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

Thursday, 29 January 2015

This week in Strasbourg - A roundup of the European Court of Human Rights' case law - 2015 - week 5


Death of new-born baby after being refused admission to public hospitals - case of Asiye Genç v. Turkey - violation of Article 2 (right to life) of the Convention - The case concerned a prematurely born baby’s death in an ambulance, a few hours after birth, following the baby’s transfer between hospitals without being admitted for treatment. The Court found, firstly, that the State had not sufficiently ensured the proper organisation and functioning of the public hospital service, or its health protection system. The child died because it had not been offered any treatment. Such a situation constituted a denial of medical care such as to put a person’s life in danger. Secondly, the Court found that the Turkish judicial system’s response to the tragedy had not been appropriate for the purposes of shedding light on the exact circumstances of the child’s death.

Judges Lemmens, Spano and Kjølbro expressed a separate opinion
"1.  Nous avons voté en faveur d’un constat de violation de l’article 2 de la Convention, mais nous estimons devoir exprimer une opinion séparée car nous n’adhérons que partiellement au raisonnement exposé dans l’arrêt.
2.  Nous souscrivons sans réserve à l’idée qu’il y a eu violation de l’article 2 de la Convention sous son volet substantiel. Ainsi, nous convenons que l’effet combiné de renvoyer le nouveau-né des requérants, qui avait besoin d’un traitement médical urgent, d’un hôpital à l’autre pendant quatre heures et demie sans qu’il n’y ait eu aucune communication ni coordination préalables entre les hôpitaux en question, et sans que l’enfant ne bénéficie d’aucun examen ni soins médicaux, a bien mis en danger la vie de celui-ci. Les autorités savaient, ou auraient dû savoir, que la vie de l’enfant était menacée du fait des actions et omissions du personnel soignant concerné. Dans les circonstances spécifiques de l’espèce, ces actions et omissions sont allées au-delà d’une simple erreur de jugement de la part d’un professionnel de la santé ou d’une coordination négligente entre les professionnels de la santé dans le traitement d’un patient particulier (voir, parmi d’autres, Powell c. Royaume-Uni (déc.), no 45305/99, CEDH 2000‑V, et Eugenia Lazăr c. Roumanie, no 32146/05, § 68, 16 février 2010). La Cour aurait dû à notre avis limiter son constat de violation de l’article 2 de la Convention à ce seul aspect.
3.  La présente affaire ne porte pas sur un problème structurel du système de santé turc qui dénoterait un système dysfonctionnel, mais sur un tragique incident résultant d’actions et d’omissions dans le traitement qui a été réservé à l’enfant des requérants (paragraphes 80, 82 et 85 de l’arrêt).
4.  Nous ne voyons en outre aucun élément permettant de critiquer le nombre limité de places pour les patients, le nombre ou la qualité des incubateurs ou le défaut de comparaison entre l’urgence de la situation de l’enfant des requérants avec celle d’autres enfants hospitalisés (paragraphes 80 et 81 de l’arrêt). En général, l’article 2 de la Convention ne saurait être interprété comme exigeant un certain niveau, un certain degré ou une certaine qualité de traitement et d’équipements dans les hôpitaux publics. La capacité de fournir un traitement ainsi que le niveau de traitement et la qualité de l’équipement relèvent d’un domaine où les États doivent prendre des décisions difficiles prenant en compte un certain nombre de facteurs, y compris la prioritisation des besoins ainsi que la réalité de ressources financières limitées.
5.  À notre sens, il n’y a pas davantage d’éléments suffisants en l’espèce qui permettraient d’alléguer l’existence d’un problème au regard de l’article 2 en raison du fait que les autorités nationales, dans les circonstances spécifiques de l’espèce, n’ont pas trouvé de base légale pour porter des accusations pénales et engager des poursuites contre des individus (paragraphe 83 de l’arrêt). Le respect des exigences procédurales posées par l’article 2 n’est pas une obligation de résultat, mais une obligation de moyens.
6.  Enfin, rien, à notre avis, ne permet de critiquer la portée de l’enquête menée en l’espèce. Les requérants ont déposé une plainte pénale contre certaines personnes, alléguant que celles-ci étaient responsables de la mort de leur enfant. En conséquence, des enquêtes pénale et administrative ont été menées. En se fondant sur les résultats de ces enquêtes internes, la Cour a pu apprécier les faits de l’affaire et parvenir à un constat de violation de l’article 2 de la Convention sous son volet substantiel. À notre avis, il n’y a pas de base suffisante pour conclure que l’enquête était incomplète et lacunaire du fait qu’elle n’a pas impliqué une appréciation du fonctionnement des règles pertinentes sur la réception des patients ou la coordination entre les hôpitaux, ou des raisons expliquant le manque d’équipements ou le nombre d’incubateurs (paragraphes 84-87). Pour nous, ces éléments ne relevaient pas du champ et de l’objet des enquêtes internes."
Specific assurances about detention conditions sufficient to allow extradition of terrorist suspect to stand trial in the United States - Aswat v. the United Kingdom - application inadmissible - This case concerned the complaint by a terrorist suspect about the inadequacy of the assurances provided by the Government of the United States with regard to his extradition from the United Kingdom to the United States. In a judgment delivered in April 2013 in a previous case brought by Mr Aswat, the Court had held that his extradition would be in violation of Article 3 (prohibition of inhuman and degrading treatment) of the European Convention on Human Rights. Following a set of specific assurances given by the US Government to the Government of the UK. regarding the conditions in which he would be detained in the US before trial and after a possible conviction, Mr Aswat was eventually extradited to the United States in October 2014. In the decision published today in Mr Aswat’s second case, the Court found that the concerns raised in its earlier judgment had been directly addressed by the comprehensive assurances and additional information received by the Government of the UK from the US Government. 

