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

Thursday, 26 March 2015

This week in Strasbourg - A roundup of the European Court of Human Rights' case law - 2015 - week 13


Annulment of adoption, 31 years after it had been approved, in the context of inheritance proceedings was not justified - In the case of Zaieţ v. Romania the Court  held, unanimously, that there had been a violation of Article 8 ECHR and of Article 1 of Protocol No. 1 (protection of property) to the Convention. The case concerned the annulment of a woman’s adoption, at the instigation of her adoptive sister, 31 years after it had been approved and 18 years after the death of their adoptive mother. This was the first occasion on which the Court had to consider the annulment of an adoption order in a context where the adoptive parent was dead and the adopted child had long reached adulthood. The Court found in particular that such a radical measure as annulling an adoption had to be supported by relevant and sufficient reasons; however, the annulment decision in this case had been vague and lacked justification. In any event, the Court considered that the annulment of an adoption should not even be envisaged as a measure against an adopted child and underlined that in legal provisions and decisions on adoption matters, the interests of the child had to remain paramount.
"43.  The Court reiterates that in order to determine whether the impugned measures were “necessary in a democratic society”, it has to consider whether, in the light of the case as a whole, the reasons adduced to justify them were relevant and sufficient for the purposes of Article 8 § 2 (see Kutzner, cited above, § 65, and Moser v. Austria, no. 12643/02, § 64, 21 September 2006).
44.  In doing so, it is not the Court’s task to substitute itself for the domestic authorities, but rather to review under the Convention the decisions that those authorities have taken in their exercise of their power of assessment (see K. and T. v. Finland [GC], no. 25702/94, § 154).
45.  Even assuming that the authorities enjoy a wide margin of appreciation in assessing the need for the annulment of the adoption (see mutatis mutandis, Kurochkin v. Ukraine, no. 42276/08, § 52, 20 May 2010 and Ageyevy v. Russia, no. 7075/10, § 127, 18 April 2013), the Court must still be satisfied in this particular case that there are circumstances which justify the annulment of the applicant’s adoption thirty-one years after the adoption order had been issued.
46.  The Court further notes that where the existence of a family tie has been established the State must in principle act in a manner calculated to enable that tie to be maintained. Splitting up a family is an interference of a very serious order. Such a step must be supported by sufficiently sound and weighty considerations not only in the interests of the child (see Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 148, ECHR 2000‑VIII) but also in respect of the legal certainty.
47.  Turning to the facts of the present case, the Court observes that the reason for the annulment of the adoption of the applicant was based on the domestic courts’ consideration that the only aim of the applicant’s adoption had been the furtherance of the patrimonial interests of the adoptive mother and the adopted child, and the adoption had not been intended to ensure a better life for the applicant.
48.  The Court notes that as a general rule the legal provisions governing adoption are designed primarily for the benefit and protection of children. Usually, child welfare officials will seek a termination order on the basis of a judicial ruling that the parent is unfit to rear the child and that severance of the legal status would serve the child’s interests. The annulment of adoption is not envisaged as a measure against the adopted child and cannot be interpreted in the sense of disinheriting an adopted child eighteen years after the death of her adoptive mother and thirty-one years after the adoption order had been issued. In this respect the Court also notes that under section 57 of the Adoption Act, which entered into force on 1 January 2005, only the adopted child may challenge the validity of the adoption after the adoptee has obtained his or her full legal capacity.
49.  If subsequent evidence reveals that a final adoption order was based on fraudulent or misleading evidence, the interests of the child should remain paramount in establishing a process to deal with any damage caused to the adoptive parent as a result of the wrongful order.
50.  In the light of the foregoing, in the Court’s opinion the findings of the domestic courts on the annulment of the adoption of the applicant were not supported by relevant and sufficient reasons justifying such an interference in the applicant’s family life. The arguments contained in the court decisions are rather vague and do not provide sufficient justification for the application of such a radical measure by the courts in respect of the applicant’s family rights.
51.  The foregoing considerations are sufficient to enable the Court to conclude that there has been a violation of Article 8 of the Convention."
Condition in Croatian law obliging parents to attempt a friendly settlement before bringing a compensation claim for the death of their daughter was compatible with the European Convention - In the case of Momčilović v. Croatia the European Court of Human Rights held, unanimously, that there had been no violation of Article 6 (access to court) of the European Convention on Human Rights. The case concerned the condition in Croatian law making access to a civil court dependent on a prior attempt to settle the claim. Mr and Mrs Momčilović and their son – the applicants – complained that the domestic courts had refused to examine the merits of their compensation claim against the State for the death of their relative because they had not attempted to settle the claim with the responsible authorities before introducing the contentious proceedings. According to the terms of the Civil Procedure Act, a claimant intending to bring a civil claim against the Republic of Croatia must first submit a request for settlement to the competent State Attorney’s Office. The Court found in particular that the restriction on the applicants’ access to court, namely the obligation to go through a friendly settlement procedure before bringing their claim for damages against the State, was provided by law (the Civil Procedure Act) and pursued the legitimate aim of avoiding a multiplication of claims and proceedings against the State in the domestic courts, thus promoting the interests of judicial economy and efficiency. Even with the domestic courts refusing to try the applicants’ civil claim for failing to have the case settled with the State Attorney’s Office, it still remained open to them to comply with the friendly-settlement requirement and, in the event of a failure to reach a settlement, to file a fresh civil claim with a domestic court within the time-limit provided by domestic law. The applicants had failed to use this possibility and had thus essentially brought about a situation in which they had effectively prevented the domestic courts from determining the merits of their case.

