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

donderdag 27 juni 2013

This week in Strasbourg - A roundup of the European Court of Human Rights' case law - week 26

Blogpost written by Marc de Werd -  Courtesy Press Service of the European Court of Human Rights in Strasbourg


The cases of Niculescu v. Romania and Valentino Acatrinei v. Romania concern criminal proceedings brought against a former lawyer and judge for corruption as a result of telephone tapping by the Romanian Intelligence Service. Both applicants complain that the criminal proceedings brought against them were unfair and allege that the telephone tapping of their conversations used as evidence to convict them was illegal. The Court found a violation of Article 8 in respect of both applicants. It ruled before that the system in place in Romania for telephone tapping on grounds of national security lacked proper safeguards and thus breached the requirements of Article 8.


Medical failures too can constitute a violation of Article 2. Süleyman Ege, is a Turkish national. On 26 January 2001 Mr Ege’s brother went to Gazi Hospital in Ankara. After examining him the doctors suggested that he might have motor neurone disease and started treating him pending the final diagnosis. On 25 February 2001 he was admitted to the emergency department at Gazi Hospital for respiratory failure, in a life-threatening condition. The doctors diagnosed Guillain-Barré syndrome, an auto-immune inflammatory disorder of the peripheral nervous system. Mr Ege’s brother died on 9 March 2001. The Court held that the circumstances of his brother’s death at Ankara University Hospital entailed a violation of Article 2 because the investigation to Mr Ege's brother's death had been ineffective:
"La Cour rappelle que l’obligation procédurale découlant de l’article 2 de la Convention impose aux Etats l’instauration d’un système judiciaire efficace et indépendant capable, en cas de décès d’un individu se trouvant sous la responsabilité de professionnels de la santé – qu’ils relèvent du secteur public ou du secteur privé – d’établir la cause du décès et d’obliger les responsables éventuels à répondre de leurs actes."


Deportation of failed asylum seekers originally from cities in northern Iraq would not breach their human rights as they could relocate to other regions. That was decided in the cases of A.G.A.M., D.N.M., M.K.N., M.Y.H. andOthers, N.A.N.S., N.M.B., N.M.Y. and Others and S.A. v. Sweden. The Court found in particular that, if removed to Iraq, the applicants would not be at risk as a result of the general situation in the country which was slowly improving. Furthermore, although there was evidence to show that the applicants’ personal circumstances (cases D.N.M. and S.A.) and their belonging to a vulnerable minority (the other six cases) would expose them to a real risk to their lives and/or of inhuman or degrading treatment if removed, the Court held that all ten applicants could reasonably relocate to other regions in Iraq such as Kurdistan in the north (in the six cases concerning Iraqi Christians) or to southern and central Iraq. 

Asylum cases - always - are hard cases to decide. As the dissenting opinion of judge Power-Forde joined by judge Zupančič shows:

