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SECOND SECTION CASE OF SİNAN IŞIK v. TURKEY (Application no. 21924/05) JUDGMENT STRASBOURG 2 February 2010 FINAL 02/05/2010 This judgment has become final under Article 44 § 2 of the Convention. In the case of Sinan Işık v. Turkey, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Françoise Tulkens, President,Ireneu Cabral Barreto,Vladimiro Zagrebelsky,Danutė Jočienė,Dragoljub Popović,András Sajó,Işıl Karakaş, judges,and Sally Dollé, Section Registrar, Having deliberated in private on 15 December 2009, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 21924/05) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Sinan Işık (“the applicant”), on 3 June 2005. 2. The applicant was represented by Mr K. Genç, a lawyer practising in Ankara. The Turkish Government (“the Government”) were represented by their Agent. 3. The applicant alleged, in particular, that the denial of his request to have the word “Islam” on his identity card replaced by the name of his faith “Alevi” violated Article 9 of the Convention. He also alleged a violation of Articles 6 and 14 of the Convention. 4. On 15 January 2008 the President of the Second Section decided to give notice of the application to the Government. It was decided that the Chamber would rule on the admissibility and merits of the application at the same time (Article 29 § 3 of the Convention). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. Mr Işık was born in 1962 and lives in İzmir. He is a member of the Alevi religious community, which is deeply rooted in Turkish society and history. Their faith, which is influenced, in particular, by Sufism and certain pre-Islamic beliefs, is regarded by some Alevi scholars as a separate religion and by others as the “essence” or “original form” of Islam. Its religious practices differ from those of the Sunni[1] schools of law in certain aspects such as prayer, fasting and pilgrimage (see Hasan and Eylem Zengin v. Turkey, no. 1448/04, § 8, 9 October 2007). 6. The applicant stated that his identity card, issued by the registrar of births, marriages and deaths, contained a “religion” box which indicated “Islam”, even though he was not a follower of that religion. 7. On 7 May 2004 he applied to the İzmir District Court seeking to have his identity card feature the word “Alevi” rather than the word “Islam”. The relevant parts of his application read as follows: “... the word ‘Islam’ featuring on my identity card does not reflect the true situation. As an Alevi citizen of the Republic of Turkey, I thought, on the basis of my knowledge and beliefs, that a person could not be at once ‘Alevi’ and ‘Islam’ (sic!). As a citizen of the secular Republic of Turkey, which, under its Constitution, protects freedom of religion and conscience, I refuse to continue to bear the weight of this injustice and this contradiction stemming from the desire to offset a fear, which is wholly unfounded and deeply offensive.” 8. On 9 July 2004, following a request by that court, the legal adviser to the Directorate of Religious Affairs issued his opinion on the applicant’s request. He considered in particular that to indicate religious interpretations or subcultures in the religion box on identity cards was incompatible with national unity, republican principles and the principle of secularism. He argued in particular that the word “Alevi”, designating a sub-group within Islam, could not be considered to be a separate religion or a branch (mezhep) of Islam. It was an interpretation of Islam influenced by Sufism and having specific cultural features

. 9. On 7 September 2004 the court dismissed the applicant’s request on the basis of the following considerations: “1. ... the religion box on identity cards contains general information about citizens’ religion. It is accordingly appropriate to examine whether the Alevi faith (Alevilik) constitutes a separate religion or an interpretation of Islam. It is clear from the opinion issued by the Presidency of the Directorate of Religious Affairs that the Alevi faith is an interpretation of Islam which is influenced by Sufism and which has specific cultural features... Accordingly, that faith constitutes an interpretation of Islam and not a religion as such, in accordance with the general principles laid down in this regard. Furthermore, only religions in general are indicated on identity cards and not an interpretation or branch of any particular religion. No error has therefore been made in indicating ‘Islam’ on the identity card of the applicant, who claims to be ‘Alevi’. 2. Books and articles submitted by the applicant reveal that Ali[1] is described as the ‘lion of Allah’ or similar. The fact that certain poems contain different expressions does not mean that the Alevi faith is not part of Islam. Since Ali is one of the four caliphs of Islam and the son-in-law of Muhammad, he must be considered to be one of Islam’s eminent personalities... 3. For example, in Christianity too, there are sub-groups such as Catholics and Protestants, which nonetheless have their basis in Christianity. That is to say that when someone adheres to a particular interpretation of Islam, it does not mean that that interpretation is not part of Islam...” 10. On an unspecified date the applicant appealed to the Court of Cassation. He complained that he had been obliged to disclose his beliefs because it was mandatory to indicate his religion on his identity card, without his consent and in breach of the right to freedom of religion and conscience within the meaning of Article 9 § 1 of the Convention. He further alleged that the indication at issue, deriving from section 43 of the Civil Registration Act (Law no. 1587), could not be considered to be compatible with Article 24 § 3 of the Constitution, which provided that “no one shall be compelled... to reveal his or her religious beliefs and convictions”. He also stated that he had lodged two applications, the first to have the word “Islam” describing his religion on his identity card deleted, and the second, to have the word “Alevi” inserted into the relevant box. He stated that the court of first instance had been able to examine the two requests separately, allowing the first and rejecting the second, finding that the indication at issue was not compatible with Article 24 § 3 of the Constitution. Lastly, he challenged the proceedings rejecting his application, in which the Directorate of Religious Affairs had described his faith as an interpretation of Islam. 11. On 21 December 2004 the Court of Cassation upheld the judgment of the court below without giving any other reasoning. II. RELEVANT DOMESTIC AND INTERNATIONAL LAW AND PRACTICE A. Domestic law 1. Turkish Constitution 12. The relevant parts of Article 10 of the Turkish Constitution provide as follows: “All individuals shall be equal before the law without any distinction based on language, race, colour, sex, political opinion, philosophical belief, religion, membership of a religious sect or other similar grounds. ... State bodies and administrative authorities shall act in compliance with the principle of equality before the law in all circumstances.” 13. The relevant parts of Article 24 read as follows: “Everyone shall have the right to freedom of conscience, belief and religious conviction. ... No one shall be compelled to participate in prayers, worship or religious services or to reveal his or her religious beliefs and convictions; no one shall be censured or prosecuted for his or her religious beliefs or convictions....” 14. Article 136 provides: “The Directorate of Religious Affairs, which is part of the general administration, shall perform the duties entrusted to it by virtue of the specific law which governs it, in accordance with the principle of secularism, and shall be removed from all political views or ideas, with a view to national solidarity and integrity.” 2. Civil Registration Act (Law no. 1587) 15. The relevant passages of section 43 of the Civil Registration Act (Nüfus Kanunu), as in force at the material time, read as follows: “The civil registers shall contain the following information concerning individuals and families... (a) Information concerning civil status: (1) Forename and surname, gender, forenames and surnames of parents, maiden name; (2) Place and date of birth and date of registration (year, month and day

); (3) Corrections... (b) Other information: ... (2) Religion; ...” 3. Case-law of the Constitutional Court 16. By a judgment of 21 June 1995, published in the Official Gazette on 14 October 1995, the Constitutional Court declared section 43 of the Civil Registration Act to be in conformity with Article 2 (secularism) and Article 24 (freedom of religion) of the Constitution. The judges of the Constitutional Court held, in particular: “The State must be aware of the characteristics of its citizens. That information is required for the purposes of public policy, the general interest, and economic, political and social imperatives... The secular State must remain neutral in terms of religion. Accordingly, the indication of religion on identity cards must not engender inequality among citizens... In a secular State, all religions rank equally. No one may interfere in the beliefs or lack of beliefs of another. Furthermore, the rule at issue applies to all beliefs and cannot therefore give rise to discrimination... The rule that ‘[n]o one shall be compelled... to reveal his or her religious beliefs and convictions’ cannot be interpreted as a prohibition on indicating that person’s religion in official registers. The Constitution forbids compulsion. Compulsion concerns the disclosure of religious beliefs and convictions. The notion of ‘religious beliefs and convictions’ is not limited by the provision of information concerning each individual’s religion in the State’s civil registers for demographic purposes. That notion is wide-ranging and covers many factors relating to religion and belief. The rule that ‘[n]o one shall be compelled... to reveal his or her religious beliefs and convictions’ must be read in conjunction with the rule that ‘no one shall be censured or prosecuted for his or her religious beliefs or convictions’. In no circumstances does this amount to compulsion, censure or prosecution. Furthermore, under Article 266 of the Civil Code, ‘a person of legal age shall be free to choose his or her religion’. Consequently, anyone wishing to change his or her religion as indicated in the civil register may submit a request to that effect to the registration authorities. The amendment will be made on the instruction of the decentralised authority. Likewise, anyone wishing to have that information deleted or to record another belief which cannot be accepted as a religion may apply to the civil courts... To conclude, Article 43 of the Civil Code cannot be considered to entail compulsion. It relates to information concerning a person’s religion which is provided to the civil registry for the purposes of public policy, general interest and social need...” Five of the eleven Constitutional Court judges did not share the majority opinion, finding that the indication of religion in the State’s civil registers and on identity cards was incompatible with Article 24 of the Constitution. One of the judges in the minority considered in particular that: “Under the Civil Registration Act, the parents or legal representatives of children are obliged to declare the religion of their children, failing which no entry will be made. The inclusion of religion in the family record and on identity cards, before the child reaches the age of majority and without his or her consent, constitutes de facto mandatory disclosure of religion in daily life... That disclosure obligation, stemming from the indication of religion on a document confirming civil status, and the presentation of that document when registering at a school or when carrying out military service formalities, does indeed amount, in my view, to ‘compulsion’.” 4. Civil Registry Services Act (Law no. 5490) and the implementing provisions thereof 17. The relevant passages of sections 7 and 35 of the Civil Registry Services Act (Nüfus Hizmetleri Kanunu), which came into force on 29 April 2006 (repealing the above-mentioned Civil Registration Act), read as follows: Section 7Personal information required in civil registers “(1) A civil register is established for each district or village. The civil registers shall contain the following information: ... (e) Religion. ...” Section 35Correction of data “(1) No entry in the civil registers may be corrected without a final judicial decision... (2) Information relating to a person’s religion shall be entered or amended in accordance with the written statements of the person concerned; the box for this purpose may be left blank or the information may be deleted.” 18. The relevant parts of section 82 of the implementing provisions of the Civil Registry Services Act, adopted on 29 September 2006, read as follows: Section 82Requests concerning information on religion “Any information concerning an individual’s religion shall be entered, amended, deleted or omitted in accordance with that individual’s written statements. Requests for amendment or deletion of data relating to religion shall be subject to no restrictions

whatsoever.” 5. The Directorate of Religious Affairs 19. The Directorate of Religious Affairs was created by Law no. 633 of 22 June 1965 on the Creation and Functions of the Presidency of Religious Affairs, published in the Official Gazette of 2 July 1965. Section 1 thereof provides that the Presidency of Religious Affairs, reporting to the Prime Minister, is responsible for dealing with matters of belief, worship and moral principles of Islam and administering places of worship. Within the Directorate, the Supreme Council of Religious Affairs constitutes the supreme decision-making and consultative authority. It is made up of sixteen members appointed by the Directorate president. It is competent to answer questions concerning religion (section 5 of Law no. 633). B. Guidelines for the review of legislation pertaining to religion or belief, adopted by the Venice Commission 20. The relevant parts of the document entitled “Guidelines for the review of legislation pertaining to religion or belief” adopted by the Venice Commission at its 59th plenary session (Venice, 18 and 19 June 2004), read as follows: “II. Substantive issues that typically arise in legislation ... 2. The definition of ‘religion’. Legislation often includes the understandable attempt to define religion or related terms (‘sects’, ‘cults’, ‘traditional religions’ etc.). There is no generally accepted definition for such terms in international law, and many States have had difficulty in defining these terms. It has been argued that such terms cannot be defined in a legal sense because of the inherent ambiguity of the concept of religion. A common definitional mistake is to require that a belief in God be necessary for something to be considered a religion. The most obvious counter-examples are classical Buddhism, which is not theistic, and Hinduism, which is polytheistic.... 3. Religion or belief. International standards do not speak of religion in an isolated sense, but of ‘religion’ or ‘belief’. The ‘belief’ aspect typically pertains to deeply held conscientious beliefs that are fundamental about the human condition and the world. Thus, atheism and agnosticism, for example, are generally held to be entitled to the same protection as religious beliefs. It is very common for legislation not to protect adequately (or to not refer at all to) rights of non-believers.... B. Basic values underlying international standards for freedom of religion or belief Broad consensus has emerged within the OSCE [Organization for Security and Co-operation in Europe] region on the contours of the right of freedom of religion or belief as formulated in the applicable international human rights instruments. Fundamental points that should be borne in mind in addressing legislation in this area include the following major issues. 1. Internal freedom (forum internum). The key international instruments confirm that ‘[e]veryone has the right to freedom of thought, conscience and religion’. In contrast to manifestations of religion, the right to freedom of thought, conscience and religion within the forum internum is absolute and may not be subjected to limitations of any kind. Thus, for example, legal requirements mandating involuntary disclosure of religious beliefs are impermissible....” THE LAW I. ALLEGED VIOLATION OF ARTICLE 9 OF THE CONVENTION 21. The applicant alleged a violation of Article 9 of the Convention, which reads as follows: “1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. 2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.” 22. The applicant complained that he had been obliged, without his consent and in breach of the right to freedom of religion and conscience, to disclose his belief because it was mandatory to indicate his religion on his identity card. He submitted that the indication at issue could not be considered to be compatible with Article 24 § 3 of the Constitution, which provided that “no one shall be compelled... to reveal his or her religious beliefs and convictions”. He pointed out that that public document had to be shown at the request of any public authority, private enterprise or in the context of any formality whatsoever. He also stated that he had asked to have the word “Islam” replaced on his identity card by the indication of his faith as “Alevi”, arguing that the existing indication was incorrect. He challenged the proceedings rejecting his application, in which

the Directorate of Religious Affairs had described his faith as an interpretation of Islam. A. Admissibility 1. Failure to exhaust domestic remedies 23. The Government stated that the applicant, who had merely asked the judicial authorities to replace the word “Islam” on his identity card with the indication of his belief as “Alevi”, had not duly exhausted domestic remedies in relation to his complaint concerning freedom of religion and conscience. In the Government’s view, the applicant had never argued that the indication of his religion on his identity card was incompatible with his freedom of religion and conscience. 24. The applicant did not submit observations in response on that point within the time allowed. 25. The Court reiterates that the rule of exhaustion of domestic remedies laid down in Article 35 § 1 of the Convention requires applicants – using the legal remedies available in domestic law in so far as they are effective and adequate – to afford the respondent State the possibility of putting right the violations alleged against them before those allegations are submitted to the Court (see, among other authorities, Fressoz and Roire v. France [GC], no. 29183/95, § 37, ECHR 1999-I). 26. In the instant case, the Court observes that in his application to the domestic courts, stressing his profound disagreement with the obligation imposed on him to have an identity card indicating his religion as “Islam”, the applicant clearly challenged the indication at issue, relying on the constitutional protection of freedom of religion and conscience and his citizenship of a secular State (see paragraph 7 above). 27. The Court notes that at the material time it was mandatory in Turkey to indicate one’s religion on identity cards and that this had been held by the Constitutional Court in its judgment of 21 June 1995 to be in conformity with Article 24 § 3 of the Constitution, notwithstanding the indication in that same constitutional provision that “no one shall be compelled... to reveal his or her religious beliefs and convictions”. 28. Accordingly, having regard to the legal context at the material time as described above, the Court has no doubt that, in requesting that the indication “Islam” be replaced on his identity card by an indication of his “Alevi” faith, the applicant was seeking to benefit from the constitutional protection of freedom of religion and conscience guaranteed by Article 24 § 3 of the Turkish Constitution, particularly since before the Court of Cassation, he had clearly challenged the mandatory indication of religion, by requesting, in the alternative, that it be deleted from his identity card (see paragraph 10 above). 29. Consequently, the Court considers that, in his submissions to the Turkish courts, the applicant clearly referred to his complaints under Article 9 of the Convention. The Government’s preliminary objection of failure to exhaust domestic remedies must therefore be rejected. 2. Victim status 30. The Government submitted that the applicant could not claim to be the victim of a violation of his right to freedom to manifest his religion. They argued that the denial of the applicant’s request did not impair the essence of his right to manifest his religion, because the indication of religion on the identity card could not be interpreted as a measure compelling all Turkish citizens to disclose their religious beliefs and convictions and as a restriction on the freedom to manifest their religion in worship, teaching, practice and observance. Furthermore, referring to the case-law of the Turkish courts (see paragraph 16 above), the Government argued that anyone wishing to delete the relevant information in its entirety could apply to the civil courts. 31. The Court considers that the Government’s argument based on the applicant’s lack of victim status raises issues closely connected with the substance of the complaint under Article 9 of the Convention. The Court therefore joins it to the merits (see, mutatis mutandis, Airey v. Ireland, 9 October 1979, § 19, Series A no. 32). 3. Other grounds for inadmissibility 32. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and is not inadmissible on any other grounds. It must therefore be declared admissible. B. Compliance with Article 9 of the Convention 1. The parties’ arguments 33. The Government submitted that there had been no interference in the exercise by the applicant of his right to freedom of religion, because no direct connection could be made between the indication of religion on identity cards and freedom of religion and conscience. It could not be construed as a requirement to disclose one’s religious beliefs or as a restriction on the freedom to manifest one’s religion in worship, teaching, practice and observance. 34. Referring to the Turkish Constitutional Court’s judgment of 21 June 1995 (see paragraph 16 above), the Government further submitted that the indication of religion on identity cards

did not affect the substance of the right to freedom of religion and belief; it was required for the purposes of public policy, the general interest and social imperatives. It in no way constituted a measure aimed at compelling any individual to disclose his or her beliefs or at censuring or prosecuting anyone for his or her religious beliefs. The Republic of Turkey was a secular State in which freedom of religion was specifically enshrined in the Constitution. The measure complained of could not therefore be deemed to be a restriction on the applicant’s freedom of religion. 35. Furthermore, in the Government’s view, the content of the identity card could not be determined on the basis of the wishes of each individual. Having regard to the multitude of faiths within Islam (for example, Hanafi or Shafi) or mystical orders (such as Mevlevi, Qadiri or Naqshbandi), the various denominations or branches of the same religion had not to be indicated so as to preserve public order and the neutrality of the State. As regards the role of the Directorate of Religious Affairs, the Government submitted that, in accordance with the relevant legislation, that Directorate was responsible for giving advice on matters relating to the Muslim religion. It operated in conformity with the principle of secularism and was responsible for taking into consideration the fundamental bases of the Muslim religion which were valid for all Muslims. Furthermore, referring to Article 10 of the Constitution (see paragraph 12 above), they pointed out that the State was bound to ensure that the various sects and interpretations within the same religion were treated equally. 36. The applicant, who did not file his observations within the time allowed, submitted in his application form that the denial of his request to have the indication “Islam” on his identity card replaced by the indication of his faith as “Alevi”, amounted to an interference with his right to freedom to practise his religion. He also complained that he was obliged to disclose his belief because that indication was mandatory on identity cards. 2. The Court’s assessment 37. The Court reiterates that as enshrined in Article 9, freedom of thought, conscience and religion is one of the foundations of a “democratic society” within the meaning of the Convention. It is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it. That freedom entails, inter alia, freedom to hold or not to hold religious beliefs and to practise or not to practise a religion (see, among other authorities, Kokkinakis v. Greece, 25 May 1993, § 31, Series A no. 260-A, and Buscarini and Others v. San Marino [GC], no. 24645/94, § 34, ECHR 1999-I). 38. While religious freedom is primarily a matter of individual conscience, it also implies freedom to manifest one’s religion alone and in private or in community with others, in public and within the circle of those whose faith one shares. Furthermore, the Court has had occasion to point out that Article 9 enshrines negative rights, for example freedom not to hold religious beliefs and not to practise a religion (see, to this effect, Kokkinakis, and Buscarini and Others, cited above). 39. The Court notes that the applicant, who stated that he was a member of the Alevi religious community, had to carry an identity card on which his religion was indicated as “Islam”. On 7 May 2004 the applicant applied to the İzmir District Court to have his faith entered into the religion box (see paragraph 7 above). Furthermore, he challenged the mandatory indication of religion in the Court of Cassation, by asking in the alternative that it be deleted from his identity card, relying on his right not to be compelled to disclose his beliefs (see paragraph 10 above). However, on the basis of an opinion issued by the Directorate of Religious Affairs, the District Court rejected his requests on the ground that “only religions in general are indicated on identity cards and not an interpretation or branch of any particular religion”. As far as the national court was concerned, “the Alevi faith is an interpretation of Islam which is influenced by Sufism and which has specific cultural features” (see paragraph 9 above). 40. The Court observes that, in accordance with the domestic legislation applicable at the material time, the applicant, like all Turkish citizens, was obliged to carry an identity card indicating his religion. That public document had to be shown at the request of any public authority or private enterprise or in the context of any formality whatsoever requiring identification of the holder. 41. In this connection, the Court considers it necessary

to reiterate that in Sofianopoulos and Others v. Greece ((dec.), nos. 1977/02, 1988/02 and 1997/02, ECHR 2002-X), it found that an identity card could not be regarded as a means intended to ensure that the adherents of any religion or faith whatsoever should have the right to exercise or manifest their religion. However, it considers that the right to manifest one’s religion or beliefs also has a negative aspect, namely an individual’s right not to be obliged to disclose his or her religion or beliefs and not to be obliged to act in such a way that it is possible to conclude that he or she holds – or does not hold – such beliefs. Consequently, State authorities are not entitled to intervene in the sphere of an individual’s freedom of conscience and to seek to discover his or her religious beliefs or oblige him or her to disclose such beliefs (see Alexandridis v. Greece, no. 19516/06, § 38, 21 February 2008). The Court will examine this case from the angle of the negative aspect of freedom of religion and conscience, namely the right of an individual not to be obliged to manifest his or her beliefs. 42. The Court does not find persuasive the Government’s argument that the indication at issue could not be interpreted as a measure compelling all Turkish citizens to disclose their religious convictions and beliefs. What is at stake is the right not to disclose one’s religion or beliefs, which falls within the forum internum of each individual. This right is inherent in the notion of freedom of religion and conscience. To construe Article 9 as permitting every kind of compulsion with a view to the disclosure of religion or belief would strike at the very substance of the freedom it is designed to guarantee (see, mutatis mutandis, Young, James and Webster v. the United Kingdom, 13 August 1981, § 52, Series A no. 44; see also the dissenting opinion of one of the Constitutional Court judges, paragraph 16 above). 43. Furthermore, given the frequent use of the identity card (school registration, identity checks, military service and so on), the indication of religious beliefs in official documents such as identity cards exposes the bearers to the risk of discriminatory situations in their relations with the administrative authorities (see Sofianopoulos and Others, cited above). 44. Moreover, the Court cannot see why it would be necessary to indicate religion in civil registers or on identity cards for demographic purposes, which would necessarily involve legislation making it mandatory to declare one’s religious beliefs. 45. The Court also notes that the applicant challenged the procedure rejecting his application, in the course of which the Directorate of Religious Affairs had described his faith as an interpretation of Islam (see paragraph 22 above). In that regard, the Court notes that it has always stressed that, in a democratic society where the State is the ultimate guarantor of pluralism, including religious pluralism, the role of the authorities is not to adopt measures favouring one interpretation of religion over another aimed at forcing a divided community, or part of it, to come together under a single leadership against its own wishes (see Serif v. Greece, no. 38178/97, § 53, ECHR 1999-IX). The State’s duty of neutrality and impartiality, as defined in its case-law, is incompatible with any power on the State’s part to assess the legitimacy of religious beliefs, and requires the State to ensure that conflicting groups tolerate each other, even where they originated in the same group (see, mutatis mutandis, Manoussakis and Others v. Greece, 26 September 1996, § 47, Reports of Judgments and Decisions 1996-IV, and Metropolitan Church of Bessarabia and Others v. Moldova, no. 45701/99, § 123, ECHR 2001-XII). 46. The Court therefore considers that the assessment of the applicant’s religion by the domestic authorities, on the basis of an opinion issued by an authority responsible for Islamic religious affairs, is in breach of the State’s duty of neutrality and impartiality. 47. The Government drew the Court’s attention to the fact that since the legislative amendment resulting from the Civil Registry Services Act, the applicant had been entitled to request that the religion box be left blank (see paragraphs 17-18 above). 48. The Court observes that under the Civil Registry Services Act of 29 April 2006, civil registers continue to hold information on the religion of individuals (section 7 of that Act). However, under section 35(2), “[i]nformation relating to a person’s religion shall be entered or amended in accordance with the written statements of the person concerned; the box for this purpose may be left blank or the information may be deleted”. 49. In the Court’s view, that amendment does not affect the considerations expressed above because identity cards

still contain a religion box – whether or not it is left blank. Furthermore, anyone wishing to amend the information concerning his or her religion as indicated on the identity card or refusing to indicate his or her religion on the card has to submit a written statement. Although the relevant legislation and regulations are silent as to the content of that statement, the Court observes that the mere fact of having to apply for religion to be deleted from civil registers could constitute disclosure of information concerning an aspect of the individual’s attitude to religion (see, among other authorities, Folgerø and Others v. Norway [GC], no. 15472//02, § 98, ECHR 2007-III, and Hasan and Eylem Zengin v. Turkey, no. 1448/04, § 73, 9 October 2007). 50. That also holds true for the applicant. He must inform the authorities of his faith in order to have that information recorded on his identity card. Since the card is obtained in this way and is frequently used in everyday life, it constitutes de facto a document requiring the applicant to disclose his religious beliefs against his will every time he uses it. 51. In any event, when identity cards have a religion box, leaving that box blank inevitably has a specific connotation. Bearers of identity cards which do not contain information concerning religion would stand out, against their will and as a result of interference by the authorities, from those who have an identity card indicating their religious beliefs. Furthermore, the fact of asking for no information to be shown on identity cards is closely linked to the individual’s most deeply held beliefs. Accordingly, the Court considers that the issue of disclosure of one of an individual’s most intimate aspects still arises. 52. That situation is undoubtedly at odds with the principle of freedom not to manifest one’s religion or belief. That having been said, the Court observes that the breach in question arises not from the refusal to indicate the applicant’s faith (Alevi) on his identity card but from the problem of the indication – whether obligatory or optional – of religion on the identity card. It concludes therefore that the applicant may still claim to be the victim of a violation, notwithstanding the legislative amendment passed on 29 April 2006, and dismisses the Government’s objection (see paragraph 31 above). 53. There has therefore been a violation of Article 9 of the Convention. II. ALLEGED VIOLATION OF ARTICLES 6 AND 14 OF THE CONVENTION 54. The applicant also complained of a violation of Article 6 of the Convention on the ground that the İzmir District Court had sought only the opinion of the Directorate of Religious Affairs, a public institution. In his view, that institution was not qualified to provide an opinion on Alevis since it was not specialised in the Alevi faith and had no interest in it. He added that had the court sought the opinion of the Federation of Alevi-Bektashi Associations (a private federation of Alevi associations), its interpretation would have been different from that of the Directorate of Religious Affairs. The court should have sought the opinion of that federation or of religious-affairs specialists. The applicant argued that the domestic courts had therefore conducted an inadequate investigation, rendering the proceedings unfair. 55. Lastly, the applicant stated that his request had been denied by the domestic courts because he was a member of the Alevi religious community. The District Court had merely sought the opinion of a public institution which denied the very existence of Alevis and had not sought the opinion of the above-mentioned federation. In the applicant’s view, that amounted to discrimination and, hence, a violation of Article 14 of the Convention. 56. The Government disputed that argument. 57. The Court notes that these complaints are related to those that it has examined above and must therefore also be declared admissible. However, having regard to its finding under Article 9 of the Convention (see paragraph 53 above), the Court considers that there is no need to examine separately whether there has in the instant case been a violation of the other provisions relied upon by the applicant. III. APPLICATION OF ARTICLES 41 AND 46 OF THE CONVENTION 58. Articles 41 and 46 of the Convention provide: Article 41 “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” Article 46 “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.” 59. The applicant

