Last Updated on April 9, 2019 by LawEuro
Overview of the Case-law of the ECHR 2017
“Core” rights
- Right to life (Article 2)
- Obligation to protect life
- Prohibition of torture and inhuman or degrading treatment and punishment (Article 3)
- Inhuman or degrading punishment
- Conditions of detention
- Prohibition of slavery and forced labour (Article 4)
- Positive obligations
- Right to liberty and security (Article 5)
- Deprivation of liberty (Article 5 § 1)
- Review of lawfulness of detention (Article 5 § 4)
The Lopes de Sousa Fernandes v. Portugal[8] judgment concerned the responsibility of the State in the context of death following medical treatment.
The applicant’s husband died following a series of medical problems that occurred in the months following surgery for the removal of nasal polyps. The applicant considered that her husband had died as a result of a hospital-acquired infection and carelessness and medical negligence during that post-surgery period. No negligence was established in the various domestic proceedings (disciplinary, civil and criminal).
She complained, mainly under Article 2, of the death of her husband and the failure by the authorities to elucidate the cause of the deterioration in his condition. The Grand Chamber found no violation of the substantive aspect of Article 2 and a violation of its procedural limb.
(i) The judgment is important because it reviews and clarifies the Court’s case-law on the scope of the substantive positive obligation of the State as regards deaths resulting from alleged medical negligence. The judgment confirms that the obligation is an essentially regulatory one and that it is only exceptionally that the responsibility of the State to protect life will be engaged in respect of acts or omissions of health-care providers.
In particular, the Grand Chamber confirmed that, where a State has put the regulatory framework in place (by making adequate provision for securing high professional standards among health professionals and the protection of the lives of patients, whether in the public or private sector), matters such as an error of judgment on the part of a health professional or negligent coordination among health professionals during treatment is not sufficient to call a State to account from the standpoint of its positive obligations under Article 2 of the Convention to protect life (Powell v. the United Kingdom[9] and Sevim Güngör v. Turkey[10]). This regulatory obligation has been found lacking rarely (see, for example, Arskaya v. Ukraine[11]).
Since this obligation must be understood in its broader sense, it includes the duty to ensure the effective functioning of that regulatory framework and encompasses measures necessary to ensure its implementation, including supervision and enforcement. Accordingly, the Court has accepted, in two very exceptional circumstances, that the responsibility of the State under the substantive limb of Article 2 was engaged as regards the acts and omissions of health-care providers: in the first instance, where an individual patient’s life was knowingly put in danger by a denial of access to life-saving emergency treatment (for example, Mehmet Şentürk and Bekir Şentürk v. Turkey[12]) and, in the second, where a systemic or structural dysfunction in hospital services resulted in a patient being deprived of access to life-saving emergency treatment where the authorities knew or ought to have known about that risk and failed to take the necessary measures to prevent that risk from materialising, thus putting patients’ lives, including the life of the particular patient concerned, in danger (for example, Asiye Genç v. Turkey[13] and Aydoğdu v. Turkey[14]).
In addition, the Grand Chamber went on to establish a test to determine whether a case fell within one of those exceptions. It is a strict test requiring the presence of a number of cumulative factors: the acts and omissions of the health-care providers had to go beyond a mere error or medical negligence, in that those health-care providers, in breach of their professional obligations, denied a patient emergency medical treatment despite being fully aware that the person’s life was at risk if that treatment was not given; the impugned dysfunction had to be objectively and genuinely identifiable as systemic or structural in order to be attributable to the State authorities; there had to be a link between the impugned dysfunction and the harm sustained; and the dysfunction must have resulted from the failure of the State to meet its obligation to provide a regulatory framework in the broader sense indicated above.
Applying that test to the present case and finding no violation of Article 2, the Grand Chamber found that these factors were absent and that the regulatory framework did not disclose any shortcomings.
(ii) The Grand Chamber also confirmed its case-law as regards the procedural obligations of the State in a medical-negligence context and, notably, confirmed that the civil remedy is the “most appropriate”.
The Grand Chamber reiterated that the State is required to set up an effective and independent judicial system so that the cause of death of patients in the care of the medical profession, whether in the public or the private sector, can be determined and those responsible made accountable. While, in some exceptional situations where the fault attributable to the health-care providers went beyond a mere error or medical negligence, the Court has considered that compliance with the procedural obligation must include recourse to criminal law, in all other cases where the infringement of the right to life or to personal integrity is not caused intentionally, the procedural obligation imposed by Article 2 to set up an effective and independent judicial system does not necessarily require a criminal-law remedy. In this latter respect, it is worth noting that, when the Grand Chamber reviewed compliance with the six-month time-limit, it accepted that none of the proceedings (disciplinary, criminal or civil) were inappropriate or misconceived but it affirmed that the civil remedy was the most appropriate and the most apt to satisfy the procedural requirements of Article 2 in a medical-negligence context.
