European Court Cases
European Court of Human Rights, StrasbourgThe European Court of Human Rights
The European Court of Human Rights (the Court) in Strasbourg is an international judicial body, established under the European Convention on Human Rights of 1950 to monitor respect of human rights by states. The court was established and is overseen by the Council of Europe. The Council is a distinct entity with 54 Contracting State Parties (including the Russian Federation and Turkey) and is accordingly not to be confused with the European Union (the Europan Union has started the process of ratifying the European Convention on Human Rights).
Applications against Contracting States for human rights violations can be brought before the Court by other States (Article 33) or individuals (Article 34).
Individuals can bring an application if they feel that their rights have been infringed by their own Governments and States can complain if they feel that another State within the Council of Europe is abusing the rights of those within its own jurisdiction. A Contracting State can therefore be held to account by both an individual from within its jurisdiction and also another State concerned by its actions. The Court will only hear a case when all domestic legal avenues have been exhausted. In addition, other admissibility criteria apply.
Moreover, an applicant must show that s/he has been a direct victim of an alleged violation. Cases cannot be brought against individuals or private bodies. States must comply with the Court's verdicts, which are overseen by the Council of Europe's Committee of Ministers.
Certain admissibility criteria apply before one can bring a case to Strasbourg. Here is a basic guide for applicants taking their case to the European Court of Human Rights.
Recent cases of note
In this section we profile some recent interesting European Court Judgments. Those cases marked with an asterisk are being referred to the Grand Chamber of the Court and are not yet law but should be considered as being "under appeal". Cases not marked are law although some caution is needed in the event of recent cases (States can seek a referral within 3 months of Judgment).
C v Ireland (1 March 2012)
Delay in Criminal Prosecutions
(Application No. 24643/08) Committee Judgement, 1 March 2012
The Committee of the Court, after hearing oral and written submissions from the parties, delivered its Judgment on 1 March 2010. It found that Ireland had violated Article 6 � 1, which provides for the right to a fair trial within a reasonable time.
The Applicant was charged with criminal offences involving five different claimants and brought an application to the European Court arguing that the delay of the Irish authorities in bringing criminal proceedings against him in relation to one of the trials violated the reasonable time requirement for fair trials under Article 6(1) of the Convention.
The period of time to be taken into consideration was 11 years and four months and involved two levels of Court jurisdiction ( the High Court having initially having made an Order to prevent the proceedings going ahead, which was then overturned on appeal). The Court found that the length of proceedings was excessive and failed to meet the "reasonable time" requirement under Article 6(1) of the Convention. Referring to the previous case of McFarlane v Ireland, (Judgment 10 September 2010), it considered that the Government had not put forward any fact or argument which persuaded it to reach a different conclusion.
The applicant also alleged that it would be unfair to continue the proceedings concerning the trial which had taken over 11 years to be heard before the Courts. The Court found that the applicant could not claim that there was any procedural unfairness in having the trial proceed as he had pleaded guilty and there was no suggestion that his plea was not informed and voluntary.
The applicant also submitted observations under Article 41 of the Convention which provides for just satisfaction to be awarded to an injured party where a violation has been found but where the domestic law of the relevant State only allows for partial reparation. The Court found that the observations did not in fact relate to just satisfaction, but rather the merits of the case and so no award could be made.
Von Hannover v. Germany (7 February 2012)
MEDIA COVERAGE OF THE PRIVATE LIVES OF CELEBRITIES IS ACCEPTABLE IF IN THE GENERAL INTEREST AND IF REASONABLY BALANCED WITH THE RIGHT TO RESPECT FOR PRIVATE LIFE
No violation of Article 8
Principal facts
On 7 February 2012, the Grand Chamber of the European Court of Human Rights (ECtHR) issued an important judgment concerning the balance to be struck between the right to respect for one's private life (Article 8 of the European Convention on Human Rights (ECHR)), and the freedom of expression of the press (Article 10 ECHR). This judgment illustrates the application of the 'margin of appreciation' doctrine and the principle of 'subsidiarity', which are key methodologies in the jurisprudence of the ECtHR.
The case concerned applications against Germany - by Princess Caroline of Monaco and her husband, Prince Ernst August von Hannover - which were considered together by the Court. The applicants alleged that the refusal by the German courts to grant an injunction restraining the publication of a photograph of them, taken during a ski holiday, infringed their right to respect for their private life under Article 8 of the Convention. According to the Applicants, the failure to adequately protect their right to privacy under Article 8, meant that they continued to be the subject of press articles about their private life and to be hounded by the paparazzi.
Von Hannover v Germany (No. 1) - an earlier case
The first Applicant, Princess Caroline of Monaco, had previously applied to the ECtHR regarding her concern that her private life was not adequacy protected from intrusions by the press. This earlier application also concerned the publication of photographs of the Applicant. The ECtHR, in its judgment of June 2004 in that case - Von Hannover v Germany (No. 1) (Application no. 59320/00) - found a violation of the Applicant's Article 8 rights as the domestic courts had not struck the correct balance to protect the Applicant's private life effectively.
