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

Wednesday, 5 August 2015

This week in Strasbourg - A roundup of the European Court of Human Rights' case law - 2015 - weeks 29/30/31

  • Arrest at a station by railway security officers: no satisfactory and convincing explanation received for injuries later noted
  • Courts were obliged to review lawfulness of convict’s confinement in mental institution although it could only be replaced by ordinary imprisonment
  • Differing interpretations by the Supreme Court on the admissibility of an action against the State for civil liability
  • Excessively long civil proceedings are a structural problem in Hungary; pilot-judgment procedure applied
  • Statement by a Romanian court spokesperson concerning an individual’s guilt before the judicial decision had been delivered
  • Case concerning UK ban on assisted suicide and voluntary euthanasia declared inadmissibly
  • Italy should introduce possibility of legal recognition for same-sex couples
  • Proceedings for return of a boy from Georgia to Ukraine failed to take his best interests into account and took too long
  • Inflexibility of Russian family law: complete and automatic exclusion of non-biological father from child’s life after termination of his paternity
  • Inflexibility of Russian family law: complete and automatic exclusion of non-biological father from child’s life after termination of his paternity
Arrest at a station by railway security officers: no satisfactory and convincing explanation received for injuries later notedcase of Ghedir and Others v. FranceThis case concerned allegations of ill-treatment during an arrest carried out at a station by security officers of the SNCF (the French national railway company) and police officers.
The Court held, unanimously, that there had been:
a violation of Article 3 (prohibition of inhuman or degrading treatment) of the European Convention on Human Rights on account of the lack of a satisfactory explanation by the authorities for Abdelkader Ghedir’s injuries; and
no violation of Article 3 as regards the conduct of the investigations.
The Court, observing that the investigations had yielded conflicting and disturbing evidence, found that the French authorities had not provided a satisfactory and convincing explanation for Abdelkader Ghedir’s injuries, the symptoms of which had become apparent while he was in police custody, and concluded that there were sufficient inferences to support a finding of a violation of Article 3.
However, it found that Abdelkader Ghedir had not shown that the investigations carried out had failed to satisfy the requirements of an effective investigation.


Courts were obliged to review lawfulness of convict’s confinement in mental institution although it could only be replaced by ordinary imprisonment case of Kuttner v. Austria a violation of Article 5 § 4 (right to liberty and security / right to have lawfulness of detention decided speedily by a court), of the European Convention on Human Rights. The case essentially concerned a convicted offender’s complaint about the delay in dealing with his application for release from a psychiatric institution.
As regards the admissibility of the complaint, the Court underlined that Article 5 § 4 was applicable in the case although Mr Kuttner’s request for review of his detention in the institution could not have led to his release at the time but only to his transfer to an ordinary prison. As regards the merits of the complaint, the Court found in particular that the period of 16 months between the final decisions in the first and the second set of proceedings concerning Mr Kuttner’s request to be released from the institution did not fulfil the requirement of a speedy review and that the delay in examining his request was attributable to the courts.

Differing interpretations by the Supreme Court on the admissibility of an action against the State for civil liabilitycase of Ferreira Santos Pardal v. Portugal a violation of Article 6 § 1 (right to a fair hearing) of the European Convention on Human Rights. The case concerned the dismissal of an action for civil liability brought by the applicant against theState, a dismissal which was contrary to the Supreme Court’s settled case-law in the matter. The Court found in particular that the uncertainty in the case-law which had led to the dismissal of the action brought by Mr Ferreira Santos Pardal, taken together with the absence of a mechanism within the Supreme Court for ensuring consistency in its case-law, had had the effect of depriving the applicant of the possibility of having his action against the State examined, although this right had been made available to other persons in a similar situation.


Excessively long civil proceedings are a structural problem in Hungary; pilot-judgment procedure appliedcase of Gazsó v. Hungary - The case concerned Mr Gazsó’s complaint about the excessive length – more than six years – of litigation in a labour dispute.
The Court held, unanimously, that there had been:
A violation of Article 6 § 1 (right to a fair hearing within a reasonable time) of the European Convention on Human Rights, and,
A violation of Article 13 (right to an effective remedy) read in conjunction with Article 6 § 1 of the Convention.
The Court noted that it had already found in numerous cases that the length of civil proceedings in Hungary was excessive – 24 violations found in 2014 alone – and that 400 cases stemming from the same issue were pending before it. In this context, it held that the violations found in Mr Gazsó’s case had originated in a practice incompatible with the Convention, namely Hungary’s recurrent failure to ensure that such proceedings were completed within a reasonable time.
In view of the number of people affected by this issue and their need for speedy and appropriate redress, the Court decided to apply the pilot-judgment procedure2, and held that Hungary had to introduce, at the latest within one year from the date on which the Gazsó judgment became final, an effective domestic remedy regarding excessively long civil proceedings.
The Court further decided to adjourn for one year the examination of any similar new cases introduced after the date on which the Gazsó judgment became final, pending the implementation of the relevant measures by Hungary.