On the merits of the procedural complaint under Article 2, it was considered that the applicant had “arguable grounds” to suspect that her husband had died as a result of medical negligence, so that the State’s duty to ensure compliance with the procedural obligation was engaged. Since domestic law provided for disciplinary, civil and criminal proceedings, the system satisfied in theory the procedural requirements of Article 2. The Grand Chamber found that neither the disciplinary nor criminal proceedings were effective. Nor was the civil action adequate: it was lengthy and, limited as it was to the time and direct cause of death, did not provide a thorough and overall assessment with a view to establishing fault.
In the Tagayeva and Others v. Russia[15] judgment the Court considered the obligations of the State, as regards a large-scale hostage-taking by terrorists, before, during and after the event.
The case concerned the hostage-taking in a school in Beslan, North Ossetia, from 1 to 3 September 2004, the organisation of the rescue operation, the storming of the school by State forces and the subsequent proceedings. There were hundreds of dead and injured and the applicants (over 400) were next of kin and survivors. They complained under Article 2 alone and in conjunction with Article 13 of the Convention.
In its judgment on the merits, the Court found that there had been a violation of several aspects of Article 2: a failure to protect against a known and foreseeable threat to life from a terrorist act; a failure to plan and control the use of lethal force so as to minimise the risk to life; excessive use of lethal force; and a breach of the State’s obligation to investigate. The Court also concluded that there had been no violation of Article 13 of the Convention.
(i) The judgment is of contemporary relevance as it concerns a comprehensive review of the principles concerning, and the application of, Articles 2 and 13 to a large-scale hostage-taking by terrorists, including to the State’s actions before, during and after the event.
(ii) The following points are worth noting, in particular as regards Article 2 of the Convention.
Firstly, this is the first time the Court has found that, given the intelligence information available to it, the State had failed to take adequate measures to protect against a terrorist attack (see, applying the Osman v. the United Kingdom[16] test to situations concerning the obligation to afford general protection to society, Mastromatteo v. Italy[17]). However, the pre-attack intelligence available to the authorities in the present case was very specific and relevant: a hostage-taking by terrorists in an educational establishment on the day of the opening of the academic year (1 September 2004) near the North Ossetian border near to Beslan. Similar attacks had already been carried out on several occasions by Chechen separatists. The threat was therefore considered by the Court to amount to an immediate risk to the lives of an identified target population, including vulnerable children, and measures should have been taken that, when judged reasonably, could have prevented or minimised the known risk. While some had been taken, the Court considered those steps to have been inadequate: in the end, a sizeable illegal armed group was able to gather, prepare, travel to and seize the school without encountering any preventative security arrangements. The Court also specifically criticised the lack of any “single sufficiently high-level structure” responsible for evaluating and managing the threat with field teams.
Secondly and similarly, the main issue with which the Court took issue as regards the planning and control of the rescue operation was the lack of central control: in particular, the inability of the command structure of the operation to “maintain clear lines of command and accountability, coordinate and communicate important details relevant to the rescue operation to the key structures involved and plan in advance for the necessary equipment and logistics”.
Thirdly, the Court found that the investigation into the events had been in breach of Article 2, in particular in so far as it had failed to examine adequately the use of lethal force by the State agents during the operation on 3 September 2004.
Finally, and as to the use of lethal force, it was undisputed that the decision to use some degree of lethal force as such was justified. However, the force used included indiscriminate weapons such as grenade launchers, flame throwers and a tank gun. While there was indeed a difference between “large-scale anti-terrorist” and “routine police” operations, it remained a policing operation of which the primary aim was to protect the lives of those in danger from unlawful violence (approximately a thousand persons including hundreds of children) and the use of lethal force was governed by the strict rule of “absolute necessity”. The “massive” use of explosive and indiscriminate weapons, with the attendant risk for human life, could not be regarded as absolutely necessary in the circumstances.
The weakness of the legal framework governing the use of force contributed to this violation. In particular, the Court was of the view that the failure to incorporate the main Convention principles and constraints on the use of force (primary aim to protect victims and the absolute-necessity test), coupled with a widespread immunity as regards harm caused during terrorist operations, had resulted in a “dangerous gap” in the regulatory framework of such life-threatening situations.
(iii) The Court distinguished the procedural obligation to investigate under Article 2 and the requirement to make available other effective domestic remedies under Article 13 of the Convention. The Court identified two elements, compensation and access to information, that were of special importance under Article 13 and, since the applicants had obtained both, this was sufficient for the purposes of that provision.
Prohibition of torture and inhuman or degrading treatment and punishment (Article 3)
Inhuman or degrading punishment
The Hutchinson v. the United Kingdom[18] judgment sets out the current case-law on the de facto and de jure reducibility of whole life sentences.
In 1984 the applicant was given a mandatory life sentence for murder. The Secretary of State later imposed a whole life order, which was later confirmed by the High Court. Further to the Court’s judgment in Kafkaris v. Cyprus[19] (a whole life order had to be de facto and de jure reducible), the Court clarified in Vinter and Others v. the United Kingdom[20] that this meant that there had to be a prospect of release and a possibility of review, which review should extend to assessing whether there were legitimate penological grounds (including rehabilitation) for continued incarceration. While the Grand Chamber in Vinter and Others indicated that domestic law could, by virtue of section 6 of the Human Rights Act[21], be read as imposing a duty on the Secretary of State to release a life prisoner where detention was no longer compatible with Article 3 on legitimate penological grounds, it also found that the life policy set out in the Lifer Manual was too restrictive to comply with the Kafkaris principles and gave prisoners only a partial picture of the conditions in which the power of release might be exercised. The discrepancy between domestic case-law and the Lifer Manual gave rise to such a lack of clarity in domestic law that a whole life sentence could not be regarded as reducible and as such there had been a violation of Article 3 of the Convention. In its later McLoughlin judgment of 2014, the Court of Appeal addressed the Court’s findings in Vinter and Others, indicating that the restrictive Lifer Manual, as a matter of domestic law, did not fetter the exercise by the Secretary of State of his discretion to review which, it considered, resolved the issue identified in Vinter and Others.