"Having regard to what the applicant has already endured—the loss of his home, the death of his son, the flight of his family, the assaults upon his wife, the fracturing of their relationship and the ultimate reunification of his family—the suffering that would be imposed upon him by separating him, once again, from his family and his newborn child and by forcing him to return to Iraq—would, to my mind, cross the threshold of suffering required by Article 3. (-)
To my mind, given what this applicant has already endured it would be inhuman and degrading to separate him once again from his immediate family, which he has finally managed to hold together despite the trauma of war. The additional suffering that this would entail would be sufficient, to my mind, to break his moral and psychological resistance and would extend beyond the level permitted by Article 3 of the Convention.
The expulsion of a person on the basis that internal flight relocation is available may, in altogether different circumstances, be compatible with Article 3. However, having regard to the circumstances of this applicant’s case, his expulsion to Iraq would not, in my view. be compatible with that Article of the Convention.
It is formalistic in the extreme to expect that the applicant should be forced to leave his wife and children, once again, purely for the purposes of travelling to the Kurdish region so that, from there, he may contact a Swedish Embassy and apply for family reunification."
In the aforementioned M.K.N. case the Court had to decide on the applicant's claim that he is a homosexual (and therefore his life would be in danger in the Kurdistan Region). The Court however did not believe him:
"Turning to the applicant’s statement that he had had a sexual relationship with another man and that, as a consequence, the Mujahedin was looking for him in 2009 and that they had killed his partner, the Court is aware of the very difficult situation for real or perceived homosexuals in Iraq and that these difficulties are present also in the Kurdistan Region. It notes, however, that the applicant has expressed the intention of living with his wife and children. More importantly, the Court has regard to the fact that, in the domestic proceedings, the applicant did not make this claim until he appealed against the Migration Board’s negative decision on his asylum application, more than one year after his arrival in Sweden. Moreover, no mention of the relationship in question was made in the present proceedings before he replied to the Government’s observations, almost a year and a half after lodging the application to the Court. In this connection, it is noteworthy that, in that application, he stated that there were threats against him emanating from Al-Tawahid and Al-Jihad, but did not even mention the Mujahedin. The Court agrees with the Migration Court that the applicant did not give a reasonable explanation for the delay in making this claim in the domestic proceedings. Having regard to all the circumstances, including the similar delay in the present proceedings, the Court considers that the applicant’s claim concerning the homosexual relationship is not credible. "
On this subject read Paul Johnson's intriguing blog post  How do you 'prove' homosexuality to the European Court of Human Rights? M.K.N. v Sweden


In the case of Vassis and Others v. France the European Court of Human Rights held that drug traffickers detained on the high seas for 18 days without judicial supervision should have been brought before a judicial authority immediately they arrived in France. The case concerned drug-trafficking suspects who were placed in police custody for 48 hours prior to their first appearance before a judicial authority, having already been detained on the high seas for 18 days without any supervision by a judge. Comment by Nicolas Hervieu: Droit à la liberté et à la sûreté (Art. 5 CEDH): Nouveau coup de semonce européen sur la garde à vue et le rôle du parquet français Garde à vue et rétention en mer


In Kaçiu and Kotorri v. Albania the Court found a violation of Article 6 § 1 as regards the admission and use of statements obtained in breach of Article 3. The case essentially concerns Mr Kaçiu’s allegation that he was brutally beaten during police questioning in April 2000 in order to make him confess to his and Mr Kotorri’s involvement in the murders. With reference to Harutyunyan v. Armenia, Othman (Abu Qatada) v. the United Kingdom and Gäfgen v. Germany, the Court recalls:
"that the use of witnesses’ statements which had been extracted under torture, as had been established by the domestic courts, and which had been used at the applicant’s trial to secure his conviction, rendered the trial as a whole unfair. In the case of Othman (Abu Qatada) v. the United Kingdom, with regard to an alleged flagrant denial of justice in respect of the applicant facing deportation to Jordan to stand trial, the Court ruled that the admission of co-defendants’ statements, which had been obtained by torture and incriminated the applicant, would constitute a breach of Article 6 of the Convention in the event of the applicant’s deportation and trial in Jordan.The Court therefore concludes that the admission in evidence of incriminating statements obtained from a third party as a result of torture renders the proceedings as a whole unfair, irrespective of whether such evidence was decisive for securing the applicant’s own conviction. Such evidence should not be afforded the cloak of legality and used at the trial of and for the conviction of the accused as that would irretrievably damage the fairness of the trial."
Judge Bianku however, in his concurring opinion, believes:
"that the Chamber should have found a violation of Article 6 § 1 of the Convention without having to reach, as a preliminary matter, a conclusion that the first applicant had been subjected to torture, which I consider to be an unsafe conclusion on the facts of the case. The fact that the first applicant was ill-treated contrary to Article 3 would have been of itself sufficient to ground a breach of Article 6 in respect of both applicants. This solution would not have changed anything for the applicants, but it would have produced a result which would have been clearer and more consistent with our case-law under Articles 3 and 6."


