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

Thursday, 23 June 2016

This week in Strasbourg - A roundup of the European Court of Human Rights' case law - 2016 - week 25



The conviction of journalists who illegally intercepted radio communications between law-enforcement officers did not infringe their right to freedom of expression - In the case of Brambilla and Others v. Italy  the European Court of Human Rights held, unanimously, that there had been no violation of Article 10 (freedom of expression) of the European Convention on Human Rights.
The case concerned the conviction of three journalists who intercepted radio communications between carabinieri in order to arrive quickly at crime scenes and report on them for their local newspaper. Stressing the notion of responsible journalism and noting that the decisions of the domestic courts had been duly reasoned and had focused primarily on the need to protect national security and prevent crime and disorder, the Court found in particular that the courts had made an appropriate distinction between on the one hand the duty of the three journalists to comply with domestic law, which prohibited in general terms the interception by any persons of communications not addressed to them, including those of the law-enforcement agencies, and on the other hand the pursuit of their journalistic activities, which had not been restricted per se. The Court also noted that the penalties ordered by the domestic courts, consisting in the seizure of the radio equipment and the imposition of custodial sentences, had not been disproportionate, as the sentences of the three journalists had been suspended and the authorities had not prohibited them from bringing news items to the public’s attention.


Criminal conviction of former chairman of Georgia’s aviation agency was not based on sufficient reasons - In the case of Tchankotadze v. Georgia the ECtHR held, unanimously, that there had been: a violation of Article 5 § 1 (right to liberty and security) of the European Convention on Human Rights, and a violation of Article 6 § 1 (right to a fair trial).
The case concerned the pre-trial detention of the former the chairperson of the Civil Aviation Agency (CAA) of Georgia and his criminal conviction of abuse of power. The ECtHR observed that the Georgian authorities had prosecuted Mr Tchankotadze for his failure to abide by a judgment of the Constitutional Court of January 2003, which had allegedly banned the CAA from charging any fees to civil aviation companies. However, the ECtHR noted in particular that, having regard to the reasoning of the January 2003 judgment, it could not be concluded that the Constitutional Court had entirely forbidden the CAA from entering into service agreements with civil aviation companies. The ECtHR therefore found it difficult to understand that the trial court, when convicting Mr Tchankotadze, had not given any meaningful answer to his defence argument that he had merely followed the Constitutional Court’s indication to enter into such contractual relationships.

The circumstances surrounding the unacknowledged detention of a police officer suspected of taking a bribe were contrary to the Convention - In the case of Oleynik v. Russia the ECtHR held, unanimously, that there had been: a violation of Article 5 § 1 (right to liberty and security) of the European Convention on Human Rights, a violation of Article 3 (prohibition of inhuman or degrading treatment) under its substantive and procedural heads, and a violation of Article 8 (right to respect for private and family life).
The case related to the allegations of ill-treatment made by Mr Oleynik, a police officer suspected of soliciting a bribe, the lack of an effective investigation in that regard, the recording of his conversations and his unacknowledged detention on the premises of the Federal Security Bureau.
The Court found in particular that Mr Oleynik had been subjected to unacknowledged detention in the absence of a report on his apprehension, and that this situation amounted to a complete negation of the guarantees that had to be afforded to persons deprived of their liberty and constituted an extremely serious breach of Article 5.
The Court further found that Mr Oleynik had been the victim of inhuman and degrading treatment, since the authorities had not succeeded in providing a plausible explanation as to the origin of the injuries recorded by the hospital on the day of his release and no effective investigation had been carried out in that regard.
Lastly, the Court found that the interference with Mr Oleynik’s right to respect for his private and family life had not been in accordance with the law within the meaning of Article 8 § 2 of the Convention, as the use of the recordings of his conversations had not been accompanied by adequate safeguards against various possible abuses.

The premature termination of the President of the Hungarian Supreme Court’s mandate on account of his criticisms of legislative reforms was contrary to the Convention - In the case of Baka v. Hungary the ECtHR held that there had been: by 15 votes to two, a violation of Article 6 § 1 (right of access to a court) of the European Convention on Human Rights, and by 15 votes to two, a violation of Article 10 (freedom of expression).
The case concerned the premature termination of the mandate of Mr Baka, President of the Hungarian Supreme Court, following his criticism of legislative reforms and the fact that he was unable to challenge that decision before a court. His six-year term of office was brought to an end, three and a half years before its normal date of expiry, through the entry into force of the Fundamental Law (the new Constitution), which provided for the creation of the Kúria, the highest court in Hungary, to succeed and replace the Supreme Court.
The Court found, in particular, that Mr Baka had not enjoyed the right of access to a court, since the termination of his term of office resulted from the transitional measures of the new Fundamental Law, constitutional legislation that was not subject to any form of judicial review. In the Court’s opinion, this lack of judicial review had resulted from legislation whose compatibility with the requirements of the rule of law was doubtful. The Court also emphasised the importance of intervention by an authority which was independent of the executive and legislative powers in respect of every decision affecting the termination of a judge’s office.
The Court also held that the premature termination of Mr Baka’s mandate had amounted to an interference with his right to freedom of expression, given that it resulted from the opinions and criticisms that he had expressed publicly, in his professional capacity, on matters of general interest; it defeated the purpose of maintaining the independence of the judiciary; it had undoubtedly had a chilling effect not only on Mr Baka but also on other judges and court presidents, dissuading them from participating in future in public debate on legislative reforms affecting the courts and matters concerning the independence of the judiciary; and, from a procedural perspective, the restrictions on the right to freedom of expression had not been accompanied by effective and adequate safeguards against abuse.