did not submit a claim for just satisfaction within the time-limit set. The Court therefore considers that there is no need to award him any amount under that head. 60. The Court also observes that in the instant case, it has ruled that indicating a citizen’s religion in civil registers or on identity cards is incompatible with the freedom not to disclose one’s religion (see paragraph 53 above). These conclusions in themselves imply that the violation of the applicant’s right, as secured by Article 9 of the Convention, has arisen out of a problem relating to the indication – whether obligatory or optional – of religion on identity cards. In this regard, it considers that the removal of the religion box could constitute an appropriate form of redress to put an end to the breach it has found. FOR THESE REASONS, THE COURT 1. Declares by a majority the application admissible; 2. Joins to the merits by six votes to one the Government’s objection concerning the applicant’s lack of victim status and dismisses it by six votes to one; 3. Holds by six votes to one that there has been a violation of Article 9 of the Convention; 4. Holds by six votes to one that there is no need to examine separately whether there has been a violation of Articles 6 and 14 of the Convention in the instant case. Done in French, and notified in writing on 2 February 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Sally Dollé Françoise Tulkens Registrar President In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the dissenting opinion of Judge Cabral Barreto is annexed to this judgment. F.T.S.D. DISSENTING OPINION OF JUDGE CABRAL BARRETO (Translation) To my great regret, I am unable to agree with the majority finding of a violation of Article 9 of the Convention for reasons of both form and substance. 1. The Court, in its judgment, examined the application from three angles: – the applicant’s request to have “Islam” replaced by “Alevi” to indicate his religion; – or, in the alternative, the request to have the indication of religion, in this case “Islam”, deleted from his identity card; – removal of the religion box from the identity card. 2. It would appear to me that as regards the first two points, the applicant no longer has victim status. In fact, as a result of the reform of 29 September 2006, it is now possible to delete information concerning religion. The religion box on identity cards may be left blank or the information may be deleted. Moreover, such action will be taken on a simple written request. I am therefore of the view that the complaints concerning the first two points have been remedied domestically and that, consequently, this part of the application should be struck out of the list. 3. The third aspect – removal of the religion box from the identity card – raises issues of both form and substance. 3.1. An issue of form – failure to exhaust domestic remedies. This issue was not raised before the national authorities by the applicant or by any other person. Before the national courts and even before the Court, the applicant restricted himself to the first two points. The Court is unaware of any domestic practice that would allow it to ignore this admissibility criterion. It is true that the Government did not address this point, and according to existing case-law, if the Government do not raise this ground of inadmissibility, the Court cannot then apply it of its own motion once notice of the application has been given. However, in the present case, the Government were not faced with such a problem and cannot therefore be criticised for an omission for which they were not responsible. Had the Court wanted to examine the application from that perspective, either because it had considered from the outset that the application raised that issue or because in its view the complaint was bound up with the other specific complaints lodged by the applicant, it should have invited the Government to respond on that point. However, the Court could not examine that complaint at the judgment stage, given that it had not been raised by the applicant before the national courts or communicated to the Government. 3.2. If, as the majority have done, one were to consider that there was no formal obstacle to examination of the merits of the complaint, I have to say that I cannot subscribe to the approach that “the fact of asking for no information to be shown on identity cards is closely linked to the individual’s most deeply held beliefs” and that “the issue of disclosure of one of an

individual’s most intimate aspects still arises”, a situation which “is undoubtedly at odds with the principle of freedom not to manifest one’s religion or belief” (see paragraphs 51 and 52 of the judgment). I must point out firstly that I fully agree with the Court’s case-law as reflected in Folgerø and Others v. Norway ([GC], no. 15472//02, ECHR 2007-III), and Hasan and Eylem Zengin v. Turkey (no. 1448/04, 9 October 2007), both cited at paragraph 49 of the judgment. At paragraph 98 of Folgerø and Others, the Court refers to “an obligation on parents to disclose detailed information to the school authorities about their religions and philosophical convictions” and to the fact that “inherent in the condition to give reasonable grounds was a risk that the parents might feel compelled to disclose to the school authorities intimate aspects of their own religious and philosophical convictions” [my emphasis]. In Hasan and Eylem Zengin, cited above, the Court considered that “the fact that parents must make a prior declaration to schools stating that they belong to the Christian or Jewish religion in order for their children to be exempted from the classes in question may also raise a problem under Article 9 of the Convention”. In short, religious beliefs fall within the forum internum of each individual and an issue may be raised under Article 9 of the Convention if a person is compelled to disclose them to the authorities. However, requests to have the indication of religion deleted from identity cards are not subject to any limitation but merely to a written declaration. In that declaration, the individual is not obliged to disclose his or her religion or to give any information at all about his or her beliefs, but merely to ask that no indication be given in the relevant box. It would appear to me that the majority are going too far when they say that “the mere fact of having to apply for religion to be deleted from civil registers could constitute disclosure of information concerning an aspect of the individual’s attitude to religion”. The majority go beyond the case-law on which they rely, which requires that in order for a violation of Article 9 of the Convention to be found, a person should at least be compelled to disclose his or her religion. In the instant case, persons requesting deletion of the indication, whether Alevi, Christian, Jewish or atheist, are entitled to hold an identity card that contains no information about their religion or beliefs without the authorities knowing what they believe. In my view, the majority’s interpretation goes beyond the bounds of our case-law and constitutes an excessive approach, scarcely in keeping with the margin of appreciation that should be afforded to the States in this area. 4. That having been said, I must admit, and I would even go so far as to say that I find it regrettable, that I cannot understand why the identity card should indicate a person’s religion (even on a voluntary basis) because I cannot see the significance or use of any such information. [1]. The majority of Turkey’s population follows the Hanafite theological school’s moderate interpretation of Islam. [1]. Ali was the fourth caliph of Islam. He is considered by Alevis to be the first Imam and plays a central role in that faith.

FOURTH SECTION CASE OF KARWOWSKI v. POLAND (Application no. 29869/13) JUDGMENT STRASBOURG 19 April 2016 FINAL 21/07/2016 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Karwowski v. Poland, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: András Sajó, President,Vincent A. De Gaetano,Boštjan M. Zupančič,Nona Tsotsoria,Krzysztof Wojtyczek,Egidijus Kūris,Gabriele Kucsko-Stadlmayer, judges,and Marialena Tsirli, Section Registrar, Having deliberated in private on 29 March 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 29869/13) 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 Dariusz Karwowski (“the applicant”), on 19 March 2013. 2. The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska of the Ministry of Foreign Affairs. 3. The applicant alleged, in particular, that the imposition of the “dangerous detainee” regime on him and its lengthy application amounted to inhuman and degrading treatment in breach of Article 3 of the Convention. 4. On 7 July 2014 the complaint under Article 3 of the Convention was communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1971 and is currently in detention in Warsaw. A. Criminal proceedings against the applicant 6. On 17 January 2006 the applicant was arrested and detained on remand. He was suspected of the murder of two people and of inciting the murder of another person who had intended to testify against him in a separate set of proceedings. 7. He was subsequently convicted several times for various offences. In particular, on 27 February 2013 the Warsaw Regional Court convicted him of murder. B. Imposition of the “dangerous detainee” regime 8. On 19 January 2006 the Warsaw Remand Centre Penitentiary Commission (“the commission”) classified the applicant as a dangerous detainee. The decision stated as follows: “The commission hereby decides that [the applicant] is to be placed in a designated wing or cell in a remand centre in conditions which provide increased protection for society and for the security of the remand centre. The commission approves the proposals of the directors of the protection and prison wings. The detainee has been informed of his right to appeal against the commission’s decision within seven days to the Warsaw Regional Court, XI Penitentiary Division.” The last sentence of the decision contained information about who was to be informed about the applicant’s placement in a cell for dangerous detainees. 9. The applicant did not appeal against that decision. 10. The commission reviewed and upheld its decision to classify the applicant as a dangerous detainee on several occasions. In total, there were over thirty decisions to extend the period of imposition of the regime in respect of the applicant. All the decisions were based on the same pattern of wording, which read as follows: “The commission has decided to extend [the applicant’s categorisation as a dangerous detainee] as the reasons for his placement in a cell in conditions which provide increased protection for society and for the security of the remand centre have not ceased to exist.” 11. In particular, a decision of 3 January 2013 to extend the imposition of the dangerous detainee regime on the applicant referred to the seriousness of the charges against him and his highly deficient moral character. 12. An appeal by the applicant against the latter decision was the only one he made against the series of decisions to impose and extend the dangerous detainee regime on him. 13. On 30 January 2013 the Warsaw Regional Court dismissed the appeal. The court held that the decision had been lawful. 14. On 21 November 2013 the commission

lifted the dangerous detainee regime applied to the applicant. C. Specific aspects of the regime 15. The applicant was kept in a cell which was constantly monitored via closed‑circuit television. He was subjected to a body search every time he left or entered the cell, which meant in practice that he had to strip naked in front of prison officers. II. RELEVANT DOMESTIC LAW AND PRACTICE 16. The relevant domestic law and practice concerning the imposition of the “dangerous detainee” regime are set out in the Court’s judgments in the cases of Piechowicz v. Poland (no. 20071/07, §§ 110-17, 17 April 2012), and Horych v. Poland (no. 13621/08, §§ 49-56, 17 April 2012). 17. The provisions of the Code of Execution of Criminal Sentences concerning the imposition of the regime on convicted persons read as follows: Article 88 § 3 “A convicted person posing a serious danger to society or to the security of a prison shall be placed in a prison with a closed regime in conditions ensuring increased protection of society and the security of the prison.” Article 88a “1. The convicted person referred to in Article 88 § 3 shall be placed in a designated wing or in a cell of a prison with a closed regime. A penitentiary judge shall be informed about this placement. 2. The provisions of paragraph 1 above shall be applied to a convicted person whose characteristics, personal circumstances, motivations, behaviour when committing the offence, type of offence and its consequences, behaviour in prison, or degree of depravity pose a serious danger to society or to the security of a prison, and who: (2a) during the prior or current term of imprisonment posed a danger to the security of a prison or a remand centre in that he was a leader or an active participant in a collective remonstrance in a prison or a remand centre...” 18. Article 88b of the Code of Execution of Criminal Sentences lays down specific arrangements applicable to convicted persons to whom the “dangerous detainee” regime is applied. They are identical to those specified in Article 212b of the Code applicable to persons remanded in custody (see Piechowicz, cited above, § 106). THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 19. The applicant complained that he had been unlawfully classified as a dangerous detainee and subjected to degrading treatment prohibited by Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 20. The Government contested that allegation. A. Admissibility 1. The parties’ submissions 21. The Government argued that the applicant had failed to make use of the available remedies, as he had only appealed against one of the Penitentiary Commission’s decisions. He had not appealed against the commission’s first decision of 19 January 2006 imposing the regime on him or against most of the subsequent decisions. He had appealed only once, against the decision of 3 January 2013. The Government argued that the applicant had been informed on each occasion about the time-limit for lodging an appeal, but that he had remained totally passive. They concluded by submitting that the application should be rejected for non-exhaustion of domestic remedies. 22. The applicant did not comment on the Government’s objection. 2. The Court’s assessment 23. The Court reiterates that although Article 35 § 1 of the Convention requires that complaints intended to be brought subsequently before the Court should have been made to the appropriate domestic body, it does not require that recourse should be had to remedies that are inadequate or ineffective (see Egmez v. Cyprus no. 30873/96, § 64, ECHR 2000‑XII). 24. In the present case the Court observes that the applicant appealed against one of the decisions extending his classification as a dangerous detainee, namely the decision of 3 January 2013 (see paragraph 12 above). 25. The Court reiterates that Article 35 of the Convention, which sets out the rule on exhaustion of domestic remedies, provides for a distribution of the burden of proof. It is incumbent on the Government claiming non‑exhaustion to satisfy the Court that the remedy was an effective one available in theory and practice at the relevant time, that is to say, that it was accessible, was capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success. In the present case the Court is not persuaded by the evidence provided by the Government in support of their objection. 26. In any event, in the present case the alleged non-exhaustion of domestic remedies is inseparably linked with the Court

’s assessment of the reasonableness of the measures complained of, and in particular with the question whether the lengthy imposition of the dangerous detainee regime on the applicant was properly justified by the authorities. In the Court’s view, it would therefore be more appropriate to deal with the Government’s argument at the merits stage. 27. The Court accordingly joins the Government’s plea of inadmissibility on the grounds of non-exhaustion to the merits of the case. 28. The Court further notes that this complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 of the Convention and is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The applicant 29. The applicant submitted that the prolonged imposition of the dangerous detainee regime on him had been in breach of Article 3 of the Convention. In his opinion, there had been no reasonable grounds for applying the regime to him. He submitted, in particular, that he had never had a disciplinary punishment in prison and that for many years he had felt “depressed owing to isolation, loneliness and the many body searches”. 30. He also submitted that keeping him in solitary confinement amounted to inhuman treatment, which had “permanently affected his mental state”. 2. The Government 31. In their observations the Government submitted that they wished to refrain from expressing an opinion on the merits of the present case. 3. The Court’s assessment (a) General principles deriving from the Court’s case-law 32. The relevant general principles deriving from the Court’s case-law were recently summarised in its judgments in Piechowicz (cited above, §§ 158-165) and Horych (cited above, §§ 85-92). (b) Application of the above principles in the present case 33. The Court notes that there is no dispute over the fact that from 19 January 2006 to 21 November 2013 – that is, for almost eight years – the applicant was classified as a dangerous detainee and, in consequence, subjected to high‑security measures and various restrictions (see paragraph 15 above). The main aspects of the regime raised by the applicant and specified below have not been contested by the Government (see paragraph 31 above). 34. The measures applied in the applicant’s case comprised confinement in a special high-security prison wing and increased supervision of his movements within and outside the prison. The measures involved his segregation from the prison community and restrictions on contact with his family. Every time he left or entered his cell he was routinely subjected to a full strip search – a thorough inspection of his body and clothes, which required him to strip naked and bend over in order to enable the examination of his anus (see Piechowicz, cited above, § 166). In addition, his cell, including the sanitary facilities, was constantly monitored via closed‑circuit television. 35. The Government did not contest those allegations. As noted above, they decided to refrain from making any comment on the merits of the present case (see paragraph 31 above). 36. The Court notes that the decision of 19 January 2006 imposing the dangerous detainee regime on the applicant was a legitimate measure, warranted by the fact that he had been charged with many violent offences (see paragraph 6 above). It was therefore not unreasonable on the part of the authorities to consider that, for the sake of ensuring prison security, he should be subjected to tighter security controls, involving increased and constant supervision of his movements within and outside his cell, restrictions on his contact and communication with the outside world, and some form of segregation from the rest of the prison community. 37. However, for the reasons stated below, the Court cannot accept that the continued, routine and indiscriminate application of the full range of measures that were available to the authorities under the dangerous detainee regime for almost eight years was necessary in order to maintain prison security or compatible with Article 3 of the Convention. 38. It does not appear that the authorities made any effort to counteract the effects of the applicant’s isolation by providing him with the necessary mental or physical stimulation. 39. The Court has even more misgivings with regard to the full body search to which the applicant was likewise subjected daily, or even several times a day, whenever he left or entered his cell. The Court has already held in Piechowicz (cited above, § 176) that while strip searches might be necessary to ensure prison security or to prevent disorder or crime, it was not persuaded by the Government’s argument that such systematic, intrusive and exceptionally embarrassing checks performed daily, or even several times a day, were necessary to ensure prison security. Strip searches were carried out as a matter of routine and were not linked to any specific security needs, or to any specific suspicion

concerning the applicant’s conduct. 40. Having regard to the fact that the applicant was already being subjected to several other strict surveillance measures and that the authorities did not rely on any specific or convincing security requirements, the Court considers that the practice of daily strip searches, applied to him for almost eight years, must have caused him feelings of inferiority, anguish and accumulated distress which went beyond the unavoidable suffering and humiliation involved in the imposition of pre‑trial detention (see Horych, cited above, § 101, and Piechowicz, cited above, § 176). 41. Lastly, the Court would add, as it has already held (see Piechowicz, cited above, § 177), that owing to the strict and rigid rules for the imposition of the special regime and the vaguely defined “particular circumstances” for discontinuing it, as laid down in Article 212a § 3 of the Code of Execution of Criminal Sentences, the authorities, in extending the regime, were not in fact obliged to consider any changes in the applicant’s personal situation and, in particular, the combined effects of the continued application of the impugned measures. 42. In the present case, it emerges from the relevant decisions that the authorities failed to give any specific reasons for classifying the applicant as a dangerous detainee (see paragraph 8 above). Further decisions extending the application of the regime to the applicant referred only to the fact that the reasons relied on previously had not ceased to exist (see paragraph 10 above). It follows that the procedure for review of the applicant’s dangerous detainee status became a pure formality, being limited to the repetition of the same grounds in successive decisions (see Piechowicz, cited above, § 177). 43. In conclusion, assessing the facts of the case as a whole and considering the cumulative effects of the dangerous detainee regime on the applicant, the Court finds that the authorities did not provide sufficient and relevant reasons which could justify, in the circumstances of the case, the severity of the measures taken. In particular, the authorities failed to show that the impugned measures were necessary in their entirety to attain the legitimate aim of ensuring prison security. There has accordingly been a violation of Article 3 of the Convention. In consequence, and particularly in the light of the findings in paragraph 42 above, the Government’s preliminary objection based on non-exhaustion of domestic remedies (see paragraph 21 above) must be rejected. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 44. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 45. The applicant claimed 100,000 euros (EUR) in respect of pecuniary and non-pecuniary damage. 46. The Government considered this amount excessive. 47. The Court awards the applicant EUR 11,000 in respect of non‑pecuniary damage. B. Costs and expenses 48. The applicant did not make any claim for costs and expenses. C. Default interest 49. 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 Government’s objection of non-exhaustion to the merits of the case and rejects it; 2. Declares the application admissible; 3. Holds that there has been a violation of Article 3 of the Convention; 4. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 11,000 (eleven thousand euros), in respect of non-pecuniary damage, plus any tax that may be chargeable to the applicant, to be converted into the currency of the respondent State at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 19 April 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Marialena TsirliAndrás SajóRegistrarPresident

SECOND SECTION CASE OF PYRANTIENĖ v. LITHUANIA (Application no. 45092/07) JUDGMENT (merits) STRASBOURG 12 November 2013 FINAL 12/02/2014 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Pyrantienė v. Lithuania, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Guido Raimondi, President,Danutė Jočienė,Peer Lorenzen,Dragoljub Popović,Işıl Karakaş,Nebojša Vučinić,Paulo Pinto de Albuquerque, judges,and Stanley Naismith, Section Registrar, Having deliberated in private on 22 October 2013, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 45092/07) against the Republic of Lithuania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Lithuanian national, Ms Kotrina Pyrantienė (“the applicant”), on 11 October 2007. 2. The applicant was represented by Mr A. Novikovas, a lawyer practising in Vilnius. The Lithuanian Government (“the Government”) were represented by their Agent, Ms E. Baltutytė. 3. The applicant alleged that she did not receive adequate compensation after decisions of the domestic courts had deprived her of the property she had owned for nine years, in breach of Article 1 of Protocol No. 1 to the Convention. 4. On 29 June 2012 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1942 and lives in Akademija, Kaunas Region. 6. In 1994 a local authority assigned a plot of land of 0.5 hectares to the applicant. On 6 August 1996 the Kaunas Region Administration confirmed the sale of the land to the applicant. 7. By an agreement of 24 September 1996 she acquired the plot of land from the State for 61 “single-use investment vouchers” (investiciniai čekiai) and registered it with the Land Registry in her name. 8. The applicant then grew vegetables on the plot and sold them at the market. 9. Following a civil claim brought in December 2001 by third parties seeking restoration of ownership rights to that plot, on 2 October 2003 the Kaunas Regional Court, acting as a court of appeal, quashed the authorities’ decision of 6 August 1996 as unlawful, and cancelled the sale of the disputed plot of land, which then had to be returned to the State. It was concluded that the authorities did not have the right to sell that plot of land as the former owners had already in 1991 lodged a request for restoration of their property rights to the nationalised property. It was also decided to remit the case to the first-instance court for the determination of questions of restitution and compensation, as the land-sale agreement had now been declared null and void. On 6 February 2004 the Supreme Court refused the applicant leave to appeal on points of law as out of time. 10. After the plot of land was taken from the applicant by the State, it was transferred to the former owners following a decision of 16 September 2005 by the Kaunas Region Administration to restore ownership rights to T.M.K. and J.R. 11. After the case had been remitted to the first-instance court an independent expert was appointed in the proceedings. 12. A valuation of the plot was carried out by an independent and certified valuer, which included a comprehensive assessment of the characteristics of that plot of land and estimated its value by comparing market prices. 13. It was established that the plot’s market value in September 2005 was 112,500 Lithuanian litai (LTL, approximately 32,580 euros (EUR)) while in August 1996 it had amounted to LTL 18,000. Nonetheless, the Kaunas Regional Court, acting as a court of first instance, on 5 October 2006 decided to award the applicant L

TL 1,466 (approximately EUR 430), noting that that price corresponded to the sum the applicant had paid in single-use investment vouchers in 1996. 14. On 26 February 2007 the Court of Appeal upheld the decision of the lower court and rejected the applicant’s arguments that Article 6.147 § 2 of the Civil Code had to be applied by awarding the applicant the highest value of the property, as she had been deprived of it because of error by the State authorities. 15. On 8 May 2007 the Supreme Court refused to accept the applicant’s cassation appeal for examination, on the ground that her appeal raised no important legal issues. II. RELEVANT DOMESTIC LAW AND PRACTICE A. Statutory provisions 16. The Constitution of the Republic of Lithuania provides: Article 23 “Property shall be inviolable. Rights of ownership shall be protected by law.Property may be expropriated only for the needs of society and in accordance with the procedure established by law, and shall be justly compensated.” 17. The Law on the procedure and conditions for restoration of ownership rights to existing real property (Įstatymas dėl piliečių nuosavybės teisių į išlikusį nekilnojamąjį turtą atstatymo tvarkos ir sąlygų), enacted on 18 June 1991 and amended on numerous occasions (hereinafter “the Restitution Law”), provided that, in restoring property rights, priority was to be given to restitution in natura. The State retained the right to buy out a property from the previous owners if the current social conditions and relations so required. In particular, Article 12 paragraph 1 (3) of the Law provided that the State could buy out land in a rural area which had been allocated to a farmer and was occupied by a personal plot, house or other structures of which the farmer had the right of ownership. 18. The relevant part of the Civil Code, in force since 1 July 2001, provides as follows: Article 1.80 Nullity of a transaction that does not comply with the mandatory statutory provisions “1. Any transaction that fails to comply with the mandatory statutory provisions shall be null and void. 2. When a transaction is declared null and void, each party shall be required to restore to the other party everything he or she has received by means of that transaction (restitution). Where it is impossible to restore in kind the items received, the parties shall be required to compensate each other in money, unless the law provides for other consequences as a result of the transaction’s being declared void...” Article 6.147 Estimation of monetary equivalent “1. Monetary equivalent shall be estimated according to prices that were valid at the time when the debtor received what he is liable to restore. 2. In the event of destruction or transfer of property subject to restitution, the person shall be bound to compensate for the value of the property as it was at the time when the property was received, destroyed or transferred, or at the time of its restitution, whichever value is the lowest. In the event of the person liable to make restitution being in bad faith, or where the restitution is due to his fault, he shall be bound to return the highest value of the property.” 19. Article 6.271 of the Civil Code provides that damage caused by unlawful acts by institutions of public authority must be compensated for by the State, irrespective of the fault of a particular public servant or other employee of the public authority institution. 20. The Government’s decree no. 816 on allocation of plots of land for personal and service use, in force since 4 November 1993, provided that new plots of land for individual farming must be measured only in areas which had previously been used as individual farm plots or had been allocated as individual farm plots in accordance with the plans established for that territory during the land reform. B. Lithuanian courts’ practice 21. In its ruling of 27 May 1994 the Constitutional Court held, inter alia, that possessions which had been nationalised by the Soviet authorities since 1940 should be considered as “property under the de facto control of the State”. The Constitutional Court also stated that, if possible, the property rights should be restored in natura. It further ruled that buying out land in rural areas for the purpose of building private housing served no public interest, since after such land had been bought out it could be privatised, thereby breaching the previous owners’ right to restitution. 22. On the issue of the lawfulness of the sale of previously nationalised property, in its decisions nos. 3K-3-384/1999 of 6 September 1999 and 3K-3-698