The applicant complained under Article 3 of his whole life sentence. The Grand Chamber found that there had been no violation of the Convention.
(i) One aspect of the judgment is rather State specific. The Grand Chamber found that the McLoughlin judgment of the Court of Appeal had brought clarity to the content of domestic law and resolved the discrepancy that had provided the basis for a finding of a violation of Article 3 in the Vinter and Others judgment. It then went on to determine whether the Article 3 review requirements were now met in the applicant’s case.
(ii) Of more general relevance and interest is the summary provided, in the course of this determination by the Grand Chamber, of the Kafkaris principles as clarified in Vinter and Others and Murray v. the Netherlands[22], and as illustrated by the Court’s post Vinter and Others Chamber judgments on the subject[23]. These principles were summarised as follows.
“42. The relevant principles, and the conclusions to be drawn from them, are set out at length in Vinter and Others (cited above, §§ 103-22; recently summarised in Murray v. the Netherlands [GC], no. 10511/10, §§ 99-100, ECHR 2016). The Convention does not prohibit the imposition of a life sentence on those convicted of especially serious crimes, such as murder. Yet to be compatible with Article 3 such a sentence must be reducible de jure and de facto, meaning that there must be both a prospect of release for the prisoner and a possibility of review. The basis of such review must extend to assessing whether there are legitimate penological grounds for the continuing incarceration of the prisoner. These grounds include punishment, deterrence, public protection and rehabilitation. The balance between them is not necessarily static and may shift in the course of a sentence, so that the primary justification for detention at the outset may not be so after a lengthy period of service of sentence. The importance of the ground of rehabilitation is emphasised, since it is here that the emphasis of European penal policy now lies, as reflected in the practice of the Contracting States, in the relevant standards adopted by the Council of Europe, and in the relevant international materials (see Vinter and Others, cited above, §§ 59-81).
43. As recently stated by the Court, in the context of Article 8 of the Convention, ‘emphasis on rehabilitation and reintegration has become a mandatory factor that the member States need to take into account in designing their penal policies’ (see Khoroshenko v. Russia [GC], no. 41418/04, § 121, ECHR 2015; see also the cases referred to in Murray, cited above, § 102). Similar considerations apply under Article 3, given that respect for human dignity requires prison authorities to strive towards a life sentenced prisoner’s rehabilitation (see Murray, cited above, §§ 103-04). It follows that the requisite review must take account of the progress that the prisoner has made towards rehabilitation, assessing whether such progress has been so significant that continued detention can no longer be justified on legitimate penological grounds (see Vinter and Others, cited above, §§ 113-16). A review limited to compassionate grounds is therefore insufficient (ibid., § 127).
44. The criteria and conditions laid down in domestic law that pertain to the review must have a sufficient degree of clarity and certainty, and also reflect the relevant case-law of the Court. Certainty in this area is not only a general requirement of the rule of law but also underpins the process of rehabilitation which risks being impeded if the procedure of sentence review and the prospects of release are unclear or uncertain. Therefore prisoners who receive a whole life sentence are entitled to know from the outset what they must do in order to be considered for release and under what conditions. This includes when a review of sentence will take place or may be sought (see Vinter and Others, cited above, § 122). In this respect the Court has noted clear support in the relevant comparative and international materials for a review taking place no later than twenty-five years after the imposition of sentence, with periodic reviews thereafter (ibid., §§ 68, 118-20). It has however also indicated that this is an issue coming within the margin of appreciation that must be accorded to Contracting States in the matters of criminal justice and sentencing (ibid., §§ 104-05 and 120).
45. As for the nature of the review, the Court has emphasised that it is not its task to prescribe whether it should be judicial or executive, having regard to the margin of appreciation that must be accorded to Contracting States (see Vinter and Others, cited above, § 120). It is therefore for each State to determine whether the review of sentence is conducted by the executive or the judiciary.”
In applying those principles and finding no violation in the applicant’s case, the Grand Chamber examined: the nature of the review (confirming that a review by the executive was not of itself contrary to Article 3); the scope of the review (confirming that the review must consider whether in light of significant change in a whole life prisoner and progress towards rehabilitation, continued detention could still be justified on legitimate penological grounds); the criteria and conditions for the review (confirming that the relevant question was whether whole lifers could know what they must do to be considered for release and under what conditions the review would take place); and the time frame for review (reiterating the reference in Vinter and Others and Murray to the clear support in the comparative material for a review no later than twenty-five years after the imposition of the sentence).
