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

Saturday, 4 October 2014

This week in Strasbourg - A roundup of the European Court of Human Rights' case law - 2014 week 40

GRAND CHAMBER - In the case of Jeunesse v. the Netherlands the European Court of Human  Rights held, by a majority, that Refusing a residence permit to the Surinamese mother of three children born in the Netherlands breached their right to respect for their family life (violation of Article 8 (right to respect for family life of the European Convention on Human Rights). 
The case concerned the refusal by the authorities to allow a Surinamese woman married to a  Netherlands national, with whom she had three children, to reside in the Netherlands on the basis of her family life in the country. The Court took into consideration that, apart from Ms Jeunesse, all members of her family were Dutch nationals entitled to enjoy family life with each other in the Netherlands, that Ms Jeunesse had been living in the Netherlands for more than 16 years (and the Netherlands authorities had been aware of this), that she had no criminal record and that settling in Suriname would entail a degree of hardship for the family. The Court further considered that the Netherlands authorities had not paid enough attention to the impact on Ms Jeunesse’s children of the authorities’ decision to refuse her request for a residence permit. Indeed, the authorities had failed to take account of and assess evidence on the practicality, feasibility and proportionality of the refusal at issue in order to give effective protection and sufficient weight to the best interests of the children. The Court concluded that a fair balance had not been struck between the personal interests of Ms Jeunesse and her family in maintaining their family life in the Netherlands and the public order interests of the Government in controlling immigration.

Separate opinions - Judges Villiger, Mahoney and Silvis expressed a joint dissenting opinion.
"10.  On our analysis of the facts, the balancing exercise between the interests of the applicant and her family, on the one hand, and the general interest of the community, on the other, was performed by the national authorities, including the independent and impartial domestic courts, in a full and careful manner, in conformity with the well-established principles of the Court’s case-law. The majority holds a different view. The approach adopted by the Court in the present case in effect involves giving to those prospective immigrants who enter or remain in the country illegally and who do not properly and honestly comply with the prescribed conditions for seeking residence a special premium, in terms of Convention protection, over those who do respect the applicable immigration law by remaining in their country of origin and conscientiously complying with the procedures laid down for seeking residence. The result is liable to be to encourage illegal entry or over-staying and refusal to comply with the prescribed immigration procedures and judicially sanctioned orders to leave the country. The right answer in hard cases is the one that fulfils the obligation of the community to treat its members in a civilised but also coherent and principled manner. In replacing the domestic balancing exercise by a strong reliance on the exceptional character of the particular circumstances, the Court is drifting away from the subsidiary role assigned to it by the Convention, perhaps being guided more by what is humane, rather than by what is right."
GRAND CHAMBER - ABUSE OF RIGHT - In the case of Gross v. Switzerland the Court, by a majority, declared the application inadmissible. The case concerned the complaint of an elderly woman – who had wished to end her life but had not been suffering from a clinical illness – that she had been unable to obtain the Swiss authorities’ permission to be provided with a lethal dose of a drug in order to commit suicide. In its Chamber judgment in the case on 14 May 2013, the Court held, by a majority, that there had been a violation of Article 8 (right to respect for private and family life) of the European Convention on Human Rights. It found in particular that Swiss law was not clear enough as to when assisted suicide was permitted. The case was subsequently referred to the Grand Chamber at the request of the Swiss Government. In January 2014 the Swiss Government informed the Court that it had learned that the applicant had died in November 2011. In today’s Grand Chamber judgment the Court came to the conclusion that the applicant had intended to mislead the Court on a matter concerning the very core of her complaint. In particular, she had taken special precautions to prevent information about her death from being disclosed to her counsel, and thus to the Court, in order to prevent the latter from discontinuing the proceedings in her case. The Court therefore found that her conduct had constituted an abuse of the right of individual application (Article 35 §§ 3 (a) and 4 of the Convention). As a result of today’s judgment, the findings of the Chamber judgment of 14 May 2013, which had not become final, are no longer legally valid. 