/2003 of 16 June 2003 the Supreme Court held that as long the question of the restoration of the former owner’s property rights was pending and had not been definitively resolved, that property had to be considered as disputed. Accordingly, such properties could not be transferred to third parties, because this could result in successive violations of the former owner’s ownership rights. THE LAW I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION 23. The applicant complained that she had not been adequately compensated for the deprivation of her land by the authorities. The domestic courts failed to take into account the plot’s market value in 2005 and applied instead its nominal value in 1996, which was many times lower. As a result, the applicant was unable to acquire a new similar plot of land with the compensation she had been awarded. She relied on Article 1 of Protocol No. 1, which reads as follows: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law...” A. Admissibility 24. The Government submitted that the applicant had failed to exhaust all the effective domestic remedies by not initiating new separate judicial proceedings under Article 6.271 of the Civil Code against the State for redress for the allegedly inadequate compensation. 25. The applicant did not comment on that argument. 26. The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges applicants to use the remedies that are normally available and sufficient in the domestic legal system to enable them to obtain redress for breaches alleged to have taken place. The existence of the remedies must be sufficiently certain, in practice as well as in theory, failing which they will lack the requisite accessibility and effectiveness; it falls to the respondent State to establish that these various conditions are satisfied (see Vernillo v. France, 20 February 1991, § 27, Series A no. 198; Aksoy v. Turkey, no. 21987/93, §§ 51-52, Reports of Judgments and Decisions 1996-VI; and Akdivar and Others v. Turkey, no. 21893/93, §§ 65-67, Reports 1996-IV). 27. The Court finds that the remedy referred to by the Government was inadequate to secure redress for the alleged breach, as the Government did not provide evidence of its effectiveness at the time when the present application was introduced. 28. What is more, the Court does not see how those new proceedings could effectively have offered a more favourable outcome to the applicant than those which she had already undergone after the case’s remittal for re-examination to have the amount of compensation for returned property established (see paragraph 11 above). As a result, it has not been demonstrated that a claim under Article 6.271 of the Civil Code would have been an effective remedy in the applicant’s case (see, mutatis mutandis, Beshiri and Others v. Albania, no. 7352/03, § 55, 22 August 2006, and Zwierzynski v. Poland (dec.), no. 34049/96, 15 June 2000). 29. Accordingly, the Court dismisses the Government’s objection that the applicant failed to exhaust domestic remedies. 30. 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 31. The applicant alleged that the compensation awarded to her was unfair and inadequate, as it was many times lower than the market value of the land when she lost her title to it. Therefore, she could not afford to acquire a new comparable plot of land, especially taking into account her advanced age and the fact that she had had a disability since 1994. The applicant also did not agree with the Government’s allegation that such interference was necessary to protect the public interest. 32. The applicant further argued that in 1996 she purchased the property in good faith and in accordance with the laws in force and the authorities’ decisions. Therefore she should not be made to bear the burden of responsibility, which rightly belonged to the State. 33. The applicant lastly contended that being an honest acquirer of the disputed land and relying on the decisions of the State authorities she had legitimate expectations that she would remain the owner and could engage in agricultural activities, which she actually did for nine years. 34. The Government contested those arguments and submitted that the interference complained of was carried out in accordance with the provisions of the Civil Code concerning the return of property after a

contract of sale is declared null and void by the courts. The size of the compensation was predetermined also by the fact that the applicant had paid an advantageous price in 1996 and had not made any major improvements to the plot. Moreover, having regard to the fact that the applicant lived elsewhere, the property did not constitute her only home, so the present case had to be distinguished from other similar cases examined by the Court. According to the Government, reimbursement of the full market price would have resulted in unjust enrichment of the applicant. 35. They also maintained that the interference with the applicant’s property rights was justified by the public interest, namely by the defence of the rights of the former owners, who lost their title to the land during the communist regime. As such, the decision of the courts to declare the relevant administrative acts of 1994-96 unlawful were taken in accordance with the Restitution Law and well-established practice of the Supreme Court and of the Constitutional Court of Lithuania. In the process of restoration of property rights priority is given to the return of previously nationalised property to its former owners in natura; therefore, nationalised property cannot be transferred to other individuals if the question of the restoration of ownership rights of the former owners is still pending. 36. In addition, the domestic courts established that the allocation of the land to the applicant in 1996 was in breach of Government Resolution 816 of 29 October 1993, because that land had not been farmed before it was allocated to the applicant as an individual farm plot. 2. The Court’s assessment (a) General principles 37. The Court refers to its established case-law on the structure of Article 1 of Protocol No. 1 and the manner in which the three rules contained in that provision are to be applied (see, among many other authorities, J.A. Pye (Oxford) Ltd and J.A. Pye (Oxford) Land Ltd v. the United Kingdom [GC], no. 44302/02, § 52, ECHR 2007-III; Bruncrona v. Finland, no. 41673/98, §§ 65-69, 16 November 2004; and Broniowski v. Poland [GC], no. 31443/96, § 134, ECHR 2004-V). 38. The Court reiterates that any interference by a public authority with the peaceful enjoyment of possessions should be lawful, must be in the public interest, and must pursue a legitimate aim by means reasonably proportionate to the aim sought to be realised (see Doğrusöz and Aslan v. Turkey, no. 1262/02, § 27, 30 May 2006, and Moskal v. Poland, no. 10373/05, §§ 49-50, 15 September 2009). 39. An interference with the peaceful enjoyment of possessions must therefore strike a “fair balance” between the demands of the public or general interest of the community and the requirements of the protection of the individual’s fundamental rights. 40. In this connection, the taking of property without payment of an amount reasonably related to its value will normally constitute a disproportionate interference that cannot be justified under Article 1 of Protocol No. 1. This provision does not, however, guarantee a right to full compensation in all circumstances, since legitimate “public interest” objectives may call for reimbursement of less than the full market value (see, among other authorities, Papachelas v. Greece [GC], no. 31423/96, § 48, ECHR 1999-II). (b) Application of the above principles in the present case (i) Whether there has been an interference with the applicant’s possessions 41. The Court reiterates that the plot of land was allocated to the applicant in 1994 and she purchased it from the Kaunas Region Administration in 1996. It was registered in her name, without interruption, until 2005. 42. The Court thus finds that the decision of the domestic courts to annul the applicant’s title had clearly the effect of depriving the applicant of her property within the meaning of the second sentence of Article 1 of Protocol No. 1 (see, mutatis mutandis, Doğrusöz and Aslan, cited above, § 29). (ii) Lawfulness of the interference 43. The decision of the courts to annul the land purchase agreement was prescribed by law, as it was based on provisions of the Restitution Law, Articles 1.80, 6.146 and 6.147 of the Civil Code, as well as in line with the jurisprudence of the Supreme Court and the Constitutional Court. The Court therefore finds that there is no reason to doubt that the deprivation was in accordance with the law, as required by Article 1 of Protocol No. 1. (iii) Legitimate aim 44. The Court must now determine whether this deprivation of property pursued a legitimate

aim, that is, whether it was “in the public interest”. To this end it notes that in Padalevičius v. Lithuania (no. 12278/03, § 61, 7 July 2009) the domestic courts invalidated the applicant’s title to the property acquired in 1995 in order to satisfy the restitution claims of persons from whom that property had been expropriated in the 1940s. The Court considers that in the present case the aim of the interference was similar. 45. The Court has also held that because of their direct knowledge of society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is “in the public interest”. Under the system of protection established by the Convention, it is thus for the national authorities to make an initial assessment as to the existence of a problem of public concern warranting measures of deprivation of property. Here, as in other fields to which the safeguards of the Convention extend, the national authorities accordingly enjoy a certain margin of appreciation (see Moskal, cited above, § 61; Pincová and Pinc v. the Czech Republic, no. 36548/97, § 47, ECHR 2002‑VIII; and Velikovi and Others v. Bulgaria, nos. 43278/98, 45437/99, 48014/99, 48380/99, 51362/99, 53367/99, 60036/00, 73465/01 and 194/02, § 168, 15 March 2007). 46. Furthermore, the notion of “public interest” is necessarily extensive. The Court, finding it natural that the margin of appreciation available to the legislature in implementing social and economic policies should be a wide one, will respect the legislature’s judgment as to what is “in the public interest” unless that judgment is manifestly without reasonable foundation (see James and Others v. the United Kingdom, 21 February 1986, § 46, Series A no. 98, and Broniowski, cited above, § 149). 47. As stated above, the measure complained of was designed to correct the mistake of the authorities and to defend the interests of the former owners by restoring their ownership rights to the plot of land in natura. 48. The Court accepts that the general objective of restitution laws, namely to mitigate the consequences of certain infringements of property rights committed by the communist regime, is a legitimate aim and a means of safeguarding the lawfulness of legal transactions, protecting the country’s socio-economic development (see Pincová and Pinc, cited above, § 58), or, as in the present case, securing the rights of former owners. In these circumstances, and having regard to the State’s margin of appreciation, the Court accepts that the deprivation of property experienced by the applicant served not only the interests of the original owners of the land in question, but also the general interests of society as a whole (see Bečvář and Bečvářová v. the Czech Republic, no. 58358/00, § 67, 14 December 2004, and Padalevičius, cited above, § 65). (iv) Proportionality 49. The Court reiterates that any interference with property must, in addition to being lawful and having a legitimate aim, also satisfy the requirement of proportionality. A fair balance must be struck between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights, the search for such a fair balance being inherent in the whole of the Convention. The requisite balance will not be struck where the person concerned bears an individual and excessive burden (see Sporrong and Lönnroth v. Sweden, 23 September 1982, §§ 69-74, Series A no. 52, and Brumărescu v. Romania [GC], no. 28342/95, § 78, ECHR 1999-VII). 50. On several occasions in similar cases which, as in the present case, concerned the correction of mistakes made by the State authorities in the process of restitution, the Court has emphasised the necessity of ensuring that the remedying of old injuries does not create disproportionate new wrongs (see Velikovi and Others, cited above, § 178). To that end, the legislation should make it possible to take into account the particular circumstances of each case, so that individuals who have acquired their possessions in good faith are not made to bear the burden of responsibility, which is rightfully that of the State which has confiscated those possessions. 51. In order to assess the burden borne by the applicant, the Court must assess the particular circumstances of each case, namely the conditions under which the disputed property was acquired and the compensation that was received by the applicant in exchange for the property, as well as the applicant’s personal and

social situation (see, mutatis mutandis, Mohylová v. the Czech Republic (dec.), no. 75115/01, 6 September 2005). 52. It should first be noted, however, that in the present case, unlike in the cases mentioned above, acquisition of the disputed property by the applicant took place in 1994-96, that is after the re-establishment of the independence of the country, and not during the Soviet regime. Thus, the unlawful act of selling the property to the applicant is attributable to the authorities of the present State, and not that of the Soviet regime (see, mutatis mutandis, Gashi v. Croatia, no. 32457/05, §§ 27-34, 13 December 2007, and Vistiņš and Perepjolkins v. Latvia [GC], no. 71243/01, § 124, 25 October 2012). 53. Quite differently from the cases where the former owners argued their entitlement to a restoration of ownership rights to property that was nationalised during the communist regime, the present case does not concern an applicant’s claim to have his property returned or for compensation for nationalised possessions (see Broniowski, cited above, § 121; Jasiūnienė v. Lithuania, no. 41510/98, § 40, 6 March 2003; and Jurevičius v. Lithuania, no. 30165/02, § 23, 14 November 2006). 54. The applicant’s title was invalidated after the former owners lodged a civil claim, which was then allowed by the domestic courts. It was established that the local authorities were not entitled to transfer the disputed property to the applicant before the question of restoration of rights of the former owners had been resolved. The procedures for the sale of the land were conducted by official bodies exercising the authority of the State (see paragraphs 6-7 above) and the land purchase agreement was signed between the applicant and the Kaunas Region Administration under the standard conditions. The Court considers that the applicant had very limited opportunities, if any, to influence the terms of the contract or the purchase price, as this was within the State’s exclusive competence (see, mutatis mutandis, Gladysheva v. Russia, no. 7097/10, § 79, 6 December 2011). Therefore, it was the obligation of the authorities to verify the applicant’s eligibility for allocation of the land and the conformity of the land sale with procedures and laws in force. 55. In examining the conformity of these events with the Convention, the Court reiterates the particular importance of the principle of good governance. It requires that where an issue pertaining to the general interest is at stake, especially when it affects fundamental human rights, including property rights, the public authorities must act promptly and in an appropriate and above all consistent manner (see Beyeler v. Italy [GC], no. 33202/96, § 120, ECHR 2000‑I; Megadat.com SRL v. Moldova, no. 21151/04, § 72, ECHR 2008; and Rysovskyy v. Ukraine, no. 29979/04, § 71, 20 October 2011). 56. The grounds on which the applicant’s title was declared null and void included violations of substantive provisions of the relevant legislation on restitution of ownership rights. The local authorities’ decision to sell the applicant the land appears to have been taken without an appropriate examination of all the conditions first being carried out. 57. As regards the applicant’s legitimate expectations, the Court notes that her good faith as to the acquisition of the property in question has never been disputed at the national level (see, mutatis mutandis, Vistiņš and Perepjolkins cited above, § 120). As noted above, it was not for the applicant to shoulder the risk of ownership being revoked on account of procedural defects which should have been eliminated, and for which specially designed procedures existed. The applicant was unaware that the land had been sold to her in breach of the law and did not know that this was the result of omissions on the part of the administration; the unlawfulness of the land purchase was established by the appellate court for the first time only on 2 October 2003. 58. Moreover, in contrast with the facts in Padalevičius (cited above, § 68), in the present case there are no signs that the applicant could have been aware of certain problems concerning the plot which she later acquired from the State, or any assumptions that she could have used her privileged position. 59. The applicant in the current situation was rather an ordinary citizen, enjoying no special privileges, and the purchase was based on laws which were applicable to everyone. Thus, the Court is of the opinion that her situation must be distinguished from the cases of individuals who have taken advantage of their privileged

position or have otherwise acted unlawfully to acquire property in a totalitarian regime, as well as their heirs, and who cannot expect to keep their gain in a society governed democratically through the rule of law. The underlying public interest in such cases is to restore justice and respect for the rule of law (see Mohylová, cited above, and Velikovi and Others, cited above, § 201). 60. In this connection the Court is satisfied that the applicant acquired the possession in good faith, without knowing that it had previously been confiscated and without being able to influence the terms of the contract. It holds that she was a bona fide owner and her proprietary interest in the enjoyment of the land had been sufficiently established (see, for comparison, Hamer v. Belgium, no. 21861/03, § 76, ECHR 2007‑V (extracts)). For the Court, the fact that the applicant paid for the disputed plot of land with investment vouchers is immaterial in terms of her rights of ownership (see, mutatis mutandis, Vistiņš and Perepjolkins, cited above, § 121). 61. Moreover, the Court considers that the applicant was also entitled to rely on the fact that the legal act on the basis of which she had acquired the property would not be retrospectively invalidated to her detriment. In these circumstances, the “legitimate expectation” is also based on a reasonably justified reliance on a legal act which has a sound legal basis and which bears on property rights (see Kopecký v. Slovakia [GC], no. 44912/98, § 47, ECHR 2004‑IX, and Pine Valley Developments Ltd and Others v. Ireland, 29 November 1991, § 51, Series A no. 222). As a result, the applicant had a “legitimate expectation” of being able to continue to enjoy that possession. 62. As regards the applicant’s personal and social situation, she lost her title to the land at the age of sixty-three and has been disabled since 1994. From the very beginning of the proceedings the applicant has been claiming that the land was used for agriculture and was one of the main sources of her income. The Government did not contest that assertion. 63. The applicant was awarded LTL 1,466 (the nominal price of the land in 1996) for the land whose market value in September 2005 was estimated by court-appointed authorised experts to be LTL 112,500, or almost eighty times that amount. It should also be noted that the nominal 1996 price, which was awarded to the applicant, had obviously suffered considerable devaluation and could not reasonably be related to its value nine years later. 64. In view of the above, and given the significant increase in the prices of real property since 1996, the amount was clearly insufficient for the purchase of a new comparable plot of land at market prices (see Velikovi and Others, cited above, § 207). 65. Compensation terms under the relevant legislation are material to the assessment of whether the contested measure respects the requisite fair balance and, notably, whether it imposes a disproportionate burden on the applicant. In this connection, the Court has already found that the taking of property without payment of an amount reasonably related to its value will normally constitute a disproportionate interference (see The Holy Monasteries v. Greece, 9 December 1994, § 71, Series A no. 301‑A; Former King of Greece and Others v. Greece [GC], no. 25701/94, § 89, ECHR 2000‑XII; and Zvolský and Zvolská v. the Czech Republic, no. 46129/99, § 70, ECHR 2002‑IX). 66. Having regard to the circumstances of the present case and the Court’s case-law in similar cases concerning the expropriation of property, the balance mentioned above is generally achieved where the compensation paid to the person whose property has been taken is reasonably related to its “market” value, as determined at the time of the expropriation (see Pincová and Pinc cited above, § 53, Gashi, cited above, § 41; and, mutatis mutandis, Vistiņš and Perepjolkins, cited above, § 111; Guiso-Gallisay v. Italy (just satisfaction) [GC], no. 58858/00, § 103, 22 December 2009). 67. It follows that the amount of compensation for the annulment of the applicant’s title to the land must be calculated on the basis of the value of the property on the date on which ownership thereof was lost. 68. In the view of the above, the fact that compensation of LTL 1,466 was awarded by the national courts does not sufficiently mitigate the negative circumstances for the applicant, in particular given the disproportion between the amount of the

compensation and the actual value of the land at the time she was deprived of it. 69. It appears that in the present case the domestic courts paid significantly greater attention to the annulment of the land-sale transaction and to the defence of the rights of the former owners, while failing at the same time to take into consideration the property rights and legitimate expectations of the bona fide owner, the applicant. 70. The Court reiterates that mistakes or errors by State authorities should serve to the benefit of those affected, especially where no other conflicting private interest is at stake. In other words, the risk of any mistake made by the State authority must be borne by the State and errors must not be remedied at the expense of the individual concerned (see Gashi, cited above, § 40, and Gladysheva, cited above, § 80). 71. Turning to the case at hand, the Court holds that the compensation awarded to the applicant did not take account of her personal and social situation, nor did it reflect the real value of the property or the fact that it had been acquired by the applicant in good faith. The disproportion between the land’s market value and the compensation awarded is too significant for the Court to find that a “fair balance” was struck between the interests of the community and the applicants’ fundamental rights (see, mutatis mutandis, Urbárska Obec Trenčianske Biskupice v. Slovakia, no. 74258/01, § 126, 27 November 2007, and Vistiņš and Perepjolkins, cited above, § 130). 72. The foregoing considerations are sufficient to enable the Court to conclude that the conditions under which the applicant had her title to the plot of land removed imposed an individual and excessive burden on her and that the authorities have failed to strike a fair balance between the demands of the public interest on the one hand and the applicant’s right to the peaceful enjoyment of her possessions on the other. 73. There has accordingly been a violation of Article 1 of Protocol No. 1 to the Convention. II. OTHER ALLEGED VIOLATIONS 74. Citing Article 13 of the Convention the applicant complained of a violation of her right to an effective remedy, because the Supreme Court had refused her cassation appeal for the examination. The Court considers it appropriate to examine this complaint under Article 6 of the Convention. 75. The Court reiterates that it is for the national courts to resolve questions of domestic law. The “right to a court”, of which the right of access is one aspect, is not absolute; it is subject to limitations permitted by implication, in particular where the conditions of admissibility of an appeal are concerned, since by its very nature it calls for regulation by the State, which enjoys a certain margin of appreciation in this regard (see García Manibardo v. Spain, no. 38695/97, § 36, ECHR 2000-II, and Mortier v. France, no. 42195/98, § 33, 31 July 2001). What is more, the conditions of admissibility of an appeal on points of law may be more rigorous than those for an ordinary appeal (see Běleš and Others v. the Czech Republic, no. 47273/99, § 62, ECHR 2002‑IX). 76. Given that the assessment of the grounds for cassation is a matter over which the Lithuanian Supreme Court has sole jurisdiction, it is not for the Court to speculate whether the applicant should have been given leave to appeal by the Supreme Court (see Impar Ltd v. Lithuania, no. 13102/04, § 32, 5 January 2010). In the view of the above and in the absence of any unreasonable restriction on the applicant’s access to the Supreme Court, the Court considers that this complaint must be dismissed as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention. 77. The applicant further complained that the domestic courts erred in the application of the relevant provisions of substantive law. 78. The Court reiterates that it is the role of the domestic courts to interpret and apply the relevant rules of procedural and substantive law (see, among many other authorities, Baumann v. Austria, no. 76809/01, § 49, 7 October 2004). In the present case, the interpretation of the relevant provision of domestic law by the national courts does not appear to be in breach of Article 6 § 1 of the Convention. The Court thus considers that this part of the application must be declared inadmissible as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 79. 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.” 80. The applicant claimed 112,500 Lithuanian litai (LTL, 32,580 euros (EUR)) in compensation for pecuniary damage and LTL 50,000 (EUR 14,480) for non-pecuniary damage. Relying on the expert’s report of September 2005, she submitted that the amount for pecuniary damage corresponded to the market value of the plot of land at the time of deprivation. The applicant further claimed EUR 524 for costs and expenses incurred before the Court. 81. The Government considered the amount for pecuniary damage to be excessive and rejected the findings of the expert’s report as lacking objectivity and depending exclusively on the calculation methodology. The Government also argued that the Court could not award pecuniary damage unless that matter had been examined by the domestic courts. However, in support of their arguments the Government did not submit any alternative assessment of the market value of the disputed plot, for example, a record from the real-estate register with relevant information on the value of the property. 82. In the circumstances of the case the Court considers that the question of the application of Article 41 is not ready for decision. It is therefore necessary to reserve the matter, due regard being had to the possibility of an agreement between the respondent State and the applicant (Rule 75 §§ 1 and 4 of the Rules of Court). 83. Accordingly, the Court reserves this question and invites the Government and the applicant company to notify it, within six months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, of any agreement that they may reach. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaint under Article 1 of Protocol No. 1 admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention; 3. Holds that, the question of the application of Article 41 is not ready for decision and accordingly, (a) reserves the said question; (b) invites the Government and the applicant to notify the Court, within six months from the date of which the judgment becomes final in accordance with Article 44 § 2 of the Convention, of any agreement that they may reach; (c) reserves the further procedure and delegates to the President of the Chamber the power to fix the same if need be. Done in English, and notified in writing on 12 November 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stanley NaismithGuido RaimondiRegistrarPresident

THIRD SECTION CASE OF KUNITSYNA v. RUSSIA (Application no. 9406/05) JUDGMENT STRASBOURG 13 December 2016 FINAL 24/04/2017 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Kunitsyna v. Russia, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: Luis López Guerra, President,Helena Jäderblom,Helen Keller,Dmitry Dedov,Branko Lubarda,Pere Pastor Vilanova,Georgios A. Serghides, judges,and Stephen Phillips, Section Registrar, Having deliberated in private on 22 November 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 9406/05) 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 Zinaida Dmitriyevna Kunitsyna (“the applicant”), on 31 January 2005. 2. The applicant was granted leave to represent herself. 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 applicant complained under Article 10 of the Convention of a violation of her journalistic freedom of expression. 4. On 1 April 2009 the application was communicated to the Government. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1950 and lives in Tomsk. 6. At the material time the applicant, a freelance journalist, was working for a newspaper, Tomskaya Nedelya («Томская неделя»), with a circulation of 66,585. The newspaper is published and distributed in the Tomsk Region. A. The applicant’s article 7. On 9 December 1999, in its “Social Aspect” section, the newspaper published an article by the applicant headlined “[S.’s] mother was dying here” («Здесь умирала мать [С.]»). The article described everyday life in a State-owned care home for the elderly, Lesnaya Dacha, giving examples of various residents who were or had been living there. It exposed practical difficulties encountered by the personnel in taking care of the residents in the absence of necessary equipment, and also mentioned that quite a few residents had been abandoned in the care home by their relatives. 8. The article then mentioned the mother of Mr S. (his full surname was given in the headline and in the article), a former deputy of the national parliament (the State Duma), who at that time was standing in elections to the State Duma. The article stated: “... Quite a few respectable people bring their ill relatives to the care home in an attempt to escape unnecessary troubles.” That sentence was followed by text in bold letters: “There is, for example, a room in which the mother of Deputy [S.] died. It is now named after him. It is a single room, however small and narrow. The ill and massively corpulent woman lay here for four months. Nurses remember that it was very hard to lift and turn her...” 9. The article also referred to the care home’s chief medical officer, Mr M., as having stated that empathy – mercy – towards the patients was a necessary quality for the personnel in order to work in that institution, and that it was a particularly rare quality at that time which should be revived. The article then quoted Mr M. as follows (the paragraph below was also printed in bold letters): “... It is for lack of mercy for their next of kin that their relatives bring them here, in order to avoid troubles, as if they themselves are not within God’s power. Sometimes ordinary nurses happen to be more merciful than people in authority...” 10. The above-mentioned two paragraphs were the only ones printed in bold in the whole article. B. First round of proceedings against the applicant 11. On 31 January 2000 Mr S.

