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

Friday, 29 November 2013

This week in Strasbourg - A roundup of the European Court of Human Rights' case law - week 48

INTERNATIONAL CHILD ABDUCTION - Article 8 - In its Grand Chamber judgment in the case of X v. Latvia the Court held that in case of international child abduction a child should not be returned to the country of origin without an effective examination of allegations of a “serious risk” to the child. The case concerned the procedure for the return of a child to Australia, her country of origin, which she had left with her mother at the age of three years and five months, in application of the Hague Convention on the Civil Aspects of International Child Abduction, and the mother’s complaint that the Latvian courts’ decision ordering that return had breached her right to respect for her family life within the meaning of Article 8 of the Convention. The Court reiterates at the outset certain principles which must guide it in its examination of the case, and to which it drew attention in its recent judgment in Nada v. Switzerland
“168. According to established case-law, a Contracting Party is responsible under Article 1 of the Convention for all acts and omissions of its organs regardless of whether the act or omission in question was a consequence of domestic law or of the necessity to comply with international legal obligations. Article 1 makes no distinction as to the type of rule or measure concerned and does not exclude any part of a Contracting Party’s “jurisdiction” from scrutiny under the Convention (-). Treaty commitments entered into by a State subsequent to the entry into force of the Convention in respect of that State may thus engage its responsibility for Convention purposes (-).
169. Moreover, the Court reiterates that the Convention cannot be interpreted in a vacuum but must be interpreted in harmony with the general principles of international law. Account should be taken, as indicated in Article 31 § 3 (c) of the 1969 Vienna Convention on the Law of Treaties, of “any relevant rules of international law applicable in the relations between the parties”, and in particular the rules concerning the international protection of human rights (-)”
NON-VIOLENT PROTEST - Article 11 - In the case of  Kudrevičius and Others v. Lithuania the Court held Lithuanian government should not have pressed criminal charges against farmers for disruptive but non-violent protest because the bringing of criminal charges against the farmers and their ensuing convictions had not been a proportionate response to a protest that, though disruptive, had been non-violent. In a partly dissenting opinion judges Raimondi, Jociene and Pinto de Albuquerque find that neither Article 7 nor Article 11 of the Convention were violated:
“Taking into account the Court’s precedent and the other European case-law cited, it can be affirmed that the Convention protects freedom of peaceful assembly on roads and highways, but this freedom is not unlimited. While freedom of peaceful assembly is essential for the manifestation of political and civil rights in a democratic society, its exercise must not endanger public safety and the free and safe movement of persons and goods. Restrictions on the place, time and manner of holding assemblies are admissible for that purpose. Unauthorised blocking of highways and roads in order to cause serious public disorder is not a legitimate means of furthering a political cause in a democratic society. That is what happened in the present case. The demonstrators, including the applicants, were able, from 19 to 21 May 2003, to exercise their right to peaceful assembly in designated areas without any restrictions. There was neither a blanket ban on assemblies nor a content-based control of the applicants’ initiative to organise the demonstrations. The administrative authorities duly exercised their competence to manage traffic in the public space and related security risks, mindful of the rights of the demonstrators and the competing rights of those who work and circulate on the public highways and roads. However, on 21 May 2003 the demonstrations turned into an unlawful movement to disrupt traffic on three major highways and other roads in the country, causing grave damage to the public at large and especially to transporters of goods, and even compromising the normal functioning of State border control posts. The public authorities and the general public were caught by surprise by the farmers’ aggressive measure to block major highways without any prior warning. It was clearly impossible for the administrative authorities to re-route the traffic or take any alternative measures, given the surprise factor and the farmers’ choice to target the country’s three main highways."

Article 5 § 1 of the European Convention on Human Rights- right to liberty and security - Case of Glien v. Germany: German courts should have considered alternatives to preventive detention for offender with mental health problem who had served his full prison sentence. 

Article 6 of the European Convention on Human Rights - right to a fair hearing - Case of Al-Dulimi and Montana Management Inc. v. Switzerland - Persons and entities included on lists drawn up by the United Nations Security Council under a sanctions regime must be able to request examination by national courts of measures taken in application of such regimes.  

Article 10 of the European Convention on Human Rights - right to receive information - Case of Österreichische Vereinigung zur Erhaltung, Stärkungund Schaffung eines wirtschaftlich gesunden land- und forstwirtschaftlichen Grundbesitzes v. Austria: a Regional authority’s complete refusal to grant NGO access to official documents was unjustified. 

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

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