the Constitution. The Government drew an analogy between the present case and the situation which obtained in the Constitutional Court’s judgment of 10 July 2000 (case no. SK 12/99). In that case, a student whose claims against a university had been rejected by civil courts for lack of jurisdiction lodged a constitutional complaint, raising the question of the compatibility of Articles

1 and 2 of the Code of Civil Procedure with Article 45 of the Constitution. The Constitutional Court ruled that Article 1 of the Code of Civil Procedure, interpreted as not including in the notion of “civil case” certain pecuniary claims stemming from an administrative decision, was incompatible with Article 45 of the Constitution. Furthermore, the Government argued that the decision of the Constitutional Court of 14 November 2007 in case no. SK 53/06 confirmed that the applicant should have instituted proceedings against the Foundation before the civil courts. 68. The applicant claimed that he had exhausted all available remedies. 2. The Court’s assessment 69. The purpose of Article 35 § 1, which sets out the rule on exhaustion of domestic remedies, is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court (see, among other authorities, Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999-V). The rule in Article 35 § 1 is based on the assumption, reflected in Article 13 (with which it has a close affinity), that there is an effective domestic remedy available in respect of the alleged breach of an individual’s Convention rights (see Kudła v. Poland [GC], no. 30210/96, § 152, ECHR 2000‑XI). 70. Nevertheless, the only remedies which Article 35 of the Convention requires to 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 (see, inter alia, Scordino v. Italy (no. 1) [GC], no. 36813/97, § 142, ECHR 2006‑...). 71. The Court has first to determine whether the applicant was required to pursue his claims against the Foundation in a civil court. The Government, relying on the Poznań Court of Appeal’s decision of 14 January 2005, contended that such a possibility had been open to the applicant. In their view, this assertion was further confirmed by the Supreme Court’s Resolution of 27 June 2007. The Court observes, however, that the Supreme Court in its authoritative decision, given by a panel of seven judges, stated firmly that, prior to its Resolution, interested persons had been deprived of the possibility of challenging the Foundation’s decisions in a court. The Supreme Court found that the prevailing trend in the case-law of the civil courts was for exclusion of judicial review in respect of those decisions. It noted that the Poznań Court of Appeal’s decision of 14 January 2005 and the Szczecin Court of Appeal’s decision of 12 July 2006 took a different approach. However, those decisions did not affect the Supreme Court’s conclusion as to the earlier lack of availability of judicial review. The Court notes that it was only the Supreme Court’s Resolution which, having regard, among others, to the Woś judgment, reinterpreted the notion of a “civil case” and acknowledged that such claims could be heard by civil courts. Accordingly the Court finds that prior to 27 June 2007 the availability of judicial review in respect of the Foundation’s decisions had not been sufficiently established and that the applicant could not be reproached for failing to institute civil proceedings against the Foundation (see Woś v. Poland, cited above, § 106). 72. The Government lastly contended that, in any case, the applicant should have availed himself of a constitutional complaint. The Court has accepted that at the date of the lodging of his application in Strasbourg, i.e. on 21 July 2006 the applicant was not required to pursue his claims before the civil courts as – in view of the settled case-law – such a course of action was bound to fail. At the same time, in order to file a constitutional complaint a claimant is obliged to obtain a final decision from a court or an administrative authority (see Article 79 of the Constitution). More importantly, the Court points out that a constitutional complaint could be recognised as an effective remedy only where the individual decision which allegedly violated the Convention had been adopted in direct application of an unconstitutional provision of national legislation (see Szott-Medyńska v. Poland (dec.), no. 47414/99, 9 October 2003, and Pachla v. Poland (dec.), no. 8812/02, 8 November 2005). However, at the heart of the present case lies the judicial interpretation of the relevant legislative provisions on court jurisdiction, which resulted in a finding that neither the civil nor the administrative courts could hear claims against the Foundation (see Woś v. Poland, cited above, § 95). As stated above, that problem of judicial interpretation was eventually resolved by the

Supreme Court’s Resolution of 27 June 2007. The Court notes that the issue of whether civil or administrative courts should hear such claims was also debated by legal writers. 73. The Court is aware that in exceptional cases the Constitutional Court may examine a constitutional complaint against a provision of law in the meaning attributed to it under consistent and long-standing judicial or administrative practice, provided that such interpretation has not been contested by legal writers (see, inter alia, the Constitutional Court’s judgment of 31 March 2005, case no. SK 26/02, § 5.3, with further references). However, it is not satisfied that the prerequisites for lodging such a constitutional complaint were met in the present case. Lastly, the Court notes that the Constitutional Court’s decision of 14 November 2007 in case no. SK 53/06 was given after the present application had been lodged. For the above reasons the Court considers that a constitutional complaint cannot be regarded with a sufficient degree of certainty as an effective remedy in the applicant’s case. 74. It follows that the Government’s plea of inadmissibility on the ground of non-exhaustion of domestic remedies must be dismissed. C. Conclusion as to admissibility 75. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. D. Compliance with Article 6 § 1 1. The parties’ submissions 76. The Government argued that the complaint under Article 6 § 1 of the Convention was manifestly ill-founded. The question of access to a court had not arisen, since the applicant had never instituted judicial proceedings at domestic level. They reiterated that Article 6 § 1 was not applicable to the proceedings at issue and thus the operation of the Foundation’s bodies could not be examined under this provision. They further argued that the Foundation’s organs which dealt with the applicant’s case had been established in accordance with section 19 of the GFA and the Agreement of 16 February 2001 between the German and the Polish Foundation. Section 19 of the GFA stipulated that the partner organisations were to create appeals organs which were independent and subject to no outside instruction. The Partnership Agreement contained further detailed regulations in this respect. In so far as the appeal procedure was concerned, the Polish Foundation operated within the legal framework provided for by the GFA and the Partnership Agreement. 77. The Government underlined that the decisions of the Foundation’s Verification Commission and the Appeal Commission were subject to the scrutiny of the German Foundation. The latter could review decisions taken by the partner organisation after the appeal procedure had been concluded. To this end the Polish Foundation had to allow the German Foundation access to the relevant documents at any time. If grossly incorrect decisions were discovered during such inspection, the Polish Foundation had to reopen the procedure and remedy the issue in a new decision. Furthermore, the German Foundation could quash the decisions of the Polish Foundation and reopen a case. The Government stressed that the German Foundation could have ordered an audit of the Polish Foundation. Therefore, it was the German Foundation which exercised real control over the Polish Foundation. The role of the Polish authorities was limited to assessing whether the Polish Foundation operated in conformity with the law. 78. The Government concluded that the Foundation’s Appeal Commission could not be considered a judicial body, and in any event Article 6 § 1 was not applicable to the proceedings before the Foundation. The Foundation’s bodies operated under the accessible provisions of law determined in the Partnership Agreement and the rules of procedure of the Appeal Commission were approved by the German Foundation. 79. The applicant maintained his application but did not submit specific comments. 2. The Court’s assessment 80. Article 6 § 1 requires that in the determination of civil rights and obligations, decisions taken by administrative or other authorities which do not themselves satisfy the requirements of that Article be subject to subsequent control by a judicial body that has full jurisdiction (see Le Compte, Van Leuven and De Meyere v. Belgium, 23 June 1981, § 51, Series A no. 43; Woś v. Poland, no. 22860/02, § 92, ECHR 2006‑VII). The Court must therefore first ascertain whether the Foundation’s adjudicating bodies – the Verification Commission and the Appeal Commission – could be considered as tribunals conforming to the requirements of Article 6 § 1. 81. The Court notes that the Government stressed the significant role of the German Foundation in the decision-making process concerning the claims raised before the Polish Foundation. Even assuming that the German Foundation could to some extent verify the correctness of the decisions taken by the Polish Foundation, there is no evidence that it had been involved in reviewing decisions taken in the applicant’s case. Thus, the