S., Mr A.S. and Ms O.K.-S., who were respectively Mr S.’s father, brother and sister, brought defamation proceedings against the applicant. They claimed that the above-mentioned extracts contained statements aiming to create negative feeling on the part of readers towards the S. family and influence them as voters during the elections. They argued in particular that those statements made readers think that the S. family had had no mercy for their closest relative – their wife and mother – that they had taken her to Lesnaya Dacha to get rid of her, and that they had not paid her any visits and had not taken care of her. The claimants insisted that those statements were untrue and damaging to their honour and dignity, and sought compensation in respect of non-pecuniary damage. They also referred to Article 24 of the Russian Constitution, which prohibited the dissemination of information about an individual without his or her consent. 12. On 17 April 2000 the Leninskiy District Court of Tomsk delivered its judgment. It rejected as unfounded the claimants’ argument concerning a breach of their right to respect for their private life, noting that, by placing their relative, Mrs S., in a State-owned medical institution for the elderly, the claimants had stepped out of the private sphere and into the public domain, and therefore the constitutional principle of the inviolability of private life was inapplicable in the circumstances. The court, having examined certain witnesses, also considered that Mrs S. had indeed caused the claimants inconvenience and complicated their life, and that they had therefore decided to place her in a medical institution. The court thus concluded that the sentence stating “...quite a few respectable people bring their ill relatives to the care home in an attempt to escape unnecessary troubles...” could not be said to be untrue, whether it was the applicant’s generalisation or a sentence relating to the claimants, as alleged by them. The court further found, with reference to relevant evidence adduced by the applicant, that the information concerning Mrs S.’s living conditions in Lesnaya Dacha was also accurate. It also rejected as unfounded the claimants’ argument that the disputed publication had been propagandistic and had aimed to influence voters’ opinions; in this respect, it noted that the text of the article was socially oriented and contained general argument concerning the problems affecting ill and elderly people, with the specific example of the Lesnaya Dacha care home. The court also noted that the general statements of the care home’s chief medical officer concerning a lack of mercy for next of kin had had no link to the claimants or other members of the S. family. 13. On 30 June 2000 the Tomsk Regional Court upheld the above judgment on appeal. 14. On 30 May 2001 the Presidium of the Tomsk Regional Court, in supervisory review proceedings, dismissed an extraordinary appeal against the judgment of 17 April 2000 and the appeal decision of 30 June 2000, thus upholding those decisions. C. Second round of proceedings against the applicant 15. On 28 June 2002, in supervisory review proceedings, the Supreme Court of Russia quashed the judgment of 17 April 2000 and the decisions of 30 June 2000 and 30 May 2001, and sent the case back to the first-instance court for fresh examination. 16. In a judgment of 20 May 2003 the Leninskiy District Court of Tomsk again dismissed the claims against the applicant, employing reasoning similar to that of the judgment of 17 April 2000. 17. On 17 October 2003 the Tomsk Regional Court examined the case, on appeal by the claimants. They maintained their claim, stating that the relevant part of the impugned publication had interfered with their private life, and had contained statements damaging to their honour and dignity. 18. The appellate court set aside the judgment of 20 May 2003 on the grounds of incorrect application by the first-instance court of the substantive law, and delivered a new decision. It noted that, according to Resolution no. 11 of the Supreme Court of Russia (see paragraph 27 below), a claimant was under an obligation to prove the fact of the dissemination of information, whereas a defendant was under an obligation to prove that such information corresponded to reality. The appellate court found that the claimants in the present case had discharged that obligation. 19. In relation to the sentence stating “...quite a few respectable people bring their ill relatives to the care home in an attempt to escape unnecessary troubles...”, the Tomsk Regional Court disagreed with the first-instance court’s view that the sentence was true and was not damaging to the claimants’ honour and dignity. In particular, the regional court noted that the headline of the article and the sequence of its sentences made it clear that the statement, along with the reference to the lack of mercy for next of kin, although generalised, related to the claimants. In support of this conclusion, the appellate

court referred to the statements of two witnesses who had confirmed that they had perceived the extracts to relate to the claimants. 20. The appellate court went on to examine evidence confirming the poor physical and mental condition of Mrs S., and noted the claimants’ argument that they had placed her in Lesnaya Dacha because of the need to ensure proper medical assistance and care, rather than for lack of mercy. It stated that the applicant had not submitted any evidence capable of refuting that argument, whereas by virtue of Article 152 of the Russian Civil Code, she, as a defendant, was under an obligation to prove the accuracy of her statements. The appellate court also referred to the statement of a witness who had “explained that information disseminated in respect of the claimants, to the effect that Mrs S.’s relatives had not taken care of her, had not corresponded to reality”. The court thus concluded that the disputed information was untrue. 21. It further found that the disputed information, namely that the claimants had placed their seriously ill close relative in the care home for the elderly because of a lack of mercy, and in order to avoid unnecessary troubles, was a statement that the claimants had breached their moral principles, and was therefore damaging to their honour and dignity, according to the resolution of the Supreme Court. The Tomsk Regional Court thus concluded that the information in the publication that “...quite a few respectable people bring their ill relatives to the care home in an attempt to escape unnecessary troubles because of lack of mercy for their next of kin...” was untrue and damaging to the claimants’ honour and dignity, and ordered the applicant to pay 10,000 Russian roubles (RUB – approximately 285 euros (EUR)) to each of the three claimants as compensation for non-pecuniary damage. 22. The appellate court’s decision remained silent as regards the claimants’ argument that the impugned article had interfered with their private life. 23. By a decision of 4 March 2004 a judge of the Tomsk Regional Court declined the applicant’s application to institute supervisory review proceedings in respect of the appellate court’s decision. 24. On 13 October 2004 the Presidium of the Tomsk Regional Court, in supervisory review proceedings, upheld the decision of 17 October 2003, endorsing its reasoning, but reducing the amount of the award in respect of non-pecuniary damage. The applicant was ordered to pay RUB 4,000 (approximately EUR 110) to each of the three claimants. II. RELEVANT DOMESTIC LAW AND PRACTICE 25. Article 24 of the Russian Constitution establishes that the collection, retention, use and dissemination of information about the private life of an individual shall not be allowed without his or her consent. 26. Article 152 of the Russian Civil Code provides that an individual may apply to a court with a request for the rectification of information (сведения) damaging to his or her honour, dignity or professional reputation, unless the person who disseminated such information proves its truthfulness. The aggrieved person may also claim compensation for losses and non-pecuniary damage sustained as a result of the dissemination of such information. 27. Resolution no. 11 of the Plenary Supreme Court of Russia of 18 August 1992, as amended on 21 December 1993, “On certain issues that have arisen in the course of the judicial examination of claims for the protection of the honour and dignity of individuals, and the professional reputation of individuals and legal entities” established that the notion of “the dissemination of information” employed in Article 152 of the Russian Civil Code was understood to be the publication or broadcast of such information. The resolution also provided that untrue statements alleging a breach by an individual or a legal entity of the legislation in force or of moral principles (dishonest acts, incorrect behaviour at work or in everyday life, or other statements damaging to business or public activities, professional reputation, and so on) could constitute damage to one’s honour, dignity and professional reputation, among other things. THE LAW I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 28. The applicant complained that her right to freedom of expression had been violated. She insisted that she was free to express her opinion as a journalist, and that, by ruling against her, the domestic courts had criticised her for her professional activity and had unjustifiably limited her freedom of speech. The applicant relied on Article 10 of the Convention, which reads: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties

and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” A. Arguments by the parties 1. The applicant 29. The applicant argued that the interference with her freedom of expression had fallen short of the “necessity” requirement. 30. The applicant pointed out in particular that her article had been socially oriented, and had addressed an important issue of public interest, the lack of specialist care facilities for elderly people in the region. She further argued that the phrase “...quite a few respectable people bring their ill relatives to the care home in an attempt to escape unnecessary troubles...”, found by the domestic court to be untrue and damaging to the claimants’ reputation, had in fact been a quote from Mr M., the chief medical officer of the care home, and should not have been attributed to her. The applicant argued that, in any event, the sentence had been a generalisation rather than a statement directly relevant to the S. family, and that it had been a value judgment not susceptible of proof. She also pointed out that she had not said anything about whether the claimants had come to see Mrs S. in the care home or not, as she had only mentioned Mr S., who, however, had not been a party to the defamation proceedings. 31. The applicant also argued that the penalty imposed on her had been disproportionate, as, in view of her income, it had been very burdensome financially. In addition, it had limited the freedom of the press and had had a serious “chilling” effect on the other journalists in the region. 2. The Government 32. The Government acknowledged that there had been an interference with the applicant’s right to freedom of expression, but argued that it had been justified under Article 10 § 2 of the Convention. In particular, they pointed out that the interference had been based on Article 152 of the Russian Civil Code, and had pursued the aim of the protection of the reputation and private life of the S. family members. 33. The Government further insisted that the interference complained of had been necessary in a democratic society. They submitted that the impugned paragraphs of the applicant’s article had clearly referred to the S. family; in particular, both paragraphs had been accentuated by bold letters, which had given a clear impression that they had been linked between themselves and to the headline of the article. Moreover, the paragraphs in question had revealed specific details of the S. family’s private life. In this respect, the Government pointed out that the impugned information had related not only to Mrs S.’s son, Mr S., who at that time had been standing as a candidate for the State Duma, and had therefore been a public figure, but also to other members of the S. family, including Mrs S.’s husband and daughter (respectively, Mr S.’s father and sister), who were not. 34. The Government went on to argue that the domestic courts had distinguished between statements of fact and value judgments, having found that the impugned extracts, including the phrase “...quite a few respectable people bring their ill relatives to the care home in an attempt to escape unnecessary troubles...” had been statements of fact, and therefore the applicant had been under an obligation to prove the accuracy of those statements. The Government submitted that, after a full examination of the circumstances of the case, the national courts had established the absence of any factual basis for the applicant’s relevant statements. In particular, the appellate court had established that the S. family had placed Mrs S. in the institution for the elderly with a view to ensuring her necessary medical treatment and care, rather than in an attempt to “escape troubles”. The court had furthermore established that the institution referred to in the article had had a very good reputation, and that was why the S. family had chosen it for Mrs S.; moreover, they had regularly come to see her, as had been confirmed by witnesses. In her article, the applicant had thus distorted reality, which could have provoked negative feeling toward Mrs S.’s relatives, including Mr S. In the Government’s view, the aim of the impugned publication had not been to attract public attention to the problems of elderly people, but to discredit Mr S. in the eyes of the voters. 35. The Government also argued that the measure complained of had been proportionate to the aim sought to be achieved. In particular, the applicant had been held liable in a

civil defamation case, and had been ordered to pay compensation for non-pecuniary damage to the members of the S. family. The domestic courts had taken into account a number of relevant factors when deciding on the sanction against the applicant. In particular, the courts had observed that the impugned article had been published in a newspaper with a circulation of 66,585, and that the publication had taken place three years after Mrs S.’s death, during the campaign for election to the national parliament in which her son, Mr S., had been standing as a candidate, which had undoubtedly attracted wide public attention. Moreover, the domestic courts had taken into account the fact that the information in question had concerned Mrs S.’s illness and death, and had been particularly sensitive for her family members. This had caused them, and in particular Mrs S.’s eighty-year-old husband, great emotional distress, as the information had been used to defame them. At the same time, the domestic courts had had due regard to the applicant’s income, and had ordered her to pay quite a modest amount to the claimants. 36. The Government further argued that the domestic courts had duly balanced the applicant’s right to freedom of expression and the S. family’s right to reputation, and had taken well-reasoned decisions; the applicant’s case had not had any chilling effect on other journalists in the region, contrary to the applicant’s allegation in that respect. B. Admissibility 37. The Court notes that 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. C. Merits 38. The Court notes that it is common ground between the parties that the decision of the Tomsk Regional Court dated 17 October 2003, as reviewed on 13 October 2004 by the Presidium of the Tomsk Regional Court in the supervisory review proceedings (see paragraphs 17-22 and 24 above), constituted an interference with the applicant’s right to freedom of expression secured by Article 10 § 1 of the Convention. The Court is further satisfied that the interference in question was “prescribed by law”, notably by Article 152 of the Civil Code, and “pursued a legitimate aim”, that is “the protection of the reputation or rights of others”, within the meaning of Article 10 § 2. What remains to be established is whether the interference was “necessary in democratic society”. 39. The test of necessity requires the Court to determine whether the interference corresponded to a “pressing social need”, whether the reasons given by the national authorities to justify it were “relevant and sufficient”, and whether the measure taken was proportionate to the legitimate aim pursued (see, for instance, Lindon, Otchakovsky-Laurens and July v. France [GC], nos. 21279/02 and 36448/02, § 45, ECHR 2007‑IV). In assessing whether such a need exists and what measures should be adopted to deal with it, the national authorities are left a certain margin of appreciation. The Court’s task in exercising its supervisory function is not to take the place of the national authorities, but rather to review under Article 10, in the light of the case as a whole, the decisions they have taken pursuant to their margin of appreciation. In so doing, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they based their decisions on an acceptable assessment of the relevant facts (see, as a recent authority, Bédat v. Switzerland [GC], no. 56925/08, § 48, ECHR 2016). 40. The Court observes that, in the present case, the applicant, a journalist, was held civilly liable, after the first final and binding court decision in her favour had been quashed in supervisory review proceedings, for writing an article and having it published in a regional newspaper. The impugned interference must therefore be seen in the context of the essential role of the press in a democratic society (see Fressoz and Roire v. France [GC], no. 29183/95, § 45, ECHR 1999‑I). The national authorities’ margin of appreciation was thus circumscribed by the interest of a democratic society in enabling the press to play its vital role of “public watchdog” (see Radio France and Others v. France, no. 53984/00, § 33, ECHR 2004‑II, with further references). 41. The Court further notes that the article in question described the everyday life of residents in a care home for the elderly, including the

mother of Mr S., who was identified by his full name in the headline and text of the article. Mr S.’s father, brother and sister subsequently sued the applicant for disclosing information about their private life and tarnishing their reputation. However, as can be seen from the relevant court decisions (see paragraph 22 and 24 above), the domestic courts only addressed the part of the claim relating to the claimants’ reputation, whereas the question of the alleged breach of their privacy was left unexamined. The Court will therefore limit the scope of its examination to the assessment of the “necessity” of the measure complained of in so far as it aimed at protecting the claimants’ reputation. 42. In this connection, the Court reiterates that the right to protection of one’s reputation is covered by Article 8 of the Convention as part of the right to respect for private life (see Chauvy and Others v. France, no. 64915/01, § 70, ECHR 2004-VI; Pfeifer v. Austria, no. 12556/03, § 35, 15 November 2007; Polanco Torres and Movilla Polanco v. Spain, no. 34147/06, § 40, 21 September 2010; and, more recently, Annen v. Germany, no. 3690/10, § 54, 26 November 2015). For Article 8 to come into play, an attack on a person’s reputation must attain a certain level of seriousness and in a manner causing prejudice to personal enjoyment of the right to respect for private life” (see Axel Springer AG v. Germany [GC], no. 39954/08, § 83, 7 February 2012). The Court further reiterates that, for an interference with the right to freedom of expression to be proportionate to the legitimate aim of the protection of the reputation of others, the existence of an objective link between the impugned statement and the person suing in defamation is a requisite element. Mere personal conjecture or subjective perception of a publication as defamatory does not suffice to establish that the person in question was directly affected by the publication. There must be something in the circumstances of a particular case to make the ordinary reader feel that the statement reflected directly on the individual claimant, or that he was targeted by the criticism (see Reznik v. Russia, no. 4977/05, § 45, 4 April 2013, and the authorities cited therein). 43. The Court observes that, in the instant case, the impugned extracts either named Mr S., or referred to “the people in authority” (see paragraphs 8-9 above); the Court is thus prepared to accept that there was an objective link between those extracts and Mr S. It notes, however, that he was never a party to the defamation proceedings in question. Therefore, the Court rejects the Government’s argument that Mr S. was “discredited in the eyes of his voters” (see paragraph 34 above), as that question was never assessed by the domestic courts. The Court is furthermore not convinced that the same objective link can be found between the extracts and the claimants in the defamation proceedings, Mr S.’s father, brother and sister. As was stressed by the Government, they were not “people in authority”; moreover, the text in question only mentioned “Deputy S.” and no other member of the S. family. The statements can therefore hardly be regarded as directly relevant to the claimants, or detrimental to their reputation. The Court further does not consider that the regional court’s mere reference to the statements of two witnesses, who had perceived the impugned extracts to relate to the claimants (see paragraph 19 above), is sufficient for establishing any such link, as the identity of those two witnesses was not clarified, nor the basis for that perception. 44. Turning to the qualification of the contested extracts by the Tomsk Regional Court, the Court is mindful that a careful distinction needs to be made between facts and value judgments. The existence of facts can be demonstrated, whereas the truth of value judgments is not susceptible of proof. Admittedly, where allegations are made about the conduct of a third party, it may sometimes be difficult to distinguish between assertions of fact and value judgments. Nevertheless, even a value judgment may be excessive if it has no factual basis to support it (see Cumpǎnǎ and Mazǎre v. Romania [GC], no. 33348/96, §§ 98-99, ECHR 2004‑XI). The Court has on many occasions pinpointed the structural deficiency of the Russian law on defamation, as interpreted and applied at the relevant time, which made no distinction between value judgments and statements of fact, referring uniformly to “information” (“svedeniya”), and proceeded on the assumption that any such “information” was susceptible to proof in civil proceedings (see Grinberg v.

Russia, no. 23472/03, § 29, 21 July 2005; Zakharov v. Russia, no. 14881/03, § 29, 5 October 2006; Karman v. Russia, no. 29372/02, § 38, 14 December 2006; Dyuldin and Kislov v. Russia, no. 25968/02, § 47, 31 July 2007; Fedchenko v. Russia, no. 33333/04, §§ 36‑41, 11 February 2010; Andrushko v. Russia, no. 4260/04, §§ 50-52, 14 October 2010; Novaya Gazeta v Voronezhe v. Russia, no. 27570/03, § 52, 21 December 2010; and OOO Ivpress and Others v. Russia, nos. 33501/04, 38608/04, 35258/05 and 35618/05, § 72, 22 January 2013). 45. The Court observes that, in the present case, the fact of the placement of the claimants’ relative in the care home was not in dispute between the parties to the defamation proceedings; rather, they disagreed about the motives lying behind that decision. In particular, the disputed extracts described the placement as “an attempt to escape unnecessary trouble” and “a lack of mercy”, whereas the claimants argued that they had been driven by the need to ensure proper medical assistance and care for their relative (see paragraph 20 above). It is obvious that the above‑mentioned expressions were value judgments; they represented the applicant’s interpretation of the placement of the claimants’ relative in the care home for the elderly, were quotes of the care home’s chief medical officer, and were concerned with moral criticism of that placement. In relation to such criticism, the Court notes that, although journalists must be afforded some degree of exaggeration or even provocation, they nevertheless have “duties and responsibilities”, and should act in good faith and in accordance with the ethics of journalism (see, among other authorities, Rumyana Ivanova v. Bulgaria, no. 36207/03, § 61, 14 February 2008). Gratuitous accusations of morally reprehensible behaviour may arguably be taken as going beyond the limits of responsible journalism. In particular, in the context of the issue raised by the applicant in her article, that is, in her submission, the lack of specialist care facilities for elderly people in the region (see paragraph 30 above), the Court fails to see why it was relevant to give information – disclosing the full name and containing suggestions of morally reprehensible behaviour – on the last days of a lady who had died three years earlier (see paragraph 35 above), and who had been the mother of a person standing as a candidate for election to the national Parliament at that time. 46. At the same time, the Court observes that the domestic courts failed to examine the elements necessary for the assessment of the applicant’s compliance with her journalistic “duties and responsibilities”. Contrary to what was alleged by the Government (see paragraph 34 above), they failed to distinguish between value judgments and factual statements, and limited themselves to finding that the contested information had been “disseminated” by the applicant, and that she had not proved its truthfulness (see paragraphs 18 and 20 above). The domestic courts did not have regard to: the presence or absence of good faith on the applicant’s part; the aim pursued by her in publishing the article; the existence of a matter of public interest or general concern in the impugned publication; or the relevance of information regarding the claimants’ next of kin in the context of that topic. 47. Furthermore, the Court does not overlook the fact that, in the present case, the court decision holding the applicant liable for defamation was taken by the appellate court in the second round of proceedings, after the final and binding court decision in the applicants’ favour taken in the first round of the proceedings had been quashed by way of supervisory review, and after the first-instance court in the second round of the proceedings had again ruled in her favour. 48. In the light of the foregoing, the Court finds that the standards according to which the national authorities examined the claim against the applicant were not in conformity with the principles embodied in Article 10. It matters little in these circumstances that the proceedings were civil in nature, and that the amount of compensation which the applicant was ordered to pay was moderate, as it is the failure by the domestic courts to base their decisions “on an acceptable assessment of the relevant facts” and to adduce “relevant and sufficient” reasons that brings the Court to the conclusion that the interference complained of was not “necessary in a democratic society” (see, for a similar finding, Godlevskiy v. Russia, no. 14888/03, § 48, 23 October 2008, and OOO Ivpress and Others

, cited above, § 79). 49. There has therefore been a violation of Article 10 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 50. 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 51. The applicant claimed EUR 4,000 in respect of pecuniary damage. She argued that, as a result of the interference complained of, she had not been able to work as a freelance journalist, as she had “had to address complaints” regarding the unjustified court decision of 17 October 2003 to a higher court, in an attempt to have it reviewed in supervisory review proceedings. She therefore sought compensation for pecuniary damage in the amount of EUR 3,600, which, in her submission, represented her lost earnings for the period from 17 October 2003 (the date of the appellate court’s decision in her case) until 13 October 2004 (the date when that decision had been upheld in the supervisory review proceedings). Under this head, the applicant also claimed compensation of RUB 12,000 (approximately EUR 330), the amount which she had been ordered to pay to the claimants in damages, and RUB 840 (approximately EUR 25), the amount of the enforcement fee, which had been as a result of her failure to comply voluntarily with the writ of execution. According to the documents adduced by the applicant, she had paid both amounts in full. She further claimed EUR 5,000 in respect of non-pecuniary damage. 52. In so far as the applicant’s claim for compensation for pecuniary damage concerned lost earnings, the Government contested that claim as speculative and unsubstantiated. They further argued that the applicant had failed to prove that there was a causal link between the violation alleged and the non-pecuniary damage she had allegedly suffered. 53. The Court does not discern any causal link between the violation found and the applicant’s claim regarding the lost earnings; it therefore rejects this claim. 54. On the other hand, the Court observes that the amount of RUB 12,000 (approximately EUR 330) which the applicant was ordered to pay in the defamation proceedings, and the fact that that amount was actually recovered from the applicant, are not in dispute between the parties. It further notes that the above-mentioned sum was recovered from the applicant as a result of the court decision against her for her article, which the Court has found to be in breach of Article 10 of the Convention. It is thus clear that there is a direct causal link between the violation found and the pecuniary damage alleged (see, among other authorities, Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, §§ 75 and 77, ECHR 1999‑III). The Court therefore awards the applicant EUR 330 in respect of pecuniary damage, plus any tax that may be chargeable on that amount. 55. As for the enforcement fee, no evidence has been adduced to the Court to show that it was a direct result of the breach of Article 10 of the Convention (cf. Kwiecień v. Poland, no. 51744/99, §§ 64‑66, 9 January 2007, and, more recently, Marinova and Others v. Bulgaria, nos. 33502/07, 30599/10, 8241/11 and 61863/11, § 119, 12 July 2016). Indeed, whilst arguing that the penalty imposed on her was burdensome financially (see paragraph 31 above), the applicant has not informed the Court whether she was able to pay the damages in one amount; or, if not, whether she requested that she be authorised to pay by instalments. The Court therefore rejects this part of the applicant’s claim for compensation for pecuniary damage. 56. It further considers that, in the circumstances of the case, a finding of a violation of Article 10 will constitute sufficient just satisfaction for the applicant in respect of non-pecuniary damage (see, for a similar finding, OOO Ivpress and Others, cited above, § 88). B. Costs and expenses 57. The applicant also claimed EUR 1,000 for costs and expenses incurred at domestic level. She submitted an invoice from a lawyer in the amount of RUB 35,000 (approximately EUR 1,000) for legal advice at the preliminary stage and during the court proceedings, and for preparation of written submissions to the courts. 58. The Government contested that claim as unsubstantiated, stating that the invoice was illegible,

and that the applicant had not adduced any agreement on legal assistance. 59. 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 applicant EUR 1,000 to cover costs and expenses in the domestic proceedings. C. Default interest 60. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the application admissible; 2. Holds that there has been a violation of Article 10 of the Convention; 3. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (i) EUR 330 (three hundred and thirty euros), plus any tax that may be chargeable, in respect of pecuniary damage; (ii) EUR 1,000 (one thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 13 December 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stephen PhillipsLuis López GuerraRegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Dedov is annexed to this judgment. L.L.G.J.S.P. CONCURRING OPINION OF JUDGE DEDOV It is very difficult to examine a defamation case in which a public figure was criticised but other members of the family alleged that this criticism affected them as well. I believe that the national courts did not even have the authority to examine such a case, as the claim was inadmissible ratione personae. In the similar case of Putistin v. Ukraine (no. 16882/03, § 38, 21 November 2013) the Court accepted that “the applicant [member of the family] was affected by the article, but only in an indirect manner, in the sense that a reader who knew that the applicant’s father’s name was on the 1942 poster might draw adverse conclusions about his father. The level of impact was thus quite remote”. This is a completely different approach compared with the arguments set out in the present judgment. It is more concrete and closer to the factual circumstances. However, in neither case do I see any substantial analysis being made by this Court, which the domestic courts could follow, as to how to strike an appropriate balance between the right to private life and the right to freedom of expression. The enjoyment of private life by other members of the family was affected, remotely or not. However, the claimants, who were not mentioned in the article, should then have borne a heavier burden of proof and they should have produced material evidence of a negative effect or made a public announcement that they should not be associated with the impugned action or with a particular person, for specific reasons. The national courts limited their analysis to the claimants’ private life without striking any balance with the applicant’s right to freedom of expression, and in particular her right to raise issues of public interest. I believe that the moral criticism directed by the applicant as a journalist against the parliamentarian was addressed not only to that public figure but to the rest of society, as she raised the issue of social solidarity.

