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

Friday, 11 April 2014

This week in Strasbourg - A roundup of the European Court of Human Rights' case law - 2014 week 15



DISCRIMINATION (NATIONALITY) - In the case of Dhahbi v. Italy the European Court of Human Rights held, unanimously, that An immigrant worker of Tunisian origin should not have been deprived of a household allowance on the sole ground of nationality. The Court therefore concluded that there had been a violation of Articles 6 and Article 14 in conjunction with Article 8.

The case concerned the inability of an immigrant worker of Tunisian origin to obtain payment from the Italian public authorities of a family allowance under the association agreement between the European Union (EU) and Tunisia (Euro-Mediterranean Agreement). The Court noted that the Italian courts had failed to comply with their obligation to give reasons for refusing to submit a preliminary question to the Court of Justice of the European Union (CJEU) in order to determine whether the Euro-Mediterranean Agreement allowed the authorities to refuse to pay the allowance in question to a Tunisian worker. The Court reiterated that from the angle of Article 6, national courts whose decisions were not open to appeal under domestic law were required to give reasons, based on the applicable law and the exceptions laid down in ECJ case-law, for their refusal to refer a preliminary question on the interpretation of EU law. They should set out their reasons for considering that the question was not relevant, that the provision had already been interpreted by the ECJ, or that the correct application of EU law was so obvious as to leave no scope for reasonable doubt.

Therefore, when the Court considered complaints of violation of Article 6 in this context, it had to ensure that the domestic courts had duly provided the reasons for their decisions. In Mr Dhahbi’s case, since no appeal lay against its decisions under domestic law, the Court of Cassation had been required to give reasons for its refusal to refer the question whether, in the light of the exceptions provided for in CJEU case-law, it was possible under the Euro-Mediterranean Agreement for a Tunisian worker to be deprived of the family allowance provided under the 1998 Law. However, the judgment of 15 April 2008 had included a reference neither to the request for a preliminary ruling submitted by Mr Dhahbi nor to the reasons why the Court of Cassation had deemed that the question raised should not be referred to the ECJ.
"31.  La Cour rappelle que dans l’affaire Vergauwen c. Belgique ((déc.), no 4832/04, §§ 89-90, 10 avril 2012), elle a exprimé les principes suivants :
– l’article 6 § 1 met à la charge des juridictions internes une obligation de motiver au regard du droit applicable les décisions par lesquelles elles refusent de poser une question préjudicielle ;
– lorsqu’elle est saisie sur ce terrain d’une allégation de violation de l’article 6 § 1, la tâche de la Cour consiste à s’assurer que la décision de refus critiquée devant elle est dûment assortie de tels motifs ;
– s’il lui revient de procéder rigoureusement à cette vérification, il ne lui appartient pas de connaître d’éventuelles erreurs qu’auraient commises les juridictions internes dans l’interprétation ou l’application du droit pertinent ;
– dans le cadre spécifique du troisième alinéa de l’article 234 du Traité instituant la Communauté européenne (soit l’actuel article 267 du Traité sur le fonctionnement de l’Union (TFUE)), cela signifie que les juridictions nationales dont les décisions ne sont pas susceptibles d’un recours juridictionnel de droit interne sont tenues, lorsqu’elles refusent de saisir la CJUE à titre préjudiciel d’une question relative à l’interprétation du droit de l’UE soulevée devant elles, de motiver leur refus au regard des exceptions prévues par la jurisprudence de la Cour de justice. Il leur faut donc indiquer les raisons pour lesquelles elles considèrent que la question n’est pas pertinente, ou que la disposition de droit de l’UE en cause a déjà fait l’objet d’une interprétation de la part de la CJUE, ou encore que l’application correcte du droit de l’UE s’impose avec une telle évidence qu’elle ne laisse place à aucun doute raisonnable.
32.  En l’espèce, le requérant a demandé à la Cour de cassation de poser à la CJUE la question préjudicielle de savoir si l’article 65 de l’Accord euro-méditerranéen permettait de refuser à un travailleur tunisien l’allocation de foyer familial prévue par l’article 65 de la loi no 448 de 1998 (paragraphes 10 et 12 ci-dessus). Ses décisions n’étant susceptibles d’aucun recours juridictionnel en droit interne, la Cour de cassation avait l’obligation de motiver son refus de poser la question préjudicielle au regard des exceptions prévues par la jurisprudence de la CJUE.
33.  La Cour a examiné l’arrêt de la Cour de cassation du 15 avril 2008 sans y trouver aucune référence à la demande de renvoi préjudiciel formulée par le requérant et aux raisons pour lesquelles il a été considéré que la question soulevée ne méritait pas d’être transmise à la CJUE. La motivation de l’arrêt litigieux ne permet donc pas d’établir si cette question a été considérée comme non pertinente, ou comme relative à une disposition claire ou déjà interprétée par la CJUE, ou bien si elle a été simplement ignorée (voir, a contrario, Vergauwen, précité, § 91, où la Cour a constaté que la Cour constitutionnelle belge avait dûment motivé son refus de poser des questions préjudicielles). À cet égard, la Cour observe que le raisonnement de la Cour de cassation ne contient aucune référence à la jurisprudence de la CJUE.
34.  Ce constat suffit pour conclure qu’il y a eu violation de l’article 6 § 1 de la Convention."
The Court also noted that Mr Dhahbi’s nationality had been the only criterion used to exclude him from entitlement to this allowance. Therefore, given that only very weighty considerations can justify a difference in treatment based exclusively on nationality and despite the budgetary reasons advanced by the Government, the restrictions placed on Mr Dhahbi had been disproportionate.