Court, having regard to Article 10 of the GFA, reaffirms that for all practical purposes, decisions to grant payments in respect of the claimants who resided in Poland were taken by the Polish Foundation (see Woś v. Poland (dec.), cited above, § 66; Jakowicz (dec.), cited above, § 76 in fine). 82. According to the Court’s settled case‑law, a tribunal within the meaning of that provision must satisfy a series of requirements – independence, in particular of the executive, impartiality, duration of its members’ terms of office, and guarantees afforded by its procedure – several of which appear in the text of Article 6 § 1 itself (see Belilos v. Switzerland, 29 April 1988, § 64, Series A no. 132; Demicoli v. Malta, 27 August 1991, § 39, Series A no. 210; and Cyprus v. Turkey [GC], no. 25781/94, § 233, ECHR 2001‑IV). In the present case, as regards structural guarantees, the Court notes that the members of the Verification Commission and the Appeal Commission were appointed and dismissed by the Foundation’s management board and, in respect of the latter, in consultation with the Foundation’s supervisory board. The Foundation’s statutes also specified that the rules governing the operation of the Foundation’s adjudicating bodies were to be set out in the regulations drafted by the management board and adopted by the supervisory board. The Foundation’s governing bodies were in turn appointed and dismissed by the Government Minister at his or her full discretion (see paragraph 23 above). Furthermore, a degree of control and supervision over the Foundation was exercised by the Government Minister. Furthermore, it appears that the members of the Verification Commission and the Appeal Commission did not have tenure. Thus, the Court considers that the independence of the Foundation’s adjudicating bodies, despite the Government’s arguments to the contrary in respect of the Appeal Commission, was open to serious doubt. As regards procedural guarantees, it appears that the adjudicating commissions had no clear and publicly‑available rules of procedure (see H v. Belgium, 30 November 1987, § 53, Series A no. 127‑B) and did not hold public hearings. For these reasons, they cannot be regarded as tribunals within the meaning of Article 6 § 1. 83. Therefore, in order for the obtaining situation to be in compliance with Article 6 § 1, the decisions of the Foundation’s adjudicating bodies should have been subject to review by a judicial body having full jurisdiction. However, the Court notes that until June 2007 the domestic courts’ prevailing position, as confirmed in the Supreme Court’s Resolution of 27 June 2007, was that judicial review by either administrative or civil courts in respect of the Foundation’s decisions was excluded (see paragraphs 41-42 and 44 above). At this juncture, the Court observes that the Government also criticised the applicant for having failed to institute judicial proceedings against the Foundation in the civil courts prior to the adoption of the Supreme Court’s Resolution. It notes, however, that the applicant was not obliged to pursue his claims before the courts, as such action would obviously have been futile, having regard to the settled case‑law of the domestic courts at the relevant period. 84. The Court observes that the major change in respect of the availability of judicial review in civil proceedings came with the Supreme Court’s Resolution of 27 June 2007. The Supreme Court revisited the existing practice and held that claims against the Polish Foundation in respect of Nazi persecution were civil claims in the formal sense. Accordingly, the civil courts had jurisdiction to examine such claims. The Court very much welcomes such a positive development in the Supreme Court’s case-law which, at least in part, was prompted by its judgment in the Woś case. However, as noted above (see paragraph 71 above), the applicant in this case was not required to attempt to seek judicial review of the Foundation’s decisions as such a possibility arose only after he had lodged his application. 85. Having regard to the above considerations, the Court considers that the exclusion of judicial review in respect of the decisions given by the Foundation in the applicant’s case impaired the very essence of his right of access to a court within the meaning of Article 6 § 1 of the Convention. 86. It follows that there has been a breach of Article 6 § 1 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 87. 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.” 88. The applicant did not submit a claim for

just satisfaction. Accordingly, the Court considers that there is no call to award him any sum on that account. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the application admissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention. Done in English, and notified in writing on 2 February 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Fatoş AracıNicolas Bratza Deputy Registrar President [1]. Treaty of 14 November 1990 on Confirmation of the Existing Border between the Federal Republic of Germany and the Republic of Poland. [2]. Treaty of 17 June 1991 on Good Neighbourliness and Friendly Cooperation. [3]. On an unspecified later date the function of Founder was assumed by the Minister of the State Treasury. [4]4. The other parties being the governments of the Federal Republic of Germany, the United States of America, the Republic of Belarus, the Czech Republic, the State of Israel, the Russian Federation and Ukraine, and the Foundation Initiative of German Industry, the Conference on Jewish Material Claims against Germany and a number of counsels representing individual plaintiffs in cases brought before the courts in the United States. [5]5. For details, see the decision in the case Associazione Nazionale Reduci Dalla Prigionia dall’Internamento e dalla Guerra di Liberazione (A.N.R.P.) v. Germany, no. 45563/04, 4 September 2007. [6]6. The Supreme Court made a survey of the relevant case-law of the civil and administrative courts. It noted, as an exception to the dominant trend in the case-law, the Poznań Court of Appeal’s decision of 14 January 2005 and the Szczecin Court of Appeal’s judgment of 12 July 2006.

SECOND SECTION CASE OF POCASOVSCHI AND MIHAILA v. THE REPUBLIC OF MOLDOVA AND RUSSIA (Application no. 1089/09) JUDGMENT STRASBOURG 29 May 2018 FINAL 29/08/2018 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Pocasovschi and Mihaila v. the Republic of Moldova and Russia, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Robert Spano, President,Paul Lemmens,Ledi Bianku,Işıl Karakaş,Nebojša Vučinić,Valeriu Griţco,Dmitry Dedov, judges,and Hasan Bakırcı, Deputy Section Registrar, Having deliberated in private on 7 May 2018, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 1089/09) against the Republic of Moldova and the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Moldovan nationals, Mr Ruslan Pocasovschi and Mr Ion Mihăilă (“the applicants”), on 19 December 2008. While initially the applicants’ representative indicated that they intended to submit the application also in respect of 141 other applicants, they did not submit any details about such other applicants. The case before the Court thus concerns only the two applicants mentioned above. 2. The applicants were represented by Mr A. Briceac and Mr T. Cârnaț. The Moldovan Government (“the Government”) were represented by their Agent, Mr V. Grosu. 3. The applicants alleged, in particular, that they had been held in inhuman conditions of detention and that the civil proceedings which they had brought had been excessively long. 4. On 13 October 2009 the application was communicated to the Governments. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicants were born in 1975 and 1976 and live in Cahul and Cetireni respectively. 6. The facts of the case, as submitted by the parties, may be summarised as follows. A. Conditions of the applicants’ detention 7. The applicants were convicted by Moldovan courts and, at the time of the events, were serving their sentences in prison no. 8 situated in the town of Tighina (Bender), in the Transdniestrian region of the Republic of Moldova. The town is situated in the security zone under the control of peacekeepers from Moldova, Russia and the self-proclaimed “Moldavian Republic of Transdniestria” (“MRT”)[1]. Prison no. 8 is under the exclusive control of the Moldovan authorities. By October 2003 some 236 people were detained there; some of them, such as the applicants, were ill with tuberculosis. 8. On 23 September 2002 the Bender local administration, which is subordinated to the “MRT” authorities, disconnected prison no. 8 from the electricity, water and heating supplies. As a result, the detainees were deprived of conditions of basic hygiene, and the food they received did not meet the minimum standards of quality. 9. The prison authorities informed the Moldovan Ministry of Justice, the President’s Office, the Organization for Security and Co-operation in Europe (OSCE), the Red Cross and the Council of Europe, as well as local human rights organisations, with a view to obtaining assistance in resolving the problem arising from the disconnection from the town’s utilities network. 10. On 12 August 2003 the Bender prosecutor’s office (which forms part of the official Moldovan authorities) informed the Helsinki Committee for Human Rights in Moldova (“the CHDOM”), for which the applicant’s representative worked, that, as a result of pressure from the OSCE, the Bender authorities had reconnected the prison to the electricity and water supply systems on 23 February 2003. On 10 July 2003 the last of the people who were ill with tuberculosis were transferred to a newly-built hospital wing in Pruncul prison hospital, situated in Moldova. According to the head of prison no. 8, some 236 healthy detainees, including the applicants, remained in