This judgment is interesting as it refers to Council of Europe statements on the desirability of encouraging alternative dispute resolution procedures to prevent and reduce excessive workload in the courts.
"44.  The Court observes that the applicants’ complaint relates to their right of access to court with regard to their civil claim for damages against the State in connection with the killing of their relative by a soldier. It also notes that there is no dispute between the parties as to the applicability of Article 6 of the Convention, nor that under the relevant domestic law the State was liable to be sued in the competent civil courts for compensation of damage caused by the unlawful actions of its soldiers.
45.  However, under the relevant domestic law, this would only be possible after unsuccessful friendly settlement arrangements between the potential claimants and the competent State Attorney’s Office (see paragraphs 24 and 26 above; section 186(a) of the Civil Procedure Act and section 50 of the Military Service Act). Since such procedural requirement or pre-condition to direct recourse to the courts is in substance a limitation to the access to a court, the Court must assess whether the manner in which the limitation at issue operated in the present case restricted or reduced the applicants’ access to court in such a way or to such an extent that the very essence of the right is impaired (see Jüssi Osawe v. Estonia, no. 63206/10, §§ 36 and 43, 31 July 2014). In doing that, the Court is mindful of the fact that in accordance with Article 19 of the Convention, its duty is to ensure the observance of the obligations undertaken by the Contracting Parties to the Convention. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court, unless and in so far as they may have infringed rights and freedoms protected by the Convention (see, amongst many others, Běleš and Others v. the Czech Republic, no. 47273/99, § 48, ECHR 2002 IX).
46.  According to the Government, the purpose of the requirement to institute the friendly settlement procedure before bringing a claim for damages against the State in the competent civil courts aimed at allowing the parties to settle their dispute without the involvement of courts and to avoid long and expensive court proceedings with an intended effect of reducing the number of cases pending before the courts (see paragraph 40 above). In view of these arguments, the Court can accept that this restriction on direct access to court pursued a legitimate aim of securing judicial economy and opened the possibility for the parties to efficiently settle their claims without the involvement of courts (see paragraphs 31-33 above).
47.  The applicants also do not dispute that this restriction pursued a legitimate aim (see paragraph 39 above). They rather argue that in the circumstances of their case this requirement was applied unreasonably, requiring them to lodge the request for settlement twice concerning the claim based on the same legal and factual background. The Court must therefore examine whether there was a reasonable relationship of proportionality between the means employed and the legitimate aim pursued by the State (see, for example, Z and Others, cited above, § 93).
48.  In this connection the Court firstly observes that after bringing their first claim for damages in the Zagreb Municipal Court on 5 March 1998, the applicants failed to participate diligently in the proceedings before that court. In particular, their representative did not appear at several of the hearings, of which the first applicant was duly informed but it does not appear that he, or any of the other applicants, took the necessary measures to secure their proper participation in the proceedings (see paragraph 13 above). The applicants’ omissions thus resulted in the decision of the Zagreb Municipal Court that their civil action was to be considered withdrawn. Afterwards they failed to lodge a timely appeal against that decision and only later, notably after about two years, unsuccessfully attempted to have the statement of finality quashed and to lodge a belated appeal (see paragraph 14 above).
49.  Nevertheless, the Zagreb Municipal Court’s decision finding that the applicants’ civil action was withdrawn did not prejudice their right to pursue their civil claim by instituting a new set of proceedings (see paragraphs 24 above; section 193 § 3 of the Civil Procedure Act). However, according to the relevant domestic law before lodging a civil action in the competent courts the applicants were required to attempt to have the claim settled with the State Attorney’s Office (see paragraph 24 above; section 186(a) of the Civil Procedure Act).
50.  In this respect the Court is mindful that the legal provision at issue was introduced in the Civil Procedure Act in 2003, as one of the procedural requirements in all civil actions against the State, whereas the applicant’s first attempt to settle the case before the competent State Attorney’s Office was mandated by the specific provisions on the State’s responsibility provided under, at the time relevant, Military Service Act (see paragraphs 24 and 26 above). By the decision of the Zagreb Municipal Court by which the applicants’ civil action was considered to be withdrawn in the first set of proceedings, the procedural continuity of their case was interrupted (see paragraph 24 above, section 193 § 3 of the Civil Procedure Act) and they were required to institute a new set of proceedings and consequently to comply with the procedural requirements for bringing an action in the competent court which, in the concrete case, included the requirement to attempt to have the claim settled with the State Attorney’s Office.