In so doing, the ECtHR drew a distinction between the publication of photographs which concerned private, as opposed to public, matters. The Court held that the right to press freedom will outweight privacy concerns where, for example, facts are reported about politicians in the exercise of their functions. Such reporting was deemed by the ECtHR to be an example of the press exercising its vital role as "watchdog" in a democratic society, "imparting information and ideas on matters of public interest" and "contributing to public debate".
The ECtHR held that press reporting of details about the Applicant's private life, particulary as she did not exercise an official State function, did not represent the exercise of a watchdog role by the press and did not contribute to a debate of general interest. Press reporting, according to the ECtHR, which aims solely to satisfy the curiosity of readers about the private life of a particular person does not contribute to a debate of general interest and, in such circumstances, the person's Article 8 privacy rights will outweight those of the press under Article 10.
Von Hannover v Germany (No. 2) - the instant case
In the instant case, upon which, as stated above, Judgment was delivered on 7 February 2012, the Applicant claimed that the German courts should have given effect to the earlier ruling by the ECtHR - in Von Hannover v Germany (No. 1) - by granting an injunction restraining the publication of the photographs at issue. According to the Applicant, by not doing so Germany had failed in its positive obligation to protect her Article 8 rights. In effect, this case concerned the adequacy of the protection afforded by the German courts to the applicant's private life and the right to control the use of one's image.
In reaching its decision, the ECtHR reviewed in detail the domestic proceedings as instituted by the Applicant (which involved the Regional Court, the Court of Appeal, the Fereral Court of Justice and the Federal Constitutional Court) and the consideration given in those proceedings to the Convention and the jurisprudence of the ECtHR. The ECtHR found, in particular, that following its Judgment in Von Hannover v Germany (No. 1), the German Fereral Court of Justice had developed a new test for assessing the information value of published material, including photographs.
This new test incorporated the balancing requirements as articulated in Von Hannover v Germany (No. 1), including whether the material contributed to a factual debate and whether the published materials goes beyond the mere desire to satisfy public curiosty. The Federal Court of Justice had noted that the greater the information value for the public the more the interest of a person in being protected against its publication had to yield and, conversely, a reader's interest in being entertained generally carried less weight than protecting the private sphere.
The ECtHR also noted a number of other factors as relevant to its determination; two out of three of the impugned photographs had in fact been regarded by the domestic courts as not relating to an event of general interest and had granted an injunction preventing their publication. The domestic courts had acknowledged that although the Applicants were public figures, holidays fell within "the core area" of private life; the photographs had not been taken in unfavourable circumstances and the print article associated with the published photograph discussed the health of the first Applicant's father, Prince Rainier, and was therefore in the public interest.
.
Criteria relevant to the balancing exercise
In its jugdment, the ECtHR restated its criteria for balancing respect for private life against fredom of expression; namely by consideration of:
1) the contribution made by the material to the debate of general interest;
2) how well known the person was and the subject of the report;
3) the prior conduct of the individual concerned;
4) the content, form and consequences of publication; and
5) the circumstances in which the photo was taken.
Margin of appreciation
The ECtHR reiterated its view that even where a person is know to the general public, that person has a "legitimate expectation" of protection and respect for his/ her private life. The ECtHR confirmed that the choice of the means employed by individual States to secure compliance with Article 8 of the Convention in the sphere of the relations between private actors, such as a private person and a private business enterprise (in this case a news media outlet), falls within a States' margin of appreciation. Similarly, the ECtHR confirmed that under Article 10 States have a certain margin of appreciation in assessing whether, and to what extent, an interference with freeedom of expression is necessary.
The principle of 'subsidiarity'
Importantly, the ECtHR confirmed that where national authorities have undertaken this balancing exercise - between the right to respect for privacy and freedom of expression - in conformity with the criteria laid down by the ECtHR in its case-law, strong reasons would be required before the ECtHR would subsitute its view for that of the domestic courts.
This approach is known as the principle of 'subsidiarity', which affirms that the role of the ECtHR is secondary to domestic courts in adjudicating on claims that Conventions rights have been violated.
The decision of the ECtHR
In applying its established principles to the facts at hand, the ECtHR found that the domestic courts had carefully balanced the right of the publishing companies to freedom of expression against the applicants right to respect for their private life. In so doing, the ECtHR specifically referenced the fundamental importance attached by the domestic courts to the question of whether the photos, in light of the accompanying articles, had contributed to a debate of general interest. The ECtHR also observed that the national courts had taken account of the case-law under Article 8 of the Convention, including the Von Hannover v Germany (No. 1) Judgment.
In those circumstances, and having regard to the margin of appreciation enjoyed by the national courts when balancing competing interests, the ECtHR concluded that Germany had not failed to comply with its positive obligations under Article 8.
Accordingly, there had been no violation.
Von Hannover v. Germany (No.2)
Sabeh El Leil v France (29 June 2011)
Jurisdictional Immunity of a Foreign State from a Claim in Domestic Courts
(Application no. 34869/05) Grand Chamber Judgment
In Sabeh El Leil v. France the Grand Chamber held unanimously that there had been a violation of Article 6(1) of the ECHR (right of access to a court) in respect of the applicant, an ex-employee of the Kuwaiti Embassy in Paris, whose claim against the Embassy for compensation in respect of his dismissal was declared inadmissible by the French Courts on grounds of jurisdictional immunity.
