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

Thursday, 21 May 2015

This week in Strasbourg - A roundup of the European Court of Human Rights' case law - 2015 - weeks 20/21

Police failed to protect participants in march against homophobia from violent attacks of counter-demonstrators - case of Identoba and Others v. Georgia - violation of Article 3 (prohibition of inhuman or degrading treatment) and a violation of Article 11 (freedom of assembly and association) - The case concerned a peaceful demonstration in Tbilisi in May 2012 to mark the International Day against Homophobia, which was violently disrupted by counter-demonstrators outnumbering the marchers. The Court considered in particular that the authorities knew or ought to have known of the risks surrounding the demonstration. They had therefore been under an obligation – but had failed – to provide adequate protection so that it could be held peacefully.
"97.  At the outset, noting that this issue is not even in dispute between the parties, the Court affirms that the disruption of the applicants’ participation in the peaceful march of 17 May 2012, organised to mark the International Day Against Homophobia, undoubtedly constituted an interference under Article 11 of the Convention, read in the light of the relevant principles under Article 10. Indeed, the Convention protects public forms of expression, including through holding a peaceful assembly, and the expression of opinions in relation to campaigning for and raising awareness of the fundamental rights of various sexual minorities (see Alekseyev, cited above, § 84).
98.  The Court further observes that the applicants’ complaints that the State failed to protect their freedom to participate in the march of 17 May 2012 from the bias-motivated violence stem from exactly the same factual circumstances as those it has already examined under Article 3 of the Convention taken in conjunction with Article 14 (see paragraphs 68‑81 above). Consequently, the Court’s findings under the latter provisions are equally pertinent to the examination of the complaints under Articles 11 and 14 of the Convention.
99.  In particular, the Court reiterates that despite the fact that the domestic authorities were given prior notice on 8 May 2012 about the intention to organise a peaceful march on 17 May 2012, they did not manage to use that generous period of nine days for careful preparatory work. Indeed, given the attitudes in parts of Georgian society towards the sexual minorities, the authorities knew or should have known of the risk of tensions associated with the applicant organisation’s street march to mark the International Day Against Homophobia. They were thus under an obligation to use any means possible, for instance by making public statements in advance of the demonstration to advocate, without any ambiguity, a tolerant, conciliatory stance (compare with Ouranio Toxo, cited above, § 42) as well as to warn potential law-breakers of the nature of possible sanctions. Furthermore, it was apparent from the outcome of the LGBT procession, that the number of police patrol officers dispatched to the scene of the demonstration was not sufficient, and it would have been only prudent if the domestic authorities, given the likelihood of street clashes, had ensured more police manpower by mobilising, for instance, a squad of anti-riot police (contrast with Plattform “Ärzte für das Leben”, §§ 37 and 38; and also Ouranio Toxo, cited above, 43).
100.  All in all, the Court considers that the domestic authorities failed to ensure that the march of 17 May 2012, which was organised by the first applicant and attended by the thirteen individual applicants (from the second to the fourteenth), could take place peacefully by sufficiently containing homophobic and violent counter-demonstrators. In view of those omissions, the authorities fell short of their positive obligations under Article 11 taken in conjunction with Article 14 of the Convention."
Comment by Paul Johnson: The judgment in Identoba and Others v Georgia is a triumph for LGBT rights in Europe
"Gay men and lesbians have been making complaints under Article 3 since 1955 about the inhuman and degrading treatment they have experienced because of their sexual orientation. This is only the second time that the Court has upheld a complaint relating to sexual orientation discrimination under Article 3 taken in conjunction with Article 14 (the first time was in 2012 in X v Turkey, which concerned the ill-treatment of a gay male prisoner). Recognizing that homophobic hatred amounts to inhuman and degrading treatment in violation of Article 3 is a significant milestone in the long human rights journey that gay men and lesbians have travelled." 
Judgment against France for not providing, at the relevant time, an effective remedy to address inhuman or degrading detention conditions - case of Yengo v. France - violation of Article 13 (right to an effective remedy) of the European Convention on Human Rights - The case concerned the conditions of detention of a prisoner, Mr Yengo, in Nouméa prison, New Caledonia. Mr Yengo complained about those conditions and also about the lack of an effective remedy by which to complain about them to the domestic authorities. The Court first held that Mr Yengo could no longer claim to be a victim of Article 3 of the Convention prohibiting inhuman and degrading treatment, since the domestic court had awarded him some compensation for the harm sustained as a result of the detention conditions. However, the Court found that at the relevant time French law had not provided Mr Yengo with any preventive remedy by which he could have promptly obtained the termination of his inhuman and degrading conditions of detention. There had therefore been a violation of Article 13 of the Convention.