Inadequate review by the Supreme Court of Justice of disciplinary decisions of the High Council of the Judiciary - In the cases of Ramos Nunes de Carvalho E Sá v. Portugal and Tato Marinho Dos Santos Costa Alves Dos Santos and Figueiredo v. Portugal, the ECtHR held, unanimously, that there had been: a violation of Article 6 § 1 (right to a fair trial) of the European Convention on Human Rights in respect of three judges.
The case concerned disciplinary proceedings brought against three judges on conclusion of which the High Council of the Judiciary (HCJ) imposed disciplinary penalties, and the review carried out by the Supreme Court of Justice as an appeal body.
Observing that within the HCJ, apart from a few exceptions, judges formed a minority of the members of the formation having examined MsRamos Nunes de Carvalho E Sá’s case the Court found this situation to be problematical with regard to Article 6 § 1 of the Convention and that the independence and impartiality of the HCJ could be open to doubt.
The Court also held that, with regard to the three judges, the review carried out by the Supreme Court of Justice of the disciplinary decisions of the HCJ had been insufficient, the Supreme Court having failed to review the facts disputed by the applicants despite these being substantial arguments that were important for the outcome of the proceedings.
The Court held, lastly, that in the case of Ms Ramos Nunes de Carvalho E Sá, the domestic authorities had failed to secure the guarantees of a public hearing, thus hindering her ability to defend her case and call a witness and failing to ensure the safeguards of a fair hearing.

Swiss authorities should have verified that UN sanctions listings were not arbitrary - In the Grand Chamber judgment in the case of Al-Dulimi and Montana Management Inc. v. Switzerland the ECtHR held, by a majority, that there had been: a violation of Article 6 § 1 (right to a fair hearing) of the European Convention on Human Rights.
The case concerned the freezing of the assets in Switzerland of Mr Al-Dulimi and the company Montana Management Inc. pursuant to UN Security Council Resolution 1483 (2003), which provided for sanctions against the former Iraqi regime.
The Court found that none of the provisions of Resolution 1483 (2003) expressly prohibited the Swiss courts from verifying, to ensure respect for human rights, the measures taken at national level to implement the Security Council’s decisions. The inclusion of individuals and entities on the lists of persons subject to the UN sanctions entailed practical interferences that could be extremely serious for the Convention rights of those concerned.
In the Court’s view, before taking those measures the Swiss authorities had a duty to ensure that the listings were not arbitrary. The Federal Court had merely verified that the applicants’ names actually appeared on the Sanctions Committee’s lists and that the assets concerned belonged to them. The applicants should, on the contrary, have been given at least a genuine opportunity to submit appropriate evidence to a court, for examination on the merits, to seek to show that their inclusion on the lists had been arbitrary. Consequently, the very essence of their right of access to a court had been impaired.
Lastly, noting that the UN sanctions system, and in particular the procedure for the listing of individuals and legal entities and the manner in which delisting requests were handled, had received very serious, reiterated and consistent criticisms, the Court found that access to the delisting procedure could not therefore replace appropriate judicial scrutiny at the level of the respondent State or even partly compensate for its absence.

Refusal by Swiss courts to hear a case alleging torture committed in Tunisia had not violated the right of access to a tribunal - In the case of Nait-Liman v. Switzerland the ECtHR held, by a majority, that there had been: no violation of Article 6 § 1 (right of access to a court) of the European Convention on Human Rights
The case concerned the refusal of the Swiss civil courts to examine Mr Naït-Liman’s civil claim for compensation in respect of the non-pecuniary damage caused by his alleged torture in Tunisia.
The Court found that the decision of the Swiss courts to decline jurisdiction to hear Mr Naït-Liman’s civil action despite the absolute prohibition on torture under international law had not violated his right of access to a court, had pursued legitimate aims and had been proportionate to those aims. It followed that there had been no violation of the right of access to a court concerning both the action against Tunisia and the action against A.K., the then Tunisian Minister of the Interior.

Revocation of citizenship was not arbitrary and did not have disproportionate consequences - In the case of Ramadan v. Malta the ECtHR held, by five votes to two, that there had been: no violation of Article 8 (right to respect for private and family life) of the European Convention on Human Rights.
The case concerned the revocation of an acquired citizenship. Mr Ramadan (the applicant), originally an Egyptian citizen, acquired Maltese citizenship following his marriage to a Maltese national. It was revoked by the Minister of Justice and Internal Affairs following a decision by the relevant domestic court to annul the marriage on the ground that Mr Ramadan’s only reason to marry had been to remain in Malta and acquire Maltese citizenship.
In the circumstances of Mr Ramadan’s case, the Court found that the decision depriving him of his citizenship, which had had a clear legal basis under the relevant national law and had been accompanied by hearings and remedies consistent with procedural fairness, had not been arbitrary. Besides, Mr Ramadan, who was not threatened with expulsion from Malta, had nonetheless been able to pursue his business activities and to reside in Malta and it had still been open to him to apply for a work permit and a residence permit there, which could eventually also make him eligible for citizenship. Lastly, he had not sufficiently convinced the Court that he had relinquished his Egyptian nationality nor demonstrated that he would not be able to re-acquire it if he had done so.

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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