51.  Likewise, the Court notes that the applicants first attempted to settle their case with the State Attorney’s Office in 1998 whereas they instituted the second set of proceedings before the Karlovac Municipal Court in 2005. Given such substantial period of time it is impossible for the Court to speculate what would be result of the friendly settlement negotiations had the applicants attempted them before instituting the second set of civil proceedings, as various social and legal considerations governing the work of the State Attorney’s Office might have changed.
52.  The Court further observes that the settlement procedure at issue could not in any manner prejudice the applicants’ claim for damages against the State. In particular, it interrupts the running of the statutory prescription period and, in case the State Attorney’s Office does not accept the settlement, it remains fully open to the applicants to bring an action before the competent court (see paragraph 24 above, section 186(a) §§ 3 and 5 of the Civil Procedure Act).
53.  It is true that in availing themselves of this possibility the applicants were required, under section 186(a) § 5 of the Civil Procedure Act (see paragraph 24 above), to wait three months for the competent State Attorney’s Office to decide whether to reach a friendly settlement before they had a possibility, in case of an unfavourable outcome, to bring their claim in the competent courts. However, the Court does not consider that this period is in itself unreasonable to that extent that it impairs the very essence of the applicants’ right of access to court. This is particularly true given that, as already observed above (see paragraph 52 above), neither can there be any legal prejudice for the applicant’s claim during the friendly settlement procedure nor have they specified in what manner the requirement to institute the friendly settlement procedure adversely affected their rights.
54.  Thus, even if the applicants considered that the requirement to have the case settled with the State Attorney’s Office again before bringing a claim for damages in the second set of proceedings was unreasonable, it is impossible to discern the actual prejudice which this might have caused them other than a possible inconvenience they might have had in having to take an additional procedural action. However, the Court is not called upon to assess whether the domestic legal system was designed to operate in the manner which was most convenient for the applicant. Rather, the Court’s role is to determine whether the applicant’s right of access to a court was restricted in a disproportionate manner (see Jüssi Osawe, cited above, § 48).
55.  Lastly, the Court notes that even when the Karlovac Municipal Court declared the applicants’ civil action inadmissible for failing to attempt to have the case settled with the State Attorney’s Office, it still remained open for them to comply with that requirement and to lodge a new civil action in the competent court within three months following the finality of the Karlovac Municipal Court’s decision (see paragraph 27 above, sections 377 and 390 of the Obligations Act; see further paragraphs 28-30 above). However, the applicants failed to avail themselves of this opportunity and thus essentially brought about a situation in which they prevented the domestic courts from determining the merits of their case.
56.  In view of the above, having found no arbitrariness or unfairness in the decisions of the competent domestic courts, the Court does not consider that the applicants’ right of access to court was restricted in such a way or to such an extent that the very essence of the right was impaired.
57.  There has accordingly been no violation of Article 6 § 1 of the Convention."
Police entrapment complaint inadmissible: men convicted for distribution of counterfeit software acted without incitementThe case of Volkov and Adamskiy v. Russia mainly concerned the allegations by two men providing computer repair services that they had been incited by the police to commit a crime. In today’s Chamber judgment in the case, the European Court of Human Rights, unanimously, declared inadmissible both applicants’ complaint, under Article 6 § 1 (right to a fair trial) of the European Convention on Human Rights, of having been incited by the police to commit the crime of copyright infringement. The Court found in particular that the applicants had provided the unlicensed software in question on their own initiative, without unlawful incitement. It had been the applicants’ deliberate conduct – not the actions of the police – that had become the determinative factor in committing their offences. Their complaint was therefore manifestly ill-founded. At the same time, the Court held, unanimously, that there had been a violation of Article 6 § 1 in conjunction with Article 6 § 3 (c) (right to a fair trial and right to legal assistance of one’s own choosing) of the Convention on account of the fact that Mr Volkov had not been provided with a lawyer in the appeal proceedings in his case.