Forfeiture of wrongfully acquired property: no breach of the applicants’ right to peaceful enjoyment of their possessions - case of Gogitidze and Others v. Georgia - no violation of Article 1 (protection of property) of Protocol No. 1 of the European Convention on Human Rights - The case concerned the court-imposed measure of confiscation of property belonging – in particular – to the former Ajarian Deputy Minister of the Interior. The Court found that a fair balance had been struck between the means employed for forfeiture of the applicants’ assets and the general interest in combatting corruption in the public service. The applicants had not been denied a reasonable opportunity of putting forward their case and the domestic courts’ findings had not been arbitrary. The Court also emphasized that the legislative amendment of 13 February 2004 introducing the administrative confiscation procedure had considerably helped Georgia to move in the right direction in combatting the corruption.

Case concerning convicted prisoners’ entitlement to social security benefits declared inadmissible - case of S.S. v. the United Kingdom and F.A. and Others v. the United Kingdom - The case concerned five convicted prisoners’ entitlement to social security benefits whilst serving criminal sentences in psychiatric hospitals. New regulations were introduced in 2006 to ensure that prisoners in psychiatric hospitals did not receive social security benefits, available to other patients, until the date they would be entitled to release from prison. They notably complained that denying them the social security benefits paid to all other patients in psychiatric hospitals had amounted to unjustified discrimination. The Court emphasised that States have a lot of room for manoeuvre to decide in areas of domestic economic or social policy, such as who is entitled to social security benefits. It therefore concluded that the case was inadmissible, the difference of treatment not being unreasonable given that the applicants, although patients, were also convicted criminals who had been given prison sentences.
"43.  It is established in the Court’s case-law that a difference in treatment between persons in relevantly similar situations will be regarded as discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. The Contracting State enjoys a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment, and this margin is usually wide when it comes to general measures of economic or social strategy. Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is in the public interest on social or economic grounds, and the Court will generally respect the legislature’s policy choice unless it is “manifestly without reasonable foundation” (Stummer, §§ 87-89). The Court has as well recognised a wide margin of appreciation in questions of prisoner and penal policy (Clift, § 73, also Stummer, § 101).
44.  As already noted above, the difference between the applicants and their chosen comparators is a significant one. Moreover, the Court confirms that in the instant case the margin of appreciation due to the respondent State should be a broad one. It notes in this regard that the most relevant European standard in this field, the 2006 European Prison Rules of the Council of Europe, does not envisage the payment of subsistence benefits of prisoners but only refers to those prisoners who perform work (Rule 26.17, also considered in Stummer, § 132).
45.  The Court considers that the two justifications put forward by the Government – the avoidance of double provision and the fact that the non-payment of benefits is an aspect of punishment – are each of a certain weight. In particular, the latter must be regarded as inextricably bound up with the applicants’ prisoner status which, as already indicated, is a very relevant consideration. The Court accepts as being within the respondent State’s margin of appreciation, both as a matter of penal and social policy, the decision to apply a general rule disqualifying convicted prisoners from social security benefits. It follows that the aim of the 2005 regulations, which was to apply this exclusionary rule consistently and to correct the anomaly that saw section 47 patients excluded from some benefits but entitled to others, cannot be said to be manifestly without reasonable foundation. It cannot be said either that fully assimilating these two categories - serving prisoners and section 47 patients - for the purposes of social security is lacking in justification. Rather, it is to be regarded as falling within the range of permissible choices open to the domestic authorities and compatible with Article 14 of the Convention.
46.  Nor does the Court discern any failure to respect the requirement of proportionality. The exclusion is no broader than necessary, being coterminous with the sentence of imprisonment. In the case of a determinate sentence, those detained beyond what would normally have been the date of release have their entitlements restored, placing them on the same footing as other detained patients. Until such time, the applicants’ essential needs, material and medical, are met in any event; the non-payment of subsistence benefits does not leave them without any means of subsistence. Also relevant is the fact that the applicants receive an allowance to meet their incidental expenses. Even if this is a discretionary payment, the applicants did not suggest that it had ever been withheld. That there may be some slight variation between hospitals in the exact amount paid out weekly does not diminish the relevance of this measure.
47.  As for the specific submissions made on behalf of the fourth and fifth applicants, who are subject to a life sentence and have each already served out the minimum term imposed, the Court considers that the significance of their status in criminal law is no less than it is for the other applicants. Their legal position stems directly from the judgment of a criminal court as to the appropriate sentence for the crimes they were found guilty of. As the Court has held in another context, the Contracting States must be allowed a margin of appreciation in deciding on the appropriate length of prison sentences for particular crimes (Vinter and Others v. the United Kingdom [GC], nos. 66069/09, 130/10 and 3896/10, §§ 104-16, ECHR 2013 (extracts)). Accordingly, while the circumstances of the fourth and fifth applicants are different, the Court does not consider that a different analysis is required.
48.  The considerations set out above lead the Court to conclude that the difference of treatment complained of does not constitute discrimination contrary to Article 14 of the Convention. Accordingly, the applications must be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention."

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