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

Thursday, 12 June 2014

This week in Strasbourg - A roundup of the European Court of Human Rights' case law - 2014 weeks 23/24

Children and family life play an important role in the Court´s case law of weeks 23 and 24.
ADOPTION - In the case of I.S. v. Germany the Court found that German courts were right not to accept the claim by a mother to have contact with and information about the children she had given up for adoption (no violation of Article 8 ECHR - right to respect for private and family life). The case concerned a woman’s complaint of not being able to have regular contact and receive information about her biological children who had been adopted by another couple. The Court considered that by consenting to the adoption, Ms S. had knowingly given up all rights as regards her biological children. The arrangements concerning her right to regularly receive information about them had been based on a mere declaration of intent by the adoptive parents. The German courts’ decision to favour the children’s interest in developing in their adoptive family without disruption over the mother’s right to respect for her private life had therefore been proportionate.

ADOPTION - In  a Slovakian case (López Guió v. Slovakia) the Court found that national courts denied a father procedural rights in case concerning international child abduction (violation of Article 8 ECHR (right to respect for private and family life) The case concerned an incident of international child abduction and the father’s complaint that the proceedings he had brought before the ordinary courts in Slovakia for the return of his child to Spain had been arbitrarily interfered with by a judgment of the Constitutional Court of Slovakia. The Court observed that Mr López Guió had had no standing in the proceedings before the Constitutional Court which lead to the quashing of a final and enforceable order previously issued by the ordinary courts for the return of his child to Spain. He had not been informed of the constitutional proceedings, let alone been able to participate in them, despite having a legitimate interest in the matter. In addition, the Court took into account: that the Constitutional Court’s intervention in the case had come at a point when all other remedies had been exhausted; and, that there was an indication that there might be a systemic problem due to the fact that those remedies were available in child return proceedings in Slovakia.

CLYNICAL WASTE - And in a rather horrifying case (Marić v. Croatia) the Court held that a hospital’s disposal of stillborn child as clinical waste was unlawful (violation of Article 8 ECHR - right to private and family life) The case concerned the disposal of a stillborn child as clinical waste by a publicly-owned hospital and the father’s complaint that he was then unable to obtain information about the resting place of his child. The Court considered that the parents of the stillborn child had not given their consent for the way in which the remains of their child were dealt with, and confirmed the findings of the domestic courts, namely that under domestic law the body of the stillborn child should not have been disposed of together with clinical waste. It also agreed with the domestic courts that the procedure in such cases, which did not involve giving special written consent, was not coherently regulated and raised questions about the adequacy and consistency of the domestic law in this regard.
"68.  The Court observes that the Government did not cite any relevant legislation which would have allowed the hospital to dispose of the remains of the applicant’s stillborn child together with other clinical waste, and the Court is unable, for its part, to ascertain the existence of any such relevant domestic law.
69.  It notes that the Ministry of Health’s Instructions on the Disposal of Clinical Waste and the by-law on the measures of preventing and combating hospital infections, on which the Split Municipal Court relied when dismissing the applicant’s civil action (see paragraph 18 above), concerned only foetuses in cases where the mother was up to twenty-two weeks pregnant (see paragraphs 38 and 39 above), which was clearly not the case with the applicant’s stillborn child (see paragraph 6 above).
70.  Thus the Court, without going into the question of the conditions for obtaining the award of damages under the domestic law, has no reason to doubt the findings of the Split County Court, confirmed by the decision of the Supreme Court that under the relevant domestic law the body of the applicant’s stillborn child should not have been disposed of together with clinical waste (see paragraphs 20 and 22 above). This makes it sufficient for the Court to conclude that the interference in the case at issue has been contrary to the relevant domestic law. It notes moreover, that the Split County Court found that the appropriate procedures concerning the remains of stillborn children had not been regulated coherently, which the hospital’s pathologist also implied in his evidence (see paragraphs 20 and 27 above). This indicates an issue of the lack of certainty and foreseeability of the relevant domestic law and raises a question whether the domestic law failed to afford adequate legal protection against possible arbitrariness as mandated by the requirement of lawfulness under Article 8 of the Convention (see S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, § 95, ECHR 2008).
71.  In view of the foregoing, the Court finds that the interference with the applicant’s rights guaranteed under Article 8 was not in accordance with the law, as required under that provision, which makes it unnecessary to investigate whether the interference pursued a “legitimate aim” and whether it was “necessary in a democratic society” (see, for example, Dobrev v. Bulgaria, no. 55389/00, § 165, 10 August 2006)."