The Grand Chamber found that whole life sentences could now be considered reducible and thus in keeping with Article 3 of the Convention.
The S.F. and Others v. Bulgaria[25] judgment concerned the conditions of immigration detention imposed on accompanied minor migrants.
The applicants, Iraqi nationals, entered the respondent State illegally together with their parents. They were arrested and held together with their parents in immigration detention on the Bulgarian-Serbian border for a period of either thirty-two or forty-one hours (the exact length of time was disputed by the parties). They were aged 16, 11 and one and a half at the relevant time. They alleged that the conditions of their immigration detention had subjected them to inhuman and degrading treatment. The Court agreed and found a breach of Article 3 of the Convention.
The judgment is noteworthy for its comprehensive review of the Court’s case-law on the treatment of accompanied minors held in immigration detention. The Court summarised the relevant case-law as follows.
“78. The general principles applicable to the treatment of people held in immigration detention were recently set out in detail in Khlaifia and Others v. Italy ([GC], no. 16483/12, §§ 158-67, ECHR 2016), and there is no need to repeat them here.
79. It should, however, be noted that the immigration detention of minors, whether accompanied or not, raises particular issues in that regard, since, as recognised by the Court, children, whether accompanied or not, are extremely vulnerable and have specific needs (see, as a recent authority, Abdullahi Elmi and Aweys Abubakar v. Malta, nos. 25794/13 and 28151/13, § 103, 22 November 2016). Indeed, the child’s extreme vulnerability is the decisive factor and takes precedence over considerations relating to the status of illegal immigrant. Article 22 § 1 of the Convention on the Rights of the Child (adopted on 20 November 1989, 1577 UNTS 3) encourages States to take appropriate measures to ensure that children seeking refugee status, whether or not accompanied by their parents or others, receive appropriate protection and humanitarian assistance (see Popov v. France, nos. 39472/07 and 39474/07, § 91, 19 January 2012). In recent years, the Court has in several cases examined the conditions in which accompanied minors had been kept in immigration detention.
80. The applicants in Muskhadzhiyeva and Others v. Belgium (no. 41442/07, 19 January 2010) had been respectively seven months, three and a half years and five years and seven years old, and had been detained for one month. Noting their age, the length of their detention, the fact that the detention facility had not been adapted for minors, and the medical evidence that they had undergone serious psychological problems while in custody, the Court found a breach of Article 3 (ibid., §§ 57-63).
81. The applicants in Kanagaratnam v. Belgium (no. 15297/09, 13 December 2011) had been respectively 13, 11 and eight years old, and had been detained for about four months. The Court noted that they had been older than those in the above-mentioned case and that there was no medical evidence of mental distress having been experienced by them in custody. Even so, noting that (a) the detention facility had not been adapted to minors, (b) the applicants had been particularly vulnerable owing to the fact that, before arriving in Belgium, they had been separated from their father on account of his arrest in Sri Lanka and had fled the civil war there, (c) their mother, although with them in the facility, had been unable to take proper care of them, and (d) their detention had lasted a much longer period of time than that in the case of Muskhadzhiyeva and Others (cited above), the Court found a breach of Article 3 (ibid., §§ 64-69).
82. The applicants in Popov (cited above) had been respectively five months and three years old, and had been detained for fifteen days. Although designated for receiving families, the detention facility had been, according to several reports and domestic judicial decisions, not properly suited for that purpose, both in terms of material conditions and in terms of the lack of privacy and the hostile psychological environment prevailing there. That led the Court to find that (a) despite the lack of medical evidence to that effect, the applicants, who had been very young, had suffered stress and anxiety, and that (b) in spite of the relatively short period of detention, there had been a breach of Article 3 (ibid., §§ 92-103).
83. The applicants in five recent cases against France – R.M. and Others v. France (no. 33201/11, 12 July 2016), A.B. and Others v. France (no. 11593/12, 12 July 2016), A.M. and Others v. France (no. 24587/12, 12 July 2016), R.K. and Others v. France (no. 68264/14, 12 July 2016) and R.C. and V.C. v. France (no. 76491/14, 12 July 2016) – had been between four months and four years old, and had been detained for periods ranging between seven and eighteen days. The Court noted that, unlike the detention facility in issue in Popov (cited above), the material conditions in the two detention facilities concerned in those five cases had not been problematic. They had been adapted for families, who had been kept apart from other detainees and provided with specially fitted rooms and childcare materials. However, one of the facilities had been situated right next to the runways of an airport, and so had exposed the applicants to particularly high noise levels. In the other facility, the internal yard had been separated from the zone for male detainees by only a net, and the noise levels had also been significant. That had affected the children considerably. Another source of anxiety had been the constraints inherent in a place of detention and the conditions in which the facilities had been organised. Although over a short period of time those factors had not been sufficient to attain the threshold of severity engaging Article 3 of the Convention, over a longer period their effects would necessarily have affected a young child to the point of exceeding that threshold. Since the periods of detention had been, in the Court’s view, long enough in all five cases, it found breaches of Article 3 in each of them (see R.M. and Others v. France, §§ 72-76; A.B. and Others v. France, §§ 111-15; A.M. and Others v. France, §§ 48-53; R.K. and Others v. France, §§ 68-72; and R.C. and V.C. v. France, §§ 36-40, all cited above).”
