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

Thursday, 9 July 2015

This week in Strasbourg - A roundup of the European Court of Human Rights' case law - 2015 - week 28


  • The conditions of extreme poverty faced by a family of asylum seekers following their eviction from an accommodation centre constituted degrading treatment.
  • Inadequate physical conditions and sanitation facilities for HIV-positive persons in Korydallos Prison Hospital.
  • Pilot judgment: Poland has to take further steps to tackle problem of lengthy court proceedings and adequately compensate victims.
  • Banking data, irrespective of whether it contains sensitive information, is protected under the Convention.

The conditions of extreme poverty faced by a family of asylum seekers following their eviction from an accommodation centre constituted degrading treatment - case of V.M. and Others v. Belgium - a violation of Article 3 (prohibition of inhuman or degrading treatment) of the European Convention on Human Rights and of Article 13 (right to an effective remedy) taken in conjunction with Article 3, and no violation of Article 2 (right to life) - The case concerned the reception conditions of a family of Serbian nationals seeking asylum in Belgium. Following an order to leave the country and despite their appeals against the measure, the applicants were left without basic means of subsistence and were obliged to return to their country of origin, where their severely disabled child died. The Court found in particular that the Belgian authorities had not given due consideration to the vulnerability of the applicants, who had remained for four weeks in conditions of extreme poverty, and that they had failed in their obligation not to expose the applicants to degrading treatment, notwithstanding the fact that the reception network for asylum seekers in Belgium had been severely overstretched at the time (the “reception crisis” of 2008 to 2013). The Court considered that the requirement of special protection of asylum seekers had been even more important in view of the presence of small children, including an infant, and of a disabled child. Furthermore, the fact that the appeal against the order for the applicants’ deportation did not have suspensive effect had resulted in all material support for the applicants being withdrawn and had forced them to return to their country of origin without their fears of a possible violation of Article 3 in that country having been examined.

Inadequate physical conditions and sanitation facilities for HIV-positive persons in Korydallos Prison Hospital - case of Martzaklis and Others v. Greece - violation of Article 3 (prohibition of torture and inhuman or degrading treatment) of the European Convention on Human Rights;a violation of Article 13 (right to an effective remedy) of the Convention. The case concerned the conditions of detention of HIV-positive persons in the psychiatric wing of
Korydallos Prison Hospital. The Court found established the inadequate physical conditions and sanitation facilities for persons detained in the prison hospital, and also the irregularities in the administration of medical treatment. It held that the applicants had been subjected to physical and mental suffering going beyond the suffering inherent in detention.

