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

Thursday, 24 September 2015

This week in Strasbourg - A roundup of the European Court of Human Rights' case law - 2015 - week 39

  • Detention of person who suffers from a chronic auto-immune disease without adequate medical treatment disease violates the convention
  • Case concerning the right to have conviction and sentence reviewed in Spain declared inadmissible
  • Case concerning the reduction of retirement pensions following austerity measures in Portugal declared inadmissible
  • Case concerning the reduction of retirement pensions following austerity measures in Portugal declared inadmissible

Detention of person who suffers from a chronic auto-immune disease, and the fact that he had been unable to have the inadequacy of the medical treatment received while in detention established by the courts violates the convention - Lavrentiadis v. Greece - Violations of Article 5, 3 and 13 - The applicant, Lavrentios Lavrentiadis, is a Greek national who was born in 1972 and lives in Athens. Mr Lavrentiadis suffers from juvenile rheumatoid arthrosis, an illness which causes disability in terms of mobility and renders the individual incapable of looking after his or her own basic needs. Relying on Article 5 § 4 (right to speedy review of the lawfulness of his detention) of the European Convention, Mr Lavrentiadis complained that the indictments division at the criminal court had dismissed his request to appear in person before it and that it had taken 87 days to rule on the lawfulness of his detention. Relying on Articles 3 (prohibition of inhuman or degrading treatment) and 13 (right to an effective remedy), he alleged that his placement in detention had been incompatible with his state of health and had caused a deterioration in it, and submitted that no effective remedy had been available to him to complain of the shortcomings in the medical treatment provided to him in the prison’s psychiatric hospital.