Inhuman and degrading detention conditions and the related lack of effective remedies in Bulgaria: a new pilot judgment - case of Neshkov and Others v. Bulgaria - Violations of Article 3 (prohibition of inhuman and degrading treatment) and a violation of Article 13 (right to an effective remedy) of the European Convention on Human Rights. The case concerned detention conditions in various correctional facilities in Bulgaria, and the effectiveness of the remedies by which prisoners were able to seek redress for those conditions. The Court found in particular that the conditions in which four of the applicants were detained had amounted to inhuman and degrading treatment, notably on account of overcrowding and lack of privacy and personal dignity when going to the toilet. The applicants’ cases, as well as many other similar cases – the Court having already decided more than 20 cases leading to 25 violations of the Convention and there being approximately 40 more applications concerning detention conditions in Bulgaria currently pending before the Court – highlight a systemic problem within the Bulgarian prison system, justifying a pilot-judgment2 procedure because of the serious and persistent nature of the problems identified. The Court further held that there was a structural problem in Bulgarian law concerning the remedies for those prisoners who wished to challenge their detention conditions. There existed a compensatory remedy that sometimes operated well, but, when examining claims concerning conditions of detention, the Bulgarian courts more often than not did not take into account the general prohibition against inhuman and degrading treatment under the Convention, but only the relevant statutory or regulatory provisions. There was, moreover, no effective preventive remedy. The Court therefore held that changes to national law and practice were required to create effective preventive and compensatory remedies and that this should be done within 18 months of the date of this judgment becoming final.