The amount of time spent by the applicants in detention – regardless of which version was the correct one (see above) – was shorter than the periods referred to in the cases mentioned above. However, the conditions were considerably worse than those in all those cases (including limited access to toilet facilities, failure to provide food and drink and delayed access to the toddler’s baby bottle and milk). For the Court, by keeping the three applicants in such conditions, even for a brief period of time, the Bulgarian authorities had subjected them to inhuman and degrading treatment.
The Court acknowledged that in recent years the High Contracting States that sit on the European Union’s external borders have had difficulties in coping with the massive influx of migrants (see M.S.S. v. Belgium and Greece[26]) and reiterated in this connection (paragraph 92) the conclusion reached in Khlaifia and Others v. Italy[27], namely:
“In any event, in view of the absolute character of Article 3 of the Convention, an increasing influx of migrants cannot absolve a High Contracting State of its obligations under that provision, which requires that people deprived of their liberty be guaranteed conditions compatible with respect for their human dignity. A situation of extreme difficulty confronting the authorities is, however, one of the factors in the assessment whether or not there has been a breach of that Article in relation to the conditions in which such people are kept in custody.”
However, it could not be said that at the relevant time Bulgaria was facing an emergency of such proportions that it was practically impossible for its authorities to ensure minimally decent conditions in the short-term holding facilities in which they decided to place minor migrants immediately after their interception and arrest.
Prohibition of slavery and forced labour (Article 4)
In the J. and Others v. Austria[28] judgment, the Court examined the scope of the procedural obligation (if any) to investigate alleged human-trafficking offences committed outside the territory of a Contracting Party.
The applicants, Filipino nationals, alleged that they were victims of human trafficking and forced labour. According to the applicants, they had been trafficked from the Philippines and then employed by nationals of the United Arab Emirates. They had escaped from their employers’ control in Vienna when accompanying them during their short three-day visit to Austria. They had later lodged a complaint with the authorities, which had initiated inquiries into their allegations. The investigation was eventually discontinued because, among other reasons, the offences alleged by the applicants had been committed outside Austria and neither the applicants nor their employers were Austrian nationals. On that account the authorities concluded that Austria did not have jurisdiction to deal with the applicants’ complaint. Furthermore, the applicants’ statements to the police did not indicate that during the applicants’ stay in Austria a criminal offence had been committed on the territory of Austria by their employers, as alleged.
In the Convention proceedings the applicants contended, among other things, that the investigation conducted by the Austrian authorities should have been extended so as to cover the circumstances at the origin of their trafficking and forced labour, even though those events had occurred outside Austria. They relied essentially on Article 4 of the Convention as interpreted by the Court in its judgment in Rantsev v. Cyprus and Russia[29].
The Court found that there had been no breach of the Convention. It found on the facts that from the moment the applicants had contacted the police the Austrian authorities had complied with their duty to identify, protect and support the applicants as (potential) victims of human trafficking. As regards compliance with the duty to investigate the applicants’ allegations, the judgment is noteworthy as regards the Court’s response to the applicants’ contention that Austria should have been required to investigate the crimes which they alleged had been committed abroad. In the Court’s view (paragraph 114):
“Concerning the alleged events in the United Arab Emirates, the Court considers that Article 4 of the Convention, under its procedural limb, does not require States to provide for universal jurisdiction over trafficking offences committed abroad … The Palermo Protocol is silent on the matter of jurisdiction, and the Anti-Trafficking Convention only requires States Parties to provide for jurisdiction over any trafficking offence committed on their own territory, or by or against one of their nationals … The Court therefore cannot but conclude that, in the present case, under the Convention, there was no obligation incumbent on Austria to investigate the applicants’ recruitment in the Philippines or their alleged exploitation in the United Arab Emirates.”
Interestingly the Court was prepared to examine the applicants’ argument that the events in the Philippines, the United Arab Emirates and Austria could not be viewed in isolation. Even assuming this to be the case, it observed that there was no indication that the authorities had failed to comply with their duty of investigation. It accepted in this connection that the authorities could not have had any reasonable expectation of even being able to confront the applicants’ employers with the allegations made against them, given that no mutual legal assistance agreement existed between Austria and the United Arab Emirates. Moreover, past experience had shown that simple requests sent to the United Arab Emirates had not produced any response.
The Chowdury and Others v. Greece[30] judgment concerned the State’s positive and procedural obligations in respect of human trafficking, exploitation and forced labour.
The applicants were forty-two Bangladeshi nationals. After arriving illegally in Greece, they were hired to work in the strawberry-picking industry in a particular region of the respondent State. They worked long hours under the supervision of armed guards and were forced to accept miserable living conditions. Wages, if indeed paid, were extremely poor. A considerable number of workers, including twenty-one of the applicants, were wounded when a guard opened fire on them when they confronted their employers about the non-payment of wages. The incident led to the bringing of criminal charges against four individuals based on offences of human trafficking and unlawful wounding. Those applicants who were not wounded were not covered by the proceedings since the prosecutor took the view that their complaints that they had been victims of trafficking and forced labour had been lodged belatedly. All four accused were acquitted of the human-trafficking charges. The domestic court considered that the workers had not been forced into accepting employment or tricked into doing so, and it had not been demonstrated that they had been vulnerable to exploitation. They had been informed of the terms and conditions of their employment and had consented to them. They had been free to leave at any time.