Case concerning the right to have conviction and sentence reviewed in Spain declared inadmissible - In its decision in the case of Dorado Baúlde v. Spain the European Court of Human Rights has declared the application inadmissible. The case concerned the cassation appeal procedure before the Supreme Court in the Spanish judicial system. Mr Dorado Baúlde, the applicant, complained that his right to have his conviction and sentence for drug trafficking reviewed by a higher court had been violated as all factual determinations by the lower court had been final and, as such, there was no possibility of a re-evaluation of the evidence. He principally relied on Article 2 of Protocol No. 7 (right of appeal in criminal matters) to the European Convention on Human Rights. The Court reiterated that the right of review by a higher court of a conviction or sentence under Article 2 of Protocol No. 7 of the Convention may allow for consideration of both points of fact and points of law or be confined solely to points of law and found no reason to depart from the conclusion of the Supreme Court that the scope of the review conformed with international standards.
"15. The Court reiterates that the Contracting States dispose in principle of a wide margin of appreciation to determine how the right secured by Article 2 of Protocol No. 7 to the Convention is to be exercised. Thus, the review by a higher court of a conviction or sentence may concern both points of fact and points of law or be confined solely to points of law (see Krombach v. France, no. 29731/96, § 96, ECHR 2001‑II, and Shvydka v. Ukraine, no. 17888/12, § 49, 30 October 2014). In this regard, the Contracting States may limit the scope of the review by a higher tribunal by virtue of the reference in paragraph 1 of Article 2 of Protocol No. 7 to national law (see Müller v. Austria (no. 2), no. 28034/04, § 37, 18 September 2008). In several member States of the Council of Europe such a review is limited to questions of law or may require the person wishing to appeal to apply for leave to do so (see Pesti and Frodl v. Austria (dec.), nos. 27618/95 and 27619/95, ECHR 2000‑I (extracts)).
16. In the present case, the Supreme Court reiterated in its judgment of 12 April 2011 that the appeal against the Audiencia Nacional’s judgment afforded the applicant the right to have his conviction and sentence reviewed by a higher Tribunal and that this sufficed for the appeal to be considered in conformity with international standards. The Court sees no reason to depart from this conclusion, given the wide margin of appreciation that States enjoy when it comes to determine the scope of this particular right. Additionally, the Court observes that the Supreme Court judgment was subject to further review by the Constitutional Court, which reinforced the applicant’s right to a judicial review of the judgment."
Case concerning the reduction of retirement pensions following austerity measures in Portugal declared inadmissible - In its decision in the case of da Silva Carvalho Rico v. Portugal (application no. 13341/14) the ECHR unanimously declared the application inadmissible. The case concerned the reduction of retirement pensions following austerity measures taken in Portugal, in particular the extraordinary solidarity contribution (“CES”). Following negotiations to receive financial support from the European Union, the euro area Member States and the International Monetary Fund, the Portuguese Government accepted that it had to implement economic and social policies from 2011 to 2014. Thus, Ms da Silva Carvalho, a pensioner belonging to the public-sector pension scheme, had budgetary measures applied to her pension in 2013 and 2014, reducing her monthly income. She complained before the European Court that these measures had breached her right to protection of property under Article 1 of Protocol 1 to the European Convention on Human Rights. The Court noted in particular the overall public interests at stake in Portugal at a time of financial crisis and the limited and temporary nature of the measures applied to Ms da Silva Carvalho Rico’s pension. It therefore found that the pension reduction had been a proportionate restriction on the applicant’s right to protection of property in order to achieve medium-term economic recovery in the country.
"43. The Court notes the Portuguese Constitutional Court’s conclusion in its rulings of 2013 and 2014 that the CES was a proportional measure, in particular given its extraordinary and temporary nature (see paragraphs 17-20 above).
44. In this connection, in examining whether the appropriate balance was struck, the Court takes cognisance of the fact that the CES, and other austerity measures, were adopted against the background of an actual and unexpected budgetary crisis in Portugal. In this regard it further notes that the Portuguese Constitutional Court has delivered different rulings on the issue of social rights (see paragraph 21 above) in which it grounded its decisions on the principle of the “proviso of the possible” (reserva do possível, known in German as the Vorbehalt des Möglichen), according to which a State cannot be forced to comply with its obligations in the framework of social rights if it does not possess the economic means to do so. In this context, the budgetary constraints on the implementation of social rights can be accepted as long as they are proportionate to the public aim pursued (see paragraphs 37-38 and 41-42 above) and do not reduce social rights’ claims to purely symbolic sums (mutatis mutandis, Vistiņš and Perepjolkins, cited above, 129, 25 October 2012). The international recognition of the country’s economic situation indicates that the present budgetary constraints constitute an imperative, which however did not reduce possessions originating in a statutory social right’s claims to a level that deprives the right of its substance (see for cases of total deprivation of a social pension, Kjartan Ásmundsson, cited above § 44 and Moskal v. Poland, no. 10373/05, § 74, 15 September 2009, and for cases of “wholly insufficient” social pension, Larioshina v. Russia (dec.), no. 56869/00, 23 April 2002; Kutepov and Anikeyenko v. Russia (dec.), no. 68029/01, § 62, 25 October 2005; Budina v. Russia (dec.), no. 45603/05, 18 June 2009, and Huc, cited above, § 59, 1 December 2009).
45. The Court then notes that the CES reduced the applicant’s annual pension by EUR 1,286.88 (4.6% of her total annual social security benefits) in 2013 and in 2014, which amounted to a cumulative loss of EUR 2,573.56 in the two years combined. In addition, the CES was only applicable to her pension for a period of two years (2013-2014), on a year-by-year basis. The interference by section 76 of the 2014 State Budget Act with the applicant’s right to peaceful enjoyment of her possessions was therefore limited both in time and in quantitative terms. The Court takes further note that the Portuguese Constitutional Court, in its analysis of the CES, considered that there were no other alternatives which could pursue the same public aims affecting the holders of social rights to a lesser degree (see paragraph 18 above). Moreover, since the legislature remained within the limits of its margin of appreciation, it is not for the Court to decide whether better alternative measures could have been envisaged in order to reduce the State budget deficit and overcome the financial crisis (see Da Conceição Mateus and Santos Januário, cited above, § 28). Thus, as regards the personal burden which the applicant sustained on account of the impugned measure in force in 2014, the Court notes that she did not suffer a substantial deprivation of income."

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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