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

Thursday, 19 November 2015

This week in Strasbourg - A roundup of the European Court of Human Rights' case law - 2015 - week 47


  • Proceedings failed to establish responsibilities for death of earthquake victims
  • Prison conditions constituted degrading treatment of detainee with fragile mental health
  • Russian law should have provided free legal assistance to a pensioner in proceedings against her for participating in a march
  • Domestic courts should have ensured respect for a father’s right of contact with his child
Proceedings failed to establish responsibilities for death of earthquake victims - case of Özel and Others v. Turkey - violation of Article 2 (right to life) of the European Convention on Human Rights - The case concerned the deaths of the applicants’ family members, who were buried alive under buildings that collapsed in the town of Çınarcık in an earthquake on 17 August 1999, one of the deadliest earthquakes ever recorded in Turkey. The Court found in particular that the national authorities had not acted promptly in determining the responsibilities and circumstances of the collapse of the buildings which had caused the deaths.

Prison conditions constituted degrading treatment of detainee with fragile mental health - case of Bamouhammad v. Belgium - violations of Article 3 (prohibition of inhuman or degrading treatment)  and Article 13 (right to an effective remedy) taken together with Article 3 of the Convention - The case concerned the conditions of detention of Farid Bamouhammad and the resulting decline in his mental health. This former prisoner suffers from Ganser syndrome (or “prison psychosis”). The Court found in particular that the manner of execution of Farid Bamouhammad’s detention, involving continuous transfers between prisons and repeated special measures, together with the prison authority’s delay in providing him with therapy and refusal to consider any alternative to custody despite the decline in his state of health, had subjected him to distress of an intensity exceeding the inevitable level of suffering inherent in detention. The level of seriousness required for treatment to be regarded as degrading, within the meaning of Article 3, had thus been exceeded. Furthermore, the Court recommended under Article 46 (binding force and execution of judgments) that Belgium should introduce a remedy under Belgian law for prisoners to complain about transfers and special measures such as those imposed on Mr Bamouhammad.

Russian law should have provided free legal assistance to a pensioner in proceedings against her for participating in a marchcase of Mikhaylova v. Russia - violations of Article 6 §§ 1 and 3 (right to a fair trial/right to free legal assistance) of the Convention - The case concerned administrative offence proceedings under Russian law and the right to free legal assistance in such proceedings. Ms Mikhaylova complained that she had not, and could not, benefit from free legal assistance as Russian law excluded this possibility in administrative offence cases. The Court was satisfied that the administrative proceedings brought against Ms Mikhaylova could be classified as “criminal” within the meaning of Article 6 of the European Convention. In particular, the criminal sphere of Article 6 was applicable to the case against Ms Mikhaylova concerning the offence of taking part in an unlawful public gathering, even though the offence did not involve a custodial sentence but a relatively low fine. This was, in particular, because the fine imposed on Ms Mikhaylova had been punitive and deterrent in nature, which was one of the characteristics of criminal penalties. One of the fundamental features of a fair trial under the European Convention was the right of everyone charged with a criminal offence to be effectively defended by a lawyer; however, the Russian Code of Administrative Offences had not provided Ms Mikhaylova, a pensioner with no legal or other relevant training, with the possibility to obtain free legal assistance at any stage or in any form in the proceedings against her. Given a certain degree of complexity in the cases against Ms Mikhaylova, as well as what was at stake for her, namely 15 days’ detention (for the first offence) and her right to freedom of assembly (as concerned the second offence), the Court considered that she should have been provided with free legal assistance.

Domestic courts should have ensured respect for a father’s right of contact with his childcase of Bondavalli v. Italy - violation of Article 8 (right to respect for private and family life) of the Convention - The case concerned the applicant’s inability to exercise fully his right of contact with his son on account of negative reports by the Scandiano social services, with which the mother had professional links. The Court noted that in spite of several applications lodged by Mr Bondavalli and a number of assessments produced by him, according to which he was not suffering from any psychological problems, the domestic courts had continued to entrust the supervision of his right of contact to the Scandiano social services. The Court found in particular that the domestic courts had not taken any appropriate measure to protect Mr Bondavalli’s rights and to take his interests into account. In view of the irremediable consequences of the passage of time on the relationship between the child and his father, the Court took the view that it was for the domestic authorities to re-examine Mr Bondavalli’s right of contact, in a timely manner, taking into account the best interests of the child.

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