THIRD SECTION CASE OF HUSEJINOVIČ v. SLOVENIA (Application no. 41513/02) JUDGMENT STRASBOURG 29 June 2006 FINAL 29/09/2006 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 Husejinovič v. Slovenia, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: MrJ. Hedigan, President,MrB.M. Zupančič,MrL. Caflisch,MrV. Zagrebelsky,MrE. Myjer,MrDavid Thór Björgvinsson,MrsI. Ziemele, judges,and Mr V. Berger, Section Registrar, Having deliberated in private on 8 June 2006, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 41513/02) against the Republic of Slovenia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Slovenian national, Mrs Simeuna Husejinovič (“the applicant”), on 7 November 2002. 2. The applicant was represented by the Verstovšek lawyers. The Slovenian Government (“the Government”) were represented by their Agent, Mr L. Bembič, State Attorney-General. 3. The applicant alleged under Article 6 § 1 of the Convention that the length of the proceedings before the domestic courts to which she was a party was excessive. In substance, she also complained about the lack of an effective domestic remedy in respect of the excessive length of the proceedings (Article 13 of the Convention). 4. On 15 September 2004 the Court decided to communicate the complaints concerning the length of the proceedings and the lack of remedies in that respect to the Government. 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 5. The applicant was born in 1959 and lives in Velenje. 6. On 14 December 1998 the Velenje Unit of the Pension and Disability Insurance Fund (“the PDIF”) awarded the applicant an invalidity status of fifth degree for the period after 12 December 1996. On 17 August 1999 the PDIF rejected the applicant’s appeal. 7. On 22 September 1999 the applicant instituted proceedings against the PDIF in the Ljubljana Labour and Social Court (Delovno in socialno sodišče v Ljubljani) contesting, inter alia, the date of the occurrence of the injury. Between 25 October 1999 and 16 September 2002 the applicant lodged three written submissions. Between 17 January 2001 and 8 March 2002 she made three requests that a date be set for a hearing. On 1 October 2002 a hearing was held and the court delivered a judgment. The judgment, rejecting the applicant’s claim, was served on the applicant on 29 October 2002. 8. On 4 November 2002 the applicant appealed to the High Labour and Social Court (Višje delovno in socialno sodišče). On 14 May 2004 the court dismissed the applicant’s appeal. The judgment was served on the applicant on 3 June 2004. 9. On 23 June 2004 the applicant lodged an appeal on points of law with the Supreme Court (Vrhovno sodišče). On 1 March 2005 the court dismissed the applicant’s appeal. The decision was served on the applicant on 29 March 2005. THE LAW I. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE CONVENTION 10. The applicant complained about the excessive length of the proceedings commencing with the lodging of her claim with the Ljubljana Labour and Social Court. She relied on 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...” 11. In substance, the applicant further complained that the remedies available for excessive legal proceedings in Slovenia were ineffective. Article 13 of the Convention reads as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a

national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A. Admissibility 12. The Government pleaded non-exhaustion of domestic remedies. 13. The applicant contested that argument, claiming that the remedies available were not effective. 14. The Court notes that the present application is similar to the cases of Belinger and Lukenda (Belinger v. Slovenia (dec.), no. 42320/98, 2 October 2001, and Lukenda v. Slovenia, no. 23032/02, 6 October 2005). In those cases the Court dismissed the Government’s objection of non-exhaustion of domestic remedies because it found that the legal remedies at the applicant’s disposal were ineffective. The Court recalls its findings in the Lukenda judgment that the violation of the right to a trial within a reasonable time is a systemic problem resulting from inadequate legislation and inefficiency in the administration of justice. 15. As regards the instant case, the Court finds that the Government have not submitted any convincing arguments which would require the Court to distinguish it from its established case-law. 16. The Court further notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. Nor is it inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. Article 6 § 1 17. The period to be taken into consideration began on 22 September 1999, the day the applicant instituted proceedings with the Ljubljana Labour and Social Court, and ended on 29 March 2005, the day the Supreme Court’s decision was served on the applicant. It therefore lasted more than five years and six months for three levels of jurisdiction. 18. 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). 19. Taking into account what was at stake for the applicant, namely a determination of her invalidity status, the Court considers that in the instant case the length of the proceedings, in particular before the first-instance court, was excessive and failed to meet the “reasonable-time” requirement. There has accordingly been a breach of Article 6 § 1. 2. Article 13 20. 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). It notes that the objections and arguments put forward by the Government have been rejected in earlier cases (see Lukenda, cited above) and sees no reason to reach a different conclusion in the present case. 21. Accordingly, the Court considers that in the present case there has been a violation of Article 13 on account of the lack of a remedy under domestic law whereby the applicant could have obtained a ruling upholding her right to have her case heard within a reasonable time, as set forth in Article 6 § 1. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 22. 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 23. The applicant claimed EUR 5,000 euros (EUR) in respect of non-pecuniary damage. 24. The Government contested the claim. 25. The Court considers that the applicant must have sustained non-pecuniary damage. Ruling on an equitable basis, it awards her EUR 1,000 under that head. B. Costs and expenses 26. The applicant also claimed approximately EUR 1,200 for the costs and expenses incurred before the Court. 27. The Government argued that the claim was too high. 28. According to the Court’s case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. The Court also notes that the applicant’s lawyers, who also represented the applicant in Lukenda (cited above), lodged nearly 400 applications which, apart from the facts, are essentially the same as this one

. Accordingly, in the present case, regard being had to the information in its possession and the above criteria, the Court considers it reasonable to award the applicant the sum of EUR 1,000 for the proceedings before the Court. C. Default interest 29. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the application admissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds that there has been a violation of Article 13 of the Convention; 4. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 1,000 (one thousand euros) in respect of non-pecuniary damage and EUR 1,000 (one thousand euros) in respect of costs and expenses, plus any tax that may be chargeable; (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 29 June 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Vincent BergerJohn HediganRegistrarPresident

THIRD SECTION CASE OF YVON v. FRANCE (Application no. 44962/98) FINAL 24/07/2003 JUDGMENT STRASBOURG 24 April 2003 In the case of Yvon v. France, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: MrG. Ress, President,MrI. Cabral Barreto,MrJ.-P. Costa,MrL. Caflisch,MrJ. Hedigan,MrsH.S. Greve,MrK. Traja, judges,and Mr V. Berger, Section Registrar, Having deliberated in private on 28 November 2002 and 10 April 2003, Delivers the following judgment, which was adopted on the last‑mentioned date: PROCEDURE 1. The case originated in an application (no. 44962/98) against the French Republic lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a French national, Mr Louis Yvon (“the applicant”), on 7 October 1998. 2. The applicant was represented before the Court by Mr D. Musso, a lawyer practising in Paris. The French Government (“the Government”) were represented by their Agent, Mr R. Abraham, Head of Legal Affairs, Ministry of Foreign Affairs. 3. The application was transmitted to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11). It was allocated to the Third 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. 4. The applicant complained that the proceedings before the courts dealing with expropriation cases had not been fair. 5. By a decision of 19 September 2002 the Chamber declared the application admissible. 6. The applicant and the Government each filed observations on the merits of the case (Rule 59 § 1). 7. A hearing took place in public in the Human Rights Building, Strasbourg, on 28 November 2002 (Rule 59 § 3). There appeared before the Court: (a) for the GovernmentMrA. Buchet, Deputy Head of the Human Rights Section,Legal Affairs Department,Ministry of Foreign Affairs,Agent,MrP. Bourreau, Divisional Director, Revenue Department,Ministry of the Economy, Finance and Industry,MsC. d’Urso, Head of the Institutional,Legal and Contentious Issues Office,Department of European and International Affairs, Ministry of Justice,Advisers; (b) for the applicantMrD. Musso,MrJ.-M. Pouille, Lawyers, Counsel. The Court heard addresses by Mr Musso and Mr Buchet and their replies to judges’ questions. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 8. The applicant was born in 1931 and lives in Saintes (Charente-Maritime). He is a winegrower. 9. On 19 May 1993 plans for improving a major road on the edge of the Saintes urban area were declared to be in the public interest. Completion of this operation required the expropriation of various plots of land, including twenty-one hectares belonging to the applicant. The expropriation liability order was issued on 5 September 1994. 10. On 12 September 1994 the expropriations judge for the département of Charente-Maritime issued an expropriation order giving rise to a transfer of ownership. On 28 September 1994, in the absence of an agreement between the applicant and the State as the expropriating authority (represented by Mr H., an inspector from the Charente-Maritime Revenue Department) on the amount of compensation to be paid, the latter applied to the expropriations judge. In an order of the same day the expropriations judge for the département of Charente-Maritime set 4 November 1994 as the date for the site inspection and stated that the public hearing would be held immediately afterwards. On 3 November 1994 Mr P., Deputy Director of the Charente-Maritime Revenue Department, filed submissions in his capacity as Government Commissioner. The applicant’s lawyer then requested an adjournment because of the lateness of

these submissions. The hearing was accordingly fixed for 18 November 1994. In a judgment of 9 December 1994, having heard the applicant, Mr H., the State’s representative in the proceedings, and Mr P., the Government Commissioner, the expropriations judge assessed the compensation payable by the State at 1,441,517 French francs (FRF). 11. On 5 January 1995 the applicant appealed against this decison and filed a memorial with the Expropriations Division of the Poitiers Court of Appeal, in which he assessed the amount of compensation due at FRF 3,763,698. On 13 April 1995 the Charente-Maritime Revenue Department filed a memorial in reply, signed by Mr H., in which it asked that the decision be upheld; a sheet of paper entitled “Study of the local property market”, listing thirteen contracts of sale and one judgment, was appended. On 24 April 1995 the applicant’s representative wrote to the signee of the memorial, requesting that he send a full copy of the contracts and decisions cited. In a letter of 18 July 1995 the Deputy Director of the Charente-Maritime Revenue Department, Mr P., refused to produce the documents on the ground that tax officials were bound by a duty of professional confidentiality. On 17 August 1995 the applicant’s counsel replied to the Deputy Director of the Revenue Department as follows: “... it is regrettable that almost three months were required to send a brief reply to a standard request for production of documents, dated 24 April 1995, even though the case is due to be heard on 22 September. This aside, you are mistaken in failing to distinguish between your roles as Director of the Revenue Department and as representative of the expropriating authority in legal proceedings brought in application of the Decree of 11 December 1973 – Article R. 179 of the Code of State Property. In this latter capacity, you are obliged to respect the fundamental principle of adversarial proceedings and the provisions of the new Code of Civil Procedure which impose a basic obligation on the parties to produce the evidence to which they refer. This principle also applies when you are acting in your capacity as Government Commissioner, which for the moment poses no further difficulties. I might add that had your memorial contained, as a minimum, sufficient indications to enable me to order the contracts from the land registry, I would have refrained from asking you to produce these documents. I am therefore obliged to ask the court... to order discovery of the documents which you refer to, unless the court prefers purely and simply to discount this evidence, which would mean that it would rule only on the basis of my own terms of comparison...” On 4 September 1995 Mr P., standing in for the Director of the Vienne Revenue Department in his capacity as Government Commissioner, lodged submissions in support of a cross-appeal with a view to the hearing before the Expropriations Division of the Court of Appeal (initially set for 22 September 1995, the hearing was subsequently postponed at the applicant’s request until 24 May 1996); he assessed the compensation in issue at FRF 1,396,267. The applicant filed a memorial in reply, referring in particular to an infringement of his right to a fair trial in the following terms: “... In the present case, the Director of the Revenue Department representing the expropriating authority and the Director of the Revenue Department acting as Government Commissioner are one and the same person, even if, for form’s sake, the Director of the Revenue Department is represented by two separate individuals, which is a fiction, since, as we have seen, the same person replied to the expropriated party’s counsel on behalf of the expropriating authority and also signed the Government’s Commissioner’s submissions. It follows that the Director of the Revenue Department may take part in the present proceedings only in his capacity as the State’s representative or in his capacity as Government Commissioner, and may not combine the two roles. Otherwise, the parties do not enjoy a fair trial within the meaning of Article 6 of the European Convention on Human Rights...” According to the Government, the registry of the Expropriations Division informed the applicant and the Director of the Revenue Department within the Property Department, in letters dated 9 May 1996, of further grounds of appeal lodged on the same day by the Government Commissioner. 12. In a judgment of 21 June 1996 the Expropriations Division of the Poitiers Court of Appeal established the compensation amount at FRF 1,542,867. It held that the applicant’s request that the court dismiss the intervention by the Director of the Revenue Department in his capacity as Government Commissioner was ill-founded. The judgment stated: “... The [applicant’s] criticisms of the Director of the Revenue Department’s activities and of the dual nature of his functions are unfounded because:

(i) The Director of the Revenue Department’s twofold status as Government Commissioner and... representative of the expropriating authority does not amount to a defect; despite the strangeness of this situation, there is nothing to prevent the Director of the Revenue Department representing the expropriating authority and simultaneously assuming the functions of Government Commissioner. (ii) The Director of the Revenue Department’s joint role as Government Commissioner and representative of the expropriating authority does not deny the expropriated party a fair trial provided that the Government Commissioner does not participate in the decision-making process within the expropriations court. (iii) In any event, in the specific case of this appeal, two Directors of Revenue Departments intervened, namely the Director of the Charente-Maritime Revenue Department, representing the State, and the Director of the Vienne Revenue Department as the Government Commissioner (see the appointments of substitutes dated 25 August 1995 and 2 May 1996 in the case file). Consequently, the [applicant’s] claims on the basis of Article 6 of the Convention... must be rejected. ... As regards the [applicant’s] request that the State provide him with a copy of the contracts and judgments referred to as terms of comparison, and in the light of the adversarial principle, it seems initially that this request is admissible since it is not ‘a new ground which was not raised at first instance’ but new claims intended to secure dismissal of the other party’s claims (Article 654 of the New Code of Civil Procedure); However, this request [by the applicant]... must be rejected since the information provided is sufficient to allow identification of the property sold and the price agreed upon together with free discussion of their value as evidence; ...” 13. The applicant appealed on points of law, alleging in particular that there had been a violation of his right to a fair trial. He submitted that it was not necessary for a party to participate in the decision-making process for its intervention to be considered a violation of Article 6 of the Convention, and complained that the Government Commissioner had been the last to speak, after the expropriated party, and that the latter had had no opportunity to reply. The applicant also complained that the Court of Appeal had dismissed his request for production of copies of the terms of comparison cited by the Government Commissioner. On 8 April 1998 the Court of Cassation dismissed this appeal on the following grounds: “... Firstly, the judgment correctly accepts that, since Article 6 of the Convention ... is not applicable, in that the Government Commissioner does not take part in the Expropriations Division’s decision-making process, it is not necessary to find his intervention inadmissible. Secondly, there is no text prohibiting the parties from replying to the submissions made by the Government Commissioner at the hearing. ... The Court of Appeal justified its decision in law... by accepting in the exercise of its unfettered discretion that the information provided had been sufficient to enable identification of the property sold and the price agreed upon together with free discussion of their value as evidence. ...” II. RELEVANT DOMESTIC LAW AND PRACTICE A. Representation of the State as expropriating authority 14. In a number of départements, including Charente-Maritime, the Revenue Department is the sole authority empowered to carry out purchases of real property, real-property rights or businesses, by agreement or through compulsory purchase orders, on behalf of all the State’s public, civil or military bodies (Article R. 176 of the Code of State Property). In the expropriation proceedings for which it is consequently responsible, it carries out, on behalf of the expropriating authority, “all the acts incumbent on the latter” (Article R. 178 of the same Code). Article 179 of the Code of State Property, in the version applicable at the material time, further provides: “In determining compensation for expropriation, the officials of the Revenue Department appointed by order of the General Director of Revenue shall act before the Expropriations Divisions on behalf of the State’s expropriating bodies. ... The appointments provided for in this Article shall not apply to the officials mentioned in [Article 13-7 of the Expropriations Code].” B. Procedure before Expropriations Divisions and the rules governing the Government Commissioner’s participation 1. The Code of Expropriation in the Public Interest (“the Expropriations Code”) 15. The relevant provisions of the Expropriations Code are worded as follows: (a) Legislative Section Article L. 13-1 “Failing agreement between the parties, compensation shall be determined by an expropriations judge appointed for

each département from among the judges who are members of a tribunal de grande instance.” Article L. 13-21 “No objection may be filed against judgments given at first instance. An appeal lies to the court of appeal within a period of fifteen days from service of judgments given in application of Chapter III.” Article L. 13-25 “An extract of the judgment shall be notified at the request of the most diligent party. It may be referred to the Court of Cassation. Appeals on points of law shall be brought, investigated and tried in accordance with the procedure provided for in Section II of Title II of Law no. 47-1366 of 23 July 1947.” (b) Regulatory Section Article R. 13-7 “The Director of the Revenue Department (Property) of the département in which the Expropriations Division is based shall exercise the function of Government Commissioner before this Division. The Director of the Revenue Department (Property) may appoint officials from his Department as his substitute in the role of Government Commissioner before the court mentioned in Article R.13-1. Before the Chamber dealing with the appeal, he may be substituted either by Directors of Revenue Departments (Property) from other départements within the court of appeal’s territorial jurisdiction, or by officials from the Revenue Department (Property) whom he shall appoint specifically for this purpose.” Article R. 13-8 “Cases brought before the courts cited in Articles L. 13-1 and L. 13-22 shall not be transmitted to State Counsel’s Office if the latter’s presence is not required at the hearing.” Article R. 13-9 “Before the Chamber dealing with the appeal, State Counsel may nevertheless ask to see the file in all cases where he believes that his Office should be represented. In such an event, he may attend the hearing in order to lodge those submissions which he considers necessary, without prejudice to those of the Government Commissioner.” Article R. 13-21 “Failing agreement between the parties within one month of receiving notification of the expropriating authority’s offers... the case may be referred to the expropriations judge by the more diligent party under the conditions set out in Article L. 13-4. ...” Article R. 13-27 “A copy of the order fixing the date and time for inspection of the site shall be sent to the expropriating authority by the registrar of the court, with a view to its communication to the interested parties and to the Government Commissioner. If the case is referred to the judge by the expropriated party, the parties shall be notified directly by the registrar of the date of the site inspection. The registrar shall append a copy of the memorials and other documents in his possession to the notification sent to the Government Commissioner. The parties and the Government Commissioner must be informed at least fifteen days in advance of the date of the site inspection. The visit to the site shall be conducted in their presence. A report shall be produced on the inspection.” Article R. 13-28 “The judge may not appoint experts. In order to assess the value of non-transferable real property and immovable property which present particular valuation difficulties, he may exceptionally be assisted during the inspection of the site by a notary or retired notary appointed from a list drawn up for the whole area within the court of appeal’s territorial jurisdiction by its president, on the basis of proposals from the regional Chamber of Notaries. Exceptionally, he may also appoint a person whom he considers suitably qualified to provide advice in the event of technical problems concerning the assessment of compensation sums other than those referred to in the preceding paragraph.” Article R. 13-30 “The public hearing shall be held on completion of the inspection of the site. At the latest during this inspection, the judge shall inform the parties or their representative, as well as the Government Commissioner, of the place and time of the hearing, which may take place outside the premises in which the court sits.” Article R. 13-31 “The judge shall hear the representative of the expropriating authority and the expropriated parties... The parties may discuss only points covered in the memorials which they have submitted. ...” Article R. 13-32 “The Government Commissioner shall present oral observations and file submissions. The Government Commissioner’s submissions shall contain the elements needed for the court to be informed of the situation. In particular, they shall include a reasoned valuation of the main compensation and, as appropriate, of the subsidiary compensation due to each owner of rights and, where necessary, information that would allow for automatic application of the

provisions of Articles L. 13-14 to L. 13-19.” Article R. 13-33 “Where one of the parties is unable to produce certain documents in support of its memorials, the judge may, where he considers this necessary for the resolution of the case, authorise the party, at its request, to produce these documents at the hearing.” Article R. 13-35 “The judge shall rule within the limits of the parties’ submissions as they appear in their memorials and of the Government Commissioner’s submissions where the latter proposes a valuation that is lower than that of the expropriating party. In such a case, the Government Commissioner’s written submissions must be appended to the case file. If the respondent has not lodged a memorial in reply to the applicant within the period of one month provided for in Article R. 13-23, he shall be deemed to abide by his offers if the respondent is the expropriating authority, and by his reply to the offers if the respondent is the expropriated party. Where the expropriated party has failed to reply to the authority’s offers and to produce a memorial in reply, the judge shall determine the compensation on the basis of the evidence available to him.” Article R. 13-36 “The judgment shall set out, inter alia, the reasons in point of law or of fact for which all awards of main or subsidiary compensation are granted. Where the judgment rejects the Government Commissioner’s submissions proposing a valuation that is lower than that of the expropriating authority, it must specifically state the reasons for such a rejection. The judgment may be delivered by the judge without the Government Commissioner being present. The judgment shall be notified by the most diligent party to the other party and to the Government Commissioner.” Article R. 13-47 “Appeals may be lodged by the parties or by the Government Commissioner within fifteen days from notification of the judgment... ...” Article R. 13-49 “On pain of having his appeal dismissed, an appellant must lodge with or send to the registry of the Chamber, within two months of the date of the appeal, his memorial and the documents which he intends to produce. The respondent must lodge with or send to the registry of the Chamber, within a month following notification of the appellant’s memorial, his memorial in reply and the documents which he intends to produce. The memorials and documents must be produced in as many copies are there are parties, plus one additional copy. The registrar shall serve each party and the Government Commissioner with a copy of the documents filed with the registry as soon as these are received. A cross-appeal may be brought by the parties in their memorial in reply or by a declaration made at the registry of the Chamber. If brought by the Government Commissioner, it must take the second form.” Article R. 13-52 “The Division [of Appeal] shall rule on the basis of memorials. However, the parties may present argument briefly on aspects of the memorials they have submitted. Exceptionally, an expert opinion may be prepared on the basis of a reasoned order from the court. In such a case, if the expropriating authority and the expropriated parties cannot agree on the choice of a single expert, he shall be appointed by the President of the Chamber.” Article R. 13-53 “The provisions of Articles R. 13-33, R. 13-35, R. 13-36 (first paragraph) and R. 13-38 shall be applicable to the appeal procedure.” 2. Case-law 16. The Government Commissioner has the “role of party to the proceedings” (Conseil d’Etat, Assembly, 13 December 1968, Association syndicale des propriétaires de Champigny-sur-Marne et Musso). 17. Intervention by the State official responsible for property as representative of the expropriating authority, under the Decree of 12 July 1967, and simultaneously as Government Commissioner, in application of Article R. 13-7, paragraphs 1 and 3, of the Expropriations Code, does not constitute a ground for alleging procedural impropriety (Paris Court of Appeal, Expropriations Chamber, judgment of 30 January 1981). In addition, the Court of Cassation has ruled that the fact that the Government Commissioner’s role was assumed by the inspector of property who drew up the preliminary opinion assessing the compensation offers on behalf of the expropriating authority does not contravene Article 6 of the Convention, in that the Government Commissioner does not take part in the Expropriations Division’s decision-making process (Third Civil Division, judgment of 21 October 1992, Sté

Rivom c. Département de la Côte-d’Or, Bulletin civil (Bull. civ.) III, no. 279). 18. Emphasising that no document may be lawfully submitted to the court without the parties having an opportunity to discuss it in adversarial proceedings and that “this rule applies to all the courts, even in the absence of a specific text to this effect”, the Court of Cassation has ruled that, where the Government Commissioner’s submissions propose a valuation lower than that of the expropriating authority or contains new elements, the expropriations judge is obliged to ensure that these have been brought to the attention of the parties and that the latter have an opportunity to discuss them freely before the end of the hearing (Third Civil Division, two judgments of 10 July 1969: Prudhomme c. ville de Rennes and Consorts Josso c. ville de Saint-Nazaire, Bull. civ. III, judgments nos. 1 and 3, no. 566, pp. 423-24). 3. Report of the Court of Cassation for 2000 19. The report in question contained the following suggestion: “FOURTH SUGGESTION: Proposal to amend Articles R. 13-32, R. 13-35, R. 13-47 et seq. of the Expropriations Code as regards the role of the Government Commissioner before the Expropriations Divisions. Under Article R. 13-7 of the Expropriations Code, the Director of Revenue (Property) of the département in which the Expropriations Division is based exercises the functions of Government Commissioner before this Division during proceedings to establish the compensation due to expropriated parties. Although no text sets out the exact nature of his role, it is clear from the provisions of the Expropriations Code that the Government Commissioner’s main task is to provide the court, which cannot, in principle, appoint an expert, with the information it requires and in particular with a reasoned assessment of the main and subsidiary compensation due to each owner whose property is subject to expropriation. For this purpose, the Government Commissioner has access to information on tax statements and assessments held by the tax authorities and, in particular, to the land charges register constituted by all property transfers which must be formally registered. However, doubts have been cast on the compatibility of certain aspects of the Government Commissioner’s role with the principles derived from the European Convention for the Protection of Human Rights and Fundamental Freedoms. Thus, it has been noted that the Government Commissioner may propose a valuation of the expropriated assets that is lower than the valuation suggested by the expropriating authority (Article R. 13-35 of the Expropriations Code); he may lodge an appeal or cross-appeal against the judgment determining the level of compensation (Article R. 13-47 et seq. of the Code), although he may not appeal on points of law, except as regards costs imposed on him for the proceedings; and, where he is not the appellant, the Government Commissioner’s submissions are not served on the parties but simply included in the case file (Article R. 13-32). Expropriated parties have also indicated that they have experienced difficulties in obtaining information contained in the land charges register, to which the Government Commissioner has unimpeded access by virtue of his official functions. Finally, it has been observed that, whilst the Government Commissioner is not the State’s representative before the Expropriations Division, there may be, at least in appearance, a certain ambiguity where the State itself is the expropriating authority, particularly when, under Article R. 176 of the Code of State Property, the State is represented before the Expropriations Divisions in a number of départements by the Revenue Department. As long ago as 1992, the Ombudsman included in his annual report a letter, dated 28 January 1992, in which he drew the Minister of Justice’s attention to the Government Commissioner’s role. Whilst it is unnecessary to state that the Commissioner does not participate in the decision-making process within the Expropriations Division, which is by no means obliged to follow his submissions, and although the Court of Cassation ensures that expropriated parties’ rights are respected and the adversarial principle as defined in the new Code of Civil Procedure is effectively complied with, it would nonetheless appear desirable, in order to put an end to possible doubts regarding the conformity of certain aspects of the Government Commissioner’s current role with the requirements of the European Convention and particularly Article 6 § 1, to redefine his functions, limiting them to those of a specialist entrusted with providing the judge and the parties to the compensation proceedings with the information held by the Revenue Department on the state of the property market,

so that this situation is improved.” C. The land charges register 20. Decree no. 55-22 of 4 January 1955 reforming land registration provides, inter alia: Article 1(version as amended by Decree no. 98-516 of 23 June 1998) “For each municipality, a land charges register shall be maintained by the land registrars, in which, as information is submitted, extracts from published documents shall be registered under the name of each owner and by building, with a reference to their classification in the archives. The land charges register shall present an up-to-date profile of the legal status of buildings as indicated by the published documents.” Article 2 “No changes to the legal status of a building may be the subject of a cadastral transfer if the deed or judicial decision recording this change has not previously been published in the land charges register.” 21. Article 39 of Decree no. 55-1350 of 14 October 1955 is worded as follows (version as amended by Decree no. 98-553 of 3 July 1998): “Any request for information shall be drawn up in two typed or printed copies on a form supplied by the authorities or on one copied in accordance with the conditions established by an instruction published in the Official Journal of the Revenue Department, the second copy being obtained by duplication. Subject to the application of paragraph 1 of Article 40, such requests must include: (1) All items of information provided for in Article 9 of the Decree of 4 January 1955 which are necessary to identify the natural persons or legal entities on whose behalf the information is requested; The individual designation of the buildings referred to in the request, i.e. indications regarding the municipality in question, the section and identification number on the cadastral map and, for parts of buildings, an indication of the lot number. Surnames and non-personal names indicated in the applications must appear in capital letters. First names shall be written in small letters. The applications shall be signed and dated by those submitting them.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 22. The applicant alleged that there had been a violation of his right to a fair trial in the context of the proceedings to determine compensation before the expropriations judge and the Expropriations Division; he complained that the principle of equality of arms had been breached as a result of the priviliged position enjoyed by the Government Commissioner, and that there had been a breach of the adversarial principle. He relied on Article 6 § 1 of the Convention, which provides: “In the determination of his civil rights and obligations... everyone is entitled to a fair... hearing... by [a]... tribunal...” A. The parties’ submissions 1. The applicant 23. The applicant submitted that the Government Commissoner was a full party to the case before the expropriations judge and Expropriations Division and that he enjoyed excessive rights in comparison with the other parties which placed him, in fact and in law, in a “dominant position”. Thus, the Government Commissioner was the only party not to be obliged to serve notice of its pleadings, the filing of submissions with the court registry being sufficient. Furthermore, although the provision forbidding the expropriated party from speaking after the Commissioner had now been removed, the order for the presentation of argument had not been amended; experience showed that the expropriated party’s hypothetical right of reply was rarely exercised, since the hearing ended after the Commissioner’s oral submissions. In addition, it followed from Article R. 13-52 of the Expropriations Code that the parties could expand on the arguments in their memorials only briefly before the court of appeal. 24. The applicant added that the role of Government Commissioner was assumed by the Director of Revenue (Property) for the département. But during the non-judicial phase of the procedure this civil servant prepared estimates of the expropriated assets, which then became the expropriating authority’s offer of compensation to the expropriated party (in principle, the expropriating authority could not deviate from this estimate). During the judicial phase of the procedure he enjoyed a considerable advantage over expropriated parties with regard to knowledge of the property market, since he had access to the Land Register, which could not be freely consulted by individuals. As to the Government Commissioner’s “dominant position” before the expropriations judge and Expropriations Division, this arose from the following circumstances: under Article R. 13-36 of the Expropriations Code, the judge was obliged to provide specific explanations for rejecting submissions proposing a lower valuation than that of the expropriating authority; the Government Commissioner