The applicant, a French national, had been employed as an accountant by the Embassy. When the Embassy terminated the applicant's employment, the applicant brought a claim for compensation against the State of Kuwait and was awarded damages by the Paris Employment Tribunal. However, when the applicant appealed the amount of the award before the Paris Court of Appeals, the award was set aside and his claim declared inadmissible. The Paris Court of Appeals accepted the State of Kuwait's argument that the applicant's responsibilities at the Embassy were carried out in the interest of public diplomatic service, and thus held that the State of Kuwait enjoyed jurisdictional immunity and could not be subject to court action. The applicant further appealed to the Court of Cassation, challenging both the inadmissibility decision and the failure of the Court of Appeals to give sufficient reasons for its decision in breach of the French Civil Code. However, the appeal was dismissed on a preliminary ruling.
In its judgment, the Grand Chamber of the Court reiterated that the Convention is intended to guarantee rights that are not merely theoretical or illusory, but practical and effective. The Court found that it would be inconsistent with the rule of law in a democratic society if States were able to remove a whole range of civil claims from the jurisdiction of the courts without any restraint or control by Convention bodies. Where the rule of State immunity was raised as a restriction on the right of access to a court under Article 6(1), the Court regarded itself as bound to consider whether the restriction was proportionate to the aim pursued and justified in the circumstances of the particular case.
The Court observed that the concept of State immunity had developed in international law as a means of promoting good relations between States by respecting State sovereignty. The Court further observed that the concept had evolved in recent years, and the notion of absolute immunity had clearly weakened. The Court cited in particular the 2004 UN Convention on Jurisdictional Immunities of States and their Property, which introduced the principle that immunity will not apply in respect of employment contracts between States and staff of foreign diplomatic missions except where the individual is a diplomatic or consular agent or a national of the State. The Court considered that the Convention, which France had signed but not yet ratified, was part of customary international law and thus applied to all States.
The Court observed that the applicant had been employed as an accountant at the Kuwaiti Embassy, and not to act officially in a diplomatic or consular capacity on behalf of the State of Kuwait. Furthermore, it had not been demonstrated that the applicant's duties could be linked to the sovereign interests of the State of Kuwait. The Court therefore concluded that by upholding the State of Kuwait's objection based on State immunity and dismissing the applicant's claim without giving relevant and sufficient reasons as required under the French Civil Code, and the French Courts' dismissal of the applicant's case "failed to preserve a reasonable relationship of proportionality" (at para. 67) and amounted to a violation of Article 6(1).
Lautsi v. Italy (18 March 2011)
Education and Religion: Crucifixes in schools
In Lautsi v. Italy a Chamber of the Court had held in November 2009 that the display of the crucifix in a State school attended by the applicant's daughter was contrary to the applicant's right to ensure her child's education and teaching in conformity with her religious and philosophical convictions, within the meaning of Article 2 of Protocol No. 1. The Court considered that the display of the cross also breached her freedom of conviction and religion, as protected by Article 9 of the Convention. The Court held that the freedom not to believe in any religion was not limited to the absence of religious education, but rather extended to practices and symbols which expressed a belief, a religion, or atheism. This freedom was found to deserve "special protection" if it was the State which expressed a belief and dissenters could only avoid being placed in a situation by "making disproportionate efforts and acts of sacrifice".
On 28 January 2010 the Italian Government requested that the case be referred to the Grand Chamber and a Grand Chamber hearing took place on 30 June 2010 in Strasbourg.
In its Judgment on 18 March 2011 the Grand Chamber reversed the Chamber's ruling and held that there had been no violation of Article 2 of Protocol No.1 or of Article 9.
The Court found that, while the crucifix was above all a religious symbol, there was no evidence before the Court that the display of such a symbol on classroom walls might have an influence on pupils.
The Court considered that it would respect the States' decisions in those matters, including the place they accorded to religion, provided that those decisions did not lead to a form of indoctrination.
In considering whether the State had exceeded its "margin of appreciation" (or discretion) to regulate such matters, the Court noted the following: that the presence of crucifixes was not associated with compulsory teaching about Christianity; according to the Government, Italy opened up the school environment to other religions (pupils were authorised to wear symbols or apparel having a religious connotation; non-majority religious practices were taken into account; optional religious education could be organised in schools for all recognised religious creeds; the end of Ramadan was often celebrated in schools, and so on). There was nothing to suggest that the authorities were intolerant of pupils who believed in other religions, were non-believers or who held non-religious philosophical convictions. In addition, the applicants had not asserted that the presence of the crucifix in classrooms had encouraged the development of teaching practices with a proselytising tendency, or claimed that the children involved had ever experienced a tendentious reference to the crucufix by a teacher. Lastly, the Court noted that Ms Lautsi had retained in full her right as a parent to enlighten and advise her children and to guide them on a path in line with her own philosophical convictions.
Kiyutin v. Russia (11 March 2011)
Refusing residence permit on basis of HIV-positive status discrimination
(Application no. 2700/10) First Section Chamber Judgment 11 March 2011
The applicant, an Uzbek national, has lived in the Russian Federation since 2003. In 2003 he married a Russian national and in 2004 they had a daughter who acquired Russian nationality. Shortly after arriving Mr Kiyutin applied for a residence permit. As part of the application he was required by Russian law to undergo a medical examination. He was found to be HIV-positive and his application was refused on this ground, as prescribed by the Foreign Nationals Act. The applicant challenged this decision, under Article 8 - since he had established a family in the State - and Article 14. However, his appeal was rejected on the same ground.