In the Convention proceedings the applicants alleged that they had been victims of trafficking in human beings and had been required to perform forced labour in breach of Article 4 § 2 of the Convention. Moreover, the State had failed to comply with its positive and procedural obligations flowing from that provision. The Court agreed. Its judgment is noteworthy for the following reasons.
Firstly, the Court situated its examination of the applicants’ complaints within the framework of the principles described in paragraphs 283 to 289 of the Rantsev v. Cyprus and Russia[31] judgment, which concerned trafficking for the purposes of sexual exploitation. The Court considered that those principles were of equal relevance when it came to human trafficking and the exploitation of individuals through work. Interestingly the Court had regard to Article 4 (a) of the Council of Europe Convention on Action against Trafficking in Human Beings (CETS No. 197) to reinforce its view that trafficking in human beings covers the recruitment of persons for the purposes of exploitation and that exploitation includes forced labour. Article 4 § 2 of the Convention implied a positive obligation on States to address this category of trafficking in the form of a legal and regulatory framework enabling the prevention of trafficking in human beings and their exploitation through work, the protection of victims, the investigation of arguable instances of trafficking of this nature, and the criminalisation and effective prosecution of any act aimed at maintaining a person in such a situation.
Secondly, the Court noted that the question whether an individual had willingly offered his services to an employer was a factual one. The fact that an individual had consented to work for an employer was not of itself conclusive (see also the Court’s reference to Article 4 of the above-mentioned Council of Europe Convention on the matter of consent). It observed that in the instant case the facts clearly pointed to a conclusion that there had been trafficking in human beings and forced labour.
Thirdly, it noted that the respondent State had a legal and regulatory framework in place for combating trafficking in human beings and had ratified the above-mentioned Council of Europe Convention. However, it had failed to comply with its other positive and procedural obligations in the circumstances of the applicants’ case. For example:
(i) The authorities had known through official reports and the media of the situation in which migrant workers found themselves well before the shooting incident involving the applicants. However, they had failed to take adequate measures to prevent trafficking and to protect the applicants.
(ii) The prosecutor had refused to bring proceedings in respect of the applicants who had not been wounded on the ground that they had lodged their complaints belatedly after the shooting incident. The prosecutor, by concentrating on whether or not these applicants had been present on the day in question and had been wounded, had failed to have regard to the wider issues of trafficking and forced labour of which they complained.
(iii) The domestic courts had taken a very narrow view of the applicants’ situation, analysing it from the standpoint of whether it amounted to one of servitude, with the consequence that none of the accused was convicted of trafficking in human beings and the appropriate penalties were not therefore applied.
Right to liberty and security (Article 5)[32]
Deprivation of liberty (Article 5 § 1)
The De Tommaso v. Italy[33] judgment concerned the imposition of preventive measures on an individual considered to be a danger to society.
In 2008 the District Court, considering that the applicant represented a danger to society, imposed special police supervision orders for two years, which included obligations on the applicant to report to the police once a week; to remain at home at night (from 10 p.m. to 6 a.m.), unless otherwise authorised; not to attend public meetings; and not to use mobile phone or radio communication devices. The decision was overturned on appeal seven months later, the appeal court having found that the applicant had not been a danger to society when the measures were imposed.
The applicant complained, inter alia, under Article 5 of the Convention and Article 2 of Protocol No. 4 of the preventive measures. The Grand Chamber found, inter alia, that Article 5 did not apply and that Article 2 of Protocol No. 4 had been violated.
One of the aspects of the judgment that is worth noting concerns the nature and control of the preventive measures in question imposed under Act no. 1423/1956, as interpreted in the light of the judgments of the Italian Constitutional Court. The Grand Chamber found that the measures imposed did not amount to a deprivation of liberty within the meaning of Article 5, thereby confirming the principles set out in Guzzardi v. Italy[34] (and applied in several later cases, such as Raimondo v. Italy[35], Labita v. Italy[36], Vito Sante Santoro v. Italy[37] and, mutatis mutandis, Villa v. Italy[38] and S.M. v. Italy[39]), and distinguishing the Guzzardi and later cases on the facts.
The Grand Chamber highlighted, in particular, that there had been no restrictions on the applicant’s freedom to leave home during the day and that he had been able to have a social life and maintain relations with the outside world. Since Article 5 was inapplicable, the applicant’s complaint was examined under Article 2 of Protocol No. 4.
Review of lawfulness of detention (Article 5 § 4)
The issue in the Oravec v. Croatia[40] judgment was whether Article 5 § 4 of the Convention is applicable to an individual who is not deprived of his liberty.
This case raises the interesting issue as to whether an applicant, who was not in detention at the material time, can complain under Article 5 § 4 of the fact that, in his absence and without informing him of the proceedings, a domestic court ordered that he be detained. Article 5 § 4 normally contemplates situations in which an individual is deprived of his liberty and takes proceedings, while in detention, to contest the lawfulness of his deprivation of liberty.