Pilot judgment: Poland has to take further steps to tackle problem of lengthy court proceedings and adequately compensate victims - case of Rutkowski and Others v. Poland concerned the applicants’ complaints that the length of the proceedings before the Polish courts in their respective cases had been excessive and that the operation of the remedy at national level for the excessive length of court proceedings was defective - a violation of Article 6 § 1 (right to a hearing within a reasonable time) of the European Convention on Human Rights, and a violation of Article 13 (right to an effective remedy). The Court concluded that the situation of which the applicants complained had to be qualified as a practice which was incompatible with the European Convention and decided to apply the pilot- judgment procedure. The Polish Government had argued that a 2013 resolution by the Polish Supreme Court, acknowledging that the previous practice as regards compensation for unreasonable length of proceedings had been defective, had put an end to that practice. However, an increased inflow of repetitive cases before the Court in 2013 and 2014 involving length of proceedings and insufficient compensation at national level showed that further measures were needed. The Council of Europe’s Committee of Ministers, in the course of the execution of the Court’s judgments, was to monitor such measures to be taken by Poland.
There are about 650 similar cases pending before the Court at different stages of the procedure. The Court decided to communicate to the Polish Government all new applications, giving it a two- year time limit for processing those cases and affording redress to all victims.
"General principles deriving from the Court’s case-law
200.  Article 46 of the Convention, as interpreted in the light of Article 1, imposes on the respondent State a legal obligation to implement, under the supervision of the Committee of Ministers, appropriate general and/or individual measures to secure the right of the applicant which the Court has found to have been violated. Such measures must also be taken in respect of other persons in the applicant’s position, notably by resolving the problems that have led to the Court’s findings (see, among other examples, Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 249, ECHR 2000-VIII; Broniowski v. Poland [GC], no. 31443/96, § 192-193, ECHR 2004‑V; Lukenda v. Slovenia, no. 23032/02, § 94, ECHR 2005‑X; Burdov v. Russia (no. 2), no. 33509/04, § 125, ECHR 2009; Greens and M.T. v. the United Kingdom, nos. 60041/08 and 60054/08, § 106, ECHR 2010 (extracts); Glykantzi v. Greece, no. 40150/09, § 62, 30 October 2012; and Torreggiani and Others v. Italy, nos. 43517/09, 46882/09, 55400/09, 57875/09, 61535/09, 35315/10 and 37818/10, § 83, 8 January 2013).
That obligation was consistently emphasised by the Committee of Ministers in the supervision of the execution of the Court’s judgments (see, among many authorities, Interim Resolutions ResDH(97)336 in cases concerning the length of proceedings in Italy and ResDH (2007)28 (the 2007 CM Resolution) in cases concerning the length of proceedings and the right to an effective remedy in Poland (paragraphs 118-119 above).
In this context the Court’s concern is to facilitate the most speedy and effective resolution of a dysfunction established in national human rights protection. Once such a defect has been identified, it falls to the national authorities, under the supervision of the Committee of Ministers, to take, retroactively if appropriate the necessary remedial measures in accordance with the subsidiary character of the Convention, so that the Court does not have to repeat its finding in a lengthy series of comparable cases (see Broniowski, cited above, § 193).
201.  In order to facilitate effective implementation of its judgments along these lines, the Court may adopt a pilot-judgment procedure allowing it to clearly identify in a judgment the existence of structural problems underlying the violations and to indicate specific measures or actions to be taken by the respondent State to remedy them (see Broniowski, cited above, §§ 189-94 and the operative part and Hutten-Czapska v. Poland [GC], no. 35014/97, §§ 231-39 and the operative part, ECHR 2006-VIII). This adjudicative approach is, however, pursued with due respect for the Convention organs’ respective functions: it falls to the Committee of Ministers to evaluate the implementation of individual and general measures under Article 46 § 2 of the Convention (see, mutatis mutandis, Broniowski v. Poland (friendly settlement) [GC], no. 31443/96, § 42, ECHR 2005‑IX and Hutten-Czapska v. Poland (friendly settlement) [GC], no. 35014/97, § 42, 28 April 2008).
202.  Another important aim of the pilot-judgment procedure is to induce the respondent State to resolve large numbers of individual cases arising from the same structural problem at the domestic level, thus implementing the principle of subsidiarity which underpins the Convention system. Indeed, the Court’s task, as defined by Article 19, that is to “ensure the observance of the engagements undertaken by the High Contracting Parties in the Convention and the Protocols thereto”, is not necessarily best achieved by repeating the same findings in a large series of cases (see, mutatis mutandis, E.G. v. Poland (dec.), no. 50425/99, § 27, ECHR 2008). The object of the pilot-judgment procedure is to facilitate the speediest and most effective resolution of a dysfunction affecting the protection of the Convention rights in question in the national legal order (see Wolkenberg and Others v. Poland (dec.), no. 50003/99, § 34, 4 December 2007). While the respondent State’s action should primarily aim at the resolution of such a dysfunction and at the introduction, where appropriate, of effective domestic remedies in respect of the violations in question, it may also include ad hoc solutions such as friendly settlements with the applicants or unilateral remedial offers in line with the Convention requirements (see Burdov (no. 2), cited above, § 127 and M.C. and Others v. Italy, no. 5376/11, § 111, 3 September 2013)."
Banking data, irrespective of whether it contains sensitive information, is protected under the Conventioncase of M.N. and Others v. San Marino - a violation of Article 8 (right to respect for private life and correspondence) of the European Convention on Human Rights in respect of one of the applicants, M.N..The case concerned the search and seizure of documents relating to banking and fiduciary relationships. The applicants, four Italian nationals, notably complained about a decision by the San Marino judicial authorities ordering the seizure of banking documents related to them. The decision was made at the request of the Italian prosecution authorities in the context of an on-going criminal investigation – not involving the applicants – into money laundering in Italy. The Court underlined that there was no doubt that banking documents amounted to personal data concerning an individual, irrespective of whether or not they contained sensitive information, and irrespective of who was the owner of the medium on which the information was held. Such information was thus protected under Article 8’s notion of “private life”. Furthermore, the right to respect for correspondence under Article 8 was also engaged as the seizure order covered the exchange of letters and e-mails.
The Court found that there had been a lack of procedural safeguards under San Marino law, in so far as M.N had not been able to contest the search and seizure decision in his regard, following its implementation. Given that M.N. had not been charged with any financial wrongdoing nor had he been the owner of the banking institutes searched, he had no standing to contest the seizure, copying and subsequent storage of information retrieved from his bank statements, cheques, fiduciary dispositions and e-mails. Indeed M.N., who was not an accused in the original criminal procedure, had been at a significant disadvantage as compared to the accused in those proceedings or to the possessor of the banking or fiduciary institute, all of whom were entitled to challenge the search and seizure decision. As a result, M.N. had not enjoyed the effective protection of national law.

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