(a)  Avenues for the improvement of detention conditions
"274.  The improvement of conditions of detention in Bulgarian correctional facilities raises issues that go beyond the Court’s judicial function. It is not the Court’s task to give directions about such a complex reform process, let alone make specific recommendations on how the respondent State should organise its penal and penitentiary systems. The Committee of Ministers is better placed to do so (see Ananyev and Others, § 194, and Torreggiani and Others, § 95, both cited above). However, these considerations do not bar the Court from highlighting specific issues that may warrant the respondent State’s in-depth consideration, as such an indication may make it possible to ascertain better the contours of the problem outlined in the pilot judgment and find appropriate solutions to it (see Ananyev and Others, § 195, and, mutatis mutandis, Orchowski, §§ 149‑53, both cited above).
275.  There are two issues that Bulgaria will inevitably need to tackle when implementing this judgment.
276.  The first concerns overcrowding which, as can be seen from the McManus report and the statistical data presented by the Government (see paragraphs 91 and 143 above), varies between the different correctional facilities in Bulgaria. The Court has held that if a High Contracting State is unable to ensure that prison conditions comply with the requirements of Article 3 of the Convention, it must either abandon its strict penal policy or put in place a system of alternative means of punishment (see Orchowski, cited above, § 153 in fine). While, as already noted, it is not within the Court’s remit to indicate how the respondent State should organise its penal and penitentiary systems, the Court would note that the reports and recommendations of the CPT and the Committee of Ministers, and, in relation specifically to Bulgaria, the McManus report (see paragraphs 90, 91, 146, 147 and 148 above), have highlighted a number of possible approaches that could be considered by the Bulgarian authorities as potential solutions to the problem of overcrowding: a combination of measures that includes the construction of new correctional facilities, better allocation of prisoners in existing correctional facilities, and a reduction of the number of persons serving custodial sentences. Measures recommended or undertaken in other cases before this Court have included reduced recourse to imprisonment as a form of penalty, resorting to shorter custodial sentences, replacing imprisonment with other forms of penalty, increasing the use of various forms of early release, and suspending the enforcement of some custodial sentences (see Łatak v. Poland (dec.), no. 52070/08, § 44, 12 October 2010, and Stella and Others, cited above, §§ 11-14, 21-24 and 51-52).
277.  The second issue concerns material conditions and hygiene. As noted in various reports and in the Government’s submissions in this case, many of the prison buildings in Bulgaria are very old, unsuitable for modern needs, and often dilapidated almost beyond repair (see paragraphs 72, 73, 74, 78, 83 and 259 above). The Court notes with disappointment that, in spite of the many reports that have highlighted the problem for years, the authorities have not done more to tackle it. At this stage, the only way to do so is either by carrying out major renovation works or by replacing these buildings with new ones. Having regard to the fundamental nature of the right protected by Article 3 of the Convention and the importance of urgently putting an end to conditions of detention which result in inhuman or degrading treatment for a considerable number of persons, this should be done without any delay.
278.  It is true that the solution of these problems may require significant financial resources. However, as already noted, lack of resources cannot in principle justify conditions of detention that are so poor as to amount to treatment contrary to Article 3 of the Convention, and it is incumbent on the Contracting States to organise their penitentiary systems in ways that ensure compliance with this provision, regardless of financial or logistical difficulties (see Mandić and Jović, cited above, § 126, with further references)."
The cases of Klausecker v. Germany and Perez v. Germany concerned complaints related to employment in international organisations – the European Patent Office and the United Nations (UN) – and the alleged lack of access to the national courts in respect of those complaints - In its decisions in these cases, the European Court of Human Rights has declared the applications inadmissible. In the first case, brought by a physically handicapped person who was refused employment with the European Patent Office, the Court found in particular that the organisation’s immunity from jurisdiction of the German courts had been proportionate in the circumstances of the case. Mr Klausecker would have had a reasonable alternative means to protect his rights under the Convention, namely by participating in an arbitration procedure.