The Court first established that the applicant had a family life in the Russian Federation wtihin the meaning of Article 8 of the ECHR and then proceeded to consider whether health was protected under the non-discrimination provision in Article 14, finding that it was included within the "any other status" clause of that Article.
The Court found that, although the protection of public health was indeed a legitimate aim, the Government was unable to adduce compelling and objective arguments to show that this aim could be attained by the applicant's exclusion from residence on account of his health status.
Further the Court commented on the blanket and indiscriminate nature of the ban. Whilst the Russian Federation's Constitutional Court had indicated that the provisions did not exclude the possibility of having regard to humanitarian considerations in exceptional cases, it was not clear whether that decision gave the domestic authorities discretion to override the decision on these grounds. Taking into account that the applicant belonged to a particularly vulnerable group, that his exclusion had not been shown to have a reasonable and objective justification, and that the contested legislative provisions did not make room for an individualised evaluation, the Court found that there was a breach of Article 14 of the Convention taken in conjunction with Article 8.
Further analysis of the Court's Judgment
M.S.S. v Belgium and Greece (21 January 2011)
Third country return of asylum seeker violation
(Application no. 30696/09) Grand Chamber Judgment 21 January 2011
The Grand Chamber of the Court found violations of Article 3 (prohibition of inhuman or degrading treatment or punishment) and Article 13 (effective remedy) of the ECHR. The case concerned the expulsion of an asylum seeker to Greece by the Belgian authorities in application of the EU Dublin II Regulation.
In returning an Afghan asylum seeker to Greece on the basis of the EU Dublin II Regulation, both Belgium and Greece had violated the Convention:
The Court held that Greece had violated Article 3 because of the applicant's detention and living conditions in Greece and had breached Article 13 in conjunction with Article 3 because of the deficiencies in the asylum procedure followed in the applicant's case.
The Court found that Belgium had violated Article 3, having exposed the applicant to risks linked to the deficiencies in the asylum procedure in Greece and having exposed him to detention and living conditions in Greece that were in breach of Article 3. The Court also held that Belgium and violated Article 13 in conjunction with Article 3 because of the lack of effective remedy available against the applicant's expulsion order.
Further analysis of the Court's Judgment
A.B., C. v Ireland (16 December 2010)
Life of mother at risk - procedure for establishing lawfulness of abortion
(Application no: 25579/05) Grand Chamber 16/12/2010
The Grand Chamber unanimously found a violation of the third Applicant's Article 8 rights but not those of the first and second applicants.
Facts
In Irish law, abortion is prohibited under sections 58 and 59 of the Offences against the Person Act 1861. Under Article 40.3.3 of the Irish Constitution the State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees to respect the mother in national laws.
Complaints
A and B travelled to the United Kingdom for abortions for reasons of health and/ or wellbeing. C who was in remission from cancer, argued that there was no procedure by which she could have established whether she qualified for a lawful abortion in Ireland on grounds of the risk to her life. She therefore travelled to the UK for an abortion. All three applicants claimed that the restriction on abortion in Ireland violated their right to respect for their private life under Article 8 of the ECHR.
Court's Consideration
With regard to the first and second applicants, A and B, the Court concluded that the existing prohibition on abortion in Ireland struck a fair balance between the right of A and B to respect for their private lives and the rights invoked on behalf of the unborn. The Court thus found that there had been no violation of Article 8 of the ECHR by eleven votes to six.
With regard to C, the Court concluded unanimously that Ireland had breached C's right under Article 8 given the State's failure to secure effective respect for her private life by reason of the absence of any implementing legislative or regulatory regime providing an accessible and effective procedure by which she could have established whether she qualified for a lawful abortion in Ireland.
Further analysis of the Court's Judgment
Ternovszky v Hungary (14 December 2010)
Right to choose the circumstances of becoming a parent
(Application no. 67545/09) 14 December 2010
Facts
The applicant, a Hungarian national was pregnant when she lodged her application with the Court. She intended to give birth at her home, rather than in a hospital, but alleged she was prevented from doing so because health professionals were effectively dissuaded by law from assisting her as they risked being convicted under national legislation. It appeared that at least one such prosecution had taken place in recent years.
Complaint
Relying, in particular, on Article 8 (right to respect for private and family life), the applicant alleged that the fact that she had not been able to benefit from adequate professional assistance for a home birth in view of the relevant Hungarian legislation - and as opposed to those wishing to give birth in a health institution - had amounted to discrimination in the enjoyment of her right to respect for her private life.
Court's Consideration
The Court observed that "private life" incorporated aspects of an individual's physical and social identity including the right to respect for both the decisions to become and not to become a parent, hence the right of choosing the circumstances of becoming a parent. Although the applicant had not been prevented as such from giving birth at home, there had been an interference with the exercise of the right to respect for her private life given that legislation arguably dissuaded health professionals from providing the requisite assistance.
The national legislation might reasonably be seen as contradictory. While the Hungarian Health Care Act 1997 recognised patients' right to self-determination, including the right to reject certain interventions, a Government decree sanctioned health professionals carrying out activities within their qualifications in a manner incompatible with the law or their licence.
