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

Friday, 8 May 2015

This week in Strasbourg - A roundup of the European Court of Human Rights' case law - 2015 - week 19

Journalist was ill-treated following an unlawful police raid on a private party to celebrate Che Guevara’s birthday in Baku - case of Emin Huseynov v. Azerbaijan - two violations of Article 3 (prohibition of inhuman or degrading treatment and lack of effective investigation) of the European Convention on Human Rights; a violation of Article 5 § 1 (right to liberty and security); and a violation of Article 11 (freedom of assembly) - The case concerned the police’s treatment of a journalist who was arrested at a café in Baku during a private party to celebrate Che Guevara’s birthday, and who had to be admitted to intensive care in a hospital following his release from police custody. The Court found in particular that Mr Huseynov had been ill-treated during his arrest and whilst in police detention and that there had been no effective investigation in this respect. It further found that he had been unlawfully deprived of his liberty and that the police intervention had amounted to an unlawful interference with his freedom of assembly.
"Whether the interference was justified
96.  The Court reiterates that an interference will constitute a breach of Article 11 unless it is “prescribed by law”, pursues one or more legitimate aims under paragraph 2, and is “necessary in a democratic society” for the achievement of those aims (see Djavit An, cited above, § 63; Balçık and Others v. Turkey, no. 25/02, § 44, 29 November 2007; and Sergey Kuznetsov v. Russia, no. 10877/04, § 37, 23 October 2008).

97.  The Court also considers it necessary to reiterate that the right to freedom of assembly enshrined in Article 11 is a fundamental right in a democratic society and, like the right to freedom of expression, is one of the foundations of such a society. Thus, it should not be interpreted restrictively (see Djavit An, cited above, § 56). Accordingly, States must not only safeguard the right to assemble peacefully, but must also refrain from applying unreasonable indirect restrictions upon that right. In view of the essential nature of freedom of assembly and its close relationship with democracy, there must be convincing and compelling reasons to justify an interference with this right (see Ouranio Toxo v. Greece, no. 74989/01, § 36, ECHR 2005‑X (extracts), and Adalı v. Turkey, no. 38187/97, § 267, 31 March 2005, with further references).

98.  Turning to the circumstances of the present case, the Court observes at the outset that the Government failed to refer to any domestic law or provisions which could constitute the legal basis for the dispersal of a gathering held in places which are in private ownership. In this connection, the Court notes that under Azerbaijani law the legal basis for the police intervention in an assembly and its potential dispersal is set out in Articles 7 and 14 of the Law on Freedom of Assembly. However, Article 4.1 of the same Law clearly provided that the right to hold gatherings in places which are in private ownership is not regulated by this Law. The Government also did not contest that an assembly held in a private café is not subject to any requirement of notification.

99.  The Court further observes that the only reason provided by the Government for the police intervention, without relying on any domestic law provision, was the fact that neighbours had complained about the gathering. However, the Government failed to submit any evidence in support of their argument. Moreover, the Court finds that this argument is contradicted by the explanation concerning the police intervention of 14 June 2008 in which the Head of Nasimi District Police Station no. 22 stated that the police had intervened in order to identify the persons gathered and to establish the purpose of the gathering, without referring to any complaint from neighbours (see paragraph 26 above). The spokesman for the Ministry of Internal Affairs also indicated in his statement of 17 June 2008 that the police had intervened in order to interrupt an unauthorised gathering and to identify its participants, without referring to any complaint from neighbours (see paragraph 23 above).
100.  The foregoing considerations are sufficient to enable the Court to conclude that the interference which constituted the dispersal of a peaceful gathering in a private property was not “prescribed by law” within the meaning of Article 11 § 2 of the Convention.
101.  Having reached that conclusion, the Court does not need to satisfy itself that the other requirements of Article 11 § 2 (legitimate aim and necessity of the interference) have been complied with.
102.  There has accordingly been a violation of Article 11 of the Convention."
Croatian authorities failed to protect children’s best interests in property deal - case of S.L. and J.L. v. Croatia - a violation of Article 1 (protection of property) of Protocol 1 to the European Convention on Human Rights. The case concerned a deal to swap a seaside villa for a less valuable flat. The Social Welfare Centre had to give its consent to the deal as the owners of the villa, S.L. and J.L., were minors. The Social Welfare Centre agreed to the proposed swap without rigorously examining the particular circumstances of the case or the family. The lawyer acting on behalf of the children’s parents also happened to be the son-in-law of the original owner of the flat. The subsequent efforts by the girls and J.L.’s father – both girls’ legal guardian – to challenge the legality of the deal in court was rejected as they had not challenged the decision during the administrative proceedings even though at the time the girls had been minors, J.L.’s father had been in detention, the mother was a drug- addict with financial difficulties, and their lawyer had a conflict of interests. The Court found that the domestic authorities failed to take the necessary measures to safeguard the proprietary interests of the children in the real estate swap agreement or to give them a reasonable opportunity to effectively challenge the agreement.
"General principles
57.  The Court notes at the outset that it is undisputed in the present case that the questions relating to the applicants’ proprietary interests concerning the real estate swap agreement fall to be examined under Article 1 of Protocol No. 1.