(i)  Recapitulation of the relevant principles

"92. The Court recalls that it recently gave decisions in a number of applications where the impugned decision emanated from an internal body of an international organisation or an international tribunal outside the jurisdiction of the respondent States, in the context of a labour dispute that lay entirely within the internal legal order of an international organisation that had a legal personality separate from that of its Member States. It was decisive for the respondent States to be held responsible under the Convention in those cases whether the States concerned had intervened directly or indirectly in the dispute, and whether an act or omission of those States or their authorities could be considered to engage their responsibility under the Convention. If that was not the case, the Court considered the applicants not to have been “within the jurisdiction” of the respondent States concerned for the purposes of Article 1 of the Convention and therefore declared the applications to be incompatible ratione personae with the provisions of the Convention in this respect (see, inter alia, Boivin v. 34 Member States of the Council of Europe (dec.), no. 73250/01, ECHR 2008; Connolly v. 15 Member States of the European Union (dec.), no. 73274/01, 9 December 2008; Beygo v. 46 Member States of the Council of Europe (dec.), no. 36099/06, 16 June 2009; Lopez Cifuentes, cited above, §§ 27-30; see also, mutatis mutandis, Etablissements Biret et Cie S.A. and Biret International v. 15 Member States of the European Union (dec.), no. 13762/04, 9 December 2008; see also the references to that case-law in Gasparini v. Italy and Belgium (dec.), no. 10750/03, 12 May 2009, and Rambus Inc. v. Germany (dec.), no. 40382/04, 16 June 2009, in which the Court considered the respective applications as manifestly ill-founded on further, additional grounds).
93. The Court clarified in this context that respondent States were directly or indirectly involved in the dispute at issue, for the purposes of the above case-law, in particular, if State authorities applied or enforced legal provisions emanating from an international organisation against an applicant (see, for instance, Matthews v. the United Kingdom [GC], no. 24833/94, ECHR 1999‑I; and Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland [GC], no. 45036/98, ECHR 2005‑VI).
94. The Court further reiterates that in its recent decisions concerning the Contracting Parties’ jurisdiction in relation to acts of international organisations and tribunals in labour disputes of those organisations with their staff, it has examined the applicants’ complaints in these respects also in the light of the principles established in cases in which it was called upon to answer the question whether the Member States of the Convention could be held responsible under the Convention for acts or omissions following from their membership of an international organisation. These principles have been recalled and developed in particular in the case of Bosphorus (Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi, cited above) (see, inter alia, Boivin, cited above; Connolly, cited above; Rambus, cited above; Beygo, cited above; and Lopez Cifuentes, cited above, § 24).
95. In Bosphorus, the Court held that, while a Contracting Party was not prohibited by the Convention from transferring sovereign power to an international organisation in order to pursue cooperation in certain fields of activity, that Party remained responsible under Article 1 of the Convention for all acts and omissions of its own organs (ibid., §§ 152-153). However, where such State action was taken in compliance with international legal obligations flowing from its membership of an international organisation and where the relevant organisation protected fundamental rights in a manner which could be considered at least equivalent to that which the Convention provided, a presumption arose that the State had not departed from the requirements of the Convention. Such presumption could be rebutted if, in the circumstances of a particular case, it was considered that the protection of Convention rights was manifestly deficient. In such cases, the interest of international cooperation would be outweighed by the Convention’s role as a “constitutional instrument of European public order” in the field of human rights (ibid., §§ 155-156; see also Cooperatieve Producentenorganisatie van de Nederlandse Kokkelvisserij U.A. v. the Netherlands (dec.), no. 13645/05, ECHR 2009; and Rambus, cited above).
96. The Court subsequently examined complaints about acts of international organisations and tribunals in labour disputes in the light of its case-law relating to States’ responsibility established in the case of Bosphorus (cited above), in particular in the case of Gasparini (cited above). The Gasparini case differed from the Bosphorus case. In the Bosphorus case, an action taken by the respondent State itself (detention of an aircraft) in order to implement legal provisions emanating from international organisations was at issue (ibid., §§ 19 ss.). The case of Gasparini (cited above) concerned the compliance with the Convention of internal procedures on labour disputes within an international organisation, without the respondent State having intervened in that procedure as such.
97. In Gasparini (cited above), the Court deducted from the principles developed in the Bosphorus case that, when transferring part of their sovereign powers to an international organisation of which they are a member, Contracting Parties to the Convention were under an obligation to monitor that the rights guaranteed by the Convention received within that organisation an “equivalent protection” to that secured by the Convention system. In fact, a Contracting Party’s responsibility under the Convention could be engaged if it subsequently turned out that the protection of fundamental rights offered by the international organisation concerned was “manifestly deficient” (see Bosphorus, cited above). Conversely, an alleged violation of the Convention was not attributable to a Contracting Party because of a decision or measure emanating from an organ of an international organisation of which it is a member where it has not been established nor even been alleged that the protection of fundamental rights generally offered by the said international organisation was not “equivalent” to that secured by the Convention and where the State concerned neither directly nor indirectly intervened in the commission of the impugned act (see Boivin, cited above)."
In the second case, brought by a former staff member of the UN, the Court concluded that Ms Perez had failed to exhaust the national remedies. She had complained in a substantiated manner that there had been manifest deficiencies in the UN internal appeal proceedings. In the circumstances of her case, the German Federal Constitutional Court would therefore have had jurisdiction to examine whether the level of fundamental rights protection in the dispute concerning her dismissal had complied with the Constitution.

