‘Abduction of Europa’ (Rembrandt Harmensz. van Rijn, Amsterdam - 1632 - fragment)

Thursday, 5 September 2013

This week in Strasbourg - A roundup of the European Court of Human Rights' case law - week 36

WHAT’S (NOT) IN A NAME? - Article 8 Family Life - A married name is a family name or surname adopted by a person upon marriage. When a person (traditionally, the wife) assumes the family name of his or her spouse, that name replaces the person's birth name, which in the case of the wife is usually referred to as the maiden name. Since the 1970s, the term "birth name" has been increasingly used synonymously with "maiden name". Some feminists prefer the use of the term "birth name" as a more accurate label for the name received at birth, compared with "maiden name", which they criticize as being archaic and having sexual double standard implications.

In this week's case of Tuncer Güneş v. Turkey the applicant claims in particular that the fact that Turkish law allows married men but not married women to use only their own surname after marriage amounts to discrimination based on sex. Gülizar Tuncer Güneş is a Turkish national who was born in 1966 and lives in Istanbul (Turkey). She was not allowed to keep just her maiden name after her marriage in March 2005. The Court held, with reference to the case of Ünal Tekeli, which raised issues similar to those in the present case, that this difference in treatment on grounds of sex between persons in an analogous situation was in breach of Article 14 taken in conjunction with Article 8. In Ünal Tekeli v. Turkey the Court held  in 2004:
“that the advancement of the equality of the sexes is today a major goal in the member States of the Council of Europe. Two texts of the Committee of Ministers, namely, Resolution (78) 37 of 27 September 1978 on equality of spouses in civil law and Recommendation R (85) 2 of 5 February 1985 on legal protection against sex discrimination, are the main examples of this. These texts call on the member states to eradicate all discrimination on grounds of sex in, among other things, choice of surname. This objective has also been stated in the work of the Parliamentary Assembly (-) and the European Committee on Legal Co-operation (-). On an international level, developments in the United Nations concerning the equality of the sexes are heading in this specific area towards recognition of the right of each married partner to keep his or her own surname or to have an equal say in the choice of new family name.
Moreover, the Court notes the emergence of a consensus among the Contracting States of the Council of Europe in favour of choosing the spouses’ family name on an equal footing. Of the member states of the Council of Europe Turkey is the only country which legally imposes – even where the couple prefers an alternative arrangement – the husband’s name as the couple’s surname and thus the automatic loss of the woman’s own surname on her marriage. Married women in Turkey cannot use their maiden name alone even if both spouses agree to such an arrangement. (-)
The (-) question for the Court is whether the tradition of reflecting family unity through the husband’s name can be regarded as a decisive factor in the present case. Admittedly, that tradition derives from the man’s primordial role and the woman’s secondary role in the family. Nowadays the advancement of the equality of the sexes in the member states of the Council of Europe, including Turkey, and in particular the importance attached to the principle of non-discrimination, prevent States from imposing that tradition on married women. In this context it should be recalled that while family unity can be reflected by choosing the husband’s surname as the family name, it can be reflected just as well by choosing the wife’s surname or a joint name chosen by the couple (-)."
For a good comment on this case, explaining the evolution in the Court's reasoning since the ratification of Protocol no. 12 in 2005,  read Roseline Letteron, Droit au nom et non discrimination:
"Evolution de la jurisprudence ? Oui, sans doute, si l'on considère le mode de raisonnement de la Cour, désormais beaucoup plus libre en matière de discrimination. Il n'empêche qu'il peut sembler étrange que des Etats du Conseil de l'Europe, signataires de la Convention européenne des droits de l'homme, refusent toujours d'adopter le principe de liberté dans le choix du nom de famille. A l'époque où  la plupart des Etats modernes ont adopté ce principe, à l'époque aussi où le mariage pour tous rend impensable l'idée même de "chef de famille", le droit turc apparaît bien désuet. Heureusement, la décision de la Cour va certainement susciter quelques changements. Car derrière cet attachement à la prééminence du nom du mari apparaît évidemment une conception de la famille marquée par des traditions religieuses qui supposent l'asservissement des femmes."
DEPORTATION TO RUSSIA – Article 3 - In the case of I v. Sweden the Court held that the removal of a Chechen family from Sweden to Russia would expose them to a real risk of ill-treatment. The case concerned the Swedish authorities’ decision to reject a request for asylum lodged by a family from Chechnya (Russia). The Court ruled that deportation of the applicants to Russia would give rise to a violation of Article 3 (prohibition of torture and of inhuman or degrading treatment) of the Convention. The Court held that – while there were reasons to doubt the credibility of the applicants’ account as to why they were under threat – a number of factors taken cumulatively gave rise to a real risk of ill-treatment in case of their removal, in particular the fact that Mr I had visible signs of torture, which could indicate that he had actively taken part in the second war in Chechnya.