The Hungarian Government recognised the necessity of regulating this matter, however no specific decree to that end had been enacted yet. It had moreover not been disputed that, in at least one case, proceedings had been instituted against a health professional for home birth assistance.
The Court therefore concluded that the matter of health professionals assisting home births was surrounded by legal uncertainty prone to arbitrariness. Because of the absence of specific and comprehensive legislation and of the permanent threat posed to health professionals inclined to assist them, the applicant was effectively not free to choose to deliver at home. Consequently, there had been a violation of Article 8.
McFarlane v. Ireland (10 September 2010)
Delay in Criminal Prosecutions
(Application no. 31333/06) Grand Chamber Judgment 10 September 2010
The Grand Chamber of the Court, after hearing written and oral submissions from the parties, delivered its Judgment on 10 September 2010. It found that there had been a violation of Article 13 (right to an effective remedy) and Article 6 � 1 (right to a fair trial within a reasonable time).
The Applicant was charged with criminal offences and brought an application to the European Court arguing that the delay of the Irish authorities in bringing criminal proceedings against him violated the reasonable time requirement for fair trials under Article 6(1) of the Convention and that he did not have available to him an effective domestic remedy under Article 13 of the Convention in respect of the delay complaint.
The Court considered that the overall length of the criminal proceedings (over 10 years) was excessive and in violation of Article 6�1.
Under Article 13, everyone has the right to an effective domestic remedy for Convention complaints, such as the right to a trial in a reasonable time under Article 6 as argued in this case. The Court considered three issues under this provision: a) whether there was available an effective domestic remedy for Article 6-type complaints, b) the impact of judicial immunity and c) the speed and accessibility (on costs grounds) of the contended remedy.
The Court concluded that the Government had "not demonstrated that the remedies proposed by them, including an action for damages for a breach of the constitutional right to reasonable expedition, constituted effective remedies available to the applicant in theory and in practice at the relevant time." There had thus "been a violation of Article 13, in conjunction with Article 6 � 1 of the Convention".
Fuller analysis of the Court's Judgment
Slyusarev v Russia April 2010
Prison Conditions
In July 1998 the Applicant, a Russian national, was detained by police on suspicion of assaulting a woman with a firearm. During this period the applicants glasses, which he needed as he was short-sighted, were partially broken and removed from him by the police for a number of months. The applicant signed a written confession as to the crime, which he later retracted. He was later charged and in June 1999 he was convicted of armed robbery, illegal possession of a firearm and fraud and sentenced to nine years imprisonment.
During his pre-trial detention, the Applicant complained about the deterioration of his eyesight; stating that he was so seriously short-sighted that without glasses he was unable to read or write. In late November 1998, the applicant underwent an eye examination at a hospital. The doctors detected a reduction in one eye's mobility and that the applicant's eyesight level had dropped. The case investigator returned the applicant's original glasses to him in early December 1998. While the pre-trial investigation was also completed in December, there was a delay in the indictment as the District Court told the prosecutor to put the case file at the Applicants' disposal anew as he only now had glasses with which to examine it properly. In January 1999, the applicant received new glasses from the investigator, after which the case file was re-submitted to the Court. The applicant attempted to raise the issue of ill-treatment during the proceeding but the Court dismissed the motion. Later, the Moscow City Court dismissed an appeal by the applicant and held that there was no evidence of ill-treatment.
The Applicant made a complaint under Article 3 of the ECHR (prohibition of torture or inhuman or degrading treatment or punishment) that the lack of glasses for five months debased his human dignity and resulted in serious impairment of his eyesight.
The Court considered that as ill-treatment must attain a minimum level of severity to fall within the scope of Article 3, if the glasses had been returned to the applicant quickly, no issue under Article 3 would have arisen: "a few days spent in detention without glasses" would not amount to ill-treatment. However, the Applicant was without glasses for several months. On the evidence, this had no permanent effect on his health, but his "myopia of medium severity" likely caused distress, insecurity and helplessness. Due to the long period of the time the applicant went without his glasses, his treatment fell within the scope of Article 3 of the ECHR.
The Court then rejected the Government's argument that the applicant did not complain about his glasses until December 1998, insofar as the case investigator had ordered an examination of the applicant in September 1999 and his wife had requested the return of the glasses in the same month. The Court considered that Article 3 requires that a detainee is to be treated "with respect for his human dignity, and that, given the practical demands of imprisonment, his health and well-being are adequately secured by, among other things, providing him with the requisite medical assistance" (at para. 43) Taking the applicants glasses could not be considered as a "practical demand" and was also against the domestic law.
The Court thus held that the delay of five months in the State authorities procuring new glasses for the applicant resulted in a violation of Article 3 of the Convention, as the applicant was subjected to degrading treatment.
"...under Article 3 of the Convention the States must ensure that a person is detained in conditions which are compatible with respect for his human dignity, and that, given the practical demands of imprisonment, his health and well-being are adequately secured by, among other things, providing him with the requisite medical assistance (see Kudła v. Poland [GC], no. 30210/96, �� 92-94, ECHR 2000-XI). Taking the applicant's glasses could not be explained in terms of the "practical demands of imprisonment", and, even more so, was unlawful in domestic terms...." (at para 44).