(i)  Relevant principles
"60. The Court reiterates that the sole fact that an international organisation or tribunal has its seat and premises on the territory of the respondent State is not a sufficient ground to attribute the matters complained of to the State concerned (compare Galić v. the Netherlands (dec.), no. 22617/07, § 46, 9 June 2009; Blagojević v. the Netherlands (dec.), no. 49032/07, § 46, 9 June 2009; and Lopez Cifuentes v. Spain (dec.), no. 18754/06, § 25, 7 July 2009). 61. The Court recalls that it recently gave decisions in a number of applications where the impugned decision emanated from an internal body of an international organisation or an international tribunal outside the jurisdiction of the respondent States, in the context of a labour dispute that lay entirely within the internal legal order of an international organisation that had a legal personality separate from that of its Member States. It was decisive for the respondent States to be held responsible under the Convention in those cases whether the States concerned had intervened directly or indirectly in the dispute, and whether an act or omission of those States or their authorities could be considered to engage their responsibility under the Convention. If that was not the case, the Court considered the applicants not to have been “within the jurisdiction” of the respondent States concerned for the purposes of Article 1 of the Convention and therefore declared the applications to be incompatible ratione personae with the provisions of the Convention in this respect (see, inter alia, Boivin v. 34 Member States of the Council of Europe (dec.), no. 73250/01, ECHR 2008; Connolly v. 15 Member States of the European Union (dec.), no. 73274/01, 9 December 2008; Beygo v. 46 Member States of the Council of Europe (dec.), no. 36099/06, 16 June 2009; Lopez Cifuentes, cited above, §§ 27-30; see also, mutatis mutandis, Etablissements Biret et Cie S.A. and Biret International v. 15 Member States of the European Union (dec.), no. 13762/04, 9 December 2008; see also the references to that case-law in Gasparini v. Italy and Belgium (dec.), no. 10750/03, 12 May 2009, and Rambus Inc. v. Germany (dec.), no. 40382/04, 16 June 2009, in which the Court considered the respective applications as manifestly ill-founded on further, additional grounds).
62. The Court subsequently examined complaints about acts of international organisations and tribunals in labour disputes of those organisations with their staff in the light of its case-law relating to States’ responsibility established in the case of Bosphorus (Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland [GC], no. 45036/98, §§ 152‑156, ECHR 2005‑VI), in particular in the case of Gasparini (cited above). In Gasparini, the Court deducted from the principles developed in the Bosphorus case that, when transferring part of their sovereign powers to an international organisation of which they are a member, Contracting Parties to the Convention were under an obligation to monitor that the rights guaranteed by the Convention received within that organisation an “equivalent protection” to that secured by the Convention system. In fact, a Contracting Party’s responsibility under the Convention could be engaged if it subsequently turned out that the protection of fundamental rights offered by the international organisation concerned was “manifestly deficient” (see Bosphorus, cited above, §§ 155-156). Conversely, an alleged violation of the Convention was not attributable to a Contracting Party because of a decision or measure emanating from an organ of an international organisation of which it is a member where it has not been established nor even been alleged that the protection of fundamental rights generally offered by the said international organisation was not “equivalent” to that secured by the Convention and where the State concerned neither directly nor indirectly intervened in the commission of the impugned act (see Boivin, cited above)."
No retroactive application of the law in a case concerning a continuous criminal offence - case of Rohlena v. the Czech Republic (Grand Chamber judgment) - no violation of Article 7 (no punishment without law) of the Convention - The case concerned the applicant’s conviction for a continuous criminal offence of abusing a person living under the same roof. The applicant complained in particular that his conviction encompassed his conduct before that offence had been introduced into the law on 1 June 2004. The Court accepted that Mr Rohlena’s earlier acts had amounted to criminal offences punishable under the Criminal Code in force prior to 1 June 2004 and that they comprised the constituent elements of the offence introduced into the amended Code on 1 June 2004. The Court ruled that the fact of finding the applicant guilty under the latter version of the Code also in respect of acts committed before that date did not constitute retroactive application of the law as prohibited by the Convention. The Court therefore considered that the offence had had a basis in national law at the time it was committed and that the law had defined the offence sufficiently clearly to meet the requirement of foreseeability flowing from Article 7 of the Convention. It further held that the fact of convicting the applicant of a continuous offence had not resulted in a more severe sentence than would have been imposed on him if he had been tried for several separate offences.
"70.  The foregoing considerations are sufficient to enable the Court to conclude that the sentence imposed on the applicant, who was found guilty of the continuous criminal offence of abusing a person living under the same roof, was applicable at the time when this offence was deemed to have been completed, in accordance with a “law” which was foreseeable as to its effect. There was no retroactive application of the criminal law and the applicant was not subjected to more severe sentencing rules than those that would have been applicable had he been tried for several separate offences.
71.  The Court is satisfied that the approach followed by the Czech courts in the instant case is consonant with the object and purpose of Article 7 of the Convention, namely to ensure that no one should be subjected to arbitrary prosecution, conviction or punishment (see paragraph 50 above). In addition, by reinforcing the national legal protection against domestic violence – such violence perpetrated against women being still a matter of grave concern in contemporary European societies (see paragraph 38 above and Opuz v. Turkey, no. 33401/02, ECHR 2009) – it also conforms to the fundamental objectives of the Convention, the very essence of which is respect for human dignity and freedom (see, mutatis mutandis, C.R. v. the United Kingdom, 22 November 1995, § 42, Series A no. 335‑C).
72.  In reaching the above conclusions, the Court has examined from the standpoint of Article 7 of the Convention the application in the applicant’s case of the continuous offence under Czech law of abuse of a person living under the same roof. By way of comparison it is worth noting in this context that the notion of a continuous criminal offence as defined in Czech law is in line with the European tradition reflected in the national laws of the vast majority of Council of Europe member States (see paragraphs 31 and 33 above) and that, accordingly, the situation as regards the issue of foreseeability raised in the present case appears not to be markedly different from that obtaining in relation to such offences in the national legal systems of other Contracting Parties to the Convention. As can be seen from the domestic authorities’ description of the applicant’s conduct, his acts were directed against a specific victim, namely his wife, and particularly against her legal interests of physical and mental integrity as well as honour. It is also clear that the modus operandi was the same, consisting of attacks committed under the same roof; that there was a temporal connection between the various acts, which spanned several years; that each assault committed during this period of time was driven by the same criminal intent; and that the applicant’s conduct was on each occasion in breach of the criminal law. In other words, the offence of which the applicant was convicted shared a number of characteristics common to such offences elsewhere in the Convention community, as did the response of the criminal justice system, in the form of a sentence handed down for one single offence (see paragraphs 33-37 above).
73.  In sum, there has been no violation of Article 7 of the Convention."
The best interests of a child born from a surrogacy arrangement abroad ought to have been of paramount importance in the Italian authorities’ decisions - case of Paradiso and Campanelli v. Italy - a violation of Article 8 (right to respect for private and family life) of the European Convention on Human Rights. The case concerned the placement in social-service care of a nine-month-old child who had been born in Russia following a gestational surrogacy contract entered into by a couple; it subsequently transpired that they had no biological relationship with the child. The Court found in particular that the public-policy considerations underlying Italian authorities’ decisions – finding that the applicants had attempted to circumvent the prohibition in Italy on using surrogacy arrangements and the rules governing international adoption – could not take precedence over the best interests of the child, in spite of the absence of any biological relationship and the short period during which the applicants had cared for him. Reiterating that the removal of a child from the family setting was an extreme measure that could be justified only in the event of immediate danger to that child, the Court considered that, in the present case, the conditions justifying a removal had not been met. However, the Court’s conclusions were not to be understood as obliging the Italian State to return the child to the applicants, as he had undoubtedly developed emotional ties with the foster family with whom he had been living since 2013.