58.  While the essential object of Article 1 of Protocol No. 1 is to protect the individual against unjustified interference by the State with the peaceful enjoyment of his or her possessions, it may also entail positive obligations requiring the State to take certain measures necessary to protect property rights, particularly where there is a direct link between the measures an applicant may legitimately expect from the authorities and his or her effective enjoyment of his or her possessions (see Sovtransavto Holding v. Ukraine, no. 48553/99, § 96, ECHR 2002-VII, and cases cited therein; Öneryıldız v. Turkey [GC], no. 48939/99, § 134, ECHR 2004‑XII; Broniowski v. Poland [GC], no. 31443/96, § 143, ECHR 2004-V; Păduraru v. Romania, no. 63252/00, § 88, ECHR 2005-XII; Bistrović v. Croatia, no. 25774/05, § 35, 31 May 2007; and Zolotas v. Greece (no. 2), no. 66610/09, § 47, CEDH 2013). In particular, allegations of a failure on the part of the State to take positive action in order to protect private property should be examined in the light of the general rule in the first sentence of the first paragraph of Article 1 of Protocol No. 1 to the Convention, which lays down the right to the peaceful enjoyment of possessions (see Kolyadenko and Others v. Russia, nos. 17423/05, 20534/05, 20678/05, 23263/05, 24283/05 and 35673/05, § 213, 28 February 2012).

59.  Although the boundaries between the State’s positive and negative obligations under Article 1 of Protocol No. 1 do not lend themselves to precise definition the applicable principles are nonetheless similar. Whether the case is analysed in terms of a positive duty on the part of the State or in terms of interference by a public authority which needs to be justified, the criteria to be applied do not differ in substance. In both the case of an interference with the peaceful enjoyment of possessions and that of an abstention from action, a fair balance must be struck between the demands of the general interests of the community and the requirement to protect the individual’s fundamental rights (see, among other authorities, Sporrong and Lönnroth v. Sweden, 23 September 1982, § 69, Series A no. 52, and Kotov v. Russia [GC], no. 54522/00, § 110, 3 April 2012).

60.  In order to assess whether the State’s conduct satisfied the requirements of Article 1 of Protocol No. 1, the Court must have regard to the fact that the Convention is intended to guarantee rights that are practical and effective. It must go beneath superficial appearances and look into the reality of the situation, which requires an overall examination of the various interests in issue; this may call for an analysis of, inter alia, the conduct of the parties to the proceedings, including the steps taken by the State (see Beyeler v. Italy [GC], no. 33202/96, § 114, ECHR 2000‑I; Novoseletskiy v. Ukraine, no. 47148/99, § 102, 22 February 2005).
61.  Furthermore, the positive obligations imply, in particular, that States are obliged to provide judicial procedures that offer the necessary procedural guarantees and therefore enable the domestic courts and tribunals to adjudicate effectively and fairly any cases concerning property matters (see Anheuser-Busch Inc. v. Portugal [GC], no. 73049/01, § 83, ECHR 2007‑I, and Chadzitaskos and Franta v. the Czech Republic, nos. 7398/07, 31244/07, 11993/08 and 3957/09, § 48, 27 September 2012), including those between private parties (see Zehentner v. Austria, no. 20082/02, §§ 73 and 75, 16 July 2009). The proceedings at issue must afford the individual a reasonable opportunity of putting his or her case to the relevant authorities for the purpose of effectively challenging the measures interfering with the rights guaranteed by this provision. In ascertaining whether this condition has been satisfied, the Court takes a comprehensive view (see Jokela v. Finland, no. 28856/95, § 45, ECHR 2002‑IV, and cases cited therein, and Zehentner, cited above, § 73).
62.  The Court has also held that where children are involved, their best interests must be taken into account (see, for example, X v. Latvia [GC], no. 27853/09, § 96, ECHR 2013). On this particular point, the Court reiterates that there is a broad consensus, including in international law, in support of the idea that in all decisions concerning children, their best interests are of paramount importance. Whilst alone they cannot be decisive, such interests certainly must be afforded significant weight (see Jeunesse v. the Netherlands [GC], no. 12738/10, § 109, 3 October 2014). Indeed, the Convention on the Rights of the Child gives the child the right to have his or her best interests assessed and taken into account as a primary consideration in all actions or decisions that concern him or her, both in the public and private sphere, which expresses one of the fundamental values of that Convention (see paragraphs 42 and 43 above).
63.  The Court’s case-law shows that these considerations are of significance also in the area of protection of the child’s proprietary interests that falls under Article 1 of Protocol No. 1. Thus, the Court must assess the manner in which the domestic authorities’ acted in protecting the child’s proprietary interests against any malevolent or negligent actions on the part of others, including their legal representatives and natural parents (see Lazarev and Lazarev v. Russia (dec.), no. 16153/03, 24 November 2005)."

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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