the prison after that date. However, also on 10 July 2003, the local authorities disconnected prison no. 8 from the electricity and water supply systems again, without any warning. The “MRT” authorities insisted that the prison needed to be closed down. 11. On 15 September 2004 Mr Pocasovschi (the first applicant) was transferred to another prison. He was released on parole on 14 April 2005. Mr Mihăilă (the second applicant) was transferred to another prison on 1 March 2004 and was released on parole on 28 March 2005. B. Criminal proceedings against those responsible for disconnecting prison no. 8 from the utilities systems 12. On 21 July 2003 the applicants’ representatives asked the Moldovan Prosecutor General’s Office to initiate criminal proceedings against those responsible for disconnecting prison no. 8 from the utilities systems. On 12 August 2003 the Bender prosecutor’s office replied in general terms, describing the difficult situation with regard to prison no. 8 and the unsuccessful negotiations with the local authorities. 13. On 29 August 2003 the CHDOM asked the Bender District Court (which is part of the Moldovan court system) to order the prosecutor’s office to remedy the human rights violations taking place in prison no. 8. 14. On 7 October 2003 the head of prison no. 8 informed the court that, owing to insufficient access to water and electricity, detainees in his institution could not receive appropriate medical assistance or food of a sufficient standard, or maintain proper hygiene. 15. On 31 October 2003 the Bender District Court ordered the prosecutor’s office to initiate criminal proceedings against those responsible for disconnecting prison no. 8 from the utilities supply. That decision was upheld by the Bender Court of Appeal on 18 December 2003. 16. According to the Moldovan Government, on 18 November 2003 the Bender prosecutor’s office contacted the “MRT” authorities with a view to prosecuting those responsible for disconnecting prison no. 8 from the utilities. It also informed the Joint Control Commission (see Ilaşcu and Others v. Moldova and Russia ([GC], no. 48787/99, § 90, ECHR 2004‑VII) of the need to include the subject on its agenda. On 20 December 2003 the “MRT” prosecutor’s office refused to open a criminal investigation on the ground that no crime had been committed. 17. On 19 January 2004 the relatives of two of the detainees made another complaint to the CHDOM regarding the inhuman conditions of detention in prison no. 8. That letter was forwarded to the Moldovan Ministry of Justice, the President of the Republic of Moldova and the Prosecutor General’s Office, along with a request to take all necessary steps to immediately improve the conditions of detention. 18. On 1 March 2004 the CHDOM asked the Bender prosecutor’s office what action had been taken pursuant to the above-mentioned court decisions. On 12 March 2004 the Bender prosecutor’s office replied that all the material was at the Prosecutor General’s Office, which was dealing with the case. 19. On 15 March 2004 the Ministry of Justice informed the CHDOM that the State was making all necessary efforts to ensure acceptable conditions of detention at prison no. 8, and that, at that time, the conditions of detention at that prison did not differ from those at other prisons in the Republic of Moldova. 20. On 20 April 2004 the Prosecutor General’s Office informed the CHDOM that it had lodged an extraordinary appeal with the Supreme Court of Justice against the decisions of 31 October 2003 and 18 December 2003. On 3 August 2004 the Supreme Court of Justice upheld those decisions. 21. On 1 June 2009 the CHDOM asked the Prosecutor General’s Office what actions had been undertaken after the judgment of the Supreme Court of Justice of 3 August 2004. On 14 July 2009 the Bender Prosecutor’s Office replied that the actions of the “MRT” authorities could not be investigated by the Moldovan authorities as long as the “MRT” authorities de facto controlled the territory of the “MRT”. C. Civil action lodged by the applicants 22. On 15 March 2004, on behalf of 141 detainees in prison no. 8, including the applicants, the CHDOM lodged a civil action against the Ministry of Justice, asking for the finding of a violation of the rights guaranteed under Article 3 of the Convention. The detainees had authorised the organisation to act on their behalf. The CHDOM also asked for an improvement in the conditions of detention and for the payment of compensation in the amount of 15,000 Moldovan lei (MDL – approximately 1,000 euros (EUR) at the time) for each detainee. 23. On 16 and 22 April 2004 the President of the Bender District Court asked the Supreme Court of Justice to decide whether the case should

be examined by another court. On 19 May 2004 the Supreme Court of Justice rejected the request and left the case with the Bender District Court. 24. On 18 June 2004 the Bender District Court decided to transfer the case to the Buiucani District Court in Chişinău, in accordance with territorial competence principles. The claimants (the detainees) and their representatives were not consulted. On 22 June 2004 the CHDOM challenged that decision. On 14 July 2004 the Bender Court of Appeal set aside the decision of 18 June 2004 and ordered the urgent examination of the case by the Bender District Court. 25. On 28 December 2004 the Bender District Court declined to examine the claim because it did not satisfy legal requirements. On 1 February 2005 the Bender Court of Appeal set aside that decision. 26. After February 2005 many of the 141 detainees who were plaintiffs in the above-mentioned civil action were transferred to other prisons in various parts of the country, which made it more difficult for the CHDOM to obtain confirmation of each individual’s power of attorney, as requested by the Bender District Court. In such circumstances, the CHDOM selected nine cases (including those of the applicants in the present case) with which to continue the proceedings. Since the individuals concerned were also detained in separate prisons, the CHDOM made an application for their cases to be examined separately, an application which the Bender District Court refused on 11 November 2005. 27. On 26 April 2006 the Bender District Court rejected the CHDOM’s application to summon as defendants the individuals from the relevant local “MRT” authorities in Bender responsible for violating the detainees’ rights. On an unknown date in June 2006 the Bender Court of Appeal set aside that decision and ordered the summoning as defendants of A.P., A.M. and V.M., the heads of the relevant local “MRT” authorities in Bender. According to the applicants, none of these individuals was summoned by the Bender District Court. 28. On 15 December 2006 the judge who had been examining the case withdrew from it. On 18 May 2007 the judge who had taken over the case also withdrew from it. Subsequently, all other judges of the Bender District Court withdrew, allegedly for fear of persecution by the “MRT” authorities. As a result, the Bender Court of Appeal was asked to decide which other court could examine the case. On 13 November 2007 the Bender Court of Appeal decided that the case should be examined by the Anenii-Noi District Court. 29. On 26 December 2007 the Anenii-Noi District Court declined to examine the claim because it did not fulfil certain legal requirements. It found in particular that there was a lack of valid powers of attorney in favour of the CHDOM. 30. On 6 March 2008 the CHDOM lodged a reformulated court action in accordance with the legal requirements. It also asked for the Russian Government to be summoned as a defendant in the case, as it had de facto control over the territory of the “MRT”. It claimed EUR 10,000 and EUR 7,000 respectively for the breach of the applicants’ rights. On the same date the Anenii-Noi District Court declined to examine the claim because the powers of attorney issued by the detainees in favour of the CHDOM had expired. 31. On 20 May 2008 the Bender Court of Appeal set aside the decision of 6 March 2008, noting that, in the applicants’ cases, the powers of attorney had been renewed. 32. On 18 June 2008 the Anenii-Noi District Court adjourned the hearing because of the absence of a representative of the Ministry of Justice. The same thing occurred on 29 October 2008. The court also informed the CHDOM that, in a letter dated 2 July 2007, the Ministry of Justice had informed the court that a representative of the Russian Federation could only be summoned via the Ministry of Justice. 33. On 30 December 2008 the Anenii-Noi District Court adopted a judgment in which it allowed the applicants’ claims in part. It awarded each of them damages in the amount of EUR 200, to be paid by the Moldovan Ministry of Finance, and EUR 500, to be paid by the Russian Ministry of Finance. 34. On 30 June 2009 the Bender Court of Appeal quashed that judgment in part. It found that, following the prison’s disconnection from the utilities, the prison administration had no longer been able to offer food or medical treatment for tuberculosis which was of an adequate quality; there had been no access to showers, a very poor situation concerning personal hygiene, and only two hours of electricity per day, ensured by a low-power generator. None of the complaints made to the State authorities had resulted in an improvement in the conditions of detention until much later, as established in 2008. The court acknowledged a breach of the applicants’ right not to be held in inhuman conditions