In the instant case, the applicant had been detained on the order of an investigating judge on suspicion of involvement in drug trafficking. He was later released in view of developments in the case. The decision to release him, which was not final, was subsequently quashed by the competent court following an appeal by the prosecution, and the investigating judge was ordered to re-examine the case. The investigating judge confirmed his original decision to release the applicant. That decision was subject to appeal. The prosecutor in fact successfully lodged an appeal against the decision to the competent court and the applicant was ordered to be placed in pre-trial detention. Neither the applicant nor his representative was present at the appeal hearing in camera, nor had they been notified of the prosecutor’s appeal or given the opportunity to comment on the prosecutor’s submissions. The applicant was not in custody at that stage, having been released pursuant to the original decision of the investigating judge.
In the Convention proceedings, the applicant argued, among other things, that the conduct of the appeal proceedings which led to his being remanded in custody had violated the principle of equality of arms guaranteed by Article 5 § 4 of the Convention.
The Court found that Article 5 § 4 had been breached. It held that the appeal brought by the prosecutor against the investigating judge’s decision ordering the applicant’s release breached the principle of “equality of arms” since the applicant could not effectively exercise his defence rights in the appeal proceedings. It noted that the court that ordered the applicant’s detention did so in a closed session without informing, let alone inviting, the applicant or his representative, who were thus not given an opportunity to put forward any arguments concerning the applicant’s detention.
As noted above, the judgment is of interest given that the applicant was not deprived of his liberty at the time of the proceedings leading to his detention the second time around. For that reason, the Government disputed the applicability of Article 5 § 4. On that point the Court, referring to Fodale v. Italy[41], found as follows (paragraph 65).
“In calling for [the investigating judge’s] decision to be quashed, the prosecutor’s office sought, through the appeal proceedings, to have the initial detention order upheld. If the prosecution’s appeal was dismissed the decision to release the applicant would become final; since it was accepted, the applicant was again placed in custody. The appeal thus represented a continuation of the proceedings relating to the lawfulness of the applicant’s detention. In those circumstances, the Court considers that the outcome of the appeal proceedings was a crucial factor in the decision as to the lawfulness of the applicant’s detention, irrespective of whether at that precise time the applicant was or was not held in custody. It cannot therefore subscribe to the Government’s argument that Article 5 § 4 was not applicable to the appeal proceedings before the [competent court] when it ruled on the appeal by the public prosecutor’s office.”
The Stollenwerk v. Germany[42] judgment concerned the applicability of Article 5 § 4 in the period following conviction.
The applicant was arrested and remanded in custody in connection with drugs offences. The decision to detain him was reviewed on eight occasions. The applicant was eventually convicted. He appealed and, pending the outcome of his appeal, applied to be released from detention. His application was rejected, as was his appeal against that decision and his subsequent request for a hearing.
In the Convention proceedings the applicant complained that these proceedings had been unfair since the relevant domestic court, in breach of the principle of equality of arms, had examined his appeal and hearing request without affording him an opportunity to reply to the prosecutor’s written submissions. The Court agreed with the applicant that there had been a breach of Article 5 § 4 of the Convention.
Article 5 § 4 entitles an arrested or detained person to bring proceedings for review by a court of the procedural and substantive conditions that are essential for the “lawfulness”, in the sense of Article 5 § 1, of his or her deprivation of liberty (see Idalov v. Russia[43]). Since judicial control of the deprivation of liberty has already been incorporated into the original conviction and sentence, Article 5 § 4 does not normally come into play as regards detention governed by Article 5 § 1 (a) (which was the case of the applicant) (see De Wilde, Ooms and Versyp v. Belgium[44], and Wynne v. the United Kingdom[45]), save where the grounds justifying the person’s deprivation of liberty are susceptible to change with the passage of time (see the decision in Kafkaris v. Cyprus[46]) or where fresh issues affecting the lawfulness of such detention arise (see Gavril Yosifov v. Bulgaria[47]). It is for that reason that it was not open to the applicant to rely on Article 5 §§ 1 (c) and 3 of the Convention, the standard basis for contesting the length or lawfulness of detention during the pre-conviction phase.
The instant judgment is of interest in that the Court found Article 5 § 4 to be applicable in the post-conviction period because domestic law provided that a person is detained on remand until his or her conviction becomes final, including during appeal proceedings, and accorded the same procedural rights to all remand prisoners. It noted in this connection (paragraph 36):
“Where the Contracting States provide for procedures which go beyond the requirements of Article 5 § 4 of the Convention, the provision’s guarantees, nevertheless, have to be respected in these procedures.”
As to the substance of the applicant’s complaint, and notwithstanding the fact that the lawfulness of the applicant’s detention had been reviewed on many occasions over a relatively short duration, the Court found that the failure to inform the applicant of the prosecutor’s observations and to afford him an opportunity to comment on them had breached his right to an adversarial procedure. The conclusion is of interest. The Court has already stressed that proceedings conducted under Article 5 § 4 of the Convention before the court examining an appeal against detention must be adversarial and must always ensure “equality of arms” between the parties, the prosecutor and the detained person (see, for example, Mooren v. Germany[48]). Its judgment in the instant case indicates that it is prepared to apply the same principle just as rigorously to procedures which Contracting States, as a matter of choice, make available to post-conviction detainees.