Statement by a Romanian court spokesperson concerning an individual’s guilt before the judicial decision had been delivered case of Neagoe v. Romania - a violation of Article 6 § 2 (presumption of innocence) of the European Convention on Human Rights
The case concerned a statement made by the spokesperson of the Court of Appeal before the latter had conducted its deliberations, encouraging the public to consider the applicant, Mr Neagoe, guilty of – among other things – manslaughter. The Court found in particular that the spokesperson had communicated his personal opinion on Mr Neagoe’s guilt to the public before the Court of Appeal had delivered its judgment. The Court reiterated that his subsequent conviction had no impact on the right to the presumption of innocence, which had to be complied with before the delivery of any judicial decision.


Case concerning UK ban on assisted suicide and voluntary euthanasia declared inadmissible - In its decision in the case of Nicklinson and Lamb v. the United Kingdom the European Court of Human Rights has unanimously declared the applications inadmissible. The decision is final. The case concerned the ban under UK law on assisted suicide and voluntary euthanasia. Assisted suicide is prohibited by section 2(1) of the Suicide Act 1961 and voluntary euthanasia is considered to be murder under UK law.
Mrs Nicklinson, the wife of Tony Nicklinson (now deceased) who was suffering from locked-in syndrome and wished to end his life, complained that the domestic courts had failed to determine the compatibility of the law in the UK on assisted suicide with her and her husband’s right to respect for private and family life. The ECtHR declared this application inadmissible as manifestly ill-founded, finding that Article 8 did not impose procedural obligations which required the domestic courts to examine the merits of a challenge brought in respect of primary legislation as in the present case. In any event, it was of the view that the majority of the Supreme Court had examined the substance of Mrs Nicklinson’s complaint. Mr Lamb, who is paralysed and also wishes to end his life, brought a complaint about the failure to provide him with the opportunity to obtain court permission to allow a volunteer to administer lethal drugs to him with his consent. The ECtHR declared his application inadmissible for non- exhaustion of domestic remedies.
The case Nicklinson and Lamb concerns the compatibility of the ban on assisted suicide and voluntary euthanasia with Article 8 (right to respect for private and family life) of the European Convention on Human Rights and not with the stopping of treatment of a tetraplegic in a state of complete dependency under Article 2 (right to life) of the Convention, as was recently examined by the Court’s Grand Chamber in the case Lambert v. France.

Italy should introduce possibility of legal recognition for same-sex couples case of Oliari and Others v. Italy - a 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 three homosexual couples that under Italian legislation they do not have the possibility to get married or enter into any other type of civil union. The Court considered that the legal protection currently available to same-sex couples in Italy – as was shown by the applicants’ situation – did not only fail to provide for the core needs relevant to a couple in a stable committed relationship, but it was also not sufficiently reliable. A civil union or registered partnership would be the most appropriate way for same-sex couples like the applicants to have their relationship legally recognised. The Court pointed out, in particular, that there was a trend among Council of Europe member States towards legal recognition of same-sex couples – 24 out of the 47 member States having legislated in favour of such recognition – and that the Italian Constitutional Court had repeatedly called for such protection and recognition. Furthermore, according to recent surveys, a majority of the Italian population supported legal recognition of homosexual couples.

Proceedings for return of a boy from Georgia to Ukraine failed to take his best interests into account and took too long - case of G.S. v. Georgia - a 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 G.S., the applicant, about proceedings in Georgia for the return of her son, born in 2004, to Ukraine. Her former partner decided to keep their son in Georgia with family at the end of the summer holidays in 2010, while himself living in Russia and occasionally visiting his son in Georgia.
The Court considered that there had been shortcomings in the Georgian courts’ examination of the expert and other evidence in the return proceedings on the case. In particular, when identifying what would be in the boy’s best interests, the courts gave no consideration to reports by social workers and a psychologist, which had concluded that the boy was suffering from lack of contact with both parents and a situation which was barely understandable. Indeed, it was questionable whether keeping the boy, who had spent the first six years of his life in Ukraine, in Georgia in the care of his paternal family – who had no custody rights – and without either of his parents, was in itself in his best interests.


Inflexibility of Russian family law: complete and automatic exclusion of non-biological father from child’s life after termination of his paternity - case of Nazarenko v. Russia a violation of Article 8 (right to respect for private and family life) of the European Convention on Human Rights.
The case concerned Mr Nazarenko’s exclusion from his daughter’s life when, it having been revealed that he was not the biological father, his paternity was terminated.
The Court found in particular that the authorities had failed to provide a possibility for the family ties between Mr Nazarenko and the child, who had developed a close emotional bond over a number of years and believed themselves to be father and daughter, to be maintained. Mr Nazarenko’s complete and automatic exclusion from the child’s life after the termination of his paternity without any weighing in the balance of the child’s best interests – the consequence of the inflexibility of the domestic law which provides that only relatives are entitled to maintain contact – had therefore amounted to a failure to respect his family life.
Indeed, the Court considered that States should be obliged to examine on a case-by-case basis whether it is in a child’s best interests to maintain contact with a person, whether biologically related or not.


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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