 

PENSIONS - In its decision in the case of Kátai v. Hungary Court held that a disabled pensioner did not suffer significant material prejudice following change in legislation on pension rights and declared the application inadmissible. The case concerned in particular Mr Kátai’s complaint that the disability pension granted to him following a final judgment had been removed by new legislation. The Court found that the legislation concerned had not yet been applied and that Mr Kátai was still receiving a monthly amount which is equal to his former pension. Therefore, it concluded that he had not suffered any significant material prejudice and declared his application inadmissible.

 

TRADE UNION - In its judgment in the case of R.M.T. v. the United Kingdom held, unanimously, that A Ban on sympathy strikes in the UK was not excessive in a case concerning a transport trade union and an employer who was not party to a labour dispute (no violation of Article 11 (freedom of association) of the European Convention on Human Rights.)

The case concerned a trade union’s complaints about statutory restrictions on the right to strike and, in particular, the ban on secondary industrial action (strike action against a different employer aimed at exerting indirect pressure on the employer involved in the industrial dispute). What was important for the Court in this case was that the ban affected only an accessory aspect of the freedom of association of trade unions as opposed to any core aspect of their rights under Article 11. The facts of the case showed that the applicant union had been able to act in defence of its members’ interests through collective bargaining with the employer and then primary strike action, even if its members rejected the revised terms offered to them. The claim that the union would have prevailed in its demands had it had the possibility of leading a strike by its members in another, bigger company was regarded by the Court as speculative. It decided that the United Kingdom’s room for manoeuvre (“margin of appreciation”) to regulate trade union freedom should be wide, since a country’s industrial relations policy formed part its overall economic and social policy, and was of recognised sensitivity. The Court would therefore respect the legislature’s choices unless these were manifestly without reasonable foundation. Parliament’s reason for introducing the ban, informed by previous experience, was to guard against excessive disruption of the economy and to strike a better balance between unions, employers and the wider public. It was relevant that the ban had been maintained by three different Governments since its introduction over 20 years ago.
 
The Court concluded that there was nothing in the facts raised by the applicant union to show that the general prohibition on secondary strikes had had a disproportionate effect on their rights under Article 11. The United Kingdom had therefore remained within its margin.