Kozak v Poland March 2010
Same Sex Right to Succeed to Tenancy
The applicant, a Polish national, was born in 1951 and lives in Szczecin (Poland). For several years, he lived with his same-sex partner in a shared municipality flat rented by his partner. After his partner had died in April 1998, the applicant applied to the municipality to succeed to the tenancy of the flat. The municipal buildings department denied the request in June 1998, claiming that the applicant had not lived in the flat before his partner's death, and ordered the applicant to move out. While eviction proceedings against him were still pending, the applicant brought proceedings against the municipality in 2000, seeking to have his succession to the tenancy acknowledged. Relying on the Lease of Dwellings and Housing Allowances Act 1994 (the Housing Act), he argued that he had a right to succession, as he had run a common household with his partner for many years and had thus lived with him in a de facto marital cohabitation. The claim was dismissed by the Szczecin District Court, holding in particular that Polish law recognised de facto marital relationships only between partners of different sex. On appeal, the decision was upheld by the Szczecin Regional Court in June 2001.
Relying in particular on Articles 8 and 14, the applicant complained that the Polish courts, by denying him the right to succeed to a tenancy after the death of his partner, had discriminated against him on the ground of his sexual orientation.
The Court concluded that when establishing whether the applicant fulfilled the conditions of the Housing Act, the domestic courts had focused on the homosexual nature of the relationship with his partner. While the District Court had also expressed some doubts as to whether the applicant had lived in the flat at the relevant time, both courts had rejected his claim on the grounds that under Polish law only a relationship between a woman and a man could qualify for de facto marital cohabitation.
The Court accepted that the protection of the family founded on a union of a man and a woman, as stipulated by the Polish Constitution, was in principle a legitimate reason which might justify a difference in treatment. However, when striking the balance between the protection of the family and the Convention rights of sexual minorities, States had to take into consideration developments in society including the fact that there was not just one way of leading one's private life. The Court could not accept that a blanket exclusion of persons living in a homosexual relationship from succession to a tenancy was necessary for the protection of the family. It therefore unanimously concluded that there had been a violation of Article 14 taken in conjunction with Article 8.
"Sexual orientation is a concept covered by Article 14. Furthermore, when the distinction in question operates in this intimate and vulnerable sphere of an individual's private life, particularly weighty reasons need to be advanced before the Court to justify the measure complained of. Where a difference of treatment is based on sex or sexual orientation the margin of appreciation afforded to the State is narrow and in such situations the principle of proportionality does not merely require that the measure chosen is in general suited for realising the aim sought but it must also be shown that it was necessary in the circumstances. Indeed, if the reasons advanced for a difference in treatment were based solely on the applicant's sexual orientation, this would amount to discrimination under the Convention"(at para 92).
Gillan and Quinton v. United Kingdom (January 2010)
Anti-terrorism legislation
In Gillan and Quinton v. United Kingdom the Applicants are British nationals who complained that the police power in the United Kingdom under anti-terrorism legislation to stop and search individuals without reasonable suspicion is in contravention of the ECHR relying on Articles 5, 8, 10 and 11.
In September 2003 both Applicants were stopped and searched by the police while on their way to a demonstration close to an arms fair held in East London. Under the relevant domestic law, a senior police officer may issue an authorisation, if he or she considers it "expedient for the prevention of acts of terrorism", permitting any uniformed police officer within a defined geographical area to stop any person and search the person and anything carried by him or her. The authorisation must be confirmed by the Secretary of State within 48 hours. According to the law, a search can be carried out by a constable in an authorised area whether or not he has grounds for suspicion, but may only be 'for articles of a kind which could be used in connection with terrorism'. The police officer may request the individual to remove headgear, footwear, outer clothing and gloves and place his or her hand inside pockets, feel around and inside collars, socks and shoes and search hair. The search takes place in public and failure to submit to it amounts to an offence punishable by imprisonment or a fine or both.
Judgment was given by a Chamber of the Court in which the 7 Judges unanimously held that the powers of authorisation and confirmation as well as those of stop and search under sections 44 and 45 of the relevant 2000 Act were neither sufficiently circumscribed nor subject to adequate legal safeguards against abuse. They were not, therefore, "in accordance with the law", in violation of Article 8 of the ECHR (the right to respect for one's private life).
In the circumstances the Court deemed it not necessary to examine the applicants' complaints under Articles 5, 10 and 11.
The Court held that the finding of a violation constituted sufficient just satisfaction (Art 41).
This case has now been referred to the Grand Chamber (see below).
Muňoz Díaz v. Spain (December 2009)
Rights of Minorities
In Muňoz Díaz v. Spain the Applicant was a Spanish national belonging to the Roma community. Her husband was also of the Roma community, with their marriage being solemnised according to rites of the Roma tradition. They had six children, and were granted the status of "large family". Following her husband's death, the applicant applied for a survivor's pension but was refused on the grounds that her marriage had not been registered in the Civil Register.
The Applicant's domestic appeal attempts proved fruitless, with the Spanish Court finding that the Applicant had chosen not to get married in a statutory or other organised form even though she was free to do so. The importance of limiting the survivor's pension to marital relationships in light of limited social security resources was also highlighted.