The Court also found that the right of the Member State of origin of the applicants to submit
comments on the case, under Article 36 of the Convention (third party intervention), did not apply where the applicants’ reason for applying to the Court was their fear of ill-treatment if returned to that State. Therefore Russia was not notified of the introduction of the case.

"40.  Article 36 § 1 of the Convention reads as follows: “In all cases before a Chamber of the Grand Chamber, a High Contracting Party one of whose nationals is an applicant shall have the right to submit written comments and to take part in hearings.”
41.  Article 36 § 1 of the Convention, taken together with Rule 44 § 1 (a) and (b) of the Rules of Court, allows a Member State to intervene in a case lodged with the Court by one of its nationals against another Member State -).
42.  The provision reflects the right of diplomatic protection which gives a State an opportunity to protect its nationals in a situation where they suffer an injury as a result of a breach of public international law by another Member State. The question arises whether in the light of the spirit of the Convention and the aim of Article 36 § 1, a right to intervene applies in cases such as this one, in which the applicants are refused asylum seekers and their reason for applying to the Court is their fear of ill-treatment if returned to their State of origin.
43.  The preparatory works relating to Article 36 are silent on this point. The reason therefor is likely to be that the drafters of the Convention did not foresee that complaints about deportation of unsuccessful asylum seekers from one Member State to their country of origin, also being a Member State, could give rise to issues under Articles 2 and 3 of the Convention. This case-law has in fact developed since the Court’s judgment in the case of Soering v. the United Kingdom (7 July 1989, Series A no. 161). There appears to be no specific case-law either which can contribute to the interpretation of Article 36 § 1 in these instances.
44.  In the Court’s view the right under Article 36 § 1 to intervene as a third party extends to offering a Member State the right to support those nationals whose rights and interests may have been injured by another Member State. However, where nationals make allegations which prima facie could give rise to a potential breach of Articles 2 and 3 in case of their return to a Member State, that State does not appear objectively in a position to support its nationals. Moreover, Article 36 § 1 does not encompass a Member State’s right to defend itself before the Court unless the applicants in their application claim to be victims of a violation of their rights by that Member State as well (-).
45.  The Court concludes that Article 36 § 1 does not apply in cases where the applicants’ reason for applying to the Court is fear of being returned to the relevant Member State, which allegedly will subject them to a treatment contrary to Articles 2 and 3 of the Convention. Consequently, in such circumstances, applications are not transmitted to the applicants’ State of origin inviting their Government to intervene.
46.  Applying these considerations to the present case, the Russian Federation was not notified of the present application."

In a joint dissenting opinion judges Villiger (Liechtenstein) and Yudkivska (Ukraine) do not share the majority’s view that the applicants’ deportation to the Russian Federation would be in violation of Article 3 of the Convention. They consider that in the present case there are no substantial grounds to believe that the applicants would be at risk of being subjected to treatment contrary to Article 3 of the Convention and they cannot depart from the conclusions reached by the Swedish authorities in this respect. They also find that the majority did not attach sufficient importance to the fact that the case concerns expulsion to a High Contracting Party to the Convention, which has undertaken to secure the fundamental rights guaranteed by it.

Also read: Diplomatic Protection and the Right of Third-party to Intervene in Cases before the ECHR

DEPORTATION TO SOMALIA - In another Swedish case - K.A.B. v. Sweden – the Court held that there would be no violation of Article 2 (right to life) or Article 3 (prohibition of inhuman or degrading treatment) of the Convention if the applicant were returned to Somalia. The case addresses the prevailing security situation in Mogadishu (Somalia). It concerned a Somali national, originally from Mogadishu, who alleged that his deportation from Sweden to Somalia would put him at real risk of being killed or subjected to ill-treatment.  The Court found that the applicant would not be at risk as a result of the current security situation in Mogadishu, the general level of violence in the city having decreased since 2011 or beginning of 2012. Also assessing the applicant’s personal situation, the Court concluded that he had failed to make out a plausible case that he would face a real risk of being killed or subjected to ill-treatment on return. Notably, he does not belong to any group that is at risk of being targeted by an Islamist group (al-Shabaab) and he allegedly has a home in Mogadishu, where his wife lives.