was a sort of expert who was not impartial, and against whom, under Article R. 13-28 of the Expropriations Code, no second expert opinion could be submitted; in addition, he was the last to speak at hearings, and expropriated parties had only a limited opportunity to reply. 25. The applicant claimed that this imbalance was exacerbated in those départements where the expropriating party was represented before the courts by an official from the same government department as that to which the Government Commissioner belonged, since the expropriated party then faced a single party – the State – which was represented twice. In the present case, the situation was alleged to have been almost farcical, since the same official had intervened as representative of the expropriating authority and as the Government Commissioner. The applicant submitted that the State had been represented by an inspector from the Charente-Maritime Revenue Department, and that the role of Government Commissioner had been filled by the Deputy Director of the Revenue Department in the same département, who was the inspector’s hierarchical superior, so that there was in this case an actual overlapping of roles. Thus, when the applicant applied for production of the documents cited in the memorial submitted to the Court of Appeal by the representative of the expropriating authority (in order to justify the price offered, this memorial contained a sheet of paper entitled “Study of the local property market”, listing thirteen contracts of sale and one judgment), he received a reply, not from the inspector handling the case, but from the Deputy Director of the Revenue Department, the Government Commissioner, to the effect that professional confidentiality meant that the documents could not be sent to him. Subsequently, before the Court of Appeal, the Deputy Director of the Charente-Maritime Revenue Department had used subterfuge to give himself the appearance of neutrality: reassuming his role as Government Commissioner, he had arranged to be replaced by the Director of the Vienne Revenue Department, then had himself appointed by this person. Thus, before the Court of Appeal, the expropriating authority was represented by an inspector from the Charente-Maritime Revenue Department and the role of Government Commissioner was assumed by the Director of the Vienne Revenue Department, although these two officials were in reality members of the same administrative entity at département level, and the second was furthermore the first official’s hierarchical superior. Finally, the refusal of the applicant’s request for production of the documents cited in the expropriating authority’s memorial to the Court of Appeal was in itself a violation of Article 6 § 1 of the Convention. 2. The Government 26. The Government emphasised that the Government Commissioner was primarily entrusted with the task of “expert analysis”, consisting in providing information to the judge on the value of the expropriated assets. For this reason, the Commissioner’s functions were assigned to the Director of Revenue of the département in which the court concerned was based: his responsibilities in the administrative, tax and property fields meant that the Director was familiar with property valuation and assessment techniques. From this perspective, the Commissioner was neither a claimant nor a respondent before the court which determined compensation. In addition, the Government Commissioner was responsible for guaranteeing the correct use of public funds and, on that basis, for ensuring in particular that compensation awards did not exceed the real value of expropriated assets. Although he did not have the status of a main party, he was thus a “party” to the proceedings and could, in this capacity, appeal against the expropriations judge’s decision where the sums granted by the latter were not, in his opinion, in the interest of the public purse. The Government added that the Government Commissioner did not represent the expropriating authority and had no decision-making power in establishing compensation, this decision being one that came under the courts’ sovereign authority. His intervention was limited to the public hearings before these courts. He was external not only to preparation of the judgment – the fact that he did not participate in the deliberations was evidence of this – but also to the court itself, as his role was not that of State Counsel. 27. In the Government’s view, the fact that, as in the instant case, the Government Commissioner occasionally belonged to the same administrative entity as the representative of the expropriating authority was not a decisive factor. In this respect, the Government noted that the expropriating authority was represented by a member of the Revenue Department in only forty-five départements (including Charente-Maritime); however, Article R. 179 of the Code of State Property provided that officials appointed in this capacity could not simultaneously exercise the function of Government Commissioner. Thus, in the instant case, the Commissioner’s functions had been exercised before the Court of Appeal by the Deputy Director of Revenue for Charente-Maritime, who was standing

in for the Vienne Director of Revenue; the State had been represented in the contentious proceedings by another official from the Charente-Maritime Revenue Department. Accordingly, the roles of Government Commissioner and representative of the expropriating authority had not been held simultaneously by one and the same person. In itself, the fact that these two officials belonged to the same administrative entity was not evidence of any imbalance, for two reasons: the Commissioner was not representing the expropriating local authority in the proceedings and, consequently, was not defending the same interests as those with which the State’s representative was entrusted; and Article 6 § 1 did not prevent a main party and an associated party from defending a common cause once adversarial proceedings had begun. 28. The Government added that the Government Commissioner’s submissions, both written and oral, were subject to adversarial argument. For example, precedent obliged the Commissioner to table his submissions with the Expropriations Division’s registry at a sufficiently early stage to enable the parties to take cognisance of them prior to the hearing, failing which they would be declared inadmissible. Thus, the parties had an opportunity to discover the Government Commissioner’s opinion and, if necessary, to request an adjournment if a new ground was put forward. In addition, Articles R. 13-31 and R. 13-52 of the Expropriations Code provided that the parties and the Commissioner could develop at the hearing only those arguments set out in their memorials; consequently, the substance of the Government Commissioner’s submissions at the hearing could not differ from the written arguments filed with the registry. Furthermore, contrary to the applicant’s submission, the parties always had an opportunity to discuss the Government Commissioner’s oral submissions by addressing the court after he had spoken. Article 37 of Decree no. 66-776 of 11 October 1966, adopted in application of Law no. 62-848 of 26 July 1962 (re-establishing the institution of Government Commissioner) which excluded this possibility, had been annulled by the Conseil d’Etat. The parties also had the option of replying to these submissions through a memorandum for the deliberations. In the instant case, the applicant had been informed of the Government Commissioner’s submissions to the Court of Appeal, which were filed with the registry on 4 September 1995 and 9 May 1996; indeed, he had replied to them in his last memorial, dated 22 May 1996; he could not therefore claim that on the day of the hearing he had been unaware of the substance of the Government Commissioner’s oral submissions, and had not disputed the fact that they were identical in substance to the written submissions filed with the registry of the court. Equally, the applicant had had an opportunity to reply orally to the Government Commissioner’s submissions at the hearing, and had not made use of it. B. The Court’s assessment 1. Compliance with the principle of equality of arms 29. The applicant complained firstly that the principle of equality of arms between the parties had been breached in the proceedings to establish compensation for expropriation as a result of the privileged position enjoyed by the Government Commissioner. 30. The Court notes that the Government Commissioner takes part in all proceedings to establish compensation before those courts dealing with expropriation cases. He is not a member of these courts and does not participate in the courts’ deliberations. Furthermore, he is distinct from State Counsel (Articles R. 13-8 and R. 13-9 of the Expropriations Code) and from the expropriating authority (he does not represent the latter and files separate submissions). However, the Government Commissioner does participate fully in proceedings before these courts to determine compensation: like the expropriated party and the expropriating authority, he takes part in the on-site visit (Article R. 13-27 of the Expropriations Code), he “present[s] oral observations and file[s] submissions”, and he expresses a view on the assessment of the compensation for expropriation (Article R. 13-32 of the Expropriations Code); he is notified of the judgment at first instance (Article R. 13-36 of the Expropriations Code) and may appeal against it (Articles R. 13-47 and R. 13-49 of the Expropriations Code). The Court concludes from this that the Government Commissioner is a “party” to the proceedings for determining compensation, a status which the Conseil d’Etat acknowledges (see paragraph 16 above) and which, moreover, the Government do not deny. Consequently, the arrangements governing his participation in the proceedings are capable of raising an issue in terms of the principle of equality of arms. 31. The Court points out that this principle is one element of the broader concept of

fair trial, within the meaning of Article 6 § 1 of the Convention. It requires “a fair balance between the parties”: each party must be given a reasonable opportunity to present his case under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent (see, among other authorities, the following judgments: Ankerl v. Switzerland, 23 October 1996, Reports of Judgments and Decisions 1996-V, pp. 1567-68, § 38; Nideröst-Huber v. Switzerland, 18 February 1997, Reports 1997-I, pp. 107-08, § 23; and Kress v. France [GC], no. 39594/98, § 72, ECHR 2001-VI). 32. The Court observes that the Government Commissioner’s role is essentially to guarantee the appropriate use of public money and, on that basis, to ensure in particular that the compensation awarded for dispossession does not exceed the real value of the expropriated assets. Accordingly, he defends interests similar to those defended by the expropriating authority, tending towards moderation of compensation assessments. In addition, as in the instant case, he sometimes belongs to the same administrative entity, and even the same entity at département level, as the expropriating authority’s representative. The Government Commissioner’s role is entrusted to the Director of Revenue (Property) of the département in which the Expropriations Division is based or delegated to another official from this administrative authority (Article 13-7 of the Expropriations Code). For its part, the State as expropriating authority is represented in certain départements – including Charente-Maritime – by officials from the same territorial Revenue Department (Property) (Articles R. 178 and R. 179 of the Code of State Property). Accordingly, a situation may arise, as it would appear to have done in the instant case, where the Government Commissioner is the hierarchical superior of the representative of the State as expropriating authority and a certain overlapping between these parties emerges. Whether regarded as a sharing out of representation of the community’s interests in the compensation proceedings or as a strengthening of one party’s position through the intervention of another, these circumstances undoubtedly weaken the expropriated party’s position. However, they are not in themselves sufficient to constitute a breach of the principle of equality of arms. This type of situation occurs frequently before the courts in the Council of Europe’s member States: either one party faces several main parties which are defending similar or concomitant interests, or the main opposing party and an associated party defend the same argument. In other words, the fact that a similar point of view is defended before a court by several parties does not necessarily place the opposing party in a position of “substantial disadvantage” when presenting his case. 33. It remains to be ascertained whether, in the instant case, in view of the arrangements for the Government Commissioner’s participation in the proceedings, the “fair balance” that ought to prevail between the parties was respected. 34. In the course of the proceedings each of the parties presented their valuations of the expropriated asset; this was the core of the trial, and the valuation depended on the state of the property market. For this purpose, they were obliged to submit to the court terms of comparison drawn from genuine property transfers; from the evidence submitted by the parties the court selected those examples which it considered to be most representative of the property market. As noted above, the Government Commissioner’s tasks are entrusted to the Director of Revenue (Property) of the département in which the Expropriations Division is based or delegated to another official from this administrative authority. In that basis, he, like the expropriating authority, has access to the land charges register, which lists all property transfers. Expropriated parties have only limited access to this register, which is not open for free consultation by individuals: they may receive information and extracts subject to the condition of strictly limiting the references searched for (Article 39 of Decree no. 55-1350 of 14 October 1955). Thus, even at this stage, the expropriated party is at a disadvantage vis-à-vis his opponents. 35. Furthermore, at first instance, no text requires the Government Commissioner, unlike the other parties (Articles R. 13-22 and R. 13-23 of the Expropriations Code), to give notice of his pleadings; it is enough if he files them with the registry, and he is not even obliged to inform the other parties that this has been done. In addition, he is the last to speak, both at first instance and on appeal (Articles R. 13-31 and R. 13-32 of the Expropriations Code). 36. Finally and above all

, both at first instance and on appeal (Article R. 15-53 of the Expropriations Code), the Government Commissioner’s submissions assume particular significance where they tend towards a lower valuation than that proposed by the expropriating authority. It follows from Article R. 13-35 of the Expropriations Code that “the judge rules within the limits of the parties’ submissions... and of the Government Commissioner’s submissions where the latter proposes a valuation that is lower than that of the expropriating authority”; Article R. 13-36 of the same Code adds that, in such a situation, “where the judgment rejects the Government Commissioner’s submissions..., it must specifically state the reasons for such a rejection”. The Court understands the spirit of this rule and the logic on which it is based: the duties of Government Commissioner are entrusted to the Director of Revenue (Property), who, by virtue of his powers in the administrative, tax and property fields, is well versed in the techniques of property valuation and expert analysis, and has access to the most relevant information in this field; thus, he appears to be the party best placed to advise the court on the value of the expropriated assets, and addresses it in what might be described as a task of “expert analysis”. Nevertheless, this rule has the effect of binding the judge to a considerable extent; the judge does not necessarily have the same experience in property valuation as the Director of the Revenue Department, may not appoint another expert at first instance (Article R. 13-28 of the Expropriations Code) and may ask for another expert opinion on appeal only “[e]xceptionally... on the basis of a reasoned order” (Article R. 13-52 of the Expropriations Code). Admittedly, the expropriated party has the option of producing his own expert opinion at his own expense, but the court is not obliged to take it into account in the same way as the Government Commissioner’s submissions. It should be added that this rule necessarily works against the expropriated party, since the court is not obliged to provide any particular explanation when rejecting the Government Commissioner’s submissions where these contain a valuation that is higher than that proposed by the expropriating authority. 37. In sum, the expropriated party in compensation proceedings is faced not only by the expropriating authority but also by the Government Commissioner; the Government Commissioner and the expropriating authority (which, in certain cases, is represented by an official from the same administrative entity as the Government Commissioner) enjoy significant advantages as regards access to relevant information; in addition, the Government Commissioner, who is simultaneously both an expert and a party to the proceedings, occupies a dominant position in the proceedings and wields considerable influence with regard to the court’s assessment (see, mutatis mutandis, Bönisch v. Austria, judgment of 6 May 1985, Series A no. 92). In the Court’s opinion, all this creates an imbalance detrimental to the expropriated party that is incompatible with the principle of equality of arms. Consequently, it concludes that in this case there has been a breach of this principle and a violation of Article 6 § 1 of the Convention. 2. Compliance with the adversarial principle 38. The applicant complained firstly that, in the context of the proceedings before the Court of Appeal, the Revenue Department of Charente-Maritime refused to produce the documents listed in the “study of the local property market” appended to its memorial of 13 April 1995. The Court points out that the concept of fair trial implies in principle the right for the parties to a trial to have knowledge of and comment on all evidence adduced or observations filed (see Lobo Machado v. Portugal and Vermeulen v. Belgium, judgments of 20 February 1996, Reports 1996-I, pp. 206-07, § 31, and p. 234, § 33, respectively, and Nideröst-Huber and Kress, both cited above, p. 108, § 24, and § 74 respectively). In its opinion, the adversarial principle, thus defined, does not require that each party in “civil” cases must transmit to its opponent documents which, as in the instant case, have not been presented to the court either. 39. The applicant further submitted that no text obliged the Government Commissioner, at first instance, to provide copies of his written submissions to the parties or file them with the registry at an early enough date to enable the parties to inspect them and to prepare a reply; there was not even an obligation to inform the parties that submissions had been filed. The Court considers this shortcoming incompatible with the adversarial principle, even if the case-law (see paragraph 18 above) and practice have remedied it somewhat.

However, in the present case, it must be recognised that although no legal provision imposed such a procedure the applicant was sent the submissions on the day before the scheduled hearing and subsequently applied successfully for an adjournment, thus enabling him to prepare a reply in satisfactory conditions. Accordingly, he cannot complain of a breach of the adversarial principle in this respect. 40. Finally, the applicant complains that, at hearings before the Expropriations Divisions, the Government Commissioner is the last to speak. As just noted, the applicant had been sent the Government Commissioner’s written submissions before the hearing, both at first instance and on appeal, in circumstances which enabled him to prepare a written reply. In addition, he was able to submit a memorandum for the deliberations, as indeed he did before the Court of Appeal. The Court concludes from this that the applicant had an opportunity to reply to the Government Commissioner in satisfactory conditions (see, for example, mutatis mutandis, Kress, cited above, § 76), so that the adversarial principle was not breached in this respect either. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 41. 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 42. The applicant sought 490,395.40 euros (EUR) in respect of pecuniary damage, which corresponded to the difference between the compensation for expropriation that, in his opinion, he should have received (EUR 714,932.52) and the sum which he had been awarded by the Expropriations Divisions (EUR 224,537.12). He also requested the payment of EUR 30,489.80 for non-pecuniary damage. 43. According to the Government, in the absence of a causal link between any violation of the Convention which the Court might find and the alleged pecuniary damage, the applicant’s claims should be rejected. As to non-pecuniary damage, they considered that it would be sufficiently compensated by the finding of a violation. 44. The Court cannot speculate as to what the outcome of the proceedings complained of would have been had the violation of Article 6 § 1 of the Convention not occurred (see, for example, Mantovanelli v. France, judgment of 18 March 1997, Reports 1997-II, p. 438, § 40); accordingly, the applicant’s claims regarding alleged pecuniary damage must be dismissed. As to the non-pecuniary damage, the Court considers it sufficiently compensated by the finding of a breach. B. Costs and expenses 45. The applicant sought reimbursement of the costs of representation before the Expropriations Division of the Poitiers Court of Appeal, namely 29,650 French francs (EUR 4,520.11), which included value-added tax (VAT); he produced a bill of costs dated 1 March 1995. The applicant also sought reimbursement of costs and expenses incurred in the proceedings before the Court, namely EUR 13,973.86, including VAT; he produced two statements of fees and costs, dated 25 November and 5 December 2002. 46. According to the Government, there was no need to reimburse the costs incurred by the applicant before the national courts, as these had not been incurred in seeking to prevent or redress the violation. Only those costs and expenses incurred before the Court would be eligible for reimbursement, provided that the relevant vouchers were produced. 47. The Court points out that, where it finds that there has been a violation of the Convention, it may award the applicant not only the costs and expenses incurred before it but also those incurred before the national courts for prevention or redress of the violation (see Hertel v. Switzerland, judgment of 25 August 1998, Reports 1998-VI, p. 2334, § 63). The Court points out, firstly, that the applicant provided relevant documents in support of his claims. It considers, furthermore, particularly in view of the complexity of the issues raised and the diligence of the applicant’s counsel, that the sums sought in respect of the costs and expenses incurred in the proceedings before it are not excessive; it therefore allows this part of the applicant’s claims in full. Finally, it notes that the applicant specifically raised an argument before the Expropriations Division of the Poitiers Court of Appeal based on an infringement of his right to a fair trial stemming from the procedures governing the Government Commissioner’s intervention; it is therefore appropriate to consider that a part of the costs incurred before that court were intended to “pre

vent or redress” the violation found. The Court considers it reasonable to award the applicant EUR 2,000 in this respect, VAT included. In conclusion, the Court awards the applicant EUR 15,973.86, VAT included, for costs and expenses. C. Default interest 48. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Holds that there has been a violation of Article 6 § 1 of the Convention; 2. Holds that the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant; 3. Holds (a) that the respondent State is to pay to the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, EUR 15,973.86 (fifteen thousand nine hundred and seventy-three euros eighty-six cents) in respect of costs and expenses, inclusive of value-added tax; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in French, and notified in writing on 24 April 2003, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Vincent BergerGeorg RessRegistrarPresident

SECOND SECTION CASE OF SZERDAHELYI v. HUNGARY (Application no. 30385/07) JUDGMENT STRASBOURG 17 January 2012 FINAL 17/04/2012 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Szerdahelyi v. Hungary, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Françoise Tulkens, President,Danutė Jočienė,Dragoljub Popović,András Sajó,Işıl Karakaş,Guido Raimondi,Paulo Pinto de Albuquerque, judges,and Stanley Naismith, Section Registrar, Having deliberated in private on 13 December 2011, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 30385/07) against the Republic of Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Hungarian national, Dr Szabolcs Szerdahelyi (“the applicant”), on 4 June 2007. 2. The applicant was represented by Dr M. Róth, a lawyer practising in Budapest. The Hungarian Government (“the Government”) were represented by Mr L. Höltzl, Agent, Ministry of Public Administration and Justice. 3. The applicant complained about the frustration of his right to peaceful assembly. 4. On 13 July 2009 the applicant died. The Registry was notified of this only on 23 August 2011, when Mr Szabolcs Szerdahelyi, the applicant’s son and only heir, stated his intention to replace his father in the proceedings before the Court. 5. Meanwhile, on 9 February 2011 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1). 6. On 5 November 2011 the applicant’s lawyer submitted that Mr Szerdahelyi had joined the pending domestic proceedings (see paragraph 12 below). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 7. The applicant was born in 1943 and lived in Budapest. A. Proceedings initiated by the applicant 8. On 24 November 2006 the applicant announced, as required by the Assembly Act 1989, to the Budapest Police Department his intention to organise a demonstration on 9 December 2006 on Kossuth Square in Budapest, in front of Parliament. 9. On 26 November 2006 the Budapest Police Department refused to deal with the application. It observed that on 23 October 2006 the area in question had been declared, by the Police Department itself and for an indefinite period of time, a “security operational zone” (biztonsági műveleti terület), in view of the tumultuous events in Budapest in September 2006. It was as such outside the Police Department’s jurisdiction as regards the prohibition of, or acquiescence in, a demonstration. On 6 December 2006 the Budapest Regional Court dismissed the applicant’s request for judicial review, observing in essence that no decision on the merits of the case had ever been adopted by the administrative authorities – which excluded such a review. 10. On 11 December 2006 the Deputy Head of the National Police Department dismissed the applicant’s further complaint. On 19 December 2006 the applicant filed an action with the Budapest Regional Court, challenging the decisions of both 23 October and 11 December 2006. 11. On 11 January 2007 the Head of Budapest Police dismissed the applicant’s renewed complaint. On 12 February 2007 the Deputy Head of the National Police Department partly reversed this decision and instructed the Budapest Police Department to substitute the indefinite measure in question with one of definite duration. On 5 March 2007 the Regional Court dismissed the applicant’s ensuing action, essentially endorsing the police authorities’ earlier reasoning. It pointed out that the proceedings only concerned the police’s decision on non-competence and did not constitute review of the police’s original decision declaring Kossuth Square a “security operational zone”. 12. Upon a further complaint, on 18 March 2008 the Regional Court quashed the decisions of 11 January and 12 February 2007 and remitted the case to the National Police Department. In reaction to the applicant’s petition for review, on 29 April 2009 the Supreme Court

quashed the decision of 18 March 2008 and remitted the case to the Regional Court. The latter’s procedure was then interrupted on 1 October 2009 on account of the applicant’s death. The applicant’s son and heir joined the proceedings as successor on 25 August 2011. 13. The Government submitted that the subject matter of the litigation pending before the Regional Court was the police’s original decision declaring Kossuth Square a “security operational zone”. B. Proceedings initiated by Mr K. 14. In another case concerning the same area, on 29 January 2007 a Mr K. challenged the police’s very decision to declare Kossuth Square a “security operational zone”. On 14 March 2007 the Budapest Police Commander rejected his complaint, but this decision was quashed by the National Commander on 16 April 2007. In the resumed administrative proceedings, on 22 June 2007 the Budapest Commander again rejected the complaint. On 19 July 2007 the National Commander upheld this decision. Mr K. challenged this ruling in court. 15. Mr K.’s action was dismissed by the Budapest Regional Court. However, on appeal the Supreme Court quashed this decision, together with the one of 19 July 2007. 16. In the resumed second-instance administrative proceedings, on 23 December 2009 the National Commander again upheld the Budapest Commander’s decision. Mr K. requested judicial review. 17. On 11 November 2010 the Regional Court quashed, in judgment no. 27.K.31.354/2010/9., both the first- and the second-instance administrative decisions and remitted the case to the Budapest Commander. The court pointed out that the impugned decisions did not contain any concrete elements establishing the necessity and proportionality of maintaining the “security operational zone” after the prolongation of 22 November 2006. Nor did they address the plaintiff’s suggestion that the mere fencing-off of Parliament’s immediate vicinity – rather than the global ban on Kossuth Square – would have been sufficient in the circumstances. 18. In the resumed first-instance administrative proceedings, on 4 April 2011 the Budapest Commander partly sustained Mr K.’s complaint, noting that, in the absence of evidence to the contrary, the proportionality of the impugned measure had successfully been challenged. THE LAW I. THE VICTIM STATUS OF THE APPLICANT’S SUCCESSOR 19. On 23 August 2011 the applicant’s lawyer submitted that the applicant had died on 13 July 2009 and that his son and heir wished to take his place in the proceedings before the Court. 20. The Government submitted that the application should be struck out of the list of cases pursuant to Article 37 § 1 (c), since the applicant’s son had shown no interest in continuing the domestic proceedings pending before the Regional Court. 21. The Court notes the submission of 5 November 2011 of the applicant’s lawyer, according to which the applicant’s son had joined the pending domestic proceedings on 25 August 2011. In these circumstances, the Court is satisfied that Mr Szerdahelyi has not lost interest in pursuing the case, either at the domestic level or before it. 22. The Court consequently considers that the applicant’s successor has the requisite locus standi under Article 34 of the Convention in respect of the applicant’s complaint. II. THE GOVERNMENT’S PRELIMINARY OBJECTION 23. The Government submitted that the applicant’s motion challenging in court the original police decision declaring Kossuth Square an “operational zone” was still pending which made the application premature (see paragraph 13 above and also paragraph 27 below). The applicant argued that he had exhausted domestic remedies by challenging both the original decision and the police’s non-competence ruling. 24. The Court considers that the Government’s objection concerning non-exhaustion of domestic remedies is inextricably linked to examination of the question whether there has been an interference with the applicant’s right to freedom of assembly under Article 11, and therefore to the merits of the case. Accordingly, the Court joins this question to the merits and will examine it under Article 11 of the Convention. 25. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. Nor is it inadmissible on any other grounds. It must therefore be declared admissible. III. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION 26. The applicant complained that the police measure in question had prevented him from exercising his right to peaceful assembly. He relied on Articles 11 and 13 of the Convention. The Court considers that the complaint falls to be examined under Article 11

of the Convention alone, which reads as follows: “1. Everyone has the right to freedom of peaceful assembly... 2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others....” 27. The Government contested this view. They noted that, in the applicant’s view, it was the police decision on non-competence that violated his right to freedom of assembly. However, the interference in fact resulted from the original police measure declaring the area in question a “security operational zone”. Against such a measure, a distinct complaint might be filed with the police body in charge, and the latter’s decision could be appealed before the superior organ. The resulting administrative ruling was susceptible to judicial review, an effective remedy in the circumstances. However, the applicant’s case pursuing this legal avenue was still pending. In respect of the area closure, successful proceedings, including judicial review, had already take place (case no. 27.K.31.354/2010/9.); and the applicant should have completed his own similar case, failing which he had not exhausted domestic remedies. 28. As to the merits, the Government pointed out that the venue of the intended assembly had not qualified at the material time as public area accessible to everyone and therefore the right to freedom of assembly could not be exercised on it. 29. The applicant argued that, to exhaust domestic remedies, he could reasonably be expected to challenge the police’s non-competence decision in court, which he had done. The other case, which was still pending, represented no effective remedy to exhaust, since by the time it would be adjudicated, the demonstration becomes obsolete. The non-availability of Kossuth Square for the purposes of the intended demonstration had been an unlawful and disproportionate measure. 30. The Court observes that the Government did not dispute that the applicant could rely on the guarantees contained in Article 11. It considers that the non-acquiescence by the police in the demonstration effectively interfered with the exercise of the applicant’s rights under that provision, as the individualised application of the original police decision referred to by the Government (see paragraph 27 above). It is further satisfied that the applicant exhausted the remedy available in this connection. 31. The Government can moreover be understood to base their preliminary objection of non-exhaustion of domestic remedies on the fact that the applicant did not complete the procedure challenging the original police decision, but been contented with challenging the one on non-competence. However, the Court is not convinced that the proceedings which were pursued by Mr K. but not accomplished by the applicant can be considered in the circumstances an effective remedy whose omission falls foul of Article 35 § 1 of the Convention. Given the instantaneous nature of a political demonstration – the impact of which may rapidly diminish with the lapse of time from the triggering event – a judicial procedure, which in Mr K.’s instance included several remittals and decisions maintaining the ban and which produced at last a decision to the contrary only after more than four years, can hardly be regarded as effective or adequate and must be attributed a chilling effect on the freedom in question (see, a fortiori, Bączkowski and Others v. Poland, no. 1543/06, §§ 67 to 73, 3 May 2007). For the Court, the applicant’s omission to exhaust this legal avenue in addition to the one fully utilised cannot be held against him, all the more so, since there appears to be no obstacle to the authorities’ assessing proportionality also in those proceedings, of which the applicant has already availed himself. The Government’s preliminary objection must therefore fail. 32. The Government contended that the interference was justified under the second paragraph of Article 11. It must therefore be determined whether the measure complained of was “prescribed by law”, prompted by one or more of the legitimate aims set out in paragraph 2, and was “necessary in a democratic society” to achieve them. 33. As regards the question whether the non-availability of Kossuth Square for the purposes of the intended demonstration was “prescribed by law”, the Court notes that the police declared it a “security operational zone” in 2006, and it remained so throughout the material period. However, on 11 November 2010 the Budapest Regional Court quashed the underlying police decisions, reproaching those authorities for failing to assess the necessity and proportionality of the measure as maintained subsequent to 22 November 2006. Consequently, on 4 April 2011 the Budapest Commander carried out the requisite scrutiny and found that the proportionality of the measure had not been proved (see paragraphs 17-