The Applicant claimed that the refusal to grant her a survivor's pension was in violation of Article 14, in conjunction with Article 1 of Protocol No. 1. Further, combining the prohibition of discrimination under Article 14 with the right to marry under Article 12, the Applicant contested the Spanish authorities' decision not to recognise the Roma marriage as having civil effects.
In deciding the case, the Court found certain facts to be relevant in the circumstances; the fact that they had been issued a family record book by the civil registration authorities, and the fact that the Applicant's husband had been covered by social security for almost 20 years for which his benefit card (deemed an official document) indicated that he supported the Applicant, as well as his six children.
The Court found that the Applicant's right to religious freedom would have been breached, had she been required to marry under Canon law. It recognised the importance of the beliefs belonging to the Roma Community, with its own values "deeply rooted in Spanish society". The Court noted the emerging international consensus, with European States recognising the "special needs of minorities" as well as an "obligation to protect their security, identity and lifestyle, not only for the purpose of safeguarding the interests of the minorities themselves but to preserve a cultural diversity that is of value to the whole community".
The Spanish authorities were found to have acted disproportionately by granting large-family status, providing health coverage to their family, and collecting the social security contributions of the Applicant's husband for almost 20 years, but then refusing to recognise the effects of the Roma marriage when it came to issuing a survivor's pension. The Court found that the Applicant had good faith as to the validity of her marriage, and the action of the authorities gave her a legitimate expectation to be recognised as being part of a married couple. A violation of Article 14 taken together with Article 1 of Protocol No. 1 was thus found.
Mammadov v Azerbaijan (December 2009)
Lack of effective investigation into the death of the applicant's wife
(Application no. 4762/05) (December 2009)
The Applicant Mr Mammadov and his family are internally displaced persons. They lived in a room in a State-owned hostel up until 2003 when they discovered that three rooms nearby, which belonged to the local army recruitment office, were vacant. The applicant repaired those rooms and moved into them together with his family without permission. In 2004, a group of local authority representatives and police officers turned up at the applicant's dwelling without a court order for eviction. Apparently distressed by the arrival of the authorities, who she feared had come to evict her family, the applicant's wife poured kerosene over herself and set it on fire. She suffered multiple serious burns and later died. Mr. Mammadov alleged that the police officers had not taken her threat seriously but instead mockingly encouraged her to carry her threat through; this was denied by the authorities who submitted that at least one police officer tried to help Ms. Mammadova put out the fire she had started. Following a preliminary inquiry into the death of Ms. Mammadova, the investigator decided not to start criminal proceedings due to lack of evidence that anyone had provoked Ms. Mammadova's act. That decision was confirmed by the prosecutors several times between July and September 2004. In 2005, criminal proceedings eventually commenced in relation to Ms. Mammadova's death and investigative measures were ordered. The investigation was subsequently terminated due to lack of evidence that Ms. Mammadova was driven to commit suicide through the officials' actions.
Complaint
Mr Mammadov complained under Article 2 (right to life) that the Azerbaijani authorities had been responsible for his wife's death because, among other things, they had entered his dwelling unlawfully and failed to save his wife when she had set herself on fire.
Court's Consideration
It was not disputed that Ms Mammadova's death had been the result of suicide and not of force caused by another person. It had also been clear that the authorities had asked Mr Mammadov's family several times to vacate the dwelling they had been occupying illegally. By conducting the operation to evict the applicant's family, the authorities could not be considered to have intentionally put the life of the applicant's wife at risk. Consequently, there had been no violation in respect of the authorities' obligation to guarantee and protect the right to life.
The Court considered, however, that the investigation carried out into the death of the applicant's wife had been inadequate as it had not covered all the issues relevant to the assessment of the State's responsibility in the incident. In particular, the investigation had been limited to the question of whether the State agents incited Ms Mammadova to commit suicide, while it should have also examined whether the authorities had done everything necessary to prevent her death or minimise the injuries she received. The investigation had been marked by a number of other shortcomings, such as the failure to take immediate action, the fact that it had lasted over four years, the omission to reconstruct the sequence and duration of the events and to address the discrepancies in witness statements. The Court therefore found a violation of Article 2 on the ground that the State had failed to carry out an effective investigation.
�ilih v. Slovenia April 2009
Alleged medical negligence causing death
(Application no. 71463/01) (Grand Chamber)
Facts
The applicants' son, Gregor �ilih, died in hospital after suffering anaphylactic shock, probably as a result of an allergic reaction to one of the drugs administered to him by a duty doctor in an attempt to treat him. The applicants brought criminal and civil proceedings against the doctor and hospital involved. A criminal investigation was launched but dismissed after 7 years due to lack of evidence. Civil proceedings had extended over 13years and were still pending before the Constitutional Court.
Complaints
The applicants complained about the inefficiency of the Slovenian judicial system in establishing liability for their son's death, in breach of Article 2 (right to life). Further relying on Articles 6 (right to a fair hearing) and 13 (right to an effective remedy), they also alleged that the legal proceedings were excessively lengthy and that the criminal proceedings were unfair.
Court's'Consideration
The Court noted that the parties did not dispute the fact that Gregor �ilih's condition had started to significantly deteriorate in hospital and that his death had possibly been related to his medical treatment there. Since the applicants had alleged that their son had died as a result of medical negligence, the State, in order to comply with its obligations under Article 2, was required to set up an effective and independent judicial system to determine the cause of death and bring those responsible to account.