LEAVE TO APPEAL - In the case of Hansen v. Norway the Court held that iInsufficient reasons given by a Norwegian High Court when refusing to admit for examination an appeal in a property dispute a violation of Article 6 § 1 (right to a fair hearing) of the European Convention on Human Rights.
The case concerned the failure to give reasons for the refusal to admit for examination a civil appeal subjected to a filtering procedure before a Norwegian High Court (lagmannsrett). The filtering mechanism was introduced by changes to the Norwegian Code of Civil Procedure in 2005 in order to stop clearly unmeritorious appeals to the high courts. The Court found in particular that the reason given by the Borgarting High Court for refusing to admit Mr Hansen’s appeal, namely that his case clearly had no prospect of success, had been insufficient. Notably, the High Court’s reasoning had not addressed the essence of the issue to be decided by it, namely the shortening of the hearing before the first-instance court in Mr Hansen’s case, in a manner that adequately reflected its role as an appellate court entrusted with full jurisdiction or that it had done so with due regard to Mr Hansen’s interests. Furthermore, it did not enable him to effectively exercise his right to appeal to the Supreme Court (Høyesterett). This judgment is noteworthy in that it is the first time that the Court has found a violation of the Article 6 fair hearing guarantee on account of lack of reasoning by an appellate court (here entrusted with competence to review questions of fact and of law and acting at an intermediate level) when refusing to admit an appeal for examination on the ground of lack of prospects of success. The Court noted, however, that current national judicial practice under the Norwegian Code of Civil Procedure and legislative changes in this area now impose a general obligation for Norwegian high courts to state reasons for a decision refusing admission of an appeal.
"83.  (-) it should be noted that when refusing to admit the applicant’s appeal, the High Court did not act as the final instance in so far as its procedure could form the subject of an appeal to the Appeals Leave Committee of the Supreme Court. Whilst the latter’s jurisdiction did not extend to the merits of the applicant’s appeal to the High Court or of the latter’s refusal to admit his appeal (compare Hadjianastassiou, cited above, § 33; and Hirvisaari, cited above, §§ 31-32), its review did encompass the High Court’s application of the law and assessment of the evidence in as much as it related to points of procedure. It could also review whether in the light of the High Court procedure, seen as a whole, it was justifiable from a fair hearing point of view, notably the guarantees in Article 6 § 1 of the Convention, for the High Court to refuse admission of the appeal. This review included whether the subject matter could be adequately dealt with on the basis of the written case-file in a simplified procedure (see paragraph 38 above). Against this background, the Court cannot but welcome the developments in national judicial practice (see paragraph 44 and also paragraph 35 above) and the legislative changes (see paragraphs 45 to 46 above) in this area after the impugned proceedings. Thus, while the said review would be based on the same case-material as before the High Court (see paragraph 39 above), the Court is not persuaded that the reasons stated by the High Court for refusing to admit his appeal made it possible for the applicant to exercise effectively his right to appeal (see Hadjianastassiou, cited above, § 33; Hirvisaari, cited above, § 30) against the High Court’s procedure to the Supreme Court, for the purposes of Article 6 § 1 of the Convention.
84.  There has accordingly been a violation of this provision."
Separate opinion - Judge Møse expressed a dissenting opinion which is annexed to the judgment.
"20.  The finding of a violation in the Hansen case may seem trivial. At the domestic level the matter was solved by the Norwegian Supreme Court, which relied on domestic systemic considerations without finding it necessary to enter into the requirements of Article 6 of the Convention (see paragraphs 40 to 43 of the judgment).
21.  In my view this judgment may have more general repercussions which require careful consideration. It is clear (see paragraph 71) that the Convention does not compel the Contracting States to set up courts of appeal or of cassation, and it does not guarantee a right to appeal as such in civil cases, but persons are to enjoy the fundamental guarantees of Article 6 before such appellate courts. The Contracting States enjoy considerable freedom in the choice of the appropriate means to ensure that their judicial systems comply with the requirements of Article 6.
22.  It seems to me that the approach adopted at the national level differs considerably between the Contracting States. Specific reasoning may be required in some systems and more stereotyped reasoning may be permissible in others. I am not aware that there is any consensus about the extent to which reasons ought to be given when an appellate court refuses leave to appeal or performs other kinds of filtering. More generally, it is established case-law that the manner of regulation of the right to access to a court, including access to a court of appeal, is a matter in respect of which the Contracting States enjoy a certain margin of appreciation (see Berger v. France, no. 48221/99, § 30, ECHR 2002‑X (extracts), with further references).
23.  The emphasis of the majority in this case on whether the filtering mechanism was competent to review factual issues may well – if applied generally – come as a surprise to States which have perceived the Court’s case-law differently. One should not underestimate the need for foreseeability in connection with the organisation of national judicial systems. Furthermore, the specific requirement to give reasons at the appeal levels may also be linked to the allocation of resources and prioritisation of the most important substantive stages of the judicial process, the aim being to ensure that proceedings are conducted fairly and are concluded within a reasonable time."

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