18 above). For the Court, these court rulings have effectively, if retroactively, removed the legal basis of the impugned measure. 34. It is true that the above two decisions were adopted in a procedure initiated by Mr K. rather than the applicant. For the Court, however, this is immaterial when it comes to the notion of lawfulness in the context of Article 11 § 2. 35. The foregoing considerations are sufficient to enable the Court to conclude that the ban on Kossuth Square at the material time was devoid of a basis in domestic law and cannot as such be regarded as “prescribed by law”. It is therefore not necessary to embark on an examination of its legitimate aim or necessity in a democratic society. There has accordingly been a violation of Article 11 of the Convention. IV. 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.” A. Damage 37. The applicant claimed 6,000 euros (EUR) in respect of non-pecuniary damage. 38. The Government contested this claim. 39. The Court considers that the applicant must have suffered some non-pecuniary damage and awards him, on the basis of equity, EUR 2,400. B. Costs and expenses 40. The applicant also claimed EUR 1,100 for the costs and expenses incurred before the Court. This amount corresponds to 11 hours of legal work billable by his lawyer at an hourly rate of EUR 100. 41. The Government contested this claim. 42. 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 full sum claimed. C. Default interest 43. 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. Decides by a majority that the applicant’s son has locus standi in the proceedings; 2. Joins to the merits the Government’s objection concerning non-exhaustion of domestic remedies and dismisses it by a majority; 3. Declares the application admissible by a majority; 4. Holds by 6 votes to 1 that there has been a violation of Article 11 of the Convention; 5. Holds by 6 votes to 1 (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Hungarian forints at the rate applicable at the date of settlement: (i) EUR 2,400 (two thousand four hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 1,100 (one thousand one hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 6. Dismisses unanimously the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 17 January 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stanley NaismithFrançoise TulkensRegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of the Court, the separate opinion of Judge Jočienė is annexed to this judgment. F.T. S.H.N. DISSENTING OPINION OF JUDGE JOČIENĖ I voted in this case against the Chamber’s position that the applicant’s son should be recognised as having locus standi in the proceedings before the European Court of Human Rights, and subsequently, against the finding of a violation of Article 11. According to the jurisprudence of the Court, in cases where the direct

victim died before or after the application was submitted to the Court, different criteria apply in order to recognise locus standi, which will then also depend on the nature of the Convention right at issue. The Chamber in the present case relied on the fact that the Government did not dispute that the applicant could rely on the guarantees contained in Article 11 of the Convention (see paragraph 30 of the judgment) and that the applicant’s son had been allowed to join the pending domestic proceedings (see paragraph 21 of the judgment), which have not yet finished. For me, such an argument is not in itself sufficient to allow the next-of-kin or heir of the deceased applicant to continue the proceedings in the European Court of Human Rights, even though I accept that participation in the domestic proceedings is an important factor when resolving the locus standi issue before the Court (see, for example, Nölkenbockhoff v. Germany, 25 August 1987, Series A no. 123; and Micallef v. Malta [GC], no. 17056/06, 5 October 2009, § 49). Furthermore, according to the Court’s case-law, in a number of cases where an applicant has died in the course of the proceedings, it has taken into account the statements of the applicant’s heirs or of close family members expressing the wish to pursue the proceedings before the Court (see Karner v. Austria, no. 40016/98, 24 July 2003, §§ 22-23, and all the case-law cited therein); on the other hand, it has been the Court’s practice to strike applications out of its list where no heir or close relative has expressed the wish to pursue an application (see Malhous v. the Czech Republic (dec.) [GC], no. 33071/96, ECHR 2000-XII). In the case before us, the applicant’s son clearly expressed his wish to continue the application, lodged by his father, before the European Court of Human Rights. But such background, whether this element is taken alone or even together with the fact of permission to participate in the domestic proceedings, is not in itself sufficient for locus standi to be granted in every case. Where the applicant has died during the proceedings before the Court (introduced by himself/herself) the next-of-kin or heir may continue with the application if he or she has sufficient interest in that case (as, for instance, the widow and children in Raimondo v. Italy, 22 February 1994, § 2, Series A no. 281‑A; and the nephew and potential heir in Malhous v. the Czech Republic (dec.), no. 33071/96, ECHR 2000‑XII). The Court stated in the case of Jėčius v. Lithuania (no. 34578/97, § 41, ECHR 2000‑IX) as follows: “The Court reiterates that, where an applicant dies during the examination of a case concerning the unlawfulness of his detention, his heirs or next of kin may in principle pursue the application on his behalf (see, among other authorities, Krempovskij v. Lithuania (dec.), no. 37193/97, 20 April 1999, unreported). The Court considers, like the Commission, that the applicant’s widow has a legitimate interest in pursuing the application in his stead.” (emphasis added) Therefore, the Court’s practice shows that in cases where the direct victim has died after the application was lodged with the Court, the next-of-kin or heir can pursue the application before the Court when he or she has a legitimate or sufficient interest in continuing the proceedings before it (see also, for example, Léger v. France (striking out) [GC], no. 19324/02, § 50, 30 March 2009, as regards the applicant’s niece). In cases where the direct victim died before the application was lodged with the Court, the Court applies stronger criteria for establishing locus standi. For example, in the case of Fairfield v. the United Kingdom ((dec.), no. 24790/04, ECHR 2005‑VI), where a daughter filed a complaint two years after her father’s death, claiming a violation of his rights to freedom of thought, religion and speech (Articles 9 and 10 of the Convention), even though the domestic courts had granted her leave to pursue the appeal after her father’s death, the Court did not accept the daughter’s victim status. In the Hungarian case before us, I cannot see any legitimate or sufficient interest of the applicant’s son in continuing the application before the Court under Article 11 of the Convention. According to the practice of the Court, the Convention does not allow an actio popularis. Under Article 34 of the Convention, the applicant as a victim (either direct or indirect

) must bring prima facie evidence of being directly affected by the impugned measure (see, mutatis mutandis, Religionsgemeinschaft der Zeugen Jehovas and Others v. Austria, no. 40825/98, § 90, 31 July 2008). In the present case, I cannot see how the deceased applicant’s son could be affected by the alleged violation of Article 11 of the Convention, taking into account the nature of this Article, in so far as the deceased applicant had not received any answer from the police as regards his requested permission to hold a demonstration back in 2006 on Kossuth Square in Budapest, in front of the Parliament. In my opinion, in this particular case there is no legitimate or sufficient interest of the applicant’s son in defending his late father’s rights of association under Article 11 of the Convention. I agree with the jurisprudence of the Court that in cases brought under Article 2 or 3, which protect the fundamental values of every democratic society, the Court can more easily justify the continuation of proceedings before it after the death of the direct victim, taking into account the “particular situation governed by the nature of the violation alleged...” (see, among other authorities, Varnava and Others v. Turkey [GC], nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, § 200, 18 September 2009; see also Khadzhialiyev and Others v. Russia, no. 3013/04, § 114, 6 November 2008, as regards Article 3 claims). I would also note, however, that the Court’s approach in ordinary Article 5 cases as regards locus standi has been much more restrictive (see, for example, Biç and Others v. Turkey (no. 55955/00, 2 February 2006, § 24), where the wife and children of the deceased victim were not granted the requisite standing, as they were not directly affected by the length of the detention on remand or the alleged unfairness of criminal proceedings brought against the deceased; contrast Jėčius, cited above). The Court reiterated in the Biç and Others case that the rights in Article 5 belonged to the category of non-transferable rights (see Sanles Sanles v. Spain (dec.), no. 48335/99, ECHR 2000‑XI). Similar decisions had been given in the past by the Convention organs (see, for example, Georgia Makri and Others v. Greece (dec.), no. 5977/03, 24 March 2005; and Nölkenbockhoff and Bergmann v. the Federal Republic of Germany, no. 10300/89, Commission decision of 12 December 1984, DR 40, p. 9). By contrast, Article 5 § 5 of the Convention (the right to compensation for unlawful detention) is a pecuniary right and a transferrable one (see Houtman and Meeus v. Belgium, no. 22945/07, §§ 27-31, 17 March 2009). In Article 6 cases, in addition to participation in the domestic proceedings, the Court has also taken account of other alternative criteria in order to recognise the standing of relatives before it: the transferability of the right, the legitimate interest and the direct effect on patrimonial rights (see, for example, the above-mentioned case of Sanles Sanles, where the Court considered that the rights claimed under Articles 2, 3, 5, 8, 9 and 14 belonged to the category of non-transferable rights, declaring this part of the application incompatible ratione personae). In the Karner case (cited above, §§ 25-26) the Court analysed whether the Convention right at issue (in its nature) could be regarded as “transferable”. The Court stated as follows: “... as a rule, and in particular in cases which primarily involve pecuniary, and, for this reason, transferable claims, the existence of other persons to whom that claim is transferred is an important criterion, but cannot be the only one. As the Court pointed out..., 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...” This means that in cases where the Court is obliged to resolve the locus standi aspect, it must take into account such factors as: the clearly expressed wish by the next-of-kin or heirs to continue the application before the court, their participation in the domestic proceedings, a legitimate and/or sufficient personal interest in pursuing the individual application in the deceased applicant’s stead, the Convention right at issue (its nature) and

its transferability; and, lastly, it must answer the question whether there are any common or public interests in terms of human rights protection or some moral dimension requiring it to continue the examination of the case. The Court has also applied a more flexible approach when recognising locus standi in cases where the complaint was related to the reputation of the deceased person under Article 8, thus also potentially affecting the reputation of the family (see, for example, Armonienė v. Lithuania, no. 36919/02, § 29, 25 November 2008). I would emphasise that the Court has always declared inadmissible applications from relatives raising complaints under Articles 9, 10 and 11, in relation to proceedings and facts concerning the deceased victim. In doing so, it has distinguished this type of complaints from those brought under Article 2 concerning the death of a relative (see, for Articles 9 and 10, Fairfield, cited above; as regards Article 11, see Direkçi and Direkçi v. Turkey (dec.), no. 47826/99, 3 October 2006, where the Court observed that there was no general interest in the case for the proceedings under Articles 6 and 11 to be continued, as those Articles did not fall within the fundamental provisions of the Convention). As regards the exception based on the general interest, the Court noted in Karner (cited above) that, even in the absence of heirs wishing to continue the application, it could continue the examination of a case relying on an important question of public interest. Therefore, taking into account the Court’s case-law on the locus standi issue, I cannot see in this particular case that the applicant’s son has any legitimate or sufficient personal interest in pursuing the application under Article 11 of the Convention. Furthermore, Article 11 rights cannot be regarded as “transferable rights” under the Court’s jurisprudence. Furthermore, no general or moral interests in protecting human rights can be found in this case. Thus, the continued examination of the present application would not contribute to elucidating, safeguarding or developing the standards of protection of Article 11 rights under the Convention (contrast Karner, cited above). In my opinion there must be some strong sufficient and/or justified personal interest of the heir in continuing the proceeding before the Court after the applicant’s death and that interest must depend on a reasonable relationship between the original actions undertaken by the applicant and his or her heir’s wish to continue the proceedings. Such a relationship cannot be established with regard to the nature of Article 11 rights, which are not transferable. Logically, the question arises how the son in this particular case could have known what the applicant had wanted to express during the planned demonstration in 2006, permission for which he had never received from the police (in the Court’s case-law, Articles 10 and 11 are very much interrelated, see Women On Waves and Others v. Portugal, no. 31276/05, § 28, 3 February 2009). For me, the requested continuation of the case before the Court was based more on the pecuniary interests of the heir, but not on a legitimate interest in protecting the deceased applicant’s rights of association under Article 11. For this reason I also voted against granting any just satisfaction in the case under Article 41 of the Convention. In my opinion, the heir (the applicant’s son) has no locus standi before the Court in the present case; therefore the case should have been struck out of the list of cases under Article 37 § 1 in fine of the Convention.

FOURTH SECTION CASE OF SCIACCA v. ITALY (Application no. 50774/99) JUDGMENT STRASBOURG 11 January 2005 In the case of Sciacca v. Italy, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: SirNicolas Bratza, President,MrG. Bonello,MrK. Traja,MrV. Zagrebelsky,MrL. Garlicki,MrJ. Borrego Borrego,MrsL. Mijović, judges,and Mr M. O'Boyle, Section Registrar, Having deliberated in private on 7 December 2004, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 50774/99) against the Italian Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Italian national, Mrs Carmela Sciacca (“the applicant”), on 1 June 1999. 2. The applicant was represented by Mr E.P. Reale, a lawyer practising in Syracuse. The Italian Government (“the Government”) were represented by their Agent, Mr I.M. Braguglia, and their co-Agent, Mr F. Crisafulli. 3. The applicant alleged, in particular, that the publication of her photograph had infringed Article 8 of the Convention. 4. The application was allocated to the First 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 4 September 2003, the Chamber declared the application partly admissible. 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. Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6. The applicant was born in 1949 and lives in Syracuse. 7. She was a teacher at a private school in Lentini (Syracuse). The school was owned by a limited liability company, G., of which the applicant and three other teachers were members and Mr G. the manager. 8. In July 1998 Mrs C. lodged a criminal complaint with the Revenue Police (Guardia di Finanza) about irregularities in the management of the school's affairs. She stated that she was a de facto member of G. 9. The Syracuse public prosecutor's office opened an investigation in respect of the members and manager. On 20 July 1998 the Revenue Police searched the company's head office and the members' homes. At that time the applicant received official notification that she was under investigation. On an unspecified date the public prosecutor's office ordered the applicant to be questioned and informed her that she and the other persons charged were suspected of committing extortion, fraud and forgery. On 12 August 1998 the Revenue Police questioned the applicant. 10. On 17 November 1998 the public prosecutor's office asked the investigating judge to issue an arrest warrant against the applicant and certain other persons on charges of criminal association, tax evasion and forgery of official documents. On 28 November 1998 the investigating judge ordered Mrs Sciacca and the other persons charged to be placed under house arrest. 11. On 4 December 1998 the applicant was served with the judge's decision. Like anyone placed under house arrest, she avoided being remanded in custody. However, the Revenue Police compiled a file on her; photographs and fingerprints were included in it. On the same day the deputy public prosecutor responsible for the investigation and officers from the Revenue Police gave a press conference. 12. Two newspapers published articles about the investigation. 13. The first daily, Giornale di Sicilia, published two articles, on 5 and 6 December 1998. In the first one it referred to “alleged formal and substantive illegalities in the management of a private school”. After stating that the applicant and three others, who had been placed under house arrest, had been charged with very serious offences (criminal association, extortion, forgery, fraud and tax evasion), the newspaper indicated that other persons charged “were allegedly also” victims of acts of extortion committed by the four people who had been arrested. After outlining the measures

taken by the investigators, the newspaper stated that the four people who had been placed under house arrest “were allegedly” the de facto managers of the school. The newspaper went on to explain what the extortion had consisted of. It added that “unofficial accounts had been found at the home of the four people concerned” and that “the investigators had found that the pupils enrolled” in two classes “were in fact the husbands and cousins of the women who had been arrested”. The only passage reporting the investigators' statements concerned someone other than the applicant. 14. The other article – published on the following day together with a photograph of the four arrested women – was similar in content to the first one. 15. On 5 December 1998 the second daily, La Sicilia, published on the front page a photograph (identity format) of the four people who had been placed under house arrest and stated that they “had set up a bogus school”. The contents of the article were comparable to those of the articles published in the first daily. 16. The applicant's photograph, together with that of the three other women who had been arrested, was published four times on 5 and 6 December 1998. Each time it was an identity photograph that had been taken by the Revenue Police when the file was compiled, at the time of the applicant's arrest, and released by them to the press. 17. On 12 December 1998 the applicant challenged the order placing her under house arrest in the tribunale della libertà (a court with jurisdiction to examine preventive measures) of Catania. On 28 December 1998 the court ordered the applicant to be released on the ground that it was no longer necessary for the purposes of the investigation to keep her under house arrest. 18. On 1 March 1999 the public prosecutor's office requested the applicant to be committed for trial. The case was listed for hearing before the investigating judge on 26 May 1999. However, the applicant waived her right to that phase and asked to be tried by the court in accordance with a shortened form of procedure. The case was therefore set down for hearing before the Syracuse Court on 6 June 2000. 19. On 8 March 2002 the case ended with the special procedure for imposition of the penalty agreed between the applicant and the prosecution (Article 444 of the Code of Criminal Procedure – “the CCP” (applicazione della pena su richiesta delle parti)), namely, one year and ten months' imprisonment and a fine of 300 euros. II. RELEVANT DOMESTIC LAW 20. The parties did not provide the Court with any indication as to possible legislation governing the photographing of persons charged or arrested and placed under house arrest without being imprisoned and the release of such photographs to the press. Presidential Decree no. 431 of 29 April 1976 sets forth the implementing regulations in respect of Law no. 354 of 26 July 1975 on the administration of prisons. With regard to persons charged who have been arrested and imprisoned, paragraphs 1 and 2 of Regulation 26 of the implementing regulations provide as follows: “A personal file shall be compiled on anyone detained or confined as soon as he or she is imprisoned. The file shall follow the person concerned whenever he or she is transferred and shall be stored in the archives of the prison that releases him or her. The ministry shall be informed that the file is being stored. The references of this personal file shall include civil-status particulars, fingerprints, photographs and any other item necessary for the exact identification of the person.” It is clear from paragraph 5 of that regulation that the compilation of a personal file also concerns persons placed in pre-trial detention. 21. Law no. 121 of 1 April 1981 concerns the new rules relating to public safety. The relevant provisions of this Law read as follows: Section 6 – Coordination and direction of the police forces “With a view to implementing the guidelines issued by the Minister of the Interior on exercising the functions of coordination and unitary direction in respect of order and public safety, the Department of Public Safety shall carry out the following tasks: (a) classification, analysis and assessment of information and data that have to be provided by the police forces as well for the prevention of disorder and the protection of public safety and for the prevention and punishment of crime, and distribution to the operational services of the above-mentioned police forces; ... ” Section 7 – Nature and quantity of the data and information collected “The information and data referred to in section 6, paragraph (a), must relate to information taken either from documents which are stored in one way or another by public authorities or departments or from judgments or decisions by a judicial authority or from documents relating to the criminal investigation and available in accordance with Article 165 ter of the Code of Criminal Procedure or from police inquiries. In all cases it is forbidden to gather information and data on a

citizen solely on the ground of his or her race, religion, political opinions or adherence to the principles of a trade union, cooperative, charitable or cultural movement or on account of any lawful activity carried on by him or her as a member of an organisation lawfully engaged in one of the above-mentioned spheres. ...” THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 22. The applicant complained that the release of her photograph at the press conference organised by the public prosecutor's office and the Revenue Police had infringed her right to respect for her private life. She relied on Article 8 of the Convention, which is worded as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 23. The applicant's original complaint also concerned the divulgation of information about her during the press conference (part of the complaint which the Court declared inadmissible on 4 September 2003 – paragraph 5 above). The Government had submitted observations without making a distinction between the information divulged and the release of the photograph. Those observations may be summarised as follows, even if they do not specifically concern the release of the photograph. The Government observed that the applicant's right to respect for her private life was limited by the public's right to be informed and by the aim of preventing further criminal offences. They pointed out that Article 10 of the Convention guaranteed the freedom of opinion and of the press. The only limit on those freedoms was where the accused underwent “trial by newspaper” (see The Sunday Times v. the United Kingdom (no. 1), judgment of 26 April 1979, Series A no. 30, pp. 38-39, § 63). As regards the second aspect, the Government submitted that in the present case account had to be taken of the nature of the offences of which the applicant had been accused – and subsequently convicted – offences which related, inter alia, to the management of a school, and harmed the interests of the community. Accordingly, the facts which had given rise to the prosecution – and did not strictly concern the applicant's private life – were matters that the community had an interest in knowing. In conclusion, in the Government's submission there had not been a violation of the provision in question. 24. The applicant contested the Government's submission. She argued that the interference had been neither in accordance with the law nor necessary for one of the aims referred to in paragraph 2 of Article 8. Indeed, as the public had been unaware of the offence they had not had any interest in learning of it or knowing how the investigation was progressing. In any event, handing the press her photograph, which had been taken from her file, had not in any way been justified in her view. The claim that there had been no formal finding of guilt by a judicial authority had been contradicted by the contents of the articles written after the press conference. 25. With regard to the elements disclosed at the press conference, the applicant denied that the public had an interest in learning of them, and asserted that they were private. Despite the serious nature of the offences, the information relating to the criminal proceedings – and above all the photograph taken by the investigators at the time of the arrest – should have remained secret. The applicant pointed out to the Court that the Government had not given any explanation regarding the release of the photograph to the press. 26. The Court notes that the Government have not denied that the published photograph had been taken when the file was compiled, at the time of the applicant's arrest, and handed to the press by the Revenue Police. 27. The Court has already examined the question of the publication of photographs of public figures (see Von Hannover v. Germany, no. 59320/00, § 50, ECHR 2004-VI) or politicians (see Schüssel v. Austria (dec.), no. 42409/98, 21 February 2002). After concluding that the publication of photographs fell within the scope of private life, it examined the question of the respondent State's compliance with the positive obligations incumbent on it when the publication was not the result of action or co-operation on the part of State bodies. 28. The present case differs from previous ones in that the applicant was not someone who featured in a public context (public figure or politician) but the subject of criminal proceedings. Furthermore, the published photograph, which had been taken for the purposes of an official file, had been given to the press by the Revenue Police (see paragraphs

16 and 26 above). That being so, in accordance with its case-law the Court must determine whether the respondent State complied with its obligation not to interfere with the applicant's right to respect for her private life. It must verify whether there has been an interference with that right in the present case and, if so, whether that interference satisfied the conditions laid down in the second paragraph of Article 8: was it “in accordance with the law”, did it pursue one or more legitimate aims under paragraph 2 of that Article and was it “necessary in a democratic society” to achieve them? 29. Regarding whether there has been an interference, the Court reiterates that the concept of private life includes elements relating to a person's right to their image and that the publication of a photograph falls within the scope of private life (see Von Hannover, cited above, §§ 50-53). It has also given guidelines regarding the scope of private life and found that there is “a zone of interaction of a person with others, even in a public context, which may fall within the scope of 'private life' ” (ibid.). In the instant case the applicant's status as an “ordinary person” enlarges the zone of interaction which may fall within the scope of private life, and the fact that the applicant was the subject of criminal proceedings cannot curtail the scope of such protection. Accordingly, the Court concludes that there has been interference. 30. As regards compliance with the condition that the interference must be “in accordance with the law”, the Court notes that the applicant argued that this condition had not been complied with and that her submission was not disputed by the Government. According to the information available to it, the Court considers that the subject matter was not governed by a “law” that satisfied the criteria laid down by the Court's case-law, but rather by practice. The Court also notes that the exception to the secrecy rule regarding measures taken during preliminary investigations, provided for in Article 329 § 2 of the CCP, concerns only cases where an investigative document is published for the purposes of continuing the investigation. That was not the case here, however. The Court therefore concludes that the interference has not been shown to have been in accordance with the law. That finding is sufficient for the Court to conclude that there has been a breach of Article 8. Accordingly, it is not necessary to determine whether the interference in question pursued a “legitimate aim” or was “necessary in a democratic society” to achieve that aim (see M. v. the Netherlands, no. 39339/97, § 46, 8 April 2003). 31. In conclusion, there has been a violation of Article 8 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 32. 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 33. The applicant claimed 25,000 euros (EUR) for pecuniary damage. She supported her claim by arguing that the publication of her photograph had prevented her from finding work and that the compensation should offset that loss of opportunity. She also claimed EUR 15,000 for non-pecuniary damage. 34. The Government did not comment. 35. The Court notes that the applicant has neither proved the existence of any pecuniary damage nor, a fortiori, any causal connection with the alleged violation. Accordingly, this claim must be rejected. In respect of non-pecuniary damage, the Court considers that, in the circumstances of the present case, the finding of a violation constitutes in itself sufficient just satisfaction. B. Costs and expenses 36. The applicant claimed EUR 14,932.80 for costs and expenses. That amount included value-added tax and the contribution to the lawyers' insurance fund. 37. The Government did not comment. 38. The Court reiterates that costs and expenses will not be awarded under Article 41 unless it is established that they were actually and necessarily incurred and are also reasonable as to quantum (see Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, § 54, ECHR 2000-XI). Furthermore, legal costs are only recoverable in so far as they relate to the violation found (see Van de Hurk v. the Netherlands, judgment of 19 April 1994, Series A no. 288, p. 21, § 66). The Court notes that the violation found concerns only one complaint among others that have been declared inadmissible. 39. According to the Court's case-

law, an award can be made in respect of costs and expenses only in so far as they have been actually and necessarily incurred by the applicant and are reasonable as to quantum. In the instant case, having regard to the information before it and to the above-mentioned criteria, the Court considers the amount of EUR 3,500 to be reasonable for the proceedings before the Court and awards it to the applicant. 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. Holds that there has been a violation of Article 8 of the Convention; 2. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 3,500 (three thousand five hundred euros), plus any tax that may be chargeable; (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; 3. Dismisses the remainder of the applicant's claim for just satisfaction. Done in French, and notified in writing on 11 January 2005, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Michael O'BoyleNicolas BratzaRegistrarPresident

FIRST SECTION CASE OF DANIEL FAULKNER v. THE UNITED KINGDOM (Application no. 68909/13) JUDGMENT STRASBOURG 6 October 2016 FINAL 06/03/2017 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Daniel Faulkner v. the United Kingdom, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Mirjana Lazarova Trajkovska, President,Kristina Pardalos,Linos-Alexandre Sicilianos,Paul Mahoney,Aleš Pejchal,Robert Spano,Armen Harutyunyan, judges,and Renata Degener, Deputy Section Registrar, Having deliberated in private on 6 September 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 68909/13) 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 British national, Mr Daniel Faulkner (“the applicant”), on 23 October 2013. 2. The applicant, who had been granted legal aid, was represented by Chivers Solicitors, a firm of solicitors based in Bingley. The United Kingdom Government (“the Government”) were represented by their Agent, Ms M. Macmillan, of the Foreign and Commonwealth Office. 3. The applicant alleged, in particular, that the delay from March 2008 until January 2009 in holding a Parole Board hearing to review the lawfulness of his detention rendered his detention during that period arbitrary and thus unlawful under Article 5 § 1 (a) of the Convention. 4. On 26 May 2015 the complaint under Article 5 § 1 was communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1982 and is detained in HM Prison Dovegate, Uttoxeter. A. The background facts 6. On 3 August 2001 the applicant was sentenced by the Crown Court to custody for life for causing grievous bodily harm. The minimum period (“tariff”) was set at two years, eight and a half months, less time spent on remand. The tariff expired on 18 April 2004 and he became eligible for parole. 7. The Parole Board subsequently examined his case in order to review whether his detention remained necessary for the protection of the public. On 26 May 2005 it decided not to direct his release but recommended that he be transferred to open conditions. That recommendation was rejected by the Secretary of State. 8. A second recommendation to the same effect was made, following the applicant’s second Parole Board review on 31 January 2007 and rejected by the Secretary of State on 23 May 2007. At the conclusion of its statement of reasons for rejecting the Board’s recommendation, the National Offender Management Service (“NOMS”) wrote: “The Secretary of State has therefore decided that you should remain in closed conditions and your next review will conclude in January 2008.” 9. The accompanying letter stated: “It has been decided that your case will next be referred to the Parole Board for a provisional hearing to take place in JANUARY 2008. ... You will be notified by the Parole Board nearer the time about the exact date of that hearing. At your next review the Parole Board will consider your suitability for release by way of a paper panel. This consideration will take place approximately 12 weeks prior to your provisional hearing [in January 2008]. If you are not content with the paper panel’s decision you may request that the case proceeds to the arranged oral hearing.” 10. The case was referred to the Parole Board on 21 December 2007. On 6 May 2008 the applicant and the Parole Board were sent relevant reports as required by the applicable rules. On 16 May 2008 the Parole Board gave case-management directions requiring additional reports. On 8 October 2008 the Parole Board received the further reports requested. The hearing took place on 8 January 2009. On 23 January 2009 the Parole Board directed the applicant’s release. He was released from prison four days later.