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8. Lopes de Sousa Fernandes v. Portugal [GC], no. 56080/13, 19 December 2017.
9. Powell v. the United Kingdom (dec.), no. 45305/99, ECHR 2000-V.
10. Sevim Güngör v. Turkey (dec.), no. 75173/01, 14 April 2009.
11. Arskaya v. Ukraine, no. 45076/05, 5 December 2013.
12. Mehmet Şentürk and Bekir Şentürk v. Turkey, no. 13423/09, ECHR 2013.
13. Asiye Genç v. Turkey, no. 24109/07, 27 January 2015.
14. Aydoğdu v. Turkey, no. 40448/06, 30 August 2016.
15. Tagayeva and Others v. Russia, nos. 26562/07 and 6 others, 13 April 2017. See also under Article 13 (Right to an effective remedy) below.
16. Osman v. the United Kingdom, 28 October 1998, § 116, Reports of Judgments and Decisions 1998-VIII.
17. Mastromatteo v. Italy [GC], no. 37703/97, § 69, ECHR 2002-VIII.
18. Hutchinson v. the United Kingdom [GC], no. 57592/08, ECHR 2017.
19. Kafkaris v. Cyprus [GC], no. 21906/04, ECHR 2008.
20. Vinter and Others v. the United Kingdom [GC], nos. 66069/09 and 2 others, ECHR 2013 (extracts).
21. “It is unlawful for a public authority to act in a way which is incompatible with a Convention right.”
22. Murray v. the Netherlands [GC], no. 10511/10, ECHR 2016.
23. Inter alia, Öcalan v. Turkey (no. 2), nos. 24069/03 and 3 others, 18 March 2014; László Magyar v. Hungary, no. 73593/10, 20 May 2014; Harakchiev and Tolumov v. Bulgaria, nos. 15018/11 and 61199/12, ECHR 2014 (extracts); Čačko v. Slovakia, no. 49905/08, 22 July 2014; Trabelsi v. Belgium, no. 140/10, ECHR 2014 (extracts); and Bodein v. France, no. 40014/10, 13 November 2014.
24. See also Simeonovi v. Bulgaria [GC], no. 21980/04, 12 May 2017.
25. S.F. and Others v. Bulgaria, no. 8138/16, 7 December 2017.
26. M.S.S. v. Belgium and Greece [GC], no. 30696/09, § 223, ECHR 2011.
27. Khlaifia and Others v. Italy [GC], no. 16483/12, §§ 184-85, ECHR 2016 (extracts).
28. J. and Others v. Austria, no. 58216/12, ECHR 2017 (extracts).
29. Rantsev v. Cyprus and Russia, no. 25965/04, ECHR 2010 (extracts).
30. Chowdury and Others v. Greece, no. 21884/15, ECHR 2017.
31. Rantsev v. Cyprus and Russia, no. 25965/04, ECHR 2010 (extracts).
32. See also, under Article 14 taken in conjunction with Article 5 below, Khamtokhu and Aksenchik v. Russia [GC], nos. 60367/08 and 961/11, ECHR 2017, and, under Article 18 (Restrictions not prescribed by the Convention) below, Merabishvili v. Georgia [GC], no. 72508/13, 28 November 2017.
33. De Tommaso v. Italy [GC], no. 43395/09, ECHR 2017. See also under Article 6 § 1 (Right to a fair hearing in civil proceedings – Applicability) below, Article 2 of Protocol No. 4 (Freedom of movement) below, and Article 37 (Striking out) below.
34. Guzzardi v. Italy, 6 November 1980, Series A no. 39.
35. Raimondo v. Italy, 22 February 1994, § 39, Series A no. 281-A.
36. Labita v. Italy [GC], no. 26772/95, § 193, ECHR 2000-IV.
37. Vito Sante Santoro v. Italy, no. 36681/97, § 37, ECHR 2004-VI.
38. Villa v. Italy, no. 19675/06, §§ 43-44, 20 April 2010.
39. S.M. v. Italy (dec.), no. 18675/09, §§ 22-23, 8 October 2013.
40. Oravec v. Croatia, no. 51249/11, 11 July 2017.
41. Fodale v. Italy, no. 70148/01, § 40, ECHR 2006-VII.
42. Stollenwerk v. Germany, no. 8844/12, 7 September 2017.
43. Idalov v. Russia [GC], no. 5826/03, § 161, 22 May 2012.
44. De Wilde, Ooms and Versyp v. Belgium, 18 June 1971, § 76, Series A no. 12.
45. Wynne v. the United Kingdom, 18 July 1994, § 36, Series A no. 294-A.
46. Kafkaris v. Cyprus (dec.), no. 9644/09, § 58, 21 June 2011.
47. Gavril Yosifov v. Bulgaria, no. 74012/01, § 57, 6 November 2008.
48. Mooren v. Germany [GC], no. 11364/03, § 124, 9 July 2009.
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