CELIBACY - The decision not to renew the contract, as religious education teacher, of a Catholic priest who was married and had several children, after his active involvement in a movement opposing Church doctrine had been made public, was legitimate and proportionate (case of Fernández Martínez v. Spain – Grand Chamber judgment - The Court concluded by nine votes to eight that there had been no violation of Article 8). The case concerned the non-renewal of the contract of a married priest and father of five who taught Catholic religion and ethics, after he had been granted dispensation from celibacy and following an event at which he had publicly displayed his active commitment to a movement opposing Church doctrine. In the Court’s view, it was not unreasonable for the Church to expect particular loyalty of religious education teachers, since they could be regarded as its representatives. Any divergence between the ideas to be taught and the personal beliefs of a teacher could raise a problem of credibility when that teacher actively challenged those ideas. The Court found that the Spanish courts had sufficiently taken into account all the relevant factors and had weighed up the competing interests in a detailed and comprehensive manner, within the limits imposed by the respect that was due to the autonomy of the Catholic Church. In the light of the review by the domestic courts, the principle of the Church’s autonomy did not seem to have been invoked improperly: it could not be said that the Bishop’s decision had been insufficiently reasoned or arbitrary, or that it had been taken with an aim that was incompatible with the exercise of the Catholic Church’s autonomy, as recognised and protected under the European Convention. 

Judges Spielmann, Sajò, Karakaş, Lemmens, Jäderblom, Vehabović, Dedov and Saiz Arnaiz expressed a joint dissenting opinion; Judges Spielmann, Sajò and Lemmens expressed a joint dissenting opinion; Judges Sajò and Dedov each expressed a dissenting opinion. These opinions are annexed to the judgment. Judge Dedov writes:

"In the present case the Grand Chamber has divided almost in the middle. Both the majority and the minority of judges (I joined the latter) used the same proportionality test, but they have come to opposite conclusions. This unfortunate and discouraging result forces me to present a principal argument in favour of a violation of Article 8 of the Convention.
Does the Church’s autonomy constitute a legitimate aim in the present case? Although the proportionality test is always objective and justified, mistakes could be made owing to a subjective understanding of the legitimate aim. The issue was raised by the Grand Chamber as to whether the protection of the autonomy of a religious organisation prevailed over the right to family life. But it is easy to see that, while the autonomy concept has been considered as the legitimate aim, at the same time it has been regarded as one of competing rights in paragraphs 122 and 123 of the judgment. This approach is not acceptable. If the Court’s task is to balance the rights and to place them into some hierarchy, it has to find another legitimate aim among the basic values and purposes of the Convention.
The Convention protects freedom of religion so that no one can be persecuted for their religious beliefs. But it does not entitle religious organisations, even in the name of autonomy, to persecute their members for exercising their fundamental human rights. If the Convention system is intended to combat totalitarianism, then there is no reason to tolerate the sort of totalitarianism that can be seen in the present case.
Indeed, for centuries celibacy has been a well-known and serious problem for thousands of priests who have suffered for their whole lives while concealing the truth about their family life from the Catholic Church and fearing punishment. The adverse consequences of the outdated rule of celibacy have been portrayed by many writers from Victor Hugo (The Hunchback of Notre-Dame) to Colleen McCullough (The Thorn Birds), as well as by numerous media reports, including those on clerical sex abuse scandals in many countries.
Obviously, complete deprivation of family life violates the Convention, and it cannot be justified by any public interest or religious autonomy. Even the long-standing Catholic Church cannot protect itself behind the autonomy concept, as the celibacy rule contradicts the idea of fundamental human rights and freedoms. This, in my view, should be used as a principal reason for finding a violation of Article 8 of the Convention.
The right to family life is vital for any individual. For the purposes of the present case it cannot be regarded as just a “form of personal development” or a “right to establish relationships with other human beings” (paragraph 126 of the judgment). The right to have a family is one of the fundamental or, to be more precise, natural rights specified in the Convention. Family life cannot be impaired in favour of an organisation’s membership requirements, employment rules, functioning, religious doctrine or autonomy. This natural right cannot be impaired under any such circumstances, even if the applicant voluntarily agreed to abide by the celibacy rule (as he wanted to be a priest and to devote his life to this kind of service), because family life cannot be subjected to any transaction either.
Therefore, the State cannot abstain from protecting the fundamental right to family life which prevails over any kind of organisational autonomy. However, the State has failed, not just to abstain from interference concerning the applicant, but also to exercise its positive obligation with respect to at least 6,000 priests of the Catholic Church. If the applicant, after many years of fear, gathered all his courage to make his family situation public in order to bring his humiliation to an end and to express his support for other married priests, he deserves to receive an adequate response from the Court in compliance with the aims of the Convention system. I believe that optional celibacy is the best way out of this problem and that it could also – I hope – serve as a preventive measure against clerical sex abuses of children in the future."

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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