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

Thursday, 2 July 2015

This week in Strasbourg - A roundup of the European Court of Human Rights' case law - 2015 - week 27

  • JUDICIAL ETHICS - A lawyer’s conviction for defamation of a judge was justified and did not infringe his freedom of expression
  • Turkish authorities failed in their obligations vis-à-vis the rights of a hospital patient
  • Prison regime allowing only short-term family visits twice a year over ten-year period violated prisoner’s right to family life
  • Poland must take legislative measures to stop the practice of detaining juveniles subject to correctional proceedings without a specific judicial decision
  • Adverse media coverage did not prejudice the outcome of proceedings against a suspect in a terrorist plot to cause explosions on aircraft
  • Removal of asylum seeker – suffering from post-traumatic stress disease – to Italy under the EU ‘Dublin’ Regulation would not violate the Convention
  • Prison regime allowing only short-term family visits twice a year over ten-year period violated prisoner’s right to family life
A lawyer’s conviction for defamation of a judge was justified and did not infringe his freedom of expressioncase of Peruzzi v. Italy - no violation of Article 10 (freedom of expression) of the European Convention on Human Rights - The case concerned the criminal conviction of Mr Peruzzi, a lawyer, for having defamed an investigating judge (Judge X) in the context of proceedings regarding the division of an estate in which he had been acting for two clients. Mr Peruzzi sent a circular letter to Judge X and other judges of the Lucca District Court containing the text of a previous letter he had written to the Supreme Council of the Judiciary complaining of Judge X’s conduct. The Court found in particular that one of the two criticisms levelled against Judge X by the applicant had implied that the former had disregarded his ethical obligations as a judge or had even committed a criminal offence. However, Mr Peruzzi had not sought to establish the truth of his allegations of wrongful conduct. The Court considered that Mr Peruzzi’s conviction could reasonably be considered “necessary in a democratic society” in order to protect the reputation of others and maintain the authority and impartiality of the judiciary. The present case was to be distinguished from the case of Nikula v. Finland, in which the criticisms regarding a prosecutor had been made in the context of judicial proceedings. The issue in the present case concerned remarks made by the lawyer outside the courtroom, as in the case of Morice v. France (where they had been made in the media).

The authorities failed in their obligations vis-à-vis the rights of a hospital patientcase of Altuğ and Others v. Turkeyviolation of Article 2 (right to life) of the European Convention on Human Rights - The case concerned the death of Ms Keşoğlu at the age of 74 as the result of a violent allergic reaction to a penicillin derivative administered by intravenous injection in a private hospital. The Court pointed out that it was not its role to speculate on the possible responsibility of the medical team in question in Ms Keşoğlu’s death. It considered, nevertheless, that the authorities had failed to ensure appropriate implementation of the relevant legislative and statutory framework geared to protecting patients’ right to life. Indeed, neither the medical experts, who considered that the death had been a question of therapeutic contingency, nor the Turkish courts had addressed the possibility that the medical team had infringed the current legal provisions (obligation to question patients or their families on their medical record, to inform them of the possibility of an allergic reaction and to obtain their consent to the administration of the drug in question).

Poland must take legislative measures to stop the practice of detaining juveniles subject to correctional proceedings without a specific judicial decisioncase of Grabowski v. Polandviolation of Article 5 §§ 1 and 4 (right to liberty and security) of the European Convention on Human Rights. The applicant, Mr Grabowski, 17 years old at the time, complained that his placement in a shelter for juveniles had been extended for a period of five months without a specific court order, pending a decision in correctional proceedings against him. The Court found in particular that this situation had resulted from the judicial practice which had developed under the Juvenile Act in Poland of keeping juveniles in a shelter once their case had been referred for correctional proceedings, without issuing a separate decision to extend their detention. It considered that that practice had resulted from the lack of precision in the provisions of the Juvenile Act and therefore found that Mr Grabowski’s continued detention for five months after the expiry of the initial order to detain him had not been lawful. Furthermore, the judicial review of Mr Grabowski’s application for release had not been adequate, as it had not explained the legal basis for his continued detention in the shelter for juveniles, but simply referred to the fact that he had been accused of serious criminal acts. In the Court’s view, the problems identified in Mr Grabowski’s case could subsequently give rise to other well-founded applications, there apparently being 340 juveniles placed in shelters in a similar situation to that of Mr Grabowski (statistics as of 2012). The Court therefore called for Poland to take legislative measures to stop this practice and to ensure that each and every deprivation of liberty of a juvenile is authorised by a specific judicial decision.

