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

Friday, 24 January 2014

This week in Strasbourg - A roundup of the European Court of Human Rights' case law - 2014 week 4

  
Texts build on the press releases of the European Court of Human Rights. 
This selection covers categories 1 and 2 judgments. 

Article 3 (prohibition of inhuman or degrading treatment) In the case of Placì v. Italy the Court found violations of Articles 3 and 6. The case concerned the applicant’s conscription into compulsory military service despite his fragile state of mental health.  Mr Placì complained in particular under Article 3 of the Convention of a lack of a proper assessment of his state of health before conscription and about his conscription into military service with the resulting training he had had to undergo and punishments that had been inflicted on him.
The Court held inter alia that:
“59. (-) in the absence of any timely detection and reaction by the Military to the applicant’s vulnerability, or of any framework capable of preventing any such occurrence, the Court considers that the State failed in its duty to ensure that the applicant performed military service in conditions which were compatible with respect for his rights under Article 3 and finds that in the present case the applicant, in his specific circumstances, was subjected to distress or suffering of an intensity exceeding the unavoidable level of hardship inherent in military discipline.”
The Court also found a violation of Article 6 § 1 (right to a fair trial) because the medical board which provided crucial evidence in the proceedings for damages had lacked independence:
“79.  (-) the Court considers that the applicant had legitimate reasons to fear that the Medical Board had not acted with the appropriate neutrality in the proceedings before the CS. It further transpires that, as a result of the Board’s composition, procedural position and role in the proceedings before the CS the applicant was not on a par with his adversary, the State, as he was required to be in accordance with the principle of equality of arms. That conclusion suffices to find that the applicant was not afforded a fair hearing before an impartial tribunal and at a par with his adversary in the proceedings before the CS, without the need to examine further the applicant’s arguments in relation to the apparent late disclosure of documentation.”
Article 6 § 1 (right to a fair trial) – case of Gramaxo Rozeira v. Portugal - Non-disclosure of a letter sent by the Prime Minister’s Private Office to the Constitutional Court, and the fact that applicant had not been able to respond to it, infringed his right as guaranteed by Article 6).

The case concerned the failure to communicate a document in the course of proceedings before the Constitutional Court. In March 2002 Mr Gramaxo Rozeira was recruited as a lecturer by the Cávado and Vale do Ave Polytechnic Institute for an initial one-year contract, renewable for two-year periods. In the course of the proceedings, a letter from the Head of the Prime Minister’s Private Office, responding to a request for information from the Constitutional Court on the disputed issue of whether or not trade unions had taken part in drawing up Article 12 of the Staff Regulations, was never transmitted to the applicant, or to the respondent party. In February 2009 the Constitutional Court dismissed the applicant’s appeal, holding that Article 12 of the Staff Regulations was not unconstitutional. The Court held that non-disclosure of the letter, and the fact that applicant had not been able to respond to it, infringed his right to a fair trial:
“31.  La Cour rappelle sa jurisprudence constante selon laquelle la notion de procès équitable implique en principe le droit pour les parties de prendre connaissance de toute pièce ou observation présentée au juge, en vue d’influencer sa décision, et de la discuter (-). Ce principe vaut pour les observations et pièces présentées par les parties, mais aussi pour celles présentées par un magistrat indépendant tel que le commissaire du Gouvernement (actuellement rapporteur public) (-) ou par la juridiction auteur du jugement entrepris (-).”
Article 8 (right to respect for private life) In the case of İhsan Ay v. Turkey the applicant, Mr Ay complained that he had been dismissed on the basis of a previous criminal conviction for having disseminated communist propaganda, under provisions of the former Criminal Code which had later been repealed, and despite the fact that his criminal record had been erased following the repeal. The Court found a violation of Article 8 because the interference was “necessary in a democratic society”:
"38.  The Court observes at the outset that the applicant was dismissed from his post on the basis of a security investigation conducted by the office of the Regional Governor of the State of Emergency on account of his involvement in a number of ideological activities before 1980 and his conviction of an offence against the legal personality of the State. The Governor’s office further noted that the applicant had been the representative of the Diyarbakır branch of Eğit-Sen (a trade union) in 1991 (see paragraph 9 above). The Supreme Administrative Court upheld the administrative decision considering that the applicant had committed a crime against the State and that there was information to suggest that he had been involved in ideological activities for illegal organisations. The Supreme Administrative Court also took into account the particularities of the region (south-east of Turkey) where he had worked (see paragraphs 11, 14 and 16 above). In this connection, the Court cannot but notice the ambiguity in the domestic authorities’ decisions (both administrative and judicial) and in the Government’s observations, as there is no precision in either as to the specific offence of which the applicant had been convicted. Besides, neither section 48(A)(5) of Law no. 657 nor Section 39(1) of the Regulation on Private Tutoring Centres allowed for dismissal of teachers from their posts on the basis of involvement in ideological activities of illegal organisations and in trade unions or taking into account the particularities of a specific region.
39.  Given that neither the domestic decisions nor the Government’s observations contain information regarding the specific offence of which the applicant had been convicted before 1980, the Court accepts the applicant’s submissions that he had been convicted under Articles 141 and 142 of the former Criminal Code and his dismissal was primarily based on his conviction under these provisions. In this connection, the Court observes that these provisions were repealed on 12 April 1991 (see paragraph 17 above) and that the applicant’s criminal conviction on the basis of these articles was erased by a court order on 22 August 1991 (see paragraphs 12 and 15 above). The Court further observes that the applicant put these facts before the domestic courts, in particular, the Supreme Administrative Court, which failed to give any reasons for rejecting the applicant’s claims. The Court reiterates in this regard that the obligation to provide reasons for a decision is an essential procedural safeguard, as it demonstrates to the parties that their arguments have been heard, affords them the possibility of objecting to or appealing against the decision, and also serves to justify the reasons for a judicial decision to the public (see, mutatis mutandis, Cumhuriyet Vakfi and Others, cited above, § 67, and Suominen v. Finland, no. 37801/97, §§ 36 37, 1 July 2003). In the Court’s view, this obligation would require the domestic courts to specify in their decisions the offence of which the applicant had been convicted and the reasons for dismissing the applicant’s arguments.
40.  As a result, the Court finds that the domestic courts, in particular the Supreme Administrative Court, failed to adduce an adequate justification for the use of an erased criminal conviction for acts no longer considered to be criminal offences and which had been committed more than twenty years earlier, for the applicant’s dismissal. The Court therefore considers that the interference in question was not proportionate to the aims pursued and was therefore not necessary in a democratic society.”
Article 10 (freedom of expression) - In Perihan and Mezopotamya Basın Yayın A.Ş. v. Turkey the Court found a violation of Article 10. The case concerned the company’s dissolution in 2001. Following police searches of three of its local branch offices and the confiscation of allegedly illegal publications, including material allegedly used for propaganda in favour of the illegal Kurdistan Workers’ Party (PKK), the Ministry of Industry and Trade brought proceedings with a view to the dissolution of Mesopotamia Publishing on account of its activities against public order.
“53.  The Court has frequently held that “necessary” implies the existence of a “pressing social need” and that the Contracting States have a margin of appreciation in assessing whether such a need exists, but that this goes hand in hand with European supervision (see Zana v. Turkey, 25 November 1997, § 51, Reports 1997 VII). In exercising its supervisory jurisdiction, the Court must look at the impugned interference in the light of the case as a whole. In particular, it must determine whether the interference in question was “proportionate to the legitimate aims pursued” and whether the reasons adduced by the national authorities to justify it are “relevant and sufficient” (see Fressoz and Roire, cited above, § 45).
54.  In the instant case, in its very brief decision, the Istanbul Beyoğlu Commercial Court held that Mesopotamia Publishing was responsible for the allegedly illegal activities of its two branch offices, namely the Şanlıurfa and Diyarbakır branches, and ordered its dissolution for breaching public order. Nevertheless, in the present case, the Court is unable to glean from the decision of the Commercial Court how and why the applicant company had breached public order. It notes in this connection that criminal proceedings had been initiated against these two branch offices. It further observes that during a search conducted in the Şanlıurfa branch office, the police had confiscated certain newspapers, books, cassettes and documents which were allegedly illegal. However, the subsequent criminal proceedings, which had been initiated for storing banned books, had been discontinued since the prosecution had become time-barred pursuant to Article 102 of the Criminal Code. Furthermore, various books and publications, including a calendar prepared by Mesopotamia Publishing, had been confiscated from the Diyarbakır branch office; nevertheless, similarly, the ensuing criminal proceedings, which had been instituted against the Diyarbakır branch office, for disseminating propaganda of an illegal organisation, had been suspended pursuant to Law no. 4454. As a result, no criminal convictions had been delivered in respect of Mesopotamia Publishing. At this point the Court recalls that under Turkish law, civil courts are not bound by the conclusions of criminal courts. However, as stated above, the brief reasoning of the Commercial Court cannot be regarded as sufficient and relevant justification for the interference with Mesopotamia Publishing’s right to freedom of expression.
55.  Having regard to the fact that the second applicant has not been shown to have been engaged in activities breaching public order, and taking into account particularly the severe consequences of the dissolution order for a publishing company, the Court concludes that the interference in question was not proportionate to the legitimate aim pursued and could not be regarded as necessary in a democratic society.”
In their dissenting opinion judges Raimondi, Karakas and Lorenzen argue that in their view the second applicant failed to exhaust the available domestic remedies and that the application must be rejected as inadmissible in accordance with Article 35 of the Convention.

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