In a dissenting opinion joined by Judge Zupančič, judge Power-Forde writes:
“I am unable to share the majority’s confidence that the situation in Somalia today is so different from the one that prevailed when the Court delivered its judgment in Sufi and Elmi v. the United Kingdom such as would warrant a departure from the Court’s findings in that case. (-)
I agree that there are signs that Somalia is emerging from a state of emergency to a state of fragile recovery. However, given the devastating human rights abuses throughout the twenty year civil war and the ongoing human rights abuses under the current regime, it is premature, to my mind, to conclude that the situation has changed so fundamentally in the two years since the Court delivered its judgment in Sufi that Mogadishu can now be considered as a place to which failed asylum seekers may be returned safely and without posing a real risk under Article 3 of the Convention.
In a recent visit by the United Nations High Commissioner for Refugees to Mogadishu, it was noted that a small number of Somalis have spontaneously taken the decision to move back to Mogadishu and to other areas under government control. This, it was noted, was a moment of hope for the people of Somalia. However, there is a world of a difference between a small number of people choosing, voluntarily, to assume the risks involved in returning to their war torn homes and the forcible expulsion by a Convention State of vulnerable people to a still volatile conflict zone with dire humanitarian deficiencies. In view of the objective situation in Somalia, the UNHCR continues to advocate that returns should be, first and foremost, voluntary. The Commissioner concluded that at this time “the vast majority of Somalis in exile are still in need of asylum” as conditions are not yet safe for a large-scale repatriation.”

COMPENSATION AFTER CONTAMINATION - A1P1 Property - In the case of M.C. and Others v. Italy (French only) the Court held that Italy must pay adjusted supplementary allowances in accidental contamination of blood cases. The case concerned the fact that it was impossible for 162 Italian nationals to obtain an annual adjustment of the supplementary part of a compensation allowance paid to them following accidental contamination as a result of blood transfusions or the administration of blood derivatives.

The Court found violations of of Article 14 (prohibition of discrimination) taken together with Article 1 of Protocol No. 1 (protection of property). It held that the Government’s enactment of emergency legislative decree no. 78/2010, which ruled on the disputed issue of adjustment of the supplementary part of the allowance, had infringed the principle of the rule of law and the applicants’ right to a fair hearing, had imposed “an abnormal and excessive burden” on them and, lastly, had disproportionately infringed their property rights.

The Court held that the Government’s enactment of emergency legislative decree no. 78/2010, which ruled on the disputed issue of adjustment of the supplementary part of the allowance, had infringed the principle of the rule of law and the applicants’ right to a fair hearing, had imposed “an abnormal and excessive burden” on them and, lastly, had disproportionately infringed their property rights:

"82.  A supposer même que le décret-loi en cause ait été adopté pour une cause d’« utilité publique », au sens de la seconde phrase du premier alinéa de l’article 1 du Protocole no 1, la Cour rappelle qu’une ingérence dans le droit au respect des biens doit ménager un juste équilibre entre les exigences de l’intérêt général de la communauté et les impératifs de la sauvegarde des droits fondamentaux de l’individu (voir, parmi d’autres, Sporrong et Lönnroth c. Suède, 23 septembre 1982, § 69, série A no 2) et qu’un rapport raisonnable de proportionnalité entre les moyens employés et le but visé par toute mesure privant une personne de sa propriété doit exister().

83.  En l’espèce, à la suite de l’adoption du décret-loi no 78/2010, les requérants qui avaient antérieurement obtenu une décision définitive leur reconnaissant un droit à la réévaluation litigieuse ont été privés de leur droit ou n’ont jamais obtenu l’exécution de la décision rendue en leur faveur (requérants appartenant aux groupes 1 et 2). D’autres requérants se sont vu refuser la demande qu’ils avaient introduite en vue d’obtenir cette réévaluation avant l’entrée en vigueur du décret litigieux ou bien n’ont pas attaqué les décisions rejetant leur demandes compte tenu de l’entrée en vigueur dudit décret entre-temps (groupe 4). Quoi qu’il en soit, l’ensemble des requérants n’ont pas bénéficié de la réévaluation de l’IIS, et ce même après la publication de l’arrêt de Cour constitutionnelle.

84.  Dans ce contexte, la Cour doit prendre en compte les pathologies dont les requérants sont ou étaient affectés, six d’entre eux étant décédés au cours de cette procédure. Elle accorde par ailleurs une importance particulière au fait que, selon les informations fournies par les requérants – qui n’ont pas été démenties par le gouvernement défendeur –, l’IIS représente plus de 90 % du montant global de l’indemnité versée aux intéressés. De plus, cette dernière vise (ou visait) à couvrir les coûts des traitements sanitaires des requérants ou de leurs de cujus et, ainsi qu’il ressort de l’expertise médicale envoyée par les requérants, le pronostic concernant les chances de survie et de rétablissement de ceux-ci est (ou était) strictement lié au bénéfice des indemnités).

85.  De l’avis de la Cour, l’adoption du décret-loi no 78/2010 a donc fait peser une « charge anormale et exorbitante » sur les requérants et l’atteinte portée à leurs biens a revêtu un caractère disproportionné, rompant le juste équilibre entre les exigences de l’intérêt général et la sauvegarde des droits fondamentaux des individus."

Blogpost written by Marc de Werd

Courtesy Press Service of the European Court of Human Rights in Strasbourg

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