of detention, and increased the award in favour of each of them to MDL 20,000 (EUR 1,266 at the time). It also found that the Russian Federation could not be a defendant in Moldovan courts unless it expressly agreed to that, which was not the case here. 35. On 27 April 2010 the Supreme Court of Justice accepted the applicants’ appeal on points of law in part, and amended the judgment of the lower court. It analysed in detail the length of the civil proceedings (between 22 March 2004 and the date of adopting its own judgment on 27 April 2010), the complexity of the case, how the parties and the courts had contributed to the length of the proceedings, as well as the significant interest at stake for the applicants. The court found that, despite the applicants’ representatives’ actions contributing to the overall length of the proceedings (twenty-six out of the sixty-seven months), a breach of the right to a trial within a reasonable time had taken place, requiring additional compensation which it set at MDL 6,000 (approximately EUR 358 at the time). It did not amend the remainder of the lower court’s judgment. D. General action undertaken by the Moldovan authorities 36. The Moldovan Government submitted a long list of actions concerning their efforts to assert their sovereignty over the “MRT” territory and ensure that human rights were observed in the region. They also submitted copies of documents concerning prison no. 8 in Tighina/Bender specifically, raising in particular the issue of the prison being disconnected from utilities within the framework of the “5+2” negotiations process (between the OSCE, Russia, Ukraine, the European Union and the USA, in addition to Moldova and the “MRT”) and with various international organisations. II. RELEVANT REPORTS OF INTER-GOVERNMENTAL AND NON‑GOVERNMENTAL ORGANISATIONS 37. Relevant reports of various inter-governmental and non-governmental organisations concerning the situation in the “MRT” have been summarised in Mozer v. the Republic of Moldova and Russia [GC] (no. 11138/10, §§ 61-68, ECHR 2016). THE LAW 38. The applicants complained regarding their inhuman conditions of detention (Article 3 of the Convention), the excessive length of the civil proceedings in which they claimed damages (Article 6 § 1) and a lack of effective remedies in respect of these complaints (Article 13 taken in conjunction with Articles 3 and 6 § 1). I. ADMISSIBILITY 39. The Moldovan Government submitted that the applicants’ complaints at the time of lodging their application had been premature since, at that time, the civil action which they had lodged with the domestic courts was still being examined. The applicants had thus failed to properly exhaust available domestic remedies in the Republic of Moldova. The Moldovan Government also argued that, following the adoption of a final judgment expressly acknowledging the breach of Articles 3 and 6 of the Convention and awarding compensation, the applicants could no longer claim to be victims of a breach by the Republic of Moldova of their Convention rights. The Moldovan Government did not contest that the Republic of Moldova retained jurisdiction over the territory controlled by the “MRT”. 40. The Russian Government argued that the applicants did not come within their jurisdiction and that, consequently, the applications should be declared inadmissible in respect of the Russian Federation. They also submitted that the application should be dismissed as inadmissible ratione temporis, without giving any further details. A. Jurisdiction 41. The Moldovan Government did not contest that the Republic of Moldova retained jurisdiction over the territory controlled by the “MRT”. 42. For their part, the Russian Government argued that the applicants did not come within their jurisdiction. Consequently, the application should be declared inadmissible ratione personae and ratione loci in respect of the Russian Federation. Moreover, they challenged the Court’s jurisdiction ratione temporis, without any details being given. 43. The Court recalls that the general principles concerning the issue of jurisdiction under Article 1 of the Convention in respect of actions and facts pertaining to the Transdniestrian region of Moldova were set out in Ilaşcu and Others (cited above, §§ 311-19), Catan and Others v. the Republic of Moldova and Russia ([GC], nos. 43370/04 and 2 others, §§ 103-07, ECHR 2012 (extracts)) and, more recently, Mozer (cited above, §§ 97-98). 44. In so far as the Republic of Moldova is concerned, the Court notes that in Ilaşcu, Catan and Mozer it found that although Moldova had no effective control over the Transdniestrian

region, it followed from the fact that Moldova was the territorial State that persons within that territory fell within its jurisdiction. However, its obligation, under Article 1 of the Convention, to secure to everyone within its jurisdiction the rights and freedoms defined in the Convention, was limited to that of taking the diplomatic, economic, judicial and other measures that were both in its power and in accordance with international law (see Ilaşcu and Others, cited above, § 333; Catan and Others, cited above, § 109; and Mozer, cited above, § 100). Moldova’s obligations under Article 1 of the Convention were found to be positive obligations (see Ilaşcu and Others, cited above, §§ 322 and 330-31; Catan and Others, cited above, §§ 109-10; and Mozer, cited above, § 99). 45. In so far as the applicants complain about the disconnection of prison no. 8 from the public utilities by the local authorities of the “MRT”, the Court sees no reason to distinguish the present case from the above-mentioned cases. Besides, it notes that the Moldovan Government do not object to applying a similar approach in the present case. Therefore, it finds that Moldova has jurisdiction for the purposes of Article 1 of the Convention, but that its responsibility for the acts complained of is to be assessed in the light of the above-mentioned positive obligations (see Ilaşcu and Others, cited above, § 335). 46. However, unlike in previous cases concerning alleged breaches of the Convention by the “MRT”, the Moldovan authorities in the present case were not limited to only fulfilling their positive obligations as mentioned in the preceding paragraphs. The case is different in that, while not having control over the local authorities in Bender which disconnected prison no. 8 from the utilities, the Moldovan authorities had full control over that prison itself and the detainees there throughout the relevant period. They could have taken measures in the prison itself to cope with the effects of the disconnection from the utilities or they could have transferred the prisoners to other prisons at any time. By choosing to continue to detain the applicants in prison no. 8 without immediate action taken to ensure basic conditions of detention, the Moldovan authorities knowingly exposed them to the conditions which prevailed there after the disconnection from all utilities. In addition to the above-mentioned positive obligations, it was therefore also the direct responsibility of the Moldovan authorities to prevent or redress the alleged violation of the applicants’ rights in that prison. 47. In so far as the Russian Federation is concerned, the Court would normally have to examine in the first place whether the facts fell within the jurisdiction of that State. However, in the particular circumstances of the present case, it considers it unnecessary to determine this issue, since the application must in any event be declared inadmissible insofar as directed against that State, for the reasons mentioned in paragraphs 48-50 below. B. Compliance with the six-month period for lodging the application in respect of the Russian Federation 48. The Court needs to verify whether the applicants complied with the six-month time-limit for lodging their application, in accordance with Article 35 § 1 of the Convention. It reiterates that the six-month rule stipulated in that provision is intended to promote legal certainty and to ensure that cases raising issues under the Convention are dealt with within a reasonable time. It protects the authorities and other persons concerned from uncertainty for a prolonged period of time. Finally, it ensures that, in so far as possible, matters are examined while they are still fresh, before the passage of time makes it difficult to ascertain the pertinent facts and renders a fair examination of the question at issue almost impossible (see Jeronovičs v. Latvia [GC], no. 44898/10, § 74, ECHR 2016). 49. Turning to the situation in the “MRT”, the Court notes that in the past it has found a violation of Article 13 of the Convention in respect of the Russian Federation, precisely because it could not establish the existence of effective remedies in that country in respect of Convention breaches committed by the authorities of the “MRT” (see Mozer, cited above, §§ 211 and 218). In the same vein, the Court does not consider the lodging of a complaint in Moldovan courts against another country without the latter’s consent to be involved as a defendant (see paragraph 30 above) to be a remedy. It therefore finds that, in the absence of any effective remedy in Russia, any complaints against that country must be lodged with the Court within six months of the date of the alleged violation or the date when such a violation ended. 50. In the present case, the applicants were transferred to other prisons on 1 March 2004 and 15 September 2004 respectively (see paragraph 11 above) and were thus from these dates on no longer held in allegedly inhuman conditions. However, they lodged their application

