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

Friday, 24 April 2015

This week in Strasbourg - A roundup of the European Court of Human Rights' case law - 2015 - week 17

No justification for police custody of lawyer who had been assisting a client in the police station - case of François v. France - Violation of Article 5 § 1 (right to liberty and safety) of the European Convention on Human Rights - The case concerned the placing of a lawyer in police custody after he had been assisting at the police station, in his professional capacity, a youth who was being held by the police. The Court found in particular that placing Mr François in police custody and subjecting him to a full body search and a blood alcohol test exceeded the security requirements and established an intention that was unconnected with the objective of police custody. The Court further noted that, at the time, there were no regulations authorising a body search that went beyond mere frisking, and also that the alcohol test had been carried out even though there was no indication that Mr François had committed an offence under the influence of alcohol.

Late change in electoral law infringed right to stand for election of an association representing the Turkish minority Danis and Association of Ethnic Turks v. RomaniaViolation of Article 14 (prohibition of discrimination) of the European Convention on Human Rights in conjunction with Article 3 of Protocol No. 1 (right to free elections) to the Convention - The case concerned the applicant association’s inability to meet the requirements for standing in the 2008 parliamentary elections following the entry into force of a new electoral law only seven months before the elections. The new law required national minority organisations not represented in Parliament to have been granted charitable status in order to be able to stand for election. The Court observed that in the 2004 parliamentary elections the association had polled only slightly fewer votes than another association representing the Turkish minority, which had won a seat in Parliament as a result; it thus concluded that at that time the applicant association had satisfied all the requirements for standing for election and that it not had been able to organise its subsequent activities except in accordance with the statutory provisions in force at the relevant time. The Court found in particular that by amending electoral legislation seven months before the 2008 parliamentary elections, the authorities had not given the applicants the opportunity to organise their activities in such a way as to be able to satisfy the eligibility criteria introduced as a result of the new legislation.

Russian Federation responsible for the death of a Moldovan citizen at peacekeeping checkpoint Pisari v. the Republic of Moldova and RussiaViolation of Article 2 (right to life and investigation) of the European Convention on Human Rights - The case addressed the question of State responsibility for the actions of a Russian soldier at a peacekeeping checkpoint in Moldova which resulted in the death of a young man, Vadim Pisari. The checkpoint in question was situated in the security zone put in place following an agreement to end the military conflict in the Transdniestrian region of Moldova in 1992 and was under the command of Russian soldiers. The case also concerned the manner in which the subsequent investigation into his death was run. The Court held that the Russian Federation should be held responsible for consequences arising from a Russian soldier’s actions even though they had not occurred in Russia. Indeed, the Russian Government had not objected to the allegation that Vadim Pisari had been under their jurisdiction or that his death had been their responsibility. The Court further found that the Russian soldier’s decision to shoot at the passing vehicle had not been justified and identified procedural problems with the Russian investigation into the case. On the other hand, Vadim Pisari’s parents considered that the Moldovan authorities had not been responsible for their son’s death and had done everything they reasonably could to investigate his death; they therefore no longer wished to continue their application against the Republic of Moldova. The Court accepted that wish and decided to strike out of its list of cases the part of the application directed against the Republic of Moldova.

Rejection of constitutional appeal did not amount to denial of justice - In its decision in the case of Veselský v. the Czech Republic the European Court of Human Rights has unanimously declared the application inadmissible - The applicant complained of a denial of justice by the Constitutional Court on the grounds that it had declared his appeal inadmissible without examining it on the merits. Referring, among other things, to the principle of legal certainty, the Court held that the limitation on the right to a court of which the applicant complained had not been disproportionate. It had neither been unreasonable nor arbitrary to consider that the applicant’s constitutional appeal should also have been lodged against the decision of the Supreme Court, and not only against the decisions of the lower courts.

Conviction for defamation of lawyer acting for Judge Borrel’s widow was disproportionate interference with his right to freedom of expression - Grand Chamber judgment in the case of Morice v. France - Violations of Article 6 § 1 (right to a fair trial) of the European Convention on Human Rights, and Article 10 (freedom of expression) of the Convention - The case concerned the conviction of a lawyer, on account of remarks reported in the press, for complicity in defamation of the investigating judges who had been removed from the judicial investigation into the death of Judge Bernard Borrel. The Grand Chamber found in particular that Mr Morice had expressed value judgments with a sufficient factual basis. His remarks had not exceeded the limits of the right guaranteed by Article 10 and they concerned a matter of public interest, namely the functioning of the justice system and the handling of the Borrel case. The Grand Chamber nevertheless emphasised that lawyers could not be equated with journalists, not being external witnesses with the task of informing the public, but being directly involved in the functioning of the justice system and the defence of a party. The Grand Chamber further found that significant weight had to be attached to the context of the case, while pointing out that it was necessary to maintain the authority of the judiciary and to ensure mutual respect between judges and lawyers.

The ban on strike action imposed on a police trade union did not infringe its freedom of association - Junta Rectora Del Ertzainen Nazional Elkartasuna (ER.N.E.) v. SpainNo violation of Article 11 (freedom of association) of the European Convention on Human Rights, taken alone and in conjunction with Article 14 (prohibition of discrimination) - The case concerned the inability of the members of a police officers’ trade union to exercise the right to strike. The Court found in particular that the more stringent requirements imposed on “law-enforcement agents”, on account of the fact that they were armed and of the need for them to provide an uninterrupted service, justified the ban on strike action in so far as public safety and the prevention of disorder were at stake. The Court noted that the specific nature of these agents’ duties warranted granting the State a lot of room for manoeuvre (“a wide margin of appreciation”) to regulate certain aspects of the trade union’s activities in the public interest, without however depriving the union of the core content of its rights under Article 11.

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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