"The Court notes the State's obligation to carry out an effective investigation or to provide for the possibility of bringing civil or criminal proceedings as may be appropriate to the case, has in the Court's case-law been considered as an obligation inherent in Article 2 which requires, inter alia, that the right to life be "protected by law." "In the sphere of medical negligence, the procedural obligation under Article 2 has been interpreted by the Court as imposing an obligation on the State to set up an effective judicial system for establishing both the cause of death of an individual under the care and responsibility of health professionals and any responsibility on the part of the latter."
The Court considered that the excessive length of the criminal proceedings, and in particular the investigation, could not be justified by either the conduct of the applicants or the complexity of the case. With regard to the civil proceedings, although those proceedings had been stayed for three years and seven months pending the outcome of the criminal proceedings, they had in fact already been at a standstill for two years before that. Indeed, even after the criminal proceedings had been discontinued, it took the domestic courts a further five years and eight months to rule on the applicants' civil claim.
Lastly, the Court noted that it was unsatisfactory for the applicants' case to have been dealt with by at least six different judges in a single set of first-instance proceedings. While the domestic courts were better placed to assess whether an individual judge was able to sit in a particular case, a frequent change of the sitting judge had to have impeded effective processing.
The Court therefore concluded that the domestic authorities had failed to deal with the applicants' claim concerning their son's death with the level of diligence required by Article 2. Consequently, there had been a violation of Article 2 on account of the inefficiency of the Slovenian judicial system in establishing the cause of and liability for the death of the applicant's son.
Note on referrals from a Chamber to the Grand Chamber
Under Article 43 of the ECHR, cases may be referred to the Grand Chamber of the Court within a period of three months from the date of the judgment of the Chamber of the Court which decided the case, usually at the request of a Party. In addition, any party to the case may, in exceptional cases, request that the case be referred to the Grand Chamber.
Article 43 of the ECHR is amplified by Rule of Court 73 which states that any party to a case may exceptionally, within a period of three months from the date of delivery of the judgment of a Chamber, file in writing at the Registry a request that the case be referred to the Grand Chamber. The party shall specify in its request the serious question affecting the interpretation or application of the Convention or the Protocols thereto, or the serious issue of general importance, which in its view warrants consideration by the Grand Chamber. A panel of five judges of the Grand Chamber will then examine the request and shall accept the request only if it considers that the case does raise such a question or issue. Reasons need not be given for a refusal of the request. If the panel accepts the request, the Grand Chamber shall decide the case by means of a Judgment.
Full citations
Slyusarev v Russia (application No. 60333/00) European Court Judgment of 20 April 2010.
Kozak v Poland (Application No. No. 13102/02) European Court Judgment of 2 March 2010
Gillan and Quinton v. United Kingdom (application No. 4158/05) European Court Judgment of 12 January 2010.
Mammadov v Azerbaijan (application no. 4762/05) European Court Judgment of 17 December 2009.
Muňoz Díaz v. Spain (application No. 49151/07) European Court Judgment of 8 December 2009.
Lautsi v Italy, (application No. 30814/06) European Court Judgment of 3 November 2009.
�ilih v Slovenia (application no. 71463/01) European Court Judgment of 9 April 2009.
Third Party Interventions before the Court
Article 44 of the Rules of Court allow for third parties to apply to the President of a Chamber to intervene in a case before the Court and in appropriate cases permission may be granted. Other States can intervene in cases before the Court. In addition, the Commissioner for Human Rights has a particular role for such interventions. Separately, non-governmental organisations such as Amnesty International or Liberty have regularly intervened in some of the more important cases before the Court.
in August 2011 the IHRC made a third party amicus curiae intervention in the case of Gauer v France on behalf of the European Group of National Human Rights Institutions (NHRIs). This was the first intervention before an international court by a regional grouping of NHRIs.The submission focused on the international standards on protecting women and girls with an intellectual disability from intrusive procedures such as sterilisation including in light of the provisions of the UN Convention on the Rights of Persons with Disabilities. The case is pending before the European Court. This intervention was a collaboration between a number of National Human Rights Institutions across Europe including the French Commission nationale consultative des droits de l'homme (CNCDH).
In 2008 the IHRC had made the first third party amicus curiae intervention in the case of D.D. v Lithuania on behalf of the European Group of National Human Rights Institutions (NHRIs). This was also the first intervention before an international court by a regional grouping of NHRIs. The submission focused on the normative changes exemplified by the new UN Convention on the Rights of Persons with Disabilities and relevant international principles and European law and is still pending before the European Court. It was also the first third party intervention by a regional grouping of NHRIs before an international court.
In addition, a number of NHRIs regularly submit third party intervention briefs before the European Court, particularly where the number of applications brought against their State may be high. Examples of such NHRIs include the Northern Ireland Human Rights Commission and the Great Britain Equality and Human Rights Commission. As part of its role in Chairing the Legal Working Group of the European Group of NHRIs and in order to assist NHRIs in identifying cases brought against their States, the IHRC analyses recently communicated cases from the European Court and provides summaries to NHRIs across Europe.