Adverse media coverage did not prejudice the outcome of proceedings against a suspect in a terrorist plot to cause explosions on aircraftcase of Abdulla Ali v. the United Kingdomno violation of Article 6 § 1 (right to a fair trial) of the European Convention on Human Rights - The case concerned Mr Ali’s complaint that, because of extensive adverse media coverage, the criminal proceedings against him for conspiring in a terrorist plot to cause explosions on aircraft using liquid bombs had been unfair. Following a first trial in Mr Ali’s case which had resulted in his conviction on a charge of conspiracy to murder, there had been extensive media coverage, including reporting on material which had never been put before the jury. A retrial was subsequently ordered in respect of the more specific charge of conspiracy to murder by way of detonation of explosive devices on aircraft mid-flight (on which the jury at the first trial had been unable to reach a verdict) and Mr Ali argued that it was impossible for the retrial to be fair, given the impact of the adverse publicity. His argument was rejected by the retrial judge and he was convicted at the retrial. He was sentenced to life imprisonment with a minimum term of 40 years. The Court found in particular that the applicable legal framework in the UK for ensuring a fair trial in the event of adverse publicity had provided appropriate guidance for the retrial judge. It further found that the steps taken by the judge were sufficient. Thus, he considered whether enough time had elapsed to allow the prejudicial reporting to fade into the past before the retrial commenced and recognised the need to give careful jury directions on the importance of impartiality and of deciding the case on the basis of evidence led in court only. He subsequently gave regular and clear directions, to which Mr Ali did not object. The fact that the jury subsequently handed down differentiated verdicts in respect of the multiple defendants in the retrial proceedings supported the judge’s conclusion that the jury could be trusted to be discerning and follow his instructions to decide the case fairly on the basis of the evidence led in court alone.

Removal of asylum seeker – suffering from post-traumatic stress disease – to Italy under the EU ‘Dublin’ Regulation would not violate the Conventioncase of A.S. v. Switzerland concerned an asylum seeker’s impending removal from Switzerland to Italy -  if A.S. were removed to Italy, there would be: no violation of Article 3 (prohibition of inhuman or degrading treatment) of the European Convention on Human Rights, and no violation of Article 8 (right to respect for private and family life). The Court observed in particular that A.S. was not critically ill and found that there was currently no indication that he would not receive appropriate psychological treatment if removed to Italy. While the Court had previously raised serious doubts as to the capacities of the reception system for asylum seekers in Italy, the reception arrangements there could not in itself justify barring all removals of asylum seekers to Italy.

Prison regime allowing only short-term family visits twice a year over ten-year period violated prisoner’s right to family lifecase of Khoroshenko v. Russia - violation of Article 8 (right to respect for private and family life) of the European Convention on Human Rights - The case concerned the complaint by a life prisoner about various restrictions on family visits during ten years of his detention in a special regime correctional colony.The Court found in particular that the strict regime had been disproportionate to the aims pursued and that such a regime seriously complicated a prisoner’s social reintegration and rehabilitation. Given that a majority of Council of Europe member States did not make a distinction between life prisoners and other prisoners as regards the prison regime and that in those States the minimum frequency of family visits allowed for life prisoners was not lower than once every two months, Russia had only a narrow room for manoeuvre (“margin of appreciation”) in this field.


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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