on 19 December 2008. Therefore, regardless of whether or not the applicants came under the jurisdiction of the Russian Federation, the complaints against that respondent State were lodged outside the time-limit set down by Article 35 § 1 of the Convention, and must be rejected as inadmissible pursuant to Article 35 § 4 of the Convention. C. Exhaustion of domestic remedies and the applicants’ victim status concerning the application in respect of the Republic Moldova 51. The Moldovan Government submitted that the applicants had not exhausted the remedies available to them in the Republic of Moldova, since they had lodged their application prematurely while domestic proceedings concerning the recognition of the violation of their rights and their claims for compensation were ongoing. 52. The Court reiterates that although, in principle, an applicant is required to have recourse to domestic remedies before applying to the Court and compliance with that requirement is assessed on the date the application was lodged (see Baumann v. France, no. 33592/96, § 47, ECHR 2001‑V), it can accept the fact that the last stage of such remedies may be reached after the lodging of the application but before it is called upon to pronounce on its admissibility (see Karoussiotis v. Portugal, no. 23205/08, §§ 57 and 87-92, ECHR 2011; Rafaa v. France, no. 25393/10, § 33, 30 May 2013; and Cestaro v. Italy, no. 6884/11, § 146, 7 April 2015). It notes that, by the time the present application was examined, the applicants had fully exhausted the domestic remedies available to them in the Republic of Moldova (see paragraph 35 above). Accordingly, this objection is dismissed. 53. The Moldovan Government also submitted that the applicants could no longer claim to be victims of breaches by the Republic of Moldova of their Convention rights, after the domestic courts had expressly acknowledged a breach of Articles 3 and 6 of the Convention and awarded them compensation. The Court considers that this objection is closely linked to the substance of the complaints raised by the applicants. Accordingly, it joins this objection to the merits of the application. D. Withdrawal of complaint 54. The Court notes that, in their initial application, the applicants complained of a breach of Article 34 of the Convention. However, in their observations they asked the Court not to examine this complaint, because in fact it related to other people who were in the same situation as the applicants but who were not parties in the present case. 55. The Court takes note of the withdrawal of this complaint. E. Conclusion on admissibility 56. The Court considers that the applicants’ complaints against the Republic of Moldova under Articles 3, 6 and 13 raise questions of fact and law which are sufficiently serious that their determination should depend on an examination of the merits. No other grounds for declaring them inadmissible have been established. The Court therefore declares this part of the application admissible. II. MERITS A. Alleged violation of Article 3 of the Convention 57. The applicants complained regarding the inhuman conditions of detention at prison no. 8 in Tighina/Bender, contrary to Article 3 of the Convention, which reads: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 58. The applicants referred to the prison’s disconnection from the utilities as causing standards to drop to a level which should be considered inhuman treatment, notably due to the lack of hygiene, the poor quality of the food and their inability to have their diseases properly treated (both applicants were ill with tuberculosis at the relevant time). They submitted that in total they had spent twenty-four and seventeen months respectively in inhuman conditions in prison no. 8. 59. The Government submitted that, despite the difficulties created by the disconnection from the utilities, the prison authorities and the Penal Institutions Department had taken immediate action to ensure that the detainees were provided with the minimum necessities such as water, food and heating, which had all been brought in by trucks. Electricity had been produced in situ by four electric generators, and heating had been ensured by thirty-five heaters. Five toilets not requiring connection to the city’s waste disposal system had been built, and the prison’s showers had been rebuilt to function without electricity from the grid or water from the pipeline. All these efforts had been made possible by almost doubling the State’s budget for the running costs of that prison during 2002-2008. 60. Moreover, following its visits on 18 March 2006 and 14‑24 September 2007, the Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) had found that, from February 2004 onwards, the Moldovan authorities had taken action to improve the detainees’ situation as much as possible. The Government further submitted that each detainee

was warned about the conditions of detention in prison no. 8 and agreed to them before being transferred there, some of them preferring to be held there since it was closer to their homes and relatives, while all those who refused were not placed in that prison. The Government lastly argued that the Moldovan authorities had taken all reasonable measures and had incurred great public expense in order to fulfil their positive obligations under the Convention to ensure that the rights of detainees in prison no. 8 were observed as much as possible, given the hostile actions of the Bender local administration. 61. Insofar as the Government submitted that the applicants were warned about the conditions of detention in prison no. 8 and agreed to them before being transferred there, the Court reiterates at the outset that Article 3 of the Convention enshrines one of the most fundamental values of democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim’s behaviour (Muršić v. Croatia [GC], no. 7334/13, § 96, ECHR 2016). The Government’s submission could raise the question whether a waiver of the right under Article 3 is possible, notwithstanding the absolute nature of the prohibition. However, even assuming that such a waiver might be possible, the circumstances of the present case do not permit the conclusion that there has been any valid waiver. Indeed, the applicants were deprived of their liberty, and thus within the power of the authorities (see, mutatis mutandis, M.S. v. Belgium, no. 50012/08, § 124, 31 January 2012). As the Court has held with respect to the waiver of certain procedural rights, a waiver must be of the applicant’s own free will and must be established in an unequivocal manner and attended by minimum safeguards commensurate to its importance (see, among others, Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 135, 17 September 2009). However, the Government did not clarify the nature of the guarantees which would assure a free decision by the applicants. 62. The Court notes that the conditions of detention during September 2002-April 2004 were considered by the domestic courts to be inhuman (see paragraph 34 above). Even though the Moldovan Government suggested that the authorities had taken action to improve the conditions of detention, their arguments refer to actions taken after February 2004 (see paragraph 59 above), that is, close to the end of the applicants’ detention in prison no. 8. The Court has no reason to depart from the domestic courts’ assessment of the conditions of detention and finds, as did those courts, that prolonged detention in conditions where access to water, electricity, food, warmth and medication is severely limited amounts to inhuman treatment under Article 3 of the Convention. 63. What remains to be verified is whether, following the express acknowledgment of a violation of Article 3 and the award of compensation, the applicants can still claim to be victims of that violation by the Republic of Moldova. 64. It notes that the applicants complained only regarding the conditions of detention during the prison’s disconnection from the utilities. The Court will take into account only the periods during which they were held in these conditions. There were two such periods: 23 September 2002-23 February 2003 (see paragraphs 8 and 10 above), and 10 July 2003 until the dates of the applicants’ transfer to other prisons (15 September 2004 and 1 March 2004 respectively, see paragraph 11 above). Accordingly, the applicants were held in inhuman conditions for approximately nineteen and thirteen months respectively. 65. Where, as in the present case, the victim status and therefore, the existence of a violation, is linked with the monetary redress afforded at domestic level, the Court’s assessment necessarily involves comparison between the actual award and the amount that the Court would award in similar cases (see, mutatis mutandis, Scordino v. Italy (no. 1) [GC], no. 36813/97, §§ 181 and 202, ECHR 2006‑V; see also Holzinger v. Austria (no. 1), no. 23459/94, § 21, ECHR 2001‑I). 66. In this connection, the Court notes that the domestic courts awarded the applicants the equivalent of EUR 1,266 in respect of the breach of Article 3 (see paragraphs 34 and 35 above). The Court considers that the sum awarded by the domestic courts is considerably below that generally awarded by the Court in cases in which it has found a violation of Article 3 in respect of the Republic of Moldova concerning conditions of detention, especially considering the particularly harsh conditions of the applicants’ detention and the relatively long period during which they were held in such conditions (see, by way of comparison, Shishanov v. the Republic of Moldova, no. 11353/06, § 143, 15 September 2015, Savca v. the Republic of Moldova,