Excessive length of detention in Italy with a view to extradition to Greece - In the case of Gallardo Sanchez v. Italy the European Court of Human Rights held, unanimously, that there had been a violation of Article 5 § 1 (f) (right to liberty and security) of the European Convention on Human Rights. The case concerned the excessive length of a Venezuelan national’s detention in Italy with a view to his extradition to Greece. The Court found that deprivation of liberty could be lawful in terms of domestic law but still arbitrary and thus contrary to the European Convention. Deprivation of liberty under Article 5 of the Convention was justified only for as long as extradition proceedings were being conducted. Accordingly, where the proceedings were not conducted with due diligence the detention ceased to be justified. The Court held in particular that in the context of an extradition allowing the requesting State to try a defendant, the criminal proceedings were still pending, the person detained with a view to extradition was presumed innocent, their ability to exercise their defence rights was considerably limited, or even non-existent, and the authorities of the requested State were debarred from undertaking any examination of the case on the merits. For all those reasons the requested State was required to act with special diligence. However, Mr Gallardo Sanchez had been detained with a view to extradition for one and half years and the judicial phase of the proceedings in his case, which had not been complex, was marked by unjustified delays.

Reprimand against teacher for taking part in a panel discussion was disproportionate - In the case of İsmail Sezer v. Turkey the European Court of Human Rights held, unanimously, that there had been a violation of Article 11 (freedom of assembly and association) and a violation of Article 13 (right to an effective remedy) The case concerned a disciplinary measure taken against a teacher, who held office in a union, for taking part in a panel discussion organised by a political party. The Court found in particular that the reprimand imposed on Mr Sezer constituted a disproportionate restriction of his freedom of association as guaranteed by Article 11. The Court took account of the discretion shown by Mr Sezer during the panel discussion, his capacity as union officer on that occasion and the potentially chilling effect of such a sanction on the participation of other union members in events to defend their members’ interests. The Court also found that the only remedy open to Mr Sezer to dispute the lawfulness of the sanction, namely an administrative appeal to a higher authority, had not constituted an effective remedy for the purposes of Article 13.

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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