B. The domestic proceedings 11. Meanwhile, in autumn 2008, the applicant commenced judicial review proceedings against the Secretary of State and the Parole Board seeking damages for the delay in holding the hearing. He relied on Article 5 § 4 of the Convention. He was granted permission to bring proceedings on 13 October 2008. 12. On 5 June 2009 the claim was dismissed by the High Court. Leave to appeal was granted by the Court of Appeal on 27 October 2009. 13. On 14 December 2010 the Court of Appeal handed down its judgment. After carefully reviewing the facts and the individual periods of delay encountered, it concluded that there had been a delay of ten months, from March 2008 to January 2009, in the holding of the Parole Board hearing which was unjustified and for which the Secretary of State was responsible. This delay had prevented the applicant from having the lawfulness of his continued detention decided in accordance with Article 5 § 4. On the question of damages, the court was satisfied that the applicant had shown, on a balance of probabilities, that he would have been released had the review taken place in March 2008. Damages on the basis of a loss of liberty were therefore appropriate. 14. In its judgment of 29 March 2011 on the amount of damages to be awarded, the court considered a number of just satisfaction awards in cases before this Court in which breaches of Article 5 § 4 had been found. It distinguished between cases where the delay had merely led to feelings of frustration and those where it had been established that, but for the delay in the holding of the hearing, the applicant would have been released earlier. It awarded the sum of 10,000 pounds sterling (“GBP”) by way of compensation for the loss of ten months’ conditional liberty. 15. The applicant sought leave to appeal to the Supreme Court on the ground that the award was inadequate. The Parole Board sought leave to appeal on the ground that the award was excessive. Leave was granted to both parties, and the applicant was in addition given permission to argue that his detention after March 2008 constituted false imprisonment at common law or a violation of Article 5 § 1 of the Convention. In respect of his latter argument, he relied on this Court’s findings in James, Wells and Lee v. the United Kingdom, nos. 25119/09, 57715/09 and 57877/09, 18 September 2012. 16. In its judgment of 1 May 2013 the Supreme Court unanimously rejected the applicant’s appeal and allowed the appeal of the Parole Board, reducing the damages award to GBP 6,500. 17. As regards the alleged violation of Article 5 § 1 of the Convention, Lord Reed, giving the leading opinion, observed that Article 5 § 4 provided a procedural entitlement designed to ensure that persons were not detained in violation of their rights under Article 5 § 1. However, he added, a violation of Article 5 § 4 did not necessarily result in a violation of Article 5 § 1. He considered this Court’s judgment in James, Wells and Lee, cited above, not to be directly relevant to the applicant’s case since that judgment concerned lack of access to rehabilitation courses and the just satisfaction awards made were for the feelings of distress and frustration resulting from continued detention without access to courses, and not for loss of liberty. Lord Reed noted that the delay in the applicant’s case appeared to have been the result of errors by administrative staff, “of a kind which occur from time to time in any system which is vulnerable to human error”. While it was extremely unfortunate that the errors had occurred and had resulted in the prolongation of the applicant’s detention, they were not of such a character, and the delay was not of such a degree, as to warrant the conclusion that there had been a breach of Article 5 § 1. 18. On the matter of damages for the violation of Article 5 § 4 of the Convention, Lord Reed reviewed relevant case-law of this Court where a violation of Article 5 §§ 1, 3 or 4 had been found, focusing in particular on cases concerning a delay in holding a hearing intended to address the question whether a convicted prisoner should be released. He considered that no clear guidance could be derived from the cases since none concerned awards for loss of liberty resulting from a violation of the speedy decision guarantee in Article 5 § 4. While, he said, an appellate court would not interfere with an award of damages simply because it would have awarded a different figure if it had tried the case at first instance, in the applicant’s appeal the court was being invited to give guidance as to the appropriate level of awards in cases of this character. For that purpose, the court had undertaken a fuller analysis of the case-law of this Court than the Court of Appeal. Lord Reed concluded: “87. ... In the light of that analysis, and applying the general approach which I have described..., it

appears to me that an award in the region of £6,500 would adequately compensate Mr Faulkner for his delayed release, bearing in mind the conditional and precarious nature of the liberty foregone. That amount falls well short of the award of £10,000 made by the Court of Appeal. In the circumstances, it is in my view appropriate for this court to allow the Board’s appeal and to reduce the award accordingly.” II. RELEVANT DOMESTIC LAW 19. A prisoner sentenced to custody for life is entitled to be released on parole after the expiry of his tariff if the Parole Board, being satisfied that it is no longer necessary for the protection of the public that he should be detained in prison, directs his release. If the Board gives such a direction, then the Secretary of State is required to release him (see section 28 of the Crime (Sentences) Act 1997). A prisoner is entitled to request the Secretary of State to refer his case to the Parole Board for a review every two years (section 28(7) of the 1997 Act). 20. On 10 December 2014 the Supreme Court handed down its judgment in Kaiyam and Others v. Secretary of State ([2014] UKSC 66), in which it considered this Court’s judgment in James, Wells and Lee. It accepted that the State was under a duty to provide an opportunity reasonable in all the circumstances for a prisoner serving an indeterminate sentence for the public protection to rehabilitate himself and to demonstrate that he no longer presented an unacceptable danger to the public. However, it did not consider that this duty could be brought within the express language of either Article 5 § 1 (a) or Article 5 § 4. Instead, the court concluded that the duty should be implied as an “ancillary duty”, not affecting the lawfulness of the detention, in the overall scheme of Article 5 (for more details, see Kaiyam and Others v. the United Kingdom (dec.), nos. 28160/15, 28103/15 and 28443/15, 12 January 2016). THE LAW ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION 21. In the applicant’s submission, his detention from March 2008, for a period of ten months pending his delayed Parole Board review in January 2009, had not merely resulted in a violation of Article 5 § 4 but was also arbitrary and in breach of Article 5 § 1 of the Convention, which reads as follows: “1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a) the lawful detention of a person after conviction by a competent court.” 22. Article 5 § 4 provides: “Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.” A. Admissibility 23. The Government noted that the applicant had benefited from a declaration that a breach of Article 5 § 4 had occurred and had been awarded damages. Further, his complaint under Article 5 § 1 had been heard and dismissed by the Supreme Court, such that respect for human rights did not require an examination of the application on its merits. They therefore argued that he had suffered no significant disadvantage connected to his Article 5 § 1 rights and invited the Court to declare the complaint inadmissible under Article 35 § 3 (b) of the Convention. 24. The applicant did not comment on the Government’s admissibility objection. 25. Article 35 § 3 provides, in so far as relevant: “The Court shall declare inadmissible any individual application submitted under Article 34 if it considers that: ... (b) the applicant has not suffered a significant disadvantage, unless respect for human rights as defined in the Convention and the Protocols thereto requires an examination of the application on the merits and provided that no case may be rejected on this ground which has not been duly considered by a domestic tribunal.” 26. The admissibility criterion in Article 35 § 3 (b) reflects the view that a violation of a right, however real from a purely legal point of view, should attain a minimum level of severity to warrant consideration by an international court. The assessment of this minimum level is, in the nature of things, relative and depends on all the circumstances of the case. The severity of a violation should be assessed, taking account of both the applicant’s subjective perceptions and what is objectively at stake in a particular case (see Korolev v. Russia (dec.), no. 25551/05, ECHR 2010; and Van Velden v. the Netherlands, no. 30666/

08, § 36, 19 July 2011). An alleged violation of the Convention may concern important questions of principle and thus cause a significant disadvantage without affecting an applicant’s pecuniary interest (Korolev, cited above; and M.N. and Others v. San Marino, no. 28005/12, § 37, 7 July 2015). It may also be that, even in the absence of a “significant disadvantage”, a question of principle raised by an application is of a general character affecting the observance of the Convention, such that, under the terms of the second element in Article 35 § 3 (b), “respect for human rights defined in the Convention... requires an examination of the application on its merits”. 27. In calling on the Court to reject the application as inadmissible under Article 35 § 3 (b), the Government argued that because the national courts had given a ruling finding a violation of Article 5 § 4 on account of the delay in holding a Parole Board hearing and awarding damages, the applicant had suffered “no significant disadvantage” in connection with his Article 5 § 1 right. The Court is not, however, satisfied that the conditions for inadmissibility stated in Article 35 § 3 (b) are satisfied. The nature of the guarantees afforded by Articles 5 § 1 and 5 § 4 is significantly different, the latter being concerned exclusively with safeguards subsequent to deprivation of liberty and the former encapsulating the more comprehensive right not to be detained in an arbitrary fashion. The applicant’s submission is that the delay in his case was such as to give rise not merely to a denial of access to a review of the lawfulness of his continuing detention (contrary to Article 5 § 4) but also to a period of unjustified deprivation of liberty (contrary to Article 5 § 1). While the applicant received financial compensation of GBP 6,500 as redress for the “disadvantage” resulting from his delayed release (see paragraphs 17-18 above), the applicant’s complaint as formulated in his application raises a novel issue of principle going to the relationship between paragraphs 1 and 4 of Article 5, an issue which warrants consideration by the Court. Consequently, without needing to determine whether the applicant can be said to have suffered a “significant disadvantage”, the Court is in any event led to dismiss the Government’s objections on the basis of the second element in Article 35 § 3 (b) of the Convention. 28. The Government further contended that the applicant’s complaint under Article 5 § 1 was manifestly ill-founded. However, as intimated above, the Court is satisfied that the applicant’s Article 5 § 1 complaint raises sufficiently complex issues of fact and law, such that it cannot be rejected as manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further considers that the complaint is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties’ submissions (a) The applicant 29. In the applicant’s submission, his was not a case where detention was always justified by the original judicial decision imposing the sentence. That decision permitted his detention so long as it was justified on the basis of the risk posed. After March 2008, his detention was not justified on the basis of risk because he had reduced his risk. There was a stark difference between people deemed no longer to pose a risk to the public (in respect of whom the causal connection between sentence and detention had been broken) and those deemed to pose a continuing risk to the public. A finding that his Article 5 § 1 rights had been violated would not imply that persons who continued to pose a risk to the public should be released. The applicant argued that the facts of his case were so radically distinct from those in James, Wells and Lee that it was unnecessary for the Court to consider whether that case was correctly decided. The Government’s attempts to re‑argue James, Wells and Lee (see paragraph 33 below) were not only misconceived but irrelevant to the facts of his case. 30. The applicant relied on the cases of Erkalo v. the Netherlands, 2 September 1998, Reports of Judgments and Decisions 1998‑VI, Schönbrod v. Germany, no. 48038/06, 24 November 2011, and H.W. v. Germany, no. 17167/11, 19 September 2013, in support of his case. He argued that they demonstrated the importance of administrative review in the Article 5 framework. It was only by reviewing the substantive merits of the continuing detention that the State could demonstrate compliance with Article 5. Where there had been a failure to comply with procedural safeguards under domestic law, there would be a breach of Article 5 § 1 (citing Nakach v. the Netherlands, no. 5379/02, 30 June 2005

; and Schenkel v. the Netherlands, no. 62015/00, 27 October 2005). The Government’s attempt to distinguish the cases was absurd and would lead to a situation in which a prisoner could be lawfully detained indefinitely without any Parole Board review. This could not possibly be correct. The applicant accepted that the mere fact of a breach of Article 5 § 4 did not necessarily cause detention to be unlawful as there might be an underlying justification for detention: the prisoner might pose a risk. However, where there was no such justification, unlawful delay was no excuse for a failure to release. 31. Further, the Government’s argument that the applicant was being progressed through the system (see paragraph 35 below) was untenable. The delay was entirely the fault of the authorities and occurred because they had failed to ensure that systems were in place which would have enabled timely determination of whether there was an ongoing justification for detention. The Government had not explained what concrete steps were taken during the ten-month period and the Court of Appeal had clearly found that there was no material change in the applicant’s risk level during the ten months. 32. In the applicant’s view, the Government’s interpretation of arbitrariness was untenably narrow and inconsistent with the Court’s case‑law. A lengthy delay, as in this case, did not reflect the strict standards set out in the case-law. Further, arbitrariness involved consideration of whether, inter alia, the order to detain and execution of detention genuinely conformed to the purpose of the restrictions in Article 5 § 1. In the applicant’s case, there was no basis in law for his detention during the ten‑month period. (b) The Government 33. The Government accepted that there had been a breach of Article 5 § 4 of the Convention in the applicant’s case but did not agree that this had resulted in a violation of Article 5 § 1. While the Court in James, Wells and Lee had considered that a failure to provide rehabilitative courses gave rise to an issue under Article 5 § 1, it was significant that the Supreme Court in Kaiyam and Others had preferred to view the duty to provide access to courses as an ancillary duty of a more procedural nature under Article 5 rather than a matter going to lawfulness under Article 5 § 1 (a) (see paragraph 20 above). The concerns expressed by the Supreme Court in Kaiyam concerning the application of Article 5 § 1 in that case applied equally in a case such as this based on delay: absent bad faith, delay on the part of the judicial body responsible for determining whether to release a prisoner did not render detention arbitrary. 34. The Government distinguished the cases on which the applicant relied (see paragraph 30 above) on the ground that they were cases in which the Court was asked post facto to validate a period of detention which had not, at the time of its commencement, been judicially determined or approved. In contrast, in the present case, the applicant’s detention had always been justified by the judicial decision imposing a life sentence. His release was contingent on demonstrating to the satisfaction of the Parole Board that he no longer posed a risk to the public. It was incorrect for him to suggest that his conviction and detention only continued to retain the requisite connection if the Parole Board considered that he posed a sufficient risk to the public: it was for him to demonstrate that his risk had reduced, and his detention would continue pending a decision of the Parole Board as to whether in fact there had been a sufficient reduction in risk. 35. The Government emphasised that from March 2008 to January 2009, the applicant’s case was pending before the Parole Board. There was nothing arbitrary about his detention: he was simply awaiting a decision by the relevant judicial body for the purposes of Article 5 § 4. During that period, reports were being prepared and were submitted to the Parole Board on 8 October 2008 (see paragraph 10 above). He was therefore being assessed during the period as to the risk he posed and was benefiting from rehabilitative opportunities offered to him by the Government. The applicant placed too much weight on the finding of the Court of Appeal that, on a balance of probabilities, he would have been released had the review taken place in March 2008. It was noteworthy that in May 2008 the Parole Board had decided, on the basis of the papers before it, that it needed further papers in order properly to consider the case (see paragraph 10 above). There was nothing arbitrary about the Parole Board seeking such documentation, notwithstanding that the Court of Appeal, with the benefit of hindsight, had later decided that the documents were unnecessary. 36. In conclusion, the Government emphasised that the logical conclusion of the applicant’s argument was that every breach of Article 5 § 4 would result in a breach of Article 5 § 1. Such a conclusion would render Article 5 § 4 redundant. There were

plainly sufficient safeguards against arbitrary detention in a case such as the applicant’s. The 1997 Act provided for reviews to take place every two years (see paragraph 19 above) and Article 5 § 4 offered a protection which could be enforced in the domestic courts by a mandatory order requiring the Parole Board to convene a hearing. The purpose and effect of Article 5 § 4 was precisely to deal with the types of delay that had occurred in this case. Although it was possible to envisage a situation where a flagrant and unjustified failure to give a prisoner an Article 5 § 4 compliant hearing could result in detention becoming arbitrary, such cases were likely to be rare and the applicant’s was plainly not such a case. 2. The Court’s assessment (a) General principles 37. The substantive right to liberty is set out in Article 5 § 1 of the Convention, whose object and purpose is to ensure that no one is dispossessed of his liberty in an arbitrary fashion (see, among many other authorities, M. v. Germany, no. 19359/04, § 89, ECHR 2009; and James, Wells and Lee, cited above, § 187). It is well established in the Court’s case‑law that any deprivation of liberty must fall within one of the exceptions set out in sub-paragraphs (a)-(f) and must also be “lawful”. 38. For detention to comply with Article 5 § 1 (a), there must be a sufficient causal connection between the conviction and the deprivation of liberty at issue (see Weeks v. the United Kingdom, 2 March 1987, § 42, Series A no. 114; Kafkaris v. Cyprus [GC], no. 21906/04, § 117, 12 February 2008; and M. v. Germany, cited above, §§ 87-88). With the passage of time, the link between the initial conviction and a later deprivation of liberty gradually weakens. The causal link required by sub‑paragraph (a) might eventually be broken if a position were reached in which a decision not to release or to re-detain was based on grounds that were inconsistent with the objectives of the decision by the sentencing court or on an assessment that was unreasonable in terms of those objectives (see Weeks, cited above, § 49; and James, Wells and Lee, cited above, § 189). 39. Where the “lawfulness” of detention is in issue, including the question whether “a procedure prescribed by law” has been followed, the Convention refers essentially to national law and lays down the obligation to conform to the substantive and procedural rules of national law (see Mooren v. Germany [GC], no. 11364/03, § 72, 9 July 2009; and James, Wells and Lee, cited above, § 190). 40. However, Article 5 § 1 also requires that any deprivation of liberty should be in keeping with the purpose of protecting the individual from arbitrariness (see Kafkaris, cited above; 116; and James, Wells and Lee, cited above, § 191). In James, Wells and Lee, cited above, §§ 192-196, the Court identified four types of conduct on the part of the authorities which might constitute arbitrariness for the purposes of Article 5 § 1. First, detention will be arbitrary where, despite complying with the letter of national law, there has been an element of bad faith or deception on the part of the authorities. Second, the condition that there be no arbitrariness demands that both the order to detain and the execution of the detention genuinely conform with the purpose of the restrictions permitted by the relevant sub-paragraph of Article 5 § 1. Third, there must be some relationship between the ground of permitted deprivation of liberty relied on and the place and conditions of detention. Fourth, the requirement that detention not be arbitrary implies the need for a relationship of proportionality between the ground of detention relied upon and the detention in question. However, the scope of the proportionality test to be applied in a given case varies depending on the type of detention involved. 41. Article 5 § 4 enshrines the right to have the legality of detention reviewed speedily by a court with the power to order release. This implies not only that the competent courts must reach their decisions speedily but also that, where an automatic review of the lawfulness of detention has been instituted, their decisions must follow at “reasonable intervals” (see Oldham v. the United Kingdom, no. 36273/97, § 30, ECHR 2000‑X). These rights are procedural in nature and are intended to help secure the protection of the substantive right to liberty guaranteed by Article 5 § 1. The fact that procedural rights are protected as rights in themselves by Article 5 § 4 serves to underline their important role in ensuring that unlawful and arbitrary detention does not occur. However, the finding of a violation of Article 5 § 4 does not

, of itself, result in a violation of Article 5 § 1 (see Mooren, cited above, § 88). (b) Application of the general principles to the facts of the case 42. Although he relied on James, Wells and Lee before the Supreme Court (see paragraph 15 above), the applicant argued before this Court that the judgment in that case was not relevant to his complaint (see paragraph 29 above). Instead, he relied on case-law of this Court which he contended showed that procedural delays of the nature and length of that which occurred in his case breached Article 5 § 1 of the Convention (see paragraph 30 above). However, for the Court, the facts of the cases cited differ from the facts of the applicant’s case in an important respect. In the cases relied on by the applicant, the period of detention at issue was not based on any judicial decision, the order authorising detention having expired, and there was a lack of adequate safeguards to ensure that the applicants’ release from detention would not be unreasonably delayed (see Erkalo, § 57; Schönbrod, §§ 107-108 and H.W., §§ 83 and 89). By contrast, in the present case the applicant’s detention remained at all times formally authorised by the sentence of custody for life imposed on him by the Crown Court in 2001 (see paragraph 6 above). He could not be released unless and until there was a decision of the Parole Board that he had shown the required reduction in risk and was safe for release. The Court of Appeal’s finding in December 2010, on a balance of probabilities, that had a Parole Board hearing taken place in March 2008 he would have been released cannot be equated to a formal Parole Board finding in March 2008 that he was safe for release. The existence of a valid court order authorising detention constituted an important safeguard against arbitrariness in the applicant’s case. 43. The applicant further relied on Nakach and Schenkel, both cited above, to argue that where there had been a failure to comply with procedural safeguards under domestic law, there would be a breach of Article 5 § 1 (see paragraph 30 above). However, the Court does not consider that either case assists the applicant. In both cases, the Court found that a breach of Article 5 § 1 had arisen because the detention did not follow a “procedure prescribed by law” (see Nakach, § 43; and Schenkel, § 32). In other words, it was the strict requirement of lawfulness under domestic law (see paragraph 39 above) which had been breached in those cases. In the present case, no breach of domestic law has been established. The applicant emphasises the Court of Appeal’s finding that he ought to have been released in March 2008 to support his argument that procedural safeguards prescribed by domestic law were not followed. However, as noted above, that finding, made with the benefit of hindsight, did not remove the legal basis that existed throughout the impugned period of detention. 44. It is true that the aspirational timetable envisaged by the Secretary of State and indicated to the applicant in May 2007 (see paragraph 8-9 above) was not met. However, in setting a timetable which ensured a further review well before the two-year period envisaged by the legislation, the Secretary of State acted in conformity with the requirement under Article 5 § 4 for review at “reasonable intervals”, the frequency of which must be determined in the light of the circumstances of each case (see paragraph 41 above and Oldham, cited above, § 31). The failure to ensure a review within “reasonable intervals” can, and in the present case did, result in a finding of a violation of Article 5 § 4 of the Convention and an award of damages. It was by reference to the Secretary of State’s timetable that the Court of Appeal held that there had been delays which led to its finding of a violation of Article 5 § 4. But the applicant has not cited any judgment of this Court where it has found that delay in proceedings to review the legality of detention resulted in a violation not only of Article 5 § 4 but also of Article 5 § 1 of the Convention. It is significant that the applicant in Schenkel contended under Article 5 § 1 that the proceedings concerning the prolongation of his detention order were not conducted with the necessary diligence. However, the Court decided that it was more appropriate to examine that question in the context of its examination of Article 5 § 4 of the Convention (cited above, §§ 20, 27 and 31). The Court does not rule out that there may be circumstances in which, exceptionally, a delay in the review of the legality of post-tariff detention is such as to give rise to concerns that the detention itself has become arbitrary and incompatible with Article 5 § 1. However, barring such exceptional circumstances, a complaint of delay falls to be considered under Article 5 § 4

only. 45. The Court is satisfied that no exceptional circumstances arose in the present case. While there was a delay in the holding of the applicant’s Parole Board review, the nature of the delay and its overall length were not such as to lead the Court to conclude that his detention from March 2008 until his release in January 2009 had become arbitrary and, thus, unlawful contrary to Article 5 § 1 (a) of the Convention. 46. There has accordingly been no violation of Article 5 § 1 in the present case. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the complaint concerning Article 5 § 1 of the Convention admissible; 2. Holds that there has been no violation of Article 5 § 1. Done in English, and notified in writing on 6 October 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Renata DegenerMirjana Lazarova TrajkovskaDeputy RegistrarPresident