no. 17963/08, § 58, 15 March 2016, and Cristioglo v. the Republic of Moldova, no. 24163/11, § 31, 26 April 2016). 67. In the light of the foregoing, the Court considers that the applicants can still claim to be victims of a violation of Article 3 of the Convention. Accordingly, the Moldovan Government’s objection concerning the applicants’ victim status (see paragraph 39 above) is dismissed. 68. There has accordingly been a violation of Article 3 by the Republic of Moldova in the present case. B. Alleged violation of Article 6 § 1 of the Convention 69. The applicants also complained of the excessive length of the civil proceedings which they had initiated against the State authorities. They relied on Article 6 § 1 of the Convention, the relevant part of which reads: “In the determination of his civil rights and obligations... everyone is entitled to a... hearing within a reasonable time by [a]... tribunal...” 70. The Government submitted that the applicants could no longer claim to be victims of a breach of their right to a hearing within a reasonable time, in view of the express acknowledgment of such a violation by the Supreme Court of Justice and the award made to compensate them for that violation (see paragraph 35 above). In any event, the case had been quite complex given the number of plaintiffs at domestic level, the background of actions by the “MRT” and the applicants’ application to involve Russia as a defendant. Moreover, the applicants’ representatives had contributed to approximately 20% of the delays and had even accepted the defendant’s application for the initial claim to be struck from the court’s docket because they had already prepared a new court action to replace the old one. This had resulted in a new delay in order for the defendants to study the new claim. 71. The Court notes that by 15 March 2004 when the domestic court action was lodged the second applicant was no longer detained in the conditions complained of. The first applicant was detained in such conditions during six more months. Thereafter, their court action did not concern any urgent matter since the courts could only find a breach of the applicants’ rights and award compensation. At the same time, as found by the Supreme Court of Justice (see paragraph 35 above), the applicants’ representatives contributed to approximately 20% of the delay in examining the court action. 72. Having regard to all the material in its possession, and even assuming that the entire period of approximately six years is to be taken into consideration despite the apparent lodging of a new claim on 6 March 2008 (see paragraph 30 above), taking into consideration the award made in this respect by the Supreme Court of Justice (see paragraph 35 above), as well as the complexity of the case and the CHDOM’s contribution to the overall length of the proceedings, the Court finds that this complaint does not disclose any appearance of a violation of the rights and freedoms set out in the Convention. It follows that this part of the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention. C. Alleged violation of Article 13 of the Convention 73. The applicants also argued that they had no effective remedies in respect of their complaint regarding the conditions of detention. They relied on Article 13 of the Convention, which reads: “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.” 74. The Moldovan Government argued that the applicants had at their disposal domestic remedies in the form of civil court actions to establish detention in inhuman or degrading conditions and claim compensation. They submitted copies of several judgments from cases in which detainees had been successful in obtaining compensation in similar circumstances. Moreover, the applicants’ own court actions had been successful, each having been awarded MDL 20,000, which proved once more the effectiveness of the remedy. 75. The applicants argued that, in order to be effective, the remedies referred to by the Moldovan Government also had to ensure that those responsible for the breaches of their Convention rights (individuals in the “MRT” local administration) were prosecuted. Moreover, they had not obtained an improvement in their conditions of detention while it still mattered. 76. The Court observes that it found violations of Article 13 of the Convention in Malai v. Moldova (no. 7101/06, §§ 45-46, 13 November 2008), I.D. v. Moldova (no. 47203/06, § 50, 30 November 2010) and Rotaru v. Moldova (no. 51216/06, § 47, 15 February 2011) on account of the lack of effective remedies in the Republic of Moldova in respect of

inhuman and degrading conditions of detention. It has underlined that the remedy of a court action in the form suggested by the Moldovan Government does not have a preventive effect in the sense of improving the conditions of an applicant’s detention, only a compensatory effect (see, for instance, Holomiov v. Moldova, no. 30649/05, § 107, 7 November 2006; and Shishanov v. the Republic of Moldova, no. 11353/06, §§ 124-139, 15 September 2015). The remedy is therefore not effective in cases where people are still detained in such conditions at the time of lodging their application with the Court (see, for instance, Oprea v. Moldova, no. 38055/06, § 33, 21 December 2010). 77. In view of the fact that the first applicant was still detained in prison no. 8 at the time of lodging his claim with the domestic courts on 15 March 2004 (see paragraphs 11 and 22 above), the remedy referred to by the Moldovan Government was not an effective one, since it did not allow for an immediate improvement in the first applicant’s conditions of detention (see the preceding paragraph). 78. There has thus been a violation by the Republic of Moldova of Article 13 taken in conjunction with Article 3 of the Convention in respect of the first applicant (see Shishanov, cited above, §§ 123-139). 79. As for the second applicant, the Court notes that he was transferred from prison no. 8 to another prison on 1 March 2004 (see paragraph 11 above), before he lodged his claim before the domestic courts on 15 March 2004 (see paragraph 22 above). Accordingly, at the time when he initiated his civil action he could not ask for an improvement in his conditions of detention in that prison, but only an acknowledgment of a breach of his rights and compensation. Since domestic law allowed him to seek both, and since he was able to obtain these things in final court judgments, the Court finds that the second applicant had at his disposal available effective remedies. 80. The Court therefore finds that there has been no violation by the Republic of Moldova of Article 13 taken in conjunction with Article 3 of the Convention in respect of the second applicant. 81. As for the applicants’ complaint that the Moldovan authorities failed to properly investigate the actions of the “MRT” officials who disconnected prison no. 8 from the utilities, the Court notes that although the Moldovan courts ordered the prosecutor’s office to initiate criminal proceedings against those responsible for disconnecting the prison (see paragraphs 15 and 20 above), it seems that no further action was undertaken by that office, because of lack of effective possibilities to bring any “MRT” official to justice (see paragraph 21 above). The Court notes, however, that already on 18 November 2003 the Bender Prosecutor’s Office had contacted the “MRT” authorities with a view to prosecuting those responsible, and that on 20 December 2003 the “MRT” prosecutor had refused to open a criminal investigation on the ground that no crime had been committed (see paragraph 16 above). 82. In light of the above, the Court considers that the Republic of Moldova has fulfilled its positive obligation in this respect. There has therefore been no violation of Article 13 in this respect. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 83. 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 84. The first applicant claimed EUR 100,000 from the Moldovan Government and EUR 90,000 from the Russian Government in respect of non-pecuniary damage. The second applicant claimed EUR 80,000 from the Moldovan Government and EUR 70,000 from the Russian Government in respect of non-pecuniary damage. They referred to the suffering and anxiety which they had experienced as a result of the inhuman conditions of detention. They also referred to their fear for their lives, given their inability to have their tuberculosis treated during the relevant time and the fact that the mortality rate among detainees suffering from that disease in prison no. 8 had increased during the relevant period due to the harsh conditions. 85. The Moldovan Government submitted that the applicants had failed to specify the basis for their claim, and that the recognition by the domestic courts of a breach of their rights constituted sufficient just satisfaction. In any event, the sum claimed was excessive in comparison with previous cases against the Republic of Moldova concerning conditions of detention. 86. The Court notes firstly that it has declared all the complaints against the Russian Federation in the present case inadmissible. Accordingly, no

award can be made in respect of that State. 87. In respect of the claims against the Republic of Moldova, the Court refers to its finding (see paragraph 66 above) that the award made by the domestic courts was well below that which it would award in similar cases. In the light of all the circumstances, in particular the relatively long period of detention in particularly harsh conditions with a risk to the applicants’ health, and taking into account the sums already awarded by the domestic courts, the Court awards the first applicant EUR 3,000 and the second applicant EUR 1,800 in respect of non-pecuniary damage. B. Costs and expenses 88. The applicants also claimed EUR 5,160 for costs and expenses incurred before the Court. They annexed a list of hours which their lawyers had spent working on the case (eighty-six hours at an hourly rate of EUR 60). 89. The Moldovan Government submitted that the applicants had presented inconsistent claims regarding legal representation before the domestic courts and this Court. Moreover, they had failed to produce a contract with their lawyers. In addition, during the proceedings, the applicants’ lawyers, being members of a human rights non-governmental organisation (NGO), had submitted to the domestic courts that they were financed by foreign funds, which could be interpreted as saying that they were paid by foreign donors to represent socially vulnerable individuals like the applicants. They should therefore not be able to claim payment for that representation once more from the Government. There was no evidence that the applicants had actually paid any sum of money to their representatives. In any event, the sum claimed was excessive, particularly in view of the fact that the domestic courts had already awarded MDL 5,000 for legal costs. Lastly, the number of hours which the lawyers had spent working on the case was also excessive. 90. According to the Court’s case-law (see for a recent example Merabishvili v. Georgia [GC], no. 72508/13, § 370, ECHR 2017 (extracts)), an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 1,500 jointly to cover costs under all heads. C. Default interest 91. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Joins the Moldovan Government’s preliminary objection concerning the alleged loss of the applicants’ victim status to the merits of the application and rejects it; 2. Declares the complaints against the Republic of Moldova under Articles 3 and 13 of the Convention admissible, and the remainder of the application inadmissible; 3. Declares the application against the Russian Federation inadmissible; 4. Holds that there has been a violation of Article 3 of the Convention by the Republic of Moldova in respect of both applicants; 5. Holds that there has been a violation of Article 13 of the Convention by the Republic Moldova in respect of the first applicant, 6. Holds that there has been no violation of Article 13 of the Convention by the Republic Moldova in respect of the second applicant; 7. Holds (a) that the Republic of Moldova is to pay the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Moldovan lei at the rate applicable at the date of settlement: (i) EUR 3,000 (three thousand euros) to the first applicant, plus any tax that may be chargeable, in respect of non-pecuniary damage, and EUR 1,800 (one thousand eight hundred euros) to the second applicant, plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 1,500 (one thousand five hundred euros) jointly, plus any tax that may be chargeable to the applicants, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 8. Dismisses the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 29 May 2018, pursuant to Rule 77 §§ 2 and 3 of

the Rules of Court. Hasan BakırcıRobert SpanoDeputy RegistrarPresident [1]. For further details, see Ilaşcu and Others v. Moldova and Russia ([GC], no. 48787/99, ECHR 2004‑VII).

FIFTH SECTION CASE OF PELEVIN v. UKRAINE (Application no. 24402/02) JUDGMENT STRASBOURG 20 May 2010 FINAL 20/08/2010 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Pelevin v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Peer Lorenzen, President,Renate Jaeger,Karel Jungwiert,Mark Villiger,Mirjana Lazarova Trajkovska,Zdravka Kalaydjieva, judges,Mykhaylo Buromenskiy, ad hoc judge,and Claudia Westerdiek, Section Registrar, Having deliberated in private on 27 April 2010, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 24402/02) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Mykola Mykolayovych Pelevin (“the applicant”), on 21 May 2002. 2. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Yuriy Zaytsev. 3. The applicant alleged that the Supreme Court's initial refusal to consider his appeal in cassation within the ordinary cassation review proceedings violated his right to access to a court. 4. On 8 April 2003 the Court decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3). THE FACTS 5. The applicant, Mr Mykola Mykolayovych Pelevin, is a Ukrainian national who was born in Rostov-on-Don in 1938 and who currently resides in L'viv. I. THE CIRCUMSTANCES OF THE CASE 6. On 22 July 1999 a private dispute arose between the applicant and M.M.E. (a private person) over access to the attic of a building. As a result the applicant inflicted bodily injury on M.M.E. with an axe. 7. On 18 August 1999 M.M.E. instituted a private prosecution (приватне обвинувачення) against the applicant before the Zaliznychny District Court of L'viv and claimed compensation for non-pecuniary damage. 8. On 7 June 2000 the applicant sought to institute criminal proceedings against M.M.E. before the Zaliznychny District Court of L'viv for inflicting minor bodily injury. 9. On 13 July 2000 the Zaliznychny District Court of L'viv, in particular Judge U.P.F., instituted criminal proceedings against the applicant. He also decided that M.M.E. should be granted victim status in these proceedings. 10. On 9 June and 3 August 2000 and 27 April 2001 the applicant applied to the President of the Zaliznychny District Court of L'viv, seeking the withdrawal of Judge U.P.F. from his case. The applicant submitted, inter alia, that Judge U.P.F. had not allowed him to use the Russian language in court, in particular to put questions to witnesses. On 18 October 2000 and 27 April 2001 the President of the Zaliznychny District Court of L'viv dismissed the applicant's request as unsubstantiated. 11. On 18 May 2001 the Zaliznychny District Court of L'viv refused the applicant's request to institute criminal proceedings against M.M.E and his family members on suspicion of inflicting minor bodily injury on the applicant in May 2000. The applicant appealed against this decision. On 25 December 2001 the L'viv Regional Court of Appeal dismissed the applicant's appeal. 12. On 21 June 2001 the Zaliznychny District Court of L'viv found the applicant guilty of inflicting minor bodily injury and of arbitrary behaviour in July 1999, sentenced him to an administrative fine and released him from criminal liability because of his advanced age, on the basis of the amnesty law in force at the time. It also ordered the applicant to pay M

.M.E. compensation for non-pecuniary damage and legal costs in the amount of 2,406 Ukrainian hryvnias (UAH). The court also acquitted M.M.E. of inflicting minor bodily injury on the applicant. The applicant was allowed to submit his oral plea to the court in Russian. According to the record of the court hearings, the applicant did not lodge a request for leave to use the Russian language, nor did he request the assistance of an interpreter. 13. The applicant lodged an appeal against the judgment of 21 June 2001. On 25 September 2001 the L'viv Regional Court of Appeal dismissed the applicant's appeal as unsubstantiated. In the proceedings before the first-instance court and the court of appeal the applicant was assisted by a lawyer practising in L'viv (a licensed advocate). 14. On 16 March 2002 the applicant lodged an appeal in cassation with the Supreme Court. In his appeal the applicant relied on Articles 383 - 387 of the Code of Criminal Procedure which governed the examination of criminal cases within the ordinary cassation review proceedings. In his appeal he mentioned that he had not been able to participate effectively in the proceedings because he had not been allowed to use Russian while putting questions to the witnesses and had not been provided with the assistance of an interpreter. 15. On 9 April 2002 a judge of the Supreme Court V.S., by a letter and without taking any procedural decision, refused to institute extraordinary review proceedings (перегляд в порядку виключного провадження) in the applicant's case. 16. On 13 June 2003 the Supreme Court, on the decision of Judge K.M., assumed jurisdiction over the appeal in cassation and decided to institute cassation proceedings in the applicant's case. 17. On 31 July 2003 the Supreme Court examined the applicant's appeal in cassation on merits and dismissed it within the ordinary review proceedings. The Supreme Court held its hearing in the absence of the applicant and in the presence of the prosecutor and victim in the criminal case. II. RELEVANT DOMESTIC LAW A. Provisions of the Code of Criminal Procedure governing cassation proceedings (as amended on 21 June 2001) 18. The relevant provisions read as follows: Article 348. Persons entitled to lodge an appeal “The following persons are entitled to lodge an appeal: 1. a convicted person...” Article 383. Court decisions that may be reviewed in cassation proceedings “The following decisions may be reviewed in cassation proceedings: ... 2) judgments and resolutions of a court of appeal given by it in appeal proceedings. Judgments and resolutions or rulings of district (city) courts, inter-district (circuit) courts and garrison military courts may be also reviewed in cassation proceedings, as well as rulings of courts of appeal given in respect to those judgments and resolutions or rulings with the exceptions of rulings by which the court of appeal cancels such decisions and sends the case for a new investigation or examination.” Article 384. Persons entitled to lodge an appeal in cassation or to file a cassation petition “Appeals in cassation against the court decisions referred to in part one of Article 383 of this Code may be lodged by the persons specified in Article 348 of this Code. Cassation appeals against the court decisions referred to in part two of Article 383 of this Code may be lodged by: 1) a convicted person...” Article 394. Examination of a case by a court of cassation “Cassation appeals and petitions against the court decisions referred to in part one of Article 383 of this Code shall be examined with a mandatory notice of that examination being served on the prosecutor and the persons referred to in Article 384 of this Code. Cassation appeals and petitions against the court decisions referred to in part two of Article 383 of this Code shall be examined within thirty days of receipt by the court of cassation, composed of three judges with the participation of a prosecutor. The court shall either assign the case for examination and notify the persons referred to in Article 384 of this Code accordingly or dismiss it...” Article 396. Results of the examination of a case by a court of cassation “As a result of the examination of a case within the cassation proceedings, the court shall make one of the following decisions: 1) uphold the judgment, resolution or ruling and dismiss the cassation appeal or petition; 2) quash the judgment, resolution or ruling and refer the case for a fresh investigation or trial before the first-instance court or review in appeal proceedings; 3) quash the judgment, resolution or ruling and terminate the case; 4) modify the judgment, resolution or