Judges Raimondi and Spano expressed a joint partly dissenting opinion
"13. À notre avis, il n’y a aucune raison de remettre en jeu l’évaluation faite par les juges italiens. La majorité substitue sa propre évaluation à celle des autorités nationales, mettant ainsi à mal le principe de subsidiarité et la doctrine de la « quatrième instance ».
14. Dans ce genre d’affaires, dans lesquelles les juridictions nationales sont confrontées à des questions difficiles de mise en balance des intérêts de l’enfant d’une part et des exigences d’ordre public de l’autre, la Cour devrait à notre avis faire preuve de retenue, et se limiter à vérifier si l’évaluation des juges nationaux est entachée d’arbitraire. Les arguments développés par la majorité (paragraphes 82-84 de l’arrêt) ne sont pas convaincants. En particulier nous estimons que la question de l’établissement de l’identité de l’enfant n’a pas d’impact sur la décision de 2011 de le séparer des requérants et pourrait former l’objet, à la limite, d’un grief de l’enfant lui-même.
15. En outre, la position de la majorité revient, en substance, à nier la légitimité du choix de l’État de ne pas reconnaitre d’effet à la gestation pour autrui. S’il suffit de créer illégalement un lien avec l’enfant à l’étranger pour que les autorités nationales soient obligées de reconnaître l’existence d’une « vie familiale », il est évident que la liberté des États de ne pas reconnaître d’effets juridique à la gestation pour autrui, liberté pourtant reconnue par la jurisprudence de la Cour (Mennesson c. France, no 65192/11), 26 juin 2014, § 79, et Labassee c. France, (no 65941/11), 2 juin 2014, § 58), est réduite à néant."

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

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