Access to information obtained via electronic surveillance by the Serbian Intelligence Agency is the issue in Youth Initiative For Human Rights v. Serbia. The Court held, unanimously, that there had been a violation of Article 10 (freedom of expression).   The applicant, Youth Initiative for Human Rights, is a non-governmental organisation set up in 2003 and based in Belgrade. It monitors the implementation of transitional laws with a view to ensuring respect for human rights, democracy and the rule of law. Relying on Article 10 the applicant organisation complained that the Serbian Intelligence Agency denied it access to information on how many people it had subjected to electronic surveillance in 2005, despite a final and binding decision ordering it to make that information available. The Court concluded that the agency’s obstinate reluctance to comply with a final and binding order to provide information it had obtained was in defiance of domestic law and was tantamount to being arbitrary.

"The exercise of freedom of expression may be subject to restrictions, but any such restrictions ought to be in accordance with domestic law. The Court finds that the restrictions imposed by the intelligence agency in the present case did not meet that criterion. The domestic body set up precisely to ensure the observance of the Freedom of Information Act 2004 examined the case and decided that the information sought had to be provided to the applicant. It is true that the intelligence agency eventually responded that it did not hold that information, but that response is unpersuasive in view of the nature of that information (the number of people subjected to electronic surveillance by that agency in 2005) and the agency’s initial response. The Court concludes that the obstinate reluctance of the intelligence agency of Serbia to comply with the order of the Information Commissioner was in defiance of domestic law and tantamount to arbitrariness."
For a good comment: Dirk Voorhoof Article 10 of the Convention includes the right of access to data held by an intelligence agency


Gáll v. Hungary is a tax case. The applicant, Eszter Mária Gáll,was a civil servant for the Hungarian Tax Authority for more than 30 years until being dismissed in March 2011. Relying on Article 1 of Protocol No. 1 (protection of property) and Article 13 (right to an effective remedy) of the Convention, she complains that part of her severance pay was taxed at a rate of 98%. The Court held there had beena violation of Article 1 of Protocol No. 1: 

"The Court concludes that the specific measure in question, as applied to the applicant, even if meant to serve social justice, cannot be justified by the legitimate public interest relied on by the Government. It affected the applicant (and other dismissed civil servants in a similar situation) being in good-faith standing and deprived her of the larger part of a statutorily guaranteed, acquired right serving the special social interest of reintegration. In the Court’s opinion, those who act in good faith on the basis of law should not be frustrated in their statute-based expectations without specific and compelling reasons. Therefore the measure cannot be held reasonably proportionate to the aim sought to be realised."
Kirovogradoblenergo, PAT v. Ukraine is not a case about taxes although you it looks like one. The applicant company, Kirovogradoblenergo, PAT, is a Ukrainian joint stock private electricity supply company. The company complains that, according to domestic law, judges are only required to pay 50% of their electricity bills and that the State refuses to reimburse the company the remaining 50%. The applicant company sucessfully relied on Article 1 of Protocol No. 1 (protection of property). Comment by Rosalind English Sparks fly in the Ukraine

Also read the ECtHR's Fact sheet on Taxation


 In its decision in the case of Stichting Mothers of Srebrenica and Others v. the Netherlands the Court declared the application inadmissible. The case concerned the complaint by relatives of victims of the 1995 Srebrenica massacre, and by an NGO representing victims’ relatives, of the Netherlands courts’ decision to declare their case against the United Nations (UN) inadmissible on the ground that the UN enjoyed immunity from national courts’ jurisdiction. The applicants alleged in particular that their right of access to court had been violated by that decision.

The Court found that the NGO had not itself been affected by the matters complained of and could thus not claim to be a “victim” of a violation of the Convention. As regards the individual applicants, the Court rejected the complaint as manifestly illfounded, as the granting of immunity to the UN served a legitimate purpose. It held in particular: that bringing military operations under Chapter VII of the Charter of the UN within the scope of national jurisdiction would mean allowing States to interfere with the key mission of the UN to secure international peace and security; that a civil claim did not override immunity for the sole reason that it was based on an allegation of a particularly grave violation of international law, even genocide; and, that in the circumstances the absence of alternative access to a jurisdiction did not oblige the national courts to step in.

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