ruling. ” B. Provisions of the Code of Criminal Procedure governing extraordinary review proceedings (as amended on 21 June 2001) 19. The relevant provisions read as follows: Article 400-4. Grounds for examination of the judgments within the extraordinary review proceedings “The final and binding judgments may be examined within the extraordinary review proceedings in view of: 1) newly disclosed circumstances; 2) incorrect application of the criminal law and fundamental breach of the requirements of criminal procedural law that have essentially impaired the correctness of the judgment (...)” Article 400-9. Request to examine a judgment within the extraordinary review proceedings “Parties to the proceedings and other persons entitled by law may lodge with the prosecutor a request for examination of the case on the grounds set forth in paragraph 1 of part one of Article 400-4 of this Code. Requests for examination of the case on the grounds set forth in paragraph 2 of part one of Article 400-4 of this Code may be lodged by the convicted person or his defender or legal representative (...)” THE LAW I. ACCESS TO A COURT 20. The applicant complained of lack of access to the Supreme Court on account of its refusal to review his case in the course of cassation proceedings. He relied on Article 6 § 1 which provides, in so far as relevant, as follows: “In the determination of... any criminal charge against him, everyone is entitled to a fair... hearing... by [a]... tribunal...” A. Admissibility 21. The Government submitted that the applicant could no longer claim to be a “victim” of a breach of his right of access to a court as on 31 July 2003 the Supreme Court examined his appeal in cassation on its merits. They further submitted that the applicant's appeal in cassation was initially dealt with as if it was a request for extraordinary review proceedings due to a technical error. 22. The applicant disagreed. He contended that examination of his appeal in cassation on 31 July 2003 was prompted by his recourse to the Court and communication of the application to the respondent Government. 23. The Court finds that the victim status issue and the parties' arguments in that respect are closely linked to the substance of the applicant's complaint under Article 6 § 1 of the Convention. It should, therefore, be joined to the merits. 24. The Court considers, in the light of the parties' submissions, that the case raises issues of law and fact under the Convention, the determination of which should depend on an examination of the merits of the application. It finds that the applicant's complaints as to lack of access to a court are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and that they are not inadmissible on any other grounds. They must therefore be declared admissible. B. Merits 25. The Government did not comment on the merits of the complaint of lack of access to a court and maintained that application was inadmissible. 26. The applicant maintained his complaint. 27. The Court notes that a State which institutes courts of appeal or cassation is required to ensure that persons amenable to the law shall enjoy before these courts the fundamental guarantees contained in Article 6 (see, for example, Delcourt v. Belgium, 17 January 1970, § 25, Series A no. 11). It reiterates that the right to a court, of which the right of access is one aspect, is not absolute and may be subject to limitations permitted by implication, particularly regarding the conditions of admissibility of an appeal, which must not impair the very essence of the right of access. They must pursue a legitimate aim and there must be a reasonable proportionality between the means employed and the aim sought to be achieved (see, for example, Ashingdane v. the United Kingdom, 28 May 1985, § 57, Series A no. 93). 28. Turning to the facts of the present case, the Court observes that the applicant's appeal in cassation, although lodged within ordinary cassation review proceedings, was examined and rejected by the Supreme Court as if it was a request for extraordinary review of his conviction without any reasons being given for such a decision and without any procedural decision taken (see paragraphs 18 and 19 above). The Government acknowledged that appeal in cassation was examined in the course of the extraordinary review proceedings erroneously. 29. The Court notes that after the present case was communicated to the Government, on 13 June 2003 (see paragraph 16 above) the Supreme Court instituted ordinary cassation review proceedings on the applicant's appeal in cassation, examined it on its merits and dismissed it. The national authorities however did not recognise in any way that the initial decision of 9 April 2002 (see paragraph 15 above), to deal with the applicant's appeal in cassation as if it was a request for extraordinary review, interfered with the applicant

's right of access to the court of cassation. 30. Moreover, the examination of the appeal in cassation on 31 July 2003 (see paragraph 17 above) was held in the absence of the applicant, while the prosecutor and the victim of the criminal offence were both present at the Supreme Court hearing. 31. Having regard to all the circumstances of the case, the Court considers that the applicant suffered an excessive restriction of his right of access to a court, and therefore of his right to a fair trial, which was never acknowledged or redressed by the authorities. There has consequently been a violation of that provision. It follows that the Government's preliminary objection as to the victim status (see paragraph 21 above), previously joined to the merits (see paragraph 23 above) must be dismissed. 32. There has accordingly been a breach of Article 6 § 1. II. REMAINDER OF THE COMPLAINTS 33. The applicant also complained under Article 6 §§ 1 and 2 that the criminal proceedings instituted against him were both unfair and excessively long. He further complained of a violation of Article 6 § 3 (e) in that he had not been allowed to use the Russian language in the proceedings before the domestic courts and had not been granted the assistance of an interpreter from Ukrainian to Russian. He further complained of an infringement of his right to private life and lack of an effective domestic remedy for his claims on account of the refusal of the domestic authorities to institute criminal proceedings against M.M.E. He relied on Articles 8 and 13 of the Convention in this respect. The applicant also complained of a violation of Article 2 § 1 of Protocol No. 1 on account of the Supreme Court's refusal to examine his criminal case within the ordinary review proceedings. 34. The Court, having carefully considered the applicant's submissions, in the light of all the material in its possession, finds that, in so far as the matters complained of are within its competence, they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention. 35. It follows that this part of the application must be declared inadmissible as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 36. 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.” 37. The applicant submitted his claims for just satisfaction out of time. These submissions were not included in the case file for examination by the Court. Accordingly, the Court considers that there is no call to award any sum. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Decides to join to the merits the Government's preliminary objection as to the applicant's victim status and dismisses it after having examined the merits; 2. Declares the complaint concerning lack of access to a court under Article 6 § 1 admissible and the remainder of the application inadmissible; 3. Holds that there has been a violation of Article 6 § 1 of the Convention. Done in English, and notified in writing on 20 May 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Claudia WesterdiekPeer LorenzenRegistrarPresident