LOSS OF CHURCH STATUS - In the case of Magyar Keresztény Mennonita Egyház and Others v. Hungary  the Court held, by a majority, that Religious communities’ loss of full church status breached their rights to freedom of religion and freedom of association (violation of Article 11 (freedom of assembly and association) read in the light of Article 9 (freedom of thought, conscience and religion). The case concerned the new Hungarian Church Act. Following its entry into force in 2012, the applicant religious communities lost their status as registered churches which had previously entitled them to certain monetary and fiscal advantages for their faith-related activities. The Court found in particular that the Hungarian Government had not shown that there were not any other, less drastic solutions to problems relating to abuse of State subsidies by certain churches than to de-register the applicant communities. Furthermore, it was inconsistent with the State’s duty of neutrality in religious matters that religious groups had to apply to Parliament to obtain reregistration as churches and that they were treated differently from incorporated churches with regard to material benefits without any objective grounds.
"106.  The Court recalls that the freedom to manifest one’s religion or beliefs under Article 9 does not confer on the applicant associations or their members an entitlement to secure additional funding from the State budget (see Ásatrúarfélagið, cited above, § 31), but subsidies which are granted in a different manner to various religious communities – and thus, indirectly, to various religions – call for the strictest scrutiny (see, mutatis mutandis, Gorzelik, cited above, § 95).
107.  The Court has already recognised that privileges, in particular in the field of taxation, obtained by religious societies facilitate their pursuance of religious aims (see Association Les Témoins de Jéhovah v. France, no. 8916/05, §§ 49, 52-53, 30 June 2011) and that therefore there is an obligation under Article 9 of the Convention incumbent on the State’s authorities to remain neutral (see Religionsgemeinschaft der Zeugen Jehovas and Others v. Austria, cited above, § 92) in the exercise of their powers in the domain of allocating these resources and granting these privileges. Where in pursuit of its perceived positive obligations in regard to Articles 9 and 11, the State has voluntarily decided to provide rights to subsidies and other advantages to religious organisations – those rights thus falling within the wider ambit of those Convention articles – it cannot take discriminatory measures in the granting of those benefits (see, mutatis mutandis, E.B. v. France [GC], no. 43546/02, §§ 48-49, 22 January 2008; Savez crkava “Riječ života” and Others v. Croatia, no. 7798/08, § 58, 9 December 2010). Similarly, if the State decides to reduce or withdraw certain advantages due to religious organisations, such a measure cannot be discriminatory, either.
108.  In the Court’s view, States have considerable liberty in choosing the forms of co-operation with the various religious communities, especially since the latter differ to a large extent from each other as to their organisation, volume of membership and activities flowing from their respective teachings. This is particularly so in selecting the partners with which the State intends to collaborate in certain activities. The above prerogative of the State is even more preeminent when it comes to public, societal tasks undertaken by religious communities but not directly linked to their spiritual life (that is, not related to, for example, charitable activities flowing from religious duties). In this context, States enjoy a certain margin of appreciation when shaping collaboration with religious communities. At this juncture, the Court notes the particular context of Hungarian State-church relations, in particular, that Hungarian churches were subjected to measures of deprivation of rights after 1945 (see the two Preambles quoted in paragraph 33 above).
109.  In its choice of partners for outsourcing public-interest tasks the State cannot discriminate among religious communities. The neutrality of the State requires that, in case the State chooses to co-operate with religious communities, the choice of partners be based on ascertainable criteria, for example, as to their material capacities. Distinctions on the State’s side in recognition, partnership and subsidies cannot produce a situation in which the adherents of a religious community feel second-class citizens, for religious reasons, on account of the less favourable State stance on their community.
110.  The Court observes that under Hungarian law, incorporated churches enjoy preferential treatment, in particular in the field of taxation and subsidies (see above section 20 in paragraph 32 as well as paragraph 33). The advantage obtained by incorporated churches is substantial and facilitates their pursuance of religious aims by virtue of their special organisational form.
111.  For the Court, the freedom afforded to States in regulating their relation to churches includes the possibility of reshaping such privileges by legislative measures. However, this freedom cannot extend so far as encroaching upon the neutrality and impartiality required of the State in this field.
In the present case, the withdrawal of benefits (entailed by deregistration of churches and consequent non-granting of the status of incorporated church) concerned only certain denominations, including the applicants. It is true that the applicant communities do not seem to fulfil the joint criteria put in place by the lawmaker, notably as to the minimum membership and length of existence. These conditions have arguably placed the applicants, some of whom are novel and/or small communities, in a disadvantageous situation, at odds with the requisite neutrality and impartiality. As regards the question of duration of the religious groups’ existence, the Court accepts that the prescription of a reasonable period might be necessary in the case of newly established and unknown religious groups. But the same is hardly justified for religious groups established once confessional life became unhampered after the end of the Communist regime in Hungary, which must be familiar to the competent authorities by now – whilst just falling short of the existence requirement. In this connection the Court notes the Venice Commission’s view, according to which the relevant periods are excessive (see paragraph 40 above).
112.  The Court finds no indication that the applicants are prevented from practising their religion as legal entities, that is, as associations, which secures their formal autonomy vis-à-vis the State. Nevertheless, under the legislation in force, certain religious activities performed by churches are not available to the religious associations, which for the Court has a bearing on the latter’s right to collective freedom of religion. The Court notes in this connection that, in decision no. 6/2013. (III. 1.), the Constitutional Court identified, in a non-exhaustive list, eight privileges only due to churches (see points 158 to 167 of the Decision in paragraph 34 above). In particular, only incorporated churches are entitled to the one per cent of the personal income tax earmarked by believers and the corresponding State subsidy. These sums are intended to support faith-related activities. For this reason the Court finds that such differentiation does not satisfy the requirements of State neutrality and is devoid of objective grounds for the differential treatment. Such discrimination imposes a burden on believers of smaller religious communities without an objective and justifiable reason.
113.  In this connection, the Court would add that wherever the State may, in conformity with Articles 9 and 11, legitimately decide to retain a system where the State is constitutionally mandated to adhere to a particular religion (see Darby, cited above), as in some European countries, and it provides State benefits only to some religious entities and not to others in the furtherance of legally prescribed public interests, this must be done on the basis of reasonable criteria related to the pursuance of public interests (see, for example, Ásatrúarfélagið, cited above).
114.  In view of these considerations, the Court finds unnecessary the examination of possible discrimination in regard to the operation of cemeteries, religious publications, production and selling of religious objects, which are often related to religious practice, or the issues related to differences in the possibility of teaching religion, employment or co-operation with the State in public-interest activities.
ζ.  Conclusion
115.  The Court concludes that, in removing the applicants’ church status altogether rather than applying less stringent measures, in establishing a politically tainted re-registration procedure, whose justification is open to doubt as such, and finally, in treating the applicants differently from the incorporated churches not only in the possibilities of cooperation but also in securing benefits for the purposes of faith-related activities, the authorities neglected their duty of neutrality vis-à-vis the applicant communities. These elements, jointly and severally, enable the Court to find that the impugned measure cannot be said to correspond to a “pressing social need”.
There has therefore been a violation of Article 11 of the